DocketNumber： 2010AP003016-CR
Judges： Prosser, Bradley, Crooks, Roggensack, Ziegler, Abrahamson
Filed Date： 7/24/2014
Status： Precedential
Modified Date： 11/16/2024
¶ 1. This is a review of an unpublished decision of the court of appeals, State v. Subdiaz-Osorio, No. 2010AP3016-CR, unpublished slip op. (Wis. Ct. App. Nov. 15, 2012).
¶ 2. The case involves the increasingly busy intersection between Fourth Amendment privacy considerations and the constant advancement of electronic technology. The court must determine whether law enforcement officers may contact a homicide suspect's cell phone provider to obtain the suspect's cell phone location information without first securing a court order based on probable cause. The court also must consider whether the suspect effectively invoked his right to counsel during an interrogation when he asked how he could get an attorney rather than affirmatively requesting the presence of counsel.
¶ 3. The homicide here occurred in Kenosha, Wisconsin. After fatally stabbing his brother, Nicolas Subdiaz-Osorio (Subdiaz-Osorio)
¶ 4. The Kenosha County Circuit Court, Mary K. Wagner, Judge, denied Subdiaz-Osorio's motions to suppress the evidence obtained after his arrest in Arkansas, accepted his plea to an amended charge, and entered a judgment of conviction for first-degree reckless homicide. The court of appeals affirmed, determining that any error by the circuit court was harmless because it was beyond a reasonable doubt that Subdiaz-Osorio would have entered the same plea even if the evidence obtained after his arrest had been suppressed.
¶ 5. This case presents two issues for review. First, did law enforcement agents violate Subdiaz-Osorio's Fourth Amendment rights when they procured his cell phone location information without first obtain
¶ 6. The court is deeply divided on these issues as evidenced by the number of separate writings.
¶ 7. This opinion is the lead opinion. It will outline the legal conclusions of the writer, including a mandate that the decision of the court of appeals is affirmed. Justice Ann Walsh Bradley, Justice N. Patrick Crooks, Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman concur solely in the mandate.
¶ 8. The following conclusions are my conclusions.
¶ 9. First, I assume for this case, without deciding the issue, that people have a reasonable expectation of privacy in their cell phone location data and that when police track a cell phone's location, they are conducting a search under the Fourth Amendment. I make these assumptions to avoid delivering a broad pronouncement about reasonable expectations of privacy in the rapidly developing field of wireless technology.
¶ 11. Third, I conclude that Subdiaz-Osorio failed to unequivocally invoke his Fifth Amendment right to counsel when he said, "How can I do to get an attorney here because I don't have enough to afford for one." Subdiaz-Osorio asked how he could get an attorney, which could lead a reasonable officer to wonder whether Subdiaz-Osorio was affirmatively asking for counsel to be present during the custodial interrogation or simply inquiring about the procedure for how to obtain an attorney. See State v. Jennings, 2002 WI 44, ¶¶ 27-33, 252 Wis. 2d 228, 647 N.W.2d 142. Moreover, Subdiaz-Osorio asked how he could get an attorney immediately after a discussion about the extradition process. The context is important, and the interviewing officers could reasonably believe that Subdiaz-Osorio was asking how to get an attorney for his extradition hearing rather than asking for counsel to be present at the interrogation. Therefore, the interviewing officers did not violate Subdiaz-Osorio's Fifth Amendment rights when they continued to question him after he asked about how he could get an attorney.
¶ 12. In February 2009 Subdiaz-Osorio lived at a trailer park in Kenosha with his brother, Marco Antonio Ojeda-Rodriguez (Ojeda-Rodriguez). Two other men, Liborio DeLaCruz-Martinez (Liborio) and Damien DeLaCruz-Martinez (Damien), lived with the brothers.
¶ 13. Subdiaz-Osorio was 27 years old and had been living in Kenosha for about two years. The week before the homicide, Subdiaz-Osorio and OjedaRodriguez had argued because their employer had laid off Ojeda-Rodriguez but allowed Subdiaz-Osorio to keep his job. Rankled by Ojeda-Rodriguez's bitterness, Subdiaz-Osorio threatened to stab Ojeda-Rodriguez. Liborio reported that while they were eating in the kitchen, Subdiaz-Osorio held up a steak knife and said that if Ojeda-Rodriguez kept bothering him about being laid off, Subdiaz-Osorio would stab him.
¶ 14. The bad blood culminated in the late evening and early morning hours of Saturday, February 7 and Sunday, February 8, 2009.
¶ 15. When Ojeda-Rodriguez entered, he and Subdiaz-Osorio began arguing in Spanish. Lanita could tell that both Subdiaz-Osorio and Ojeda-Rodriguez had been drinking, but because she speaks little Spanish, she could not understand what they said. The argument lasted less than two minutes and ended with OjedaRodriguez punching Subdiaz-Osorio in the face. Subdiaz-Osorio fell into his dresser, then got up to retrieve two knives from his closet. Lanita later testified that Subdiaz-Osorio had a knife in each hand and that he stabbed Ojeda-Rodriguez in the chest after Ojeda-Rodriguez said something aggressive in Spanish and pounded on his chest. As Ojeda-Rodriguez continued to pound his chest, Subdiaz-Osorio lifted one of the knives and brought it down toward Ojeda-Rodriguez's face, cutting him just under the left eye. The blade pierced Ojeda-Rodriguez's left eye socket and entered the right hemisphere of his brain. Ojeda-Rodriguez fell back into the wall, and Subdiaz-Osorio began kicking him in the face and punching him between kicks. When he stopped beating Ojeda-Rodriguez, Subdiaz-Osorio turned to Lanita and asked her to push one of his teeth back into place because it had probably been dislodged when Ojeda-Rodriguez hit him. Lanita refused, and Subdiaz-Osorio turned back to Ojeda-Rodriguez and punched him two more times. Lanita pushed Subdiaz-Osorio off of Ojeda-Rodriguez and into the doorway.
¶ 16. After Subdiaz-Osorio left the room, Liborio and Damien arrived and entered the bedroom. Lanita said that Liborio and either Damien or Subdiaz-Osorio carried Ojeda-Rodriguez to Ojeda-Rodriguez's bedroom.
¶ 17. After the stabbing, Subdiaz-Osorio asked Liborio for help bandaging Ojeda-Rodriguez, but when Liborio suggested that they call the police, Subdiaz-Osorio refused and said that he did not want to be arrested. Subdiaz-Osorio then asked his girlfriend, Estella Carreno-Lugo (Estella), to help him take care of Ojeda-Rodriguez. Estella came to Subdiaz-Osorio's trailer and helped bandage Ojeda-Rodriguez's wounds and clean him up. She and Subdiaz-Osorio then left the trailer for her home. Despite Estella's efforts, Liborio found Ojeda-Rodriguez dead the next morning. At 9:27 a.m. on February 8, Liborio, Damien, and Norma Romero (Norma) reported to the front counter of the Kenosha Safety Building that there had been a stabbing.
¶ 18. The police found Ojeda-Rodriguez's body battered and stabbed with "purple swelling" on his face and eyes and bandages on his left cheek and shoulder. Emergency Medical Services personnel confirmed that Ojeda-Rodriguez was dead. The medical examiner noted that there was a fatal stab wound under OjedaRodriguez's left eye and two stab wounds on OjedaRodriguez's left shoulder. The fatal stab occurred when Subdiaz-Osorio thrust the knife into Ojeda-Rodriguez's left eye, causing the blade to penetrate OjedaRodriguez's brain three to four inches.
¶ 20. Officer Pablo Torres
¶ 21. After compiling essential information from the witnesses, the Kenosha police put a temporary want
¶ 22. The notification of a temporary want was old technology. Kenosha police also wanted to track Subdiaz-Osorio's cell phone location to find the vehicle in which he was travelling. Sometime after 12 p.m., having heard nothing from CIB and NCIC, they contacted the Wisconsin Department of Justice, Division of Criminal Investigation (DCI), and asked DCI to seek information from Sprint Nextel (Sprint), Subdiaz-Osorio's cell phone provider. DCI filled out and submit
¶ 23. Subdiaz-Osorio's Sprint Nextel Privacy Policy (Policy) contains a "Disclosure of Personal Information" section that reads:
We disclose personal information when we believe release is appropriate to comply with the law (e.g., legal process, E911 information)... or if we reasonably believe that an emergency involving immediate danger of death or serious physical injury to any person re*57 quires disclosure of communications or justifies disclosure of records without delay.
"[Pjersonal information" is "information that is directly associated with a person such as his or her name, address, telephone number, e-mail address, activities and preferences." The Policy also refers to Customer Proprietary Network Information (CPNI), which is "information Sprint Nextel obtains or creates when it provides wireline or mobile wireless telecommunications services to a customer." Under the Policy, location information is CPNI and is protected as described in the above block quotation. The Policy informs the subscriber that the "network knows the general location of your phone or wireless device whenever it is turned on." It goes on to say in a section titled "Presence, Location and Tracking Information" that in the event of an emergency, "The law also permits us to disclose the call location of a device on our network without a user's consent. . . ."
¶ 24. In addition to pursuing the cell phone location information, the police applied for a search warrant to search Subdiaz-Osorio's trailer. Detective Kaiser later stated that it usually takes between two and three hours to draft a search warrant and have it signed by a judge. This case was no different. Kenosha County Circuit Judge Bruce Schroeder issued the search warrant for the trailer on February 8 at 2:37 p.m. Judge Schroeder happened to be in his car when he was called and was able to stop at the police station relatively quickly. After obtaining the warrant, the Kenosha police searched the trailer around 3 p.m. The police did not find any knives that could have been the murder weapon at the scene of the crime, and thus did not know whether Subdiaz-Osorio had the knives with him.
¶ 26. On Monday, February 9, Detective Kaiser traveled to Arkansas with Detective May and Officer Torres. The Arkansas police obtained a search warrant for the car at 2:34 p.m., and Detective Kaiser processed the car for evidence.
¶ 27. Officer Torres and Detective May interviewed Subdiaz-Osorio in the Mississippi County Jail in Luxora. The room was well-lit and roughly eight feet by eight feet in size with a table separating the suspect from the two officers. When Officer Torres entered the interrogation room, he removed Subdiaz-Osorio's handcuffs, and Subdiaz-Osorio accepted a Coke at the beginning of the interview. Subdiaz-Osorio told the police that he preferred that the interview be in Spanish, so that Officer Torres provided translation assistance. Officer Torres believed that Subdiaz-Osorio understood
¶ 28. The officers made an audiovisual recording of the interview, portions of which were later played in court and translated contemporaneously from Spanish into English. During the interview, Subdiaz-Osorio asked if Officer Torres would be taking him back to Kenosha, and Officer Torres replied that he and Detective May would not be taking Subdiaz-Osorio back. Officer Torres explained the extradition process:
We aren't going to take you back to Kenosha. What happens is that you have to appear in front of a judge .... And after you appear in front of a judge here in Arkansas then they will find out if there is enough reason to send you back to Kenosha,... but we are not going to do that right now. We are not going to know that right now....
Immediately after Officer Torres explained how extradition would work in the above quotation, Subdiaz-Osorio asked, "How can I do to get an attorney here because I don't have enough to afford for one." Officer Torres responded, "If you need an attorney... by the time you're going to appear in the court, the state of Arkansas will get an attorney for you . . . ." Then their interview continued. Subdiaz-Osorio was very coopera
¶ 29. At no point in the interview in Arkansas did Officer Torres or Detective May threaten, coerce, or make any promises to Subdiaz-Osorio to get him to sign the Waiver of Constitutional Rights or the consent to obtain DNA and trace evidence.
¶ 30. On February 9, after the police had collected a substantial amount of evidence against him, Subdiaz-Osorio was charged with first-degree intentional homicide contrary to Wis. Stat. §§ 940.01(l)(a) (2009-10),
¶ 31. Officer Torres and Detective May interviewed Subdiaz-Osorio again on February 22, this time at the Kenosha Police Department, after Subdiaz-Osorio's return to Wisconsin. Again, the officers read Subdiaz-Osorio the Waiver of Rights form, and Subdiaz-Osorio consented and signed it. Subdiaz-Osorio also signed a "Consent to Search" form that allowed the Kenosha police to search his trailer. The Kenosha police applied for and obtained another search warrant for the trailer, but they did not need the warrant because they had Subdiaz-Osorio's consent. On February 22 Subdiaz-Osorio accompanied Detective May, Officer Torres, and other Kenosha police personnel to the scene of the
¶ 32. On April 1, 2009, Subdiaz-Osorio filed a pretrial motion to suppress all statements and evidence that the police obtained after his arrest.
¶ 33. On June 26, 2009, Judge Wagner denied Subdiaz-Osorio's motion to suppress statements based on the alleged Fourth Amendment violation. Judge Wagner cited United States v. Forest, 355 F.3d 942 (6th Cir. 2004), vacated sub nom. on other grounds, Garner v.
¶ 34. Therefore, Judge Wagner denied all motions to suppress evidence. The State filed an amended information on February 15, 2010, charging Subdiaz-Osorio with first-degree reckless homicide by use of a dangerous weapon contrary to Wis. Stat. §§ 940.02(1) and 939.63(l)(b), and Subdiaz-Osorio pled guilty to the charge in the amended information. The circuit court accepted the plea and found Subdiaz-Osorio guilty of first-degree reckless homicide by use of a dangerous weapon. On June 28, 2010, the circuit court sentenced Subdiaz-Osorio to 20 years of confinement and 15 years of extended supervision.
¶ 35. Subdiaz-Osorio appealed the judgment of conviction and the denial of his suppression motion under Wis. Stat. § 971.31(10).
¶ 36. The court also rejected the argument that without evidence that he fled to Arkansas, Subdiaz-Osorio could have shown that he did not act with utter disregard for life (a required element of first-degree reckless homicide). Id., ¶¶ 6, 9. According to the court of appeals, Subdiaz-Osorio's flight from Wisconsin and his false statement to the police about Ojeda-Rodriguez bringing one or more knives into his room were not especially important evidence in proving that Subdiaz-Osorio was acting with utter disregard; thus, the failure to suppress that evidence did not significantly impact the State's ability to prove that Subdiaz-Osorio acted with utter disregard. Id., ¶¶ 9-11. Finally, the court of appeals noted that the State had a strong eyewitness account of the murder, and Subdiaz-Osorio received a significant benefit in pleading to first-degree reckless homicide. Id., ¶ 12. Therefore, the court of appeals concluded that any error by the circuit court was harmless beyond a reasonable doubt and affirmed the judgment of conviction. Id.
¶ 37. Subdiaz-Osorio petitioned this court for review, which we granted on March 13, 2013.
¶ 38. Whether law enforcement agents have violated a suspect's Fourth or Fifth Amendment rights is a question of constitutional fact. State v. Phillips, 218 Wis. 2d 180, 189-91, 577 N.W.2d 794 (1998); see State v. Brereton, 2013 WI 17, ¶ 17, 345 Wis. 2d 563, 826 N.W.2d 369; State v. Sveum, 2010 WI 92, ¶ 16, 328 Wis. 2d 369, 787 N.W.2d 317. Although the court upholds findings of historical fact unless they are clearly erroneous, constitutional questions are questions of law that this court reviews independently. Brereton, 345 Wis. 2d 563, ¶ 17; Phillips, 218 Wis. 2d at 189-91. In addition, the court applies a de novo standard of review to "determine whether the historical or evidentiary facts establish exigent circumstances" to justify a warrantless search. State v. Richter, 2000 WI 58, ¶ 26, 235 Wis. 2d 524, 612 N.W.2d 29 (citation omitted).
III. DISCUSSION
A. The Current Privacy Landscape
¶ 39. This case involves a brutal killing, but the law enforcement effort to apprehend the killer has implications for citizens at large. Thus, I begin my analysis with a general discussion of privacy and citizens' concerns about protecting personal information in an era when technology is chipping away at traditional notions of privacy.
¶ 40. Privacy is a pillar of freedom. There is great value in being able to enter and withdraw from public spaces and disclose the details of our thoughts and movements at our discretion. We share pieces of our
¶ 41. It would be difficult to overstate the value of privacy:
Privacy is valuable because it is necessary for the proper development of the self, the establishment and control of personal identity, and the maintenance of individual dignity. Without privacy, it not only becomes harder to form valuable social relationships— relationships based on exclusivity, intimacy, and the sharing of personal information — -but also to maintain a variety of social roles and identities. Privacy deserves to be protected as a right because we need it in order to live rich, fulfilling lives, lives where we can simultaneously play the role of friend, colleague, parent and citizen without having the boundaries between these different and often conflicting identities breached without our consent.
Stephen E. Henderson, Expectations of Privacy in Social Media, 31 Miss. C. L. Rev. 227, 233 (2012) (quoting Benjamin Goold, Surveillance and the Political Value of Privacy, 1 Amsterdam L. Forum 3, 3-4 (2009)). Thus, privacy serves more than the individual; it is an integral component of a well-ordered society.
¶ 42. The privacy landscape is shifting as we embrace new technologies. Electronic devices afford us great convenience and efficiency, but unless our law keeps pace with our technology, we will pay for the benefit of our gadgets in the currency of privacy. As we
¶ 43. As Samuel Warren and Louis Brandéis noted presciently well over a century ago, "Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right 'to be let alone.' "
¶ 44. I believe there is room in the law for both, as well as security. Technology brings with it the danger of criminal opportunism. Thus, at times privacy must make room for security, for privacy is worth little if it is overshadowed by fear. There will be times at which privacy must yield to security in order to thwart crimes, from identity theft to terrorism. The Fourth Amend
¶ 45. The balancing is especially important as citizens pay close attention to their privacy rights in the context of wireless technology. As awareness of our dwindling privacy increases, surveys consistently reveal that people are apprehensive about losing privacy with regard to their personal information.
B. Constitutional Protections of Privacy
¶ 46. The Fourth Amendment of the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreason*69 able searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const, amend. IV
C. Judicial Interpretations of Constitutional Protections of Privacy
¶ 47. This case requires the court to consider whether the tracking of Subdiaz-Osorio's cell phone location was a search under the above-quoted constitu
1. Trespassory Searches
¶ 48. Recent decisions from both the United States Supreme Court and this court have utilized the common law trespass theory to analyze whether a search violated the Fourth Amendment. Case law interpreting the Fourth Amendment "was tied to common-law trespass, at least until the latter half of the 20th century." Jones, 132 S. Ct. at 949 (citations omitted). Recently, the Court has turned again to trespass theory, deciding in Jones that government installation of a GPS tracking device under a suspect's Jeep without a valid warrant was a search because the placement of the device was an impermissible physical intrusion. Id. Trespass theory would not be applicable to the effort to
¶ 49. This court has not had the opportunity to analyze whether the tracking of cell phones in complete absence of a warrant implicates a suspect's Fourth Amendment rights, but the court has decided that valid warrants may permit GPS tracking of vehicles. See Brereton, 345 Wis. 2d 563, ¶ 3 (installation of GPS device did not go beyond scope of warrant); Sveum, 328 Wis. 2d 369, ¶ 74 (warrant for GPS tracking was valid and execution of warrant was reasonable). Although those prior cases involved tracking facilitated by technology, the present case falls under the category of a non-trespassory search and does not benefit from an analysis that relies on the trespass theory of Fourth Amendment searches.
¶ 50. This court's opinion in State v. Tate, 2014 WI 89, 357 Wis. 2d 172, 849 N.W.2d 798, discusses the requirements to obtain a warrant for cell phone location tracking.
2. Non-Trespassory Searches
¶ 51. The Supreme Court expanded the traditional concept of a search in 1967 by extending Fourth Amendment protections to circumstances in which technology enabled an invasion of privacy without a trespass. See Katz, 389 U.S. at 360-61 (Harlan, J., concurring) (determining that regardless of trespass, the Fourth Amendment protects a person's "reasonable expectation of privacy"); see also Jones, 132 S. Ct. at 953 ("Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis."). In Katz, the government used evidence of the defendant's incriminating phone conversations that the FBI secretly recorded with a device attached to the outside of a public phone booth.
3. The Cell Phone Policy and the Subjective Expectation of Privacy
¶ 53. The State contends that Subdiaz-Osorio did not have a reasonable expectation of privacy in his cell phone location data because his Sprint Policy said that Sprint would disclose location information to law enforcement in the event of an emergency. A recent federal case from Vermont offers an intriguing analysis of a suspect's subjective expectation of privacy based on his cell phone policy. United States v. Caraballo, 963 F. Supp. 2d 341 (D. Vt. 2013).
¶ 54. In Caraballo, the defendant carried out an execution-style murder when he bound up a woman, shot her in the back of the head, and left her body in the woods. Id. at 343. The victim had been arrested in the past and had told police that she was engaged in drug activity with a man named Frank Caraballo. Id. In her past discussions with police, the victim said that she was very afraid of Caraballo because he would kill her if he knew she was talking to the police, and he had many weapons. Id. Given what they knew about the defendant, the police decided that they would track his cell phone so that they could find and arrest him as quickly
¶ 55. Caraballo argued that the warrantless search of his cell phone location data violated his Fourth Amendment rights. Id. at 342. The court went through a variety of analyses but determined that the defendant did not have a reasonable expectation of privacy in his cell phone location data because his Sprint privacy policy informed him that Sprint may disclose personal information in response to emergencies. Id. at 362-63. Hence, the court said, the defendant knew that the police could track him because the situation was an emergency. Id. at 363. Although the facts of Caraballo and the cell phone policy there are similar to the present case, I choose to decide this case on different grounds because total reliance on Subdiaz-Osorio's Policy to decide this case would be problematic.
¶ 56. First, the Policy in this case is confusing and difficult to interpret. It consists of nine pages that include piecemeal definitions and vague terminology. For example, the Policy creates confusion by defining the term "CPNI" at several different points with varying degrees of specificity.
¶ 57. The Policy is also unclear about what information Sprint will disclose in the event of an emergency. For example, in a paragraph titled "Protection of Sprint Nextel and Others,"
¶ 58. The Policy later says in a section titled "Presence, Location and Tracking Information" that "[Location information derived from providing our voice service, in addition to being covered by this Policy, is CPNI and is protected as described above." Thus, the full definition of CPNI does not come until after the section that discusses disclosure of CPNI. Moreover, it is difficult to see how the customer's CPNI is "protected as described above" as the paragraph above enumerates only circumstances in which information will be disclosed. The "Presence, Location and Tracking Information" section goes on to say that Sprint may disclose "call location" information, but the term "call location," like the phrase "disclosure of communications," misleadingly implies that only location data obtained from a phone call may be disclosed. It is possible that a
¶ 59. In sum, I am reluctant to say that a person loses his reasonable expectation of privacy based on an opaque contract. The Fourth Amendment is complicated enough without introducing contract interpretation into the calculus.
¶ 60. Second, even if the Policy clearly provided that Sprint may disclose location information to law enforcement in an emergency, that language merely governs the conduct of Sprint.
¶ 61. Third, although it is likely that all cell phone policies contain language similar to the Sprint Policy in this case, law enforcement may not know what any given individual's cell phone policy actually says. It is untenable to contend that a search under the Fourth Amendment depends on the specific language in an individual's cell phone policy — that law enforcement may track a cell phone without a warrant, understanding that if the policy does not alert the suspect that he may be tracked, the search will violate the Fourth Amendment.
¶ 62. Fourth, the language in Sprint's Policy mirrors the language in the exigent circumstance exception to the warrant requirement. One example of this exception requires law enforcement to show probable cause and a reasonable belief that there is "a threat to safety of a suspect or others." State v. Hughes, 2000 WI 24, ¶¶ 19, 25, 233 Wis. 2d 280, 607 N.W.2d 621. The Policy says that Sprint discloses information "if we reasonably believe that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure." Thus, both the exigent circumstances exception and the Policy contemplate the government obtaining location data where someone's safety is in jeopardy. However, the exigent circumstances exception contains the additional requirement of probable cause. I believe it is more appropriate to interpret the Policy as permitting the wireless services provider to disclose information in exigent circumstances rather than saying that the clause nullifies a customer's reasonable subjective expectation of privacy.
¶ 64. Finally, I believe it prudent to heed the cautionary advice of the Supreme Court when it comes to determining whether a policy can render an expectation of privacy unreasonable. See Quon, 560 U.S. at 759. In Quon, the Ontario Police Department (OPD) in California distributed to various officers pagers that could send and receive text messages. Id. at 750-51. OPD explicitly informed the officers that messages on the pagers were not private and that the officers should have no expectation of privacy when sending texts on the pagers. Id. at 758. When Police Sergeant Jeff Quon (Quon) challenged the OPD's decision to look at his sexually explicit text messages, claiming a Fourth Amendment violation, the Court decided not to determine whether Quon had a reasonable expectation of privacy in the texts. Id. at 752-53, 760 ("A broad holding concerning employees' privacy expectations vis-a-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on
4. The Objective Reasonableness of the Expectation of Privacy in Cell Phone Location Information
¶ 65. Despite its apparent simplicity, the Katz test's second prong — whether society is prepared to recognize an expectation of privacy as reasonable — has been the subject of much confusion, debate, and analysis, and it is far from an easy touchstone to apply.
¶ 66. Although it is difficult to apply, the interpretation of what society is prepared to recognize as a "reasonable expectation of privacy" is an important part of the analysis under Katz. See Florida v. Riley, 488 U.S.
¶ 67. In accordance with Justice O'Connor's Riley concurrence, the Court later determined that it was presumptively unreasonable for the government to use technology that was not in general public use to conduct a warrantless search that would normally require a physical intrusion of the home subject to the search. Kyllo v. United States, 533 U.S. 27, 40 (2001). In Kyllo, the government's use of thermal imaging to determine whether the defendant's house contained high-intensity lamps used to grow marijuana constituted a search under the Fourth Amendment. Id. at 29, 40. The Court concluded that because the government used a thermal imaging device not in general public use to see details inside a house that would normally require a physical intrusion, the warrantless surveillance was an im
¶ 68. Because the concept of an objective reasonable expectation of privacy is elusive, this opinion makes no definitive pronouncement as to whether society is prepared to recognize as reasonable an expectation of privacy in cell phone location data. Given the widespread apprehension of government intrusion in citizens' electronic personal information, we cannot say that an expectation of privacy in cell phone location data is unreasonable even if it were true that the public is generally aware that cell phone tracking is possible. On the other hand, cell phone location tracking might be better understood and more prevalent than, say, thermal imaging. I need not decide the issue of an objective reasonable expectation of privacy on these facts to decide this case.
D. Exigent Circumstances
¶ 69. Irrespective of whether Subdiaz-Osorio had both a subjective and objective reasonable expectation of privacy in his cell phone location data, and irrespective of whether obtaining that data was a search without a warrant under the Fourth Amendment, I conclude that the tracking of Subdiaz-Osorio's cell phone location fell within the exigent circumstances exception to the warrant requirement. Consequently, the search did not violate Subdiaz-Osorio's Fourth Amendment rights.
¶ 70. Seeking and obtaining the defendant's cell phone location information is assumed to be a search in this opinion because of the privacy implications. Under
¶ 71. The probable cause standard also has been employed when there is "probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense." State v. Henderson, 2001 WI 97, ¶ 19, 245 Wis. 2d 345, 629 N.W.2d 613 (quoting Dalia v. United States, 441 U.S. 238, 255 (1979)) (internal quotation marks omitted); see Warden v. Hayden, 387 U.S. 294, 307 (1967). This formulation may be a more suitable fit for searches of cell phone location information when the primary goal of the search is to obtain information to apprehend the suspect.
¶ 72. The court determines whether there was probable cause by an objective standard and asks whether the police acted reasonably.
¶ 73. Exigent circumstances exist if, "measured against the time needed to obtain a warrant," and under the facts known at the time, it was objectively reasonable for law enforcement to conduct a warrantless search when: (1) law enforcement was engaged in a "hot pursuit"; (2) there was a threat to the safety of either the suspect or someone else; (3) there was a risk of destruction of evidence; or (4) the suspect was likely to flee. Hughes, 233 Wis. 2d 280, ¶¶ 24-25 (citing State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 (1986)). The objective exigent circumstances test asks "whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life,
¶ 74. Kenosha police had probable cause to conduct a search because there was a "fair probability" that evidence of the stabbing would be found at the location of Subdiaz-Osorio's cell phone. Eyewitnesses had informed the police that Subdiaz-Osorio had fatally stabbed his brother less than 24 hours before the search and that he had admitted to the stabbing. Subdiaz-Osorio was now missing but known to have borrowed an automobile. The murder weapon had not been found. Subdiaz-Osorio's cell phone had not been located. There was a fair probability that if Subdiaz-Osorio had his phone, evidence would be found at that location.
¶ 75. Of course, the police wanted to apprehend Subdiaz-Osorio because of the accumulated evidence they had against him, but the police also had a hope and expectation that Subdiaz-Osorio's apprehension would yield additional evidence of the crime. This evidence included the defendant's clothing if he was wearing any of the same clothing he wore at the time of the stabbing, the murder weapon if he had not discarded his knives, and his cell phone if he made calls to additional people to whom he made admissions. The defendant himself could yield DNA evidence and could make inculpatory statements when questioned. Any person accompanying Subdiaz-Osorio would likely have heard incriminating admissions. For instance, the driver of the vehicle, Roberto, would surely be asked why he was driving Subdiaz-Osorio south. Where were they going and why were they going there? Did they avoid major highways at any point during the trip to avoid detection? If so, why?
¶ 77. Moreover, it would be difficult to say that a potentially armed individual who recently committed a homicide did not create a threat to safety. Subdiaz-Osorio argues that stabbing his brother did not automatically support the inference that he was dangerous to others, but police do not have to have conclusive proof that a suspect is likely to harm someone in order to satisfy the exigent circumstances exception. Richter, 235 Wis. 2d 524, ¶ 40
¶ 79. In addition, the police reasonably could have believed that the likelihood that Subdiaz-Osorio would flee created an exigent circumstance. The exigent circumstance exception for a fleeing suspect exists if
¶ 80. It is not clear from the record exactly when Subdiaz-Osorio left Kenosha. Clearly, it was before 10 a.m. on February 8, 2009, because the police began to interview Estella by 10 a.m. It was probably before 9:27 a.m. because three of Subdiaz-Osorio's acquaintances went to the Kenosha Safety Building at 9:27 a.m. Kenosha County borders the State of Illinois so that Subdiaz-Osorio would likely have been in Illinois in less than 15 minutes after he left Estella. He probably would have been able to be in Chicago in less than an hour and a half. Chicago provides multiple forms of transportation out of the area besides automobile—
¶ 81. By the time he was arrested at 6:11 p.m. on February 8, Subdiaz-Osorio was in Arkansas, which meant that he had traveled a significant distance since he left that morning. The police could not have known what method of transportation he would use as he attempted to escape or how quickly he would be able to leave the country if that were his goal. Because time was crucial to apprehend a fleeing suspect, the Kenosha police acted properly in the face of exigent circumstances and could not delay to secure an additional warrant.
E. Constitutional Protections Against Self-Incrimination
¶ 82. In addition to his Fourth Amendment claims, Subdiaz-Osorio argues that Kenosha police violated his Fifth Amendment rights when they continued to question him after he asked about how he could get an attorney. I conclude that Subdiaz-Osorio's question about obtaining an attorney was equivocal, and Officer Torres did not violate Subdiaz-Osorio's Fifth Amendment rights by continuing to question him.
¶ 83. The Fifth Amendment to the United States Constitution reads in part: "No person. . . shall be
¶ 84. Having been advised of his right to an attorney and his right to remain silent, a suspect in custody must clearly invoke those rights. "[A]fter a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." Davis v. United States, 512 U.S. 452, 461 (1994). "If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Jennings, 252 Wis. 2d 228, ¶ 29 (quoting Davis, 512 U.S. at 459). The suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would un
¶ 85. In Davis, the Supreme Court determined that when the suspect said, "Maybe I should talk to a lawyer," it was not an unequivocal request for counsel. Davis, 512 U.S. at 462. This court followed Davis in Jennings and decided that the defendant's statement, "I think maybe I need to talk to a lawyer," was not clear enough to invoke the right to counsel, and the interrogating officers did not have to cease questioning or attempt to clarify what the suspect meant. Jennings, 252 Wis. 2d 228, ¶ 44.
¶ 86. In the present case, Subdiaz-Osorio said, "How can I do to get an attorney here because I don't have enough to afford for one." The interview took place in Spanish (so that what we have before us is a translation at the suppression hearing), but it appears as though Subdiaz-Osorio was asking about the process of obtaining an attorney rather than asking for counsel to be present during the interview.
¶ 87. The context in which Subdiaz-Osorio's question arose is important and a vital element in the totality of the circumstances. Officer Torres had just explained the extradition process to Subdiaz-Osorio and told him that he would have to appear before a judge in Arkansas before a decision on whether he would return to Wisconsin. It was reasonable for Officer Torres to assume Subdiaz-Osorio was asking about how he could get an attorney for his extradition hearing, especially since Subdiaz-Osorio continued to answer questions and remained cooperative for the rest of the interview. In addition, prior to sitting down for the interview, Subdiaz-Osorio signed a waiver of rights form, which Officer Torres had read to him in Spanish. Our case law is clear that it is not enough for a suspect to say
IV CONCLUSION
¶ 88. Although the court is divided on the rationale for an affirmance, the decision of the court of appeals is affirmed.
By the Court. — The decision of the court of appeals is affirmed.
This opinion refers to Nicolas Subdiaz-Osorio and his brother, Marco Antonio Ojeda-Rodriguez, by their full hyphenated last names. For the sake of simplicity, the opinion refers to all other witnesses, other than police officers, by their first names.
A court order that meets the requirements of the Fourth Amendment may function as a warrant. State v. Tate, 2014 WI 89, ¶ 2 & n.4, 357 Wis. 2d 172, 849 N.W.2d 798; see also State v. Sveum, 2010 WI 92, ¶ 39, 328 Wis. 2d 369, 787 N.W.2d 317. However, when a statute provides procedures for obtaining a warrant in a given set of circumstances, law enforcement should follow the statute to ensure that a search conducted under the circumstances contemplated by the statute does not violate a person's Fourth Amendment rights.
Justice Ann Walsh Bradley and Justice N. Patrick Crooks believe that tracking a cell phone's location is a search that requires a search warrant. Chief Justice Shirley S. Abrahamson shares this view in her dissent.
Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman agree that the facts of this case qualify for the exigent circumstance exception to the warrant requirement.
Justice N. Patrick Crooks, Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler, and Justice Michael J. Gableman agree that there was no Fifth Amendment Miranda
Unless otherwise indicated, the events described in this section occurred in 2009.
There is no dispute that Officer Torres speaks Spanish fluently.
A temporary want means "that the suspect was alleged to have committed a felony and should be apprehended promptly, and that there was information sufficient to support an arrest warrant, but that no arrest warrant had yet been issued." State v. Collins, 122 Wis. 2d 320, 322 n.1, 363 N.W.2d 229 (Ct. App. 1984).
CIB is part of the Wisconsin Department of Justice's Division of Law Enforcement Services. Crime Information Bureau, Wis. Dep't of Justice, http://www.doj.state.wi.us/dles/ cib/crime-information-bureau (last visited July 14, 2014). CIB "operates and manages the Transaction Information for the Management of Enforcement or TIME System." Time & Technical Unit, Wis. Dep't of Justice, http://www.doj.state.wi.us/ dles/cib/time-and-technical-unit (last visited July 14, 2014).
The TIME/NCIC Systems allow for entry of a wanted person record even if no warrant has been issued in special circumstances. Agencies that have knowledge by police that a felony was committed and who the person was that committed the felony but no warrant has been issued yet may enter the subject as a wanted person in the Temporary Felony category while the process for obtaining a felony warrant is pursued.
The want can be entered into CIB only or CIB and NCIC, and the entry remains on file for 48 hours before being automatically purged. As the entry remains on the system for such a short amount of time, agencies are not allowed to add detainer information to such a record.
TIME System Newsletter Crime Information Bureau, Wis. Dep't of Justice, https://wilenet.org/html/cib/news-time/201211.pdf (Nov. 2012).
NCIC is "an electronic clearinghouse of crime data that can be tapped into by virtually every criminal justice agency
A "Temporary Felony Want" may be entered when a law enforcement agency has need to take prompt action to establish a "want" entry for the apprehension of a person who has committed, or the officer has reasonable grounds to believe has committed, a felony and who may seek refuge by fleeing across jurisdictional boundaries and circumstances preclude the immediate procurement of a felony warrant. A "Temporary Felony Want" shall be specifically identified as such and subject to verification and support by a proper warrant within 48 hours following the entry of a temporary want. The agency originating the "Temporary Felony Want" shall be responsible for subsequent verification or re-entry of a permanent want.
Privacy Act of 1974; Notice of Modified Systems of Records, 64 Fed. Reg. 52343-01 (Sept. 28, 1999).
According to Wis. Stat. § 968.27(13) (2009-10),
"Pen register" means a device that records or decodes electronic or other impulses that identify the numbers dialed or otherwise transmitted on the telephone line to which the device is attached. "Pen register" does not include any device used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by the provider or any device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business.
Wis. Stat. § 968.27(13) (2009-10).
" 'Trap and trace device' means a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted." Wis. Stat. § 968.27(15) (2009-10).
Miranda, 384 U.S. 436.
All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.
It is unclear exactly what evidence the police obtained after Subdiaz-Osorio's arrest. However, the State filed a "Notice of Intent to Use DNA Evidence at Trial and Summary of Expert Testimony" and attached Laboratory Findings that contained an analysis of blood stains on Subdiaz-Osorio's shoes and pants. In the DNA analyst's opinion, the blood on Subdiaz-Osorio's shoes and pants belonged to Ojeda-Rodriguez.
In his motion, Subdiaz-Osorio argued that there was no probable cause to suggest he had the requisite intent to kill under Wis. Stat. § 940.01(l)(a).
"An order denying a motion to suppress ... may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the judgment or order was entered upon a plea of guilty .. . ." Wis. Stat. § 971.31(10).
Samuel D. Warren & Louis D. BrandEis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890) (footnote omitted).
See Vera Bergelson, It's Personal But Is It Mine? Toward Property Rights in Personal Information, 37 U.C. Davis L. Rev. 379, 427-29 (2003) (citing numerous polls in which citizens expressed concerns about their privacy and revealed that they wanted more legal protection for privacy, especially for personal information on the internet).
There are different ways in which cell phone companies, and consequently, the government, can track a cell phone. Providers can obtain a subscriber's location information using global positioning system (GPS) technology or triangulation. GPS technology can calculate an accurate location within 20 meters by "measuring the time it takes for a signal to travel the distance between satellites and a cell phone's GPS chip." Who Knows Where You've Been? Privacy Concerns Regarding the Use of Cellular Phones As Personal Locators, 18 Harv. J.L. & Tech. 307, 308 (2004) [hereinafter Who Knows Where You've Been?]. To locate a phone by triangulation, two or more cell towers that receive signals from an active phone compare the phone's signals and calculate location based on the difference between the times that the signals arrived or the angle of the signals. Id. When a cell phone provider "pings" a phone pursuant to law enforcement's request, the provider enters the phone number in a computer program to make the cell phone identify its GPS
One commentator noted:
Not surprisingly, cell phone users regard access to their location data as yielding private data about their locations. A research report found that seventy-three percent of cell phone users surveyed favored "a law that required the police to convince a judge that a crime has been committed before obtaining [historical] location information from the cell phone company.1'
Susan Freiwald, Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact, 70 Md. L. Rev. 681, 744 (2011) (brackets in original) (footnote omitted). Others have similarly posited that "[w]hile society may be willing to accept the idea of collecting information associated with the origination and termination of calls, people are likely to reject the prospect of turning every cell phone into a tracking device." Who Knows Where You've Been?, supra note 19, at 316.
Annual Wireless Industry Survey, CTIA, http://www. ctia.org/your-wireless-life/how-wireless-works/annual-wirelessindustry-survey (last visited July 14, 2014).
The Wisconsin Constitution's text is almost identical to the language in the United States Constitution.
The right of the people to he secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
Wis. Const, art. I, § 11. "Historically, we have interpreted Article I, Section 11 of the Wisconsin Constitution in accord with the Supreme Court's interpretation of the Fourth Amendment." State v. Arias, 2008 WI 84, ¶ 20, 311 Wis. 2d 358, 752 N.W.2d 748 (citations omitted). Thus, this opinion will not explicitly address the Wisconsin Constitution in the analysis, but the analysis will apply to both constitutions.
The United States Supreme Court recently issued a decision in Riley v. California, 573 U.S. _, No. 13-132, slip op. (June 25, 2014), in which it determined that police must obtain a warrant before searching the contents of a cell phone in a search incident to an arrest. Id. at *28. The Court acknowledged that cell phones are capable of containing large quantities of private information, including historical location information, but the Court's decision did not address acquisition of contemporaneous cell phone location information like the tracking of Subdiaz-Osorio's cell phone in this case. See id. at *18 & n.l, 19-20.
See, United States v. Jones, 565 U.S. _, 132 S. Ct. 945, 953 (2012) ("Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis."); Marc McAllister, The Fourth Amendment and New Technologies: The Misapplication of Analogical Reasoning, 36 S. iLL. U. L.J. 475, 517-18 (2012) (footnote omitted) (stating that cell phone tracking "does not require the installation of any device; rather, the telephone itself does the work, making the Jones majority's trespass rationale inapplicable.").
During the writing of Tate and this opinion, Governor Scott Walker signed into law 2013 A.B. 536, which requires law enforcement, with some exceptions, to obtain a warrant before
An anachronism in today's wireless world, the phone booth calls forth both a sense of irony and nostalgia as it sits unassumingly at the center of modern Fourth Amendment jurisprudence.
The virtual elimination of telephone booths and payphones has made it difficult for a citizen away from home to make a telephone call without using a traceable cell phone. Even at home, people today are less reliant on a land line than in the past.
The Policy defines CPNI on pages one and two of the Policy: "CPNI is information Sprint Nextel obtains or creates when it provides wireline or mobile wireless telecommunications services to a customer. CPNI includes the types of services purchased, how the services are used, and the billing detail for those services."
On page four, the Policy says CPNI "is information about your phone usage, which is a special category of personal information."
Page seven adds to the definition by stating that "Location information derived from providing our voice service... is CPNI
The title of this paragraph suggests that the disclosure disclaimer is to protect Sprint, not the customer.
Wisconsin Stat. § 968.375(15) permits Sprint and other wireless services providers to disclose customer information without a subpoena or warrant if:
The provider of electronic communication or remote computing service believes in good faith that an emergency involving the danger of death or serious physical injury to any person exists and that disclosure of the information is required to prevent the death or injury or to mitigate the injury.
Wis. Stat. § 968.375(15)(b). Section 968.375 took effect on May 28, 2010. The Federal Stored Communications Act also permits a similar disclosure. 18 U.S.C. § 2702(c)(4) (2006) (provider may disclose information "to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency"). However, statutes granting cell phone companies authority to disclose information do not necessarily grant law enforcement authority to conduct the search for that information without a court order.
See United States v. Takai, 943 F. Supp. 2d 1315, 1323 (D. Utah 2013) (probable cause and exigent circumstances justified detective's application for cell phone pinging under 18 U.S.C. § 2702).
See Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 504-05 (2007) (criticizing the numerous, inconsistent tests to determine what society accepts as a reasonable expectation of privacy).
When the exigent circumstances exception applies, a citizen's privacy right "must give way to the compelling public interest in effective law enforcement." State v. Robinson, 2010 WI 80, ¶ 24, 327 Wis. 2d 302, 786 N.W.2d 463 (citations omitted).
The new statute requiring a warrant to track cell phone location information requires "probable cause to believe the criminal activity has been, is, or will be in progress and that identifying or tracking the communications device will yield information relevant to an ongoing criminal investigation." Wis. Stat. § 968.373(3)(e) (2013-14).
"In both an arrest warrant and a search warrant context, probable cause eschews technicality and legalisms in favor of a 'flexible, common-sense measure of the plausibility of particular conclusions about human behavior.'" State v. Riper, 193 Wis. 2d 69, 83, 532 N.W.2d 698 (1995) (quoting State v. Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991)).
Wisconsin Stat. § 968.373(8)(a)2. (2013-14) provides an exception to the warrant requirement based on exigency if "[a]n emergency involving danger of death or serious physical injury to any person exists and identifying or tracking the location of the communications device is relevant to preventing the death or injury or to mitigating the injury."
"Hot pursuit" is not at issue in this case because a "hot pursuit" occurs "where there is an immediate or continuous pursuit of [a suspect] from the scene of a crime." State v. Richter, 2000 WI 58, ¶ 32, 235 Wis. 2d 524, 612 N.W.2d 29 (brackets in original) (citation omitted) (internal quotation marks omitted). The pursuit of Subdiaz-Osorio was not immediate or continuous.
Richter involved a situation in which an eyewitness told police that a burglar fled from her trailer and went into a trailer across the street. Richter, 235 Wis. 2d 524, ¶ 1. This court determined that even though there was no information to suggest that the burglar was armed or had violent tendencies,
This case calls to mind the situation in State v. Ndina, 2009 WI 21, ¶¶ 99-102, 315 Wis. 2d 653, 761 N.W.2d 612 (Prosser, J., concurring), in which the defendant booked a flight back to his home country of Albania after stabbing a relative in the neck. An arrest warrant was obtained, and authorities tried to act quickly before the defendant could fly back to Albania. Even though he spoke almost no English, Ndina evaded capture in the United States and was not apprehended in Albania until several months later. Id., ¶¶ 101-02. The warrant in Ndina was for an arrest, not a search, but that case illustrates how precious time can be when authorities are trying to capture a fleeing suspect.
The events in this case occurred on February 7 and 8, 2009, in Kenosha. The events in Tate occurred on June 9, 2009, in Milwaukee. This case represents the earliest reported case of cell phone location tracking in Wisconsin.
Similar to the United States Constitution, the Wisconsin Constitution provides, "No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself." Wis. Const, art I, § 8(1). The Wisconsin Constitution has been interpreted to offer the same protection as the United States Constitution's Fifth Amendment when it comes to invoking the right to counsel in a custodial interrogation. State v. Jennings, 2002 WI 44, ¶¶ 41-42, 252 Wis. 2d 228, 647 N.W.2d 142.
Miranda v. Arizona, 384 U.S. 436 (1966).