State v. Nicolas Subdiaz-Osorio

2014 WI 87

SUPREME COURT OF WISCONSIN
CASE NO.: 2010AP3016-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Nicolas Subdiaz-Osorio,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 345 Wis. 2d 396, 824 N.W.2d 927
(Ct. App. 2012 – Unpublished)

OPINION FILED: July 24, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 3, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Mary K. Wagner

JUSTICES:
CONCURRED: BRADLEY, J., concurs. (Opinion filed.) CROOKS,
J., concurs. (Opinion filed.) ROGGENSACK,
ZIEGLER, JJ. concur. (Opinion filed.) ZIEGLER,
ROGGENSACK, GABLEMAN, JJJ. Concur. (Opinion
filed.)
DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by John A. Pray and Frank J. Remington Center, University of
Wisconsin Law School, and oral argument by Lanny Glinberg.

For the plaintiff-respondent, the cause was argued by
Daniel J. O’Brien, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
 2014 WI 87
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2010AP3016-CR
(L.C. No. 2009CF149)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v.
JUL 24, 2014
Nicolas Subdiaz-Osorio,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DAVID T. PROSSER, J. 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unpublished decision of the court of appeals, State v. Subdiaz-

Osorio, No. 2010AP3016-CR, unpublished slip op.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
 No. 2010AP3016-CR

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)1 borrowed his girlfriend's car and fled the

scene of the crime. Kenosha police quickly suspected that

Subdiaz-Osorio, who was in the country illegally, was heading

for Mexico and carrying the murder weapon. They marshalled

their information and, acting through the Wisconsin Department

of Justice, asked Subdiaz-Osorio's cell phone provider to track

his cell phone location. The tracking was successful, and

Subdiaz-Osorio was arrested on a highway in Arkansas as he

headed south. Several Kenosha officers promptly went to

Arkansas to interrogate the suspect. Subdiaz-Osorio was

questioned in Spanish and given his rights in Spanish. After

the officers explained the extradition process, Subdiaz-Osorio
asked how he could get an attorney because he could not afford

one. The officers told him that Arkansas would provide him an

attorney if he needed one but then continued to question him.

Subdiaz-Osorio later moved to suppress all evidence obtained

after his arrest on grounds that the search of his cell phone's

1
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.

2
 No. 2010AP3016-CR

location information violated his Fourth Amendment rights and

that he was denied his Fifth Amendment right to counsel. He

also alleged violations of his rights under the Wisconsin

Constitution.

¶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 obtaining a court order2 based on probable cause?

Second, did Kenosha police officers violate Subdiaz-Osorio's
Fifth Amendment right to counsel when they continued to

interview him after he asked how he could get an attorney?

2
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, ___ Wis. 2d ___, ___ N.W.2d ___; 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.

3
 No. 2010AP3016-CR

¶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.3

¶10 Second, even though I assume there was a search in

this case and recognize that police did not have a court order
when they tracked Subdiaz-Osorio's cell phone location, I

conclude that police did have probable cause for a warrant and

3
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.

4
 No. 2010AP3016-CR

that the exigent circumstances of this case created an exception

to the warrant requirement.4

¶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

4
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.

5
 No. 2010AP3016-CR

continued to question him after he asked about how he could get

an attorney.5

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶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 Ojeda-Rodriguez 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,

2009.6 Late on February 7, Subdiaz-Osorio and Roberto Gonzales-

5
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 violation in this case. Miranda v. Arizona, 384 U.S.
436 (1966).
6
Unless otherwise indicated, the events described in this
section occurred in 2009.

6
 No. 2010AP3016-CR

Carreno (Roberto) had a few beers and called Lanita Mintz

(Lanita) to come and dance for them. Lanita knew Subdiaz-Osorio

and Ojeda-Rodriguez because the three of them had worked

together for approximately four months. Subdiaz-Osorio and

Roberto picked up Lanita and brought her to the trailer around

10:45 p.m. The three of them went to Subdiaz-Osorio's bedroom,

and Lanita changed into lingerie. Roberto left around 11:20

p.m. At some point after that, Ojeda-Rodriguez tried to force

his way into Subdiaz-Osorio's bedroom while Subdiaz-Osorio tried

to keep him out. Ojeda-Rodriguez, a former boxer, was heavier

than Subdiaz-Osorio and was able to gain entry into the bedroom.

¶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 Ojeda-

Rodriguez 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
7
 No. 2010AP3016-CR

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. As Lanita remembers it, Ojeda-

Rodriguez was moving and speaking when she left, but she did not

talk with him. She knew Ojeda-Rodriguez was hurt, but she did

not think that his wounds were fatal. Lanita arrived home at

1:05 a.m. on February 8. She was the only eyewitness to the

stabbing. Although Lanita could recall the event itself, she

could not recall what happened to Subdiaz-Osorio's two knives.

¶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,
8
 No. 2010AP3016-CR

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 Ojeda-

Rodriguez's left eye and two stab wounds on Ojeda-Rodriguez's

left shoulder. The fatal stab occurred when Subdiaz-Osorio

thrust the knife into Ojeda-Rodriguez's left eye, causing the

blade to penetrate Ojeda-Rodriguez's brain three to four inches.

¶19 Detective David May (Detective May) and Detective

Gerald Kaiser (Detective Kaiser) became the lead detectives for

the investigation. Detective May testified that he learned

about the incident about 9:30 a.m. on Sunday, February 8.

Several Spanish speaking officers interviewed the three

individuals who came to the Safety Building. Officer Ernan

DelaRosa arrived at 10:25 a.m. and interviewed Liborio, who said
that Subdiaz-Osorio admitted that he had stabbed Ojeda-

Rodriguez. Officer Gloria Gonzales arrived at 11:55 a.m. and

interviewed Norma. Officer Arturo Gonzalez arrived at 12:06

p.m. and interviewed Damien.

¶20 Officer Pablo Torres7 (Officer Torres) spoke with

Estella around 10 a.m. at her home, and she told him that

7
There is no dispute that Officer Torres speaks Spanish
fluently.

9
 No. 2010AP3016-CR

Subdiaz-Osorio came to her trailer asking for help because he

had stabbed Ojeda-Rodriguez. Estella gave Subdiaz-Osorio's name

to Officer Torres and told him that she allowed Subdiaz-Osorio

to borrow her silver Saturn station wagon when he asked for it.

She also gave Officer Torres Subdiaz-Osorio's cell phone number

and the license plate number of her car. Police determined that

Subdiaz-Osorio had family living in two communities in nearby

Lake County, Illinois, but witnesses also informed the police

that Subdiaz-Osorio was in the country illegally, and Estella

thought that it was possible that Subdiaz-Osorio was on his way

to Mexico, where he also had family. Officer Torres continued

to interview Estella back at the police station until about 12

p.m. Following up on the information from Estella, the police

contacted Subdiaz-Osorio's family in Illinois and determined

that they had not heard from him. Officer Torres believed that

since Subdiaz-Osorio's family in Illinois did not know where he

was, it was likely he was on his way to Mexico.

¶21 After compiling essential information from the
witnesses, the Kenosha police put a temporary want8 on Subdiaz-

8
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).

10
 No. 2010AP3016-CR

Osorio into the Crime Information Bureau (CIB)9 and National

Crime Information Center (NCIC).10 CIB is a state system and

9
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).
10
NCIC is "an electronic clearinghouse of crime data that
can be tapped into by virtually every criminal justice agency
nationwide, 24 hours a day, 365 days a year." National Crime
Information Center, FBI, http://www.fbi.gov/about-us/cjis/ncic
(last visited July 14, 2014). The FBI operates NCIC in
conjunction with other federal, state, local, and tribal
criminal justice entities. Id. For NCIC,

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
11
 No. 2010AP3016-CR

NCIC is a national system. The systems work together by sharing

information. To enter information into the CIB and NCIC, the

police had to demonstrate probable cause. The Kenosha police

had probable cause to believe Subdiaz-Osorio committed the

homicide based on their investigation, and they entered Subdiaz-

Osorio's information into the systems. Together, the CIB and

NCIC notified all law enforcement agencies in the country about

the temporary want for Subdiaz-Osorio.

¶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 submitted a

"Mandatory Information for Exigent Circumstances Requests" form

to Sprint. The description on the form said, "Local law

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).

12
 No. 2010AP3016-CR

enforcement homicide suspect. Believed that suspect will flee

the state or the country to avoid prosecution. Suspect has no

ties to Wisconsin. Suspect considered armed and dangerous.

Suspect poses a threat to the public." DCI requested Subdiaz-

Osorio's subscriber information, his call records with cell site

information within the past week, his precision location (GPS

location), and his real-time Pen Register, Trap & Trace.11

¶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

11
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).

13
 No. 2010AP3016-CR

to any person requires disclosure of communications or
justifies disclosure of records without delay.
"[P]ersonal 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

14
 No. 2010AP3016-CR

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.

¶25 Sometime during the afternoon, DCI obtained tracking

information for Subdiaz-Osorio's cell phone without obtaining a

warrant. The only information that DCI received from the cell

phone provider was location information, not conversations or

other data. After obtaining Subdiaz-Osorio's location

information, Detective Kaiser called Arkansas police to inform

them that Subdiaz-Osorio was traveling South on I-55 and that

the knives used in the murder were never recovered. Detective

Kaiser gave the license plate information, the make, and the

model of the car to an Arkansas patrol officer around 5:43 p.m.

The Arkansas patrol officer pulled the car over in Luxora,

Arkansas around 6:11 p.m. and took Subdiaz-Osorio and Roberto,

who was driving the car, into custody. On the Sunday night he

was arrested, Subdiaz-Osorio signed a consent form allowing
police to obtain trace evidence from him, including DNA and

fingernail clippings. The Arkansas police did not interrogate

him that evening.

¶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
15
 No. 2010AP3016-CR

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 him "very well,"

and Subdiaz-Osorio never said that he was having trouble

comprehending Officer Torres's Spanish. Before speaking with

Subdiaz-Osorio, Officer Torres informed Subdiaz-Osorio of his

constitutional rights (Miranda12 warning), and Subdiaz-Osorio

signed a waiver form titled "Waiver of Constitutional Rights."

Officer Torres read the form written in Spanish, Subdiaz-Osorio

read the form himself, and Subdiaz-Osorio signed the form in

Officer Torres's presence on February 9 at 3:34 p.m.

¶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

12
Miranda, 384 U.S. 436.

16
 No. 2010AP3016-CR

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

cooperative throughout the interview, which lasted less than an

hour. Although he was cooperative, he did at one point

contradict Lanita's version of the stabbing when he claimed that

Ojeda-Rodriguez brought a knife into the bedroom and that he

disarmed Ojeda-Rodriguez. After the interview, Officer Torres

read a form titled "Consent to Search and Seizure," and Subdiaz-

Osorio agreed to give up DNA and trace evidence when he signed

the form at 4:12 p.m.

¶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.

17
 No. 2010AP3016-CR

Stat. §§ 940.01(1)(a) (2009-10),13 939.50(3)(a), and

939.63(1)(b).

¶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 stabbing, and Subdiaz-Osorio walked through and

assisted the officers in the investigation. Subdiaz-Osorio

described the incident and again claimed that Ojeda-Rodriguez

had brought a knife into the bedroom. The officers told

Subdiaz-Osorio that his story conflicted with Lanita's account,
and Subdiaz-Osorio then admitted that he had procured the

knives.

¶32 On April 1, 2009, Subdiaz-Osorio filed a pretrial

motion to suppress all statements and evidence that the police

13
All subsequent references to the Wisconsin Statutes are
to the 2009-10 version unless otherwise indicated.

18
 No. 2010AP3016-CR

obtained after his arrest.14 In the suppression motion, Subdiaz-

Osorio argued that the warrantless search of his cell phone's

location data violated his Fourth Amendment rights, and

therefore all evidence obtained after the arrest should be

suppressed. Subdiaz-Osorio also filed a motion challenging the

sufficiency of the criminal complaint and the bindover, and he

moved to dismiss the information.15 On May 14, 2009, Subdiaz-

Osorio filed a separate motion to suppress the statements he

made during the interrogation in Arkansas, on grounds that

Officer Torres failed to properly inform Subdiaz-Osorio of his

Miranda rights.

¶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. United States, 543 U.S. 1100 (2005), for the

proposition that tracking a phone on a public roadway is not a

violation of the Fourth Amendment because there is no legitimate
expectation of privacy on public roadways. Alternatively, the

14
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.
15
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(1)(a).

19
 No. 2010AP3016-CR

court determined that there were exigent circumstances because

an alleged murderer was fleeing and was unpredictable. The

court also denied the motion challenging the sufficiency of the

complaint and bindover and refused to dismiss the case.

Finally, the circuit court concluded that Officer Torres did not

fail to properly inform Subdiaz-Osorio or honor his Miranda

rights: Subdiaz-Osorio's question about an attorney was not a

request to have an attorney with him during the interview;

rather, Subdiaz-Osorio was asking about how he could obtain an

attorney for the extradition hearing.

¶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(1)(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).16 State v. Subdiaz-Osorio, No. 2010AP3016-CR,

16
"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).

20
 No. 2010AP3016-CR

unpublished slip op., ¶2 (Wis. Ct. App. Nov. 15, 2012). The

court of appeals assumed without deciding that the circuit court

should have granted the suppression motion. Id., ¶3. However,

the court determined that any error by the circuit court was

harmless because it was beyond a reasonable doubt that Subdiaz-

Osorio would have accepted the same plea absent the error. Id.,

¶12. The court of appeals rejected Subdiaz-Osorio's argument

that he could have pursued a self-defense theory if the evidence

would have been suppressed inasmuch as Subdiaz-Osorio continued

to assault Ojeda-Rodriguez after stabbing him and did not seek

medical help. Id., ¶5.

¶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
21
 No. 2010AP3016-CR

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.

II. STANDARD OF REVIEW

¶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.
22
 No. 2010AP3016-CR

¶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 ourselves with loved ones and

bond over the secrets of our identities. We perfect ideas

behind closed doors and reveal them to the public when they are

ready. We take comfort in seclusion from the world in moments

of intimacy. Privacy is not insignificant; it is not something

to be taken for granted; and even as it diminishes as our world

becomes more interconnected and dangerous, privacy must not

become a legal fiction.

¶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

23
 No. 2010AP3016-CR

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 incorporate more of our lives into

our smartphones and tablets, we are not merely using technology

as a tool for societal and professional navigation; we are

digitizing our identities. Thus, efforts to access the

information in our electronic devices invade and expose the

marrow of our individuality.

¶43 As Samuel Warren and Louis Brandeis 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.'"17 Perhaps

in this age of technology, that right is not as strong as it
once was, but it should be our goal to quell its attenuation

insofar as it is safe and reasonable to do so. It used to be

that "the greatest protections of privacy were neither

constitutional nor statutory, but practical." United States v.

Jones, 565 U.S. ___, 132 S. Ct. 945, 963 (2012) (Alito, J.,

concurring). Today, in an environment of rapid technological

17
Samuel D. Warren & Louis D. Brandeis, The Right to
Privacy, 4 Harv. L. Rev. 193, 195 (1890) (footnote omitted).

24
 No. 2010AP3016-CR

advancement that allows tracking via electronic data, practical

limitations on surveillance are quickly dissipating.

Technology, it seems, has been irreversibly incorporated into

our modern lives. The question we face is whether privacy must

be eviscerated to accommodate innovation.

¶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 Amendment often conjures the image of a

scale on which we balance the needs of law enforcement and the

rights of individuals. Technological innovation does not change

the need for balance, but it makes the act of balancing

difficult. It is no small task to afford law enforcement

officers and government agencies the leeway they need to keep

citizens safe while ensuring that citizens retain a reasonable
degree of privacy.

¶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

25
 No. 2010AP3016-CR

information.18 As cell site location and GPS technology become

ubiquitous,19 Americans are adding cell phone location

information to the list of concerns.20 This concern makes sense

18
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).
19
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
coordinates to the provider. United States v. Caraballo, 963 F.
Supp. 2d 341, 350 (D. Vt. 2013).
20
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."

26
 No. 2010AP3016-CR

as an estimated 335.65 million wireless subscriber connections

existed in the United States at the end of 2013.21 The court is

mindful of the pervasiveness of wireless technology and of our

citizens' concern for their privacy as we analyze the

constitutional protections against unreasonable government

intrusions.

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
unreasonable 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.22 In the event of a Fourth Amendment

violation, the usual remedy is suppression of evidence obtained

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.
21
Annual Wireless Industry Survey, CTIA,
http://www.ctia.org/your-wireless-life/how-wireless-
works/annual-wireless-industry-survey (last visited July 14,
2014).
22
The Wisconsin Constitution's text is almost identical to
the language in the United States Constitution.

The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
27
 No. 2010AP3016-CR

in the search. State v. Ferguson, 2009 WI 50, ¶21, 317

Wis. 2d 586, 767 N.W.2d 187. However, there are several

exceptions to the warrant requirement. See State v. Krajewski,

2002 WI 97, ¶24, 255 Wis. 2d 98, 648 N.W.2d 385 (noting that

exceptions to the warrant requirement include consent and

exigent circumstances). Particularly relevant to this case is

the exception for exigent circumstances, which this opinion

discusses below.

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 constitutional provisions and, if so,

whether it required a warrant or was subject to one of the well-

delineated exceptions to the warrant requirement. My analysis

keeps in mind Justice Kennedy's caution that: "The judiciary

risks error by elaborating too fully on the Fourth Amendment

implications of emerging technology before its role in society

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.

28
 No. 2010AP3016-CR

has become clear." City of Ontario, Cal. v. Quon, 560 U.S. 746,

759 (2010) (citing Olmstead v. United States, 277 U.S. 438

(1928), overruled by Katz v. United States, 389 U.S. 347

(1967)).23

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 obtain cell phone location

information unless one were to deem the cell phone provider's

23
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.1, 19-20.

29
 No. 2010AP3016-CR

electronic interaction with Subdiaz-Osorio's cell phone as a

physical trespass. Such an analysis would be unnatural.24

¶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,

___Wis. 2d ___, ___ N.W.2d ___, discusses the requirements to

obtain a warrant for cell phone location tracking.25 Tate is
24
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.").
25
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
obtaining cell phone location information. 2013 Wis. Act 375;
see Wis. Stat. § 968.373 (2013-14). The new law went into
effect on April 25, 2014.

30
 No. 2010AP3016-CR

similar to this case in that it does not involve a trespass.

However, Tate focuses on whether the court order there was valid

to authorize tracking of the defendant's cell phone location,

whereas this case involves an assumed non-trespassory search in

the absence of a court order.

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.26 Katz, 389
U.S. at 348. Because the defendant had a reasonable expectation

of privacy in the phone booth, and because the government failed

26
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.

31
 No. 2010AP3016-CR

to get a warrant, the FBI's eavesdropping violated the

defendant's Fourth Amendment rights. Id. at 353-59.

¶52 Justice Harlan's concurrence set forth a two-part test

to determine when a non-trespassory search implicates the Fourth

Amendment: (1) the person must have a subjective expectation of

privacy; and (2) the expectation of privacy must be "one that

society is prepared to recognize as 'reasonable.'" Id. at 361

(Harlan, J., concurring). As the Supreme Court suggested in

Jones, Katz offers the proper test to determine whether cell

phone location tracking receives Fourth Amendment protection.

See Jones, 132 S. Ct. at 953.

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
32
 No. 2010AP3016-CR

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 as possible. Id. at 345-

46. Because time was precious, they did not obtain a warrant.

Id.

¶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

33
 No. 2010AP3016-CR

different points with varying degrees of specificity.27 The

definition of CPNI is important because it includes location

information, but because the full definition is spread out over

several pages, references to CPNI are difficult to understand.

¶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,"28

the Policy says that Sprint discloses personal information (of

which CPNI is a "special category") if Sprint "reasonably

believe[s] that an emergency involving immediate danger of death

or serious physical injury to any person requires disclosure of

communications or justifies disclosure of records without

delay." (Emphasis added.) The "communications" language

suggests that Sprint will disclose only information related to

communications——like phone calls——and there is no attempt to

define the "records" that Sprint will disclose.

27
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 . . . ."
28
The title of this paragraph suggests that the disclosure
disclaimer is to protect Sprint, not the customer.

34
 No. 2010AP3016-CR

¶58 The Policy later says in a section titled "Presence,

Location and Tracking Information" that "[l]ocation 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 customer would read this Policy and understand that his

cell phone may be tracked at all times, but that is not the only

possible reading.

¶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

35
 No. 2010AP3016-CR

Sprint.29 It does not necessarily follow that law enforcement

may lawfully seek and obtain the information without a court

order or without satisfying the exigent circumstances

exception.30 Thus, a customer might still reasonably assume that

the cell phone company will disclose information only when

presented with a valid court order.

¶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

29
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.
30
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).

36
 No. 2010AP3016-CR

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.

¶63 Fifth, interpreting the cell phone policy to eliminate

a customer's reasonable subjective expectation of privacy

invites law enforcement to be complacent in its requests for
tracking. The Caraballo court noted that Sprint processes
37
 No. 2010AP3016-CR

thousands of emergency requests each year, and it is Sprint's

practice not to second-guess law enforcement's emergency

requests. Caraballo, 963 F. Supp. 2d at 349. If law

enforcement agents say that there is an emergency, wireless

providers apparently give up the location information almost

without exception. The deference to law enforcement's tracking

requests is not inherently wrong, but requiring police to have

probable cause and an exigent circumstance before requesting

location data, if they do not have a warrant, diminishes the

potential for abuse.

¶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–à-vis employer-provided

technological equipment might have implications for future cases
that cannot be predicted. It is preferable to dispose of this
38
 No. 2010AP3016-CR

case on narrower grounds."). The Court then assumed Quon had a

reasonable expectation of privacy and decided that the special-

needs-of-the-workplace exception applied to allow the

warrantless search. Id. at 760-61. Because I can avoid a broad

pronouncement regarding reasonable expectations of privacy by

analyzing this case under the exigent circumstances exception, I

need not decide whether Subdiaz-Osorio's cell phone Policy

nullified his subjective reasonable expectation of privacy in

his cell phone location information.

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.31 See, e.g., California v. Greenwood, 486

U.S. 35, 46-49 (1988) (Brennan, J., dissenting) (disagreeing

with the majority about whether respondents had a reasonable
expectation of privacy in their trash); Smith v. Maryland, 442

U.S. 735, 747 (1979) (Stewart, J., dissenting) (disagreeing with

the majority and suggesting that people have a reasonable

expectation of privacy in the phone numbers that they dial).

31
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).

39
 No. 2010AP3016-CR

¶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. 445, 451-52 (1989).

In Riley, the Court considered whether police surveillance of a

greenhouse from a helicopter 400 feet in the air was a search

that required a warrant. Id. at 447-48. A plurality of the

Court said that because anyone could have flown a helicopter and

observed the top of the greenhouse without violating the law, it

was not reasonable for the respondent to expect privacy when he

left the top of the greenhouse partially open. Id. at 450-51.

Justice O'Connor's concurrence tempered Riley's plurality by

emphasizing that the search was not permissible simply because

the helicopter complied with FAA regulations or because any

citizen could have conducted the same search. Id. at 454-55

(O'Connor, J., concurring). Instead, Justice O'Connor suggested

that "consistent with Katz, we must ask whether the helicopter

was in the public airways at an altitude at which members of the
public travel with sufficient regularity" to determine if the

search was "one that society is prepared to recognize as

'reasonable.'" Id. at 454 (quoting Katz, 389 U.S. at 361).

¶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.
40
 No. 2010AP3016-CR

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 improper search. Id. at 40. Kyllo

demonstrates that surveillance aided by technology can rise to

the level of an impermissible search even absent a physical

intrusion.

¶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
41
 No. 2010AP3016-CR

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 the exigent

circumstances exception,32 a warrantless search does not violate

a suspect's Fourth Amendment rights if: (1) the government can

show that there is probable cause to believe that "evidence of a

crime will be found"; and (2) there are exigent circumstances.

Hughes, 233 Wis. 2d 280, ¶¶17, 21 (citations omitted). To

establish probable cause for a search, the government must show

that there is a "'fair probability' that contraband or evidence

of a crime will be found in a particular place." Id., ¶21
(citation omitted).

¶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

32
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).

42
 No. 2010AP3016-CR

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.33 "In regard to probable

cause, the supreme court has stated that [the Court] deal[s]

with probabilities. These are not technical; they are the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, [must] act."

State v. Secrist, 224 Wis. 2d 201, 215, 589 N.W.2d 387 (1999)

(quoting State v. Wisumierski, 106 Wis. 2d 722, 739, 317

N.W.2d 484 (1982)) (brackets in original) (internal quotation

marks omitted).

¶72 The court determines whether there was probable cause

by an objective standard and asks whether the police acted

reasonably.34 State v. Robinson, 2010 WI 80, ¶26, 327 Wis. 2d

302, 786 N.W.2d 463. "The core requirement of probable cause

33
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).
34
"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. Kiper,
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)).

43
 No. 2010AP3016-CR

serves to 'safeguard the privacy and security of individuals

against arbitrary invasions by government officials.'" State v.

Kiper, 193 Wis. 2d 69, 81, 532 N.W.2d 698 (1995) (emphasis

added) (quoting State v. DeSmidt, 155 Wis. 2d 119, 130, 454

N.W.2d 780 (1990)).

¶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, risk destruction of evidence, or greatly enhance the
likelihood of the suspect's escape." Id., ¶24 (citing Smith,

131 Wis. 2d at 230). The State has the burden to prove that

exigent circumstances justified the search. Ferguson, 317

Wis. 2d 586, ¶20.

¶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
44
 No. 2010AP3016-CR

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?

¶76 Given that they had probable cause to track Subdiaz-

Osorio's cell phone, the Kenosha police arguably had their pick

45
 No. 2010AP3016-CR

of three exigent circumstances.35 There was a threat to safety,

risk of destruction of evidence, and a likelihood that Subdiaz-

Osorio would flee.36 The threat to safety and risk of

destruction of evidence stem in part from the fact that no

murder weapon was ever recovered after Subdiaz-Osorio killed his

brother. It was important to find Subdiaz-Osorio quickly to

prevent him from destroying or disposing of his knives and

clothes.

¶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

35
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."
36
"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.

46
 No. 2010AP3016-CR

order to satisfy the exigent circumstances exception. Richter,

235 Wis. 2d 524, ¶40.37

¶78 Richter demonstrates that reasonableness is at the

center of the exigent circumstances analysis, and in the present

case, it was reasonable for the Kenosha police to believe that a

potentially armed homicide suspect created an exigent threat to

the safety of others. See id. ("[P]ursuit of a suspect known to

be armed and dangerous would establish exigent circumstances

implicating a threat to physical safety."). Though it is not

necessarily required, the police had evidence that Subdiaz-

Osorio was armed and dangerous because he had just committed a

homicide, and it was likely that he still had the murder weapon.

In fact, Subdiaz-Osorio told Liborio that he did not want to be

arrested, which could lead a reasonable law enforcement officer

to infer Subdiaz-Osorio might become violent if confronted. The

Kenosha police had no way of knowing how desperate Subdiaz-

Osorio might become to avoid apprehension, or to obtain money or

37
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,
the officer could reasonably believe that there was a threat to
safety and could conduct a warrantless search of the trailer
based on exigent circumstances. Id., ¶¶40-41. A requirement
that law enforcement "have affirmative evidence of the presence
of firearms or known violent tendencies on the part of the
suspect before acting to protect the safety of others is
arbitrary and unrealistic and unreasonably handicaps the officer
in the performance of one of his core responsibilities." Id.,
¶40.

47
 No. 2010AP3016-CR

shelter to facilitate escape. They did know that this was an

individual who was dangerous enough to stab someone in the head,

and they could reasonably believe that the delay in getting a

warrant would seriously endanger life. Therefore, it was proper

for them to conduct a warrantless search to find Subdiaz-Osorio

as quickly as possible.

¶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 getting a warrant would "greatly

enhance the likelihood of the suspect's escape." Hughes, 233

Wis. 2d 280, ¶24 (citation omitted). Subdiaz-Osorio was in the

country illegally, had just committed a grisly murder, and the

police determined that his family in Illinois had not heard from

him. The police knew that he was from Mexico and had family

there.38 They knew that he had borrowed his girlfriend's car and

had warned Liborio that he did not want to be arrested.

Therefore, there was a strong inference that he would try to

38
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.

48
 No. 2010AP3016-CR

flee, and time was of the essence to find him before he left the

country.

¶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——airplanes, trains, buses. Chicago also

provided the opportunity to buy or rent a different vehicle and

buy a different cell phone, perhaps a prepaid cell phone. All

this is predicated on Subdiaz-Osorio traveling south rather than

north or west. The police could only speculate as to his plans

or his route.
¶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

49
 No. 2010AP3016-CR

acted properly in the face of exigent circumstances and could

not delay to secure an additional warrant.39

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 compelled in any

criminal case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of

law . . . ."40 U.S. Const. amend. V. The Fifth Amendment is the

source of the so-called Miranda warnings, which advise a

39
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.
40
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.

50
 No. 2010AP3016-CR

defendant that he has a right to an attorney, as a means to

safeguard his right to remain silent. Miranda v. Arizona, 384

U.S. 436, 467-73 (1966).

¶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 understand

the statement to be a request for an attorney." Id., ¶30
(quoting Davis, 512 U.S. at 459).

¶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

51
 No. 2010AP3016-CR

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 something that the interviewer might interpret as

an invocation of the right to counsel. Id., ¶29. The

invocation of that right must be unequivocal. In this case it

was not.
IV. CONCLUSION
52
 No. 2010AP3016-CR

¶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.

53
 No. 2010AP3016-CR.awb

¶89 ANN WALSH BRADLEY, J. (concurring). I agree with

the dissent that the tracking of a cell phone constitutes a

search in the context of the Fourth Amendment and that the

warrantless search here was not justified by exigent

circumstances. Dissent, parts I-V. Likewise, I agree that

Subdiaz-Osorio's statement was sufficient to invoke his right to

counsel. Dissent, part VI.

¶90 However, I part ways with the dissent because, like

the court of appeals, I conclude that the circuit court's errors

in denying the defendant's suppression motion were harmless.

There is no reasonable probability that the circuit court's

failure to grant the suppression motion contributed to the

conviction. Accordingly, I respectfully concur in the mandate

of the lead opinion.

I

¶91 The facts in this case are for the most part

uncontested. After a night of drinking the defendant, Subdiaz-

Osorio, and his brother, Ojeda-Rodriguez, got into an argument
in front of a guest, Mintz, at their trailer. The argument

escalated and after his brother punched him, the defendant

retrieved a knife and stabbed his brother in the eye. Then,

after the brother fell down, the defendant began kicking and

punching him in the face. After Mintz pushed Subdiaz-Osorio

away from his brother, Subdiaz-Osorio left the room.

¶92 Subdiaz-Osorio asked his roommate, Martinez, for help

bandaging Ojeda-Rodriguez. Martinez wanted to call the police,
but Subdiaz-Osorio refused and threatened to stab Martinez if he

1
 No. 2010AP3016-CR.awb

did. Martinez telephoned Carreno-Lugo asking for assistance

taking care of Ojeda-Rodriguez. Upon arriving she bandaged him,

then she and the defendant went back to her trailer and went to

bed. The next morning Martinez found the brother dead. After

telling the defendant that his brother was dead and that

Martinez was calling the police, Subdiaz-Osorio left.

¶93 Police arrived and found Ojeda-Rodriguez's badly

beaten body. When they interviewed Carreno-Lugo, she told them

that the defendant asked for help because he had stabbed his

brother. He spent the night at her trailer, and after learning

his brother was dead, he told her that he had to leave.

Careeno-Lugo allowed the defendant to take her car. She told

police that he had family in Illinois and Mexico and

acknowledged that he might be headed to Mexico.

¶94 After tracking his cell phone, the police located

Subdaiz-Osorio in Arkansas. They took trace evidence from him,

including DNA. The next day, after officers read the defendant

his Miranda1 rights, he signed a waiver of rights form and agreed
to speak without an attorney present. During the interview, the

defendant asked if he would be taken back to Kenosha. The

officer informed him that he would first have to appear before a

judge in Arkansas who would make that determination. At that

point the defendant asked "How can I do [sic] to get an attorney

here because I don't have enough to afford one?" The officer

told him that Arkansas would appoint him a lawyer for the

hearing, and continued the interview. At one point during the

1
Miranda v. Arizona, 384 U.S. 436 (1966).

2
 No. 2010AP3016-CR.awb

interview, the defendant gave a version of the stabbing,

indicating that his brother brought the knife into the room.

¶95 A few weeks later, after the defendant was read his

Miranda rights again and signed another waiver of rights form,

Subdiaz-Osorio recounted the events of the evening, again

indicating that his brother brought the knife. When the officer

interviewing the defendant told him that his version of the

events conflicted with Mintz's version, the defendant admitted

that he had retrieved the knife.

¶96 Subdiaz-Osorio was charged with first-degree

intentional homicide. After his suppression motion was denied,

Subdiaz-Osorio accepted a plea bargain and pled to a reduced

charge of first-degree reckless homicide by use of a deadly

weapon. Subdiaz-Osorio now argues that the circuit court erred

in failing to suppress the DNA evidence, the location of his

apprehension, and his statement in the interview that his

brother brought the knife into the room.

II
¶97 In assessing whether a trial error is harmless, we

focus on the effect of the error on the jury's verdict. State

v. Weed, 2003 WI 85, ¶29, 263 Wis. 2d 434, 666 N.W.2d 485. We

have described the test as "whether it appears beyond a

reasonable doubt that the error complained of did not contribute

to the verdict obtained." Id. (quoting State v. Harvey, 2002 WI

93, ¶44, 254 Wis. 2d 442, 647 N.W.2d 189, quoting in turn Neder

v. United States, 527 U.S. 1, 15-16 (1999)). To make that
determination, "a court must be able to conclude 'beyond a

3
 No. 2010AP3016-CR.awb

reasonable doubt that a rational jury would have found the

defendant guilty absent the error.'" Id. (quoting Harvey, 254

Wis. 2d 442, ¶48 n.14).

¶98 However, in a guilty plea situation following the

denial of a motion to suppress, the test for harmless error on

appeal is whether there is a reasonable probability that the

erroneous admission of the disputed evidence contributed to the

conviction. State v. Semrau, 2000 WI App 54, ¶21, 233 Wis. 2d

508, 608 N.W.2d 376; State v. Sturgeon, 231 Wis. 2d 487, 503-04,

605 N.W.2d 589 (Ct. App. 1999). As part of this inquiry, the

court considers:

(1) the relative strength and weakness of the State's
case and the defendant's case; (2) the persuasiveness
of the evidence in dispute; (3) the reasons, if any,
expressed by the defendant for choosing to plead
guilty; (4) the benefits obtained by the defendant in
exchange for the plea; and (5) the thoroughness of the
plea colloquy.
Semrau, 233 Wis. 2d 508, ¶22.

¶99 As an initial matter, neither the court of appeals nor

the State addressed Subdiaz-Osorio's arguments relating to the
DNA evidence. It is unclear if he previously raised this as

evidence he wanted suppressed. In any event, the DNA evidence

is not necessary to link him to the crime scene. Subdiaz-Osorio

admitted to stabbing his brother and that his asserted defenses

were that he acted in self-defense and did not act with utter

disregard for human life. Thus, I conclude it is not reasonably

probable that this evidence contributed to the conviction.

¶100 The second piece of evidence Subdiaz-Osorio believes
should have been suppressed was the fact that he was located in
4
 No. 2010AP3016-CR.awb

Arkansas. This court has previously determined that evidence of

flight has probative value as it tends to show consciousness of

guilt. Wangerin v. State, 73 Wis. 2d 427, 437, 243 N.W.2d 448

(1976). In this case, however, even without the evidence that

the defendant was found in Arkansas, there was strong evidence

against him, including an eyewitness to the stabbing, and other

witnesses he spoke with after seeking help. See State v.

Quiroz, 2009 WI App 120, ¶28, 320 Wis. 2d 706, 772 N.W.2d 710

(admission of flight evidence harmless error where evidence of

guilt was overwhelming).

¶101 To the extent that Subdiaz-Osorio's arrest location

indicates flight, it was cumulative of other evidence. As the

State asserts, the statements from Carreno-Lugo that Subdiaz-

Osorio took her car and was possibly going to Mexico or

Illinois, together with his absence from his home, could have

independently established that he fled.

¶102 It is also notable that Subdiaz-Osorio received a

reduced charge in exchange for his guilty plea. The charge of
intentional homicide, which is a class A felony with a maximum

sentence of life imprisonment, Wis. Stat. §§ 946.01(a),

939.50(3)(a), was reduced to a charge of reckless homicide,

which is a class B felony with a maximum sentence of 65 years

imprisonment, Wis. Stat. §§ 940.02(1), 939.50(3)(b),

939.63(1)(b).

¶103 Because Subdiaz-Osorio accepted a reduced plea, in the

face of strong evidence against him, including eyewitness
testimony and his own confession, I conclude it is not

5
 No. 2010AP3016-CR.awb

reasonably probable that the circuit court's failure to suppress

the location information contributed to the conviction.

¶104 I turn next to the third piece of evidence Subdiaz-

Osorio sought to suppress: his initial statement to officers

that his brother brought the knife into the room. The harmless

error analysis also applies here. State v. Armstrong, 223 Wis.

2d 331, 368-370, 588 N.W.2d 606 (1999) (concluding that the

admission of evidence obtained in violation of Miranda was

harmless error); State v. Harris, 199 Wis. 2d 227, 263, 544

N.W.2d 545 (1996) (determining that it was harmless error for

the court to admit the fruits of a Miranda violation); State v.

Rockette, 2005 WI App 205, ¶33, 287 Wis. 2d 257, 704 N.W.2d 382

(determining that regardless of whether a Miranda violation

occurred, the error was harmless as the defendant would still

have accepted the State's plea deal).

¶105 As with the DNA evidence and the location evidence,

the denial of Subdiaz-Osorio's suppression motion with respect

to his statement about his brother bringing the knife to the
room is also harmless error. As discussed above, the State had

a strong case against Subdiaz-Osorio, there was an eyewitness

who could testify about who brought the knives, and Subdiaz-

Osorio confessed. In exchange for his guilty plea, he received

a reduced charge. Accordingly, I conclude that it is not

reasonably probable that the circuit court's failure to suppress

Subdiaz-Osorio's statements contributed to the conviction.

¶106 In sum, although I determine that the circuit court
erred in denying the defendant's motion to suppress, I conclude

6
 No. 2010AP3016-CR.awb

that the circuit court's errors were harmless. Accordingly, I

respectfully concur in the mandate of the lead opinion.

7
 2010AP3016-CR.npc

¶107 N. PATRICK CROOKS, J. (concurring). In the

consolidated cases of Riley v. California and United States v.

Wurie, the United States Supreme Court recently recognized that

"[m]odern cell phones are not just another technological

convenience. With all they contain and all they may reveal,

they hold for many Americans 'the privacies of life.'"1 By

generally requiring a warrant before a cell phone search

following an arrest, the Supreme Court unanimously took a

definitive approach, which it stated in simple terms: "Our

answer to the question of what police must do before searching a

cell phone seized incident to an arrest is accordingly simple—

get a warrant."2

¶108 Our decision in State v. Carroll,3 a cell phone case,

is consistent with the United States Supreme Court's decision in

Riley/Wurie. In Carroll, we held that an officer was not

justified in searching through images stored on a suspect's cell

phone absent a warrant.4 We reasoned that the images stored on

the cell phone were "not in immediate danger of disappearing

before [the officer] could obtain a warrant."5 Like Riley/Wurie,
1
Riley v. California, Nos. 13-132, 13-212, slip op., at *20
(U.S. June 25, 2014) (quoting Boyd v. United States, 116 U.S.
616, 630 (1886)). I will refer to the two consolidated cases as
Riley/Wurie.
2
Id.
3
State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d
1.
4
See id., ¶33.
5
Id.
1
 2010AP3016-CR.npc

our decision in Carroll demonstrates a definitive approach,

requiring a warrant to search the contents of a cell phone.

¶109 The holdings of the United States Supreme Court in the

Riley/Wurie cases and of this court in Carroll lead me to the

conclusion that, absent case-specific exceptions, such as an

emergency, a warrant is required for the search of a cell

phone's location. Therefore, I cannot join the lead opinion. I

write separately to express my concern with the broad

pronouncements of the lead opinion, especially given that Fourth

Amendment cell phone jurisprudence, cell phone technology, and

related legislation are all rapidly evolving. However, for the

reasons explained below, I would apply a good faith exception

consistent with the rationale of State v. Eason6 and would

decline to apply the exclusionary rule here. I agree that the

location evidence obtained from Subdiaz-Osorio's cell phone

provider should not be suppressed. In addition, I agree that

Subdiaz-Osorio did not unequivocally invoke his right to

counsel. Therefore, I respectfully concur with the mandate of

the lead opinion.

I.

¶110 The Fourth Amendment provides:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly

6
State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d
625.

2
 2010AP3016-CR.npc

describing the place to be searched, and the persons
or things to be seized.7
¶111 "As the text makes clear, 'the ultimate touchstone of

the Fourth Amendment is reasonableness.'"8 The United States

Supreme Court has also "determined that '[w]here a search is

undertaken by law enforcement officials to discover evidence of

criminal wrongdoing, . . . reasonableness generally requires the

obtaining of a judicial warrant.'"9

¶112 In general, law enforcement should be required to

obtain a warrant to search the contents of a cell phone incident
to arrest and to obtain location information from a cell phone

provider.10 In addressing the facts of the Wurie case, for

example, the United States Supreme Court held that law

enforcement was required to obtain a warrant to search a cell

phone for information as to the location of the arrestee's

7
U.S. Const. amend IV. In similar language, the Wisconsin
Constitution provides:

The right of the people to be 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.
8
Riley v. California, Nos. 13-132, 13-212, slip op. at *6
(U.S. June 25, 2014) (quoting Brigham City v. Stuart, 547 U.S.
398, 403 (2006)).
9
Id. (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
646, 653 (1995)).
10
See id.; see also Carroll, 322 Wis. 2d 299.

3
 2010AP3016-CR.npc

apartment.11 I see a definite connection between the location

information obtained in Wurie and the location information

obtained in this case. As the United States Supreme Court

explained,

Data on a cell phone can also reveal where a person
has been. Historic location information is a standard
feature on many smart phones and can reconstruct
someone's specific movements down to the minute, not
only around town but also within a particular
building. See United States v. Jones, 565 U.S. __, __
(2012) (Sotomayor, J., concurring) (slip op., at 3)
("GPS monitoring generates a precise, comprehensive
record of a person's public movements that reflects a
wealth of detail about her familial, political,
professional, religious and sexual associations.").12
The United States Supreme Court recognized that there is a

balancing of interests required when determining whether there

should be a definitive rule or some exceptions permitted:

Absent more precise guidance from the founding era, we
generally determine whether to exempt a given type of
search from the warrant requirement "by assessing, on
the one hand, the degree to which it intrudes upon an
individual's privacy and, on the other, the degree to
which it is needed for the promotion of legitimate
governmental interests." Wyoming v. Houghton, 526 U.S.
295, 300 (1999).13
¶113 Therefore, I would hold that law enforcement should

obtain a warrant before obtaining cell phone location

information from providers.

11
Riley v. California, Nos. 13-132, 13-212, slip op. at *5,
9 (U.S. June 25, 2014).
12
Id. at *19.
13
Id. at *9.

4
 2010AP3016-CR.npc

¶114 I am persuaded that the definitive approach of

requiring a warrant for cell phone searches and cell phone

location data is appropriate. I recognize that before the

Riley/Wurie decisions, other jurisdictions that have considered

cases involving cell phone location data have come to differing

conclusions concerning a warrant requirement.14

¶115 Furthermore, a general warrant requirement is

preferable considering the rapid evolution of Fourth Amendment

jurisprudence and related legislation in the area of cell phone

14
See Adam Koppel, Note, Warranting A Warrant: Fourth
Amendment Concerns Raised by Law Enforcement's Warrantless Use
of GPS and Cellular Phone Tracking, 64 U. Miami L. Rev. 1061,
1079 (2010). Compare In re U.S. for an Order Authorizing the
Release of Prospective Cell Site Info., 407 F. Supp. 2d 134, 135
(D.D.C. 2006) (holding that the government must demonstrate
probable cause in order to obtain cell site tracking information
due to Fourth Amendment privacy concerns), and In re Application
of the U.S. for an Order (1) Authorizing the Use of a Pen
Register & a Trap & Trace Device, 396 F. Supp. 2d 294, 295
(E.D.N.Y. 2005) (holding same), and In re Application of U.S.
for an Order Authorizing Installation & Use of a Pen Register &
a Caller Identification Sys. on Tel. Nos. (Sealed), 402 F. Supp.
2d 597, 598 (D. Md. 2005) (holding same), and In re Application
for Pen Register & Trap/Trace Device with Cell Site Location
Auth., 396 F. Supp. 2d 747, 757 (S.D. Tex. 2005) (holding same),
with In re U.S. for an Order, 433 F. Supp. 2d 804, 806 (S.D.
Tex. 2006) (holding that probable cause was not required for
cell site location information), and In re Application of U.S.
For an Order, 411 F. Supp. 2d 678, 680 (W.D. La. 2006) (holding
same), and In re Application of U.S. for an Order for
Prospective Cell Site Location Info. on a Certain Cellular Tel.,
460 F. Supp. 2d 448, 462 (S.D.N.Y. 2006) (holding same), and In
re Application of U.S. for an Order for Disclosure of Telecomms.
Records & Authorizing the Use of a Pen Register & Trap & Trace,
405 F. Supp. 2d 435, 450 (S.D.N.Y. 2005) (holding same).

5
 2010AP3016-CR.npc

and other location tracking technology.15 Justice Alito

recognized this very principle when he concurred in part and

concurred in the judgment in Riley/Wurie, where he stated:

In light of these developments, it would be very
unfortunate if privacy protection in the 21st century
were left primarily to the federal courts using the
blunt instrument of the Fourth Amendment.
Legislatures, elected by the people, are in a better
position than we are to assess and respond to the
changes that have already occurred and those that
almost certainly will take place in the future.16

¶116 It is noteworthy that the Wisconsin Legislature has

quite recently enacted17 Wis. Stat. § 968.373, which generally

requires law enforcement to obtain a warrant before "track[ing]

the location of a communications device."18 This statute,

however, provides an exception to the general warrant

15
In addition to Riley, the United States Supreme Court has
also recently considered questions arising under the Fourth
Amendment as they relate to location tracking technology.
United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012)
(holding that a GPS device placed on an automobile to record the
vehicle's location constituted a search under the Fourth
Amendment).
16
Riley v. California, Nos. 13-132, 13-212, slip op. at *22
(U.S. June 25, 2014).
17
At the time the police obtained the location information
at issue here, our case law was not clear as to the need for a
warrant, nor were the statutes clear as to the procedures
necessary to obtain a warrant, as those procedures are spelled
out in the recently enacted provision (Wis. Stat. § 968.373(2)).
See Dissent, ¶ ___ n.32; State v. Tate, 2014 WI 89, ¶___ n.33,
___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J., dissenting).
18
Wis. Stat. § 968.373(2) (2011-12) (Effective April 25,
2014).

6
 2010AP3016-CR.npc

requirement if "[t]he customer or subscriber provides consent

for the action" or if "[a]n emergency involving the 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."19 Furthermore, Wis. Stat. §968.373(8)(b)

provides guidance to cell phone providers faced with law

enforcement requests for location data absent a warrant.20 In

the fast developing area of Fourth Amendment jurisprudence and

emerging technology, I would generally require that law

enforcement obtain a warrant to obtain cell phone location data.

¶117 There is no indication that law enforcement lacked the

necessary time to obtain a warrant to access Subdiaz-Osorio's

cell phone location through information disclosed by his cell

phone provider. Furthermore, nothing suggests that a delay in

obtaining a warrant would have hindered law enforcement efforts.

Based on the record in this case, law enforcement could have and

19
Wis. Stat. § 968.373(8)(a).
20
Wis. Stat. § 968.373(8)(b) (instructing providers to
disclose information to law enforcement in situations where
customers have provided consent or when the provider has a good
faith belief that such information is necessary to prevent death
or serious injury).

7
 2010AP3016-CR.npc

should have obtained a warrant in time to access the requested

cell phone location data and apprehend the defendant.21

II

¶118 Despite my view that usually law enforcement must

obtain a warrant before obtaining a cell phone location, I would

not exclude the location evidence in this case even though law

enforcement did not first obtain a warrant. However, I do not

agree with the lead opinion's conclusion that the warrantless

search was justified on the grounds of probable cause and

exigent circumstances. Instead, I would apply a good faith

exception in this case to conclude that Subdiaz-Osorio's Fourth

Amendment rights were not violated.

¶119 As the United States Court of Appeals for the Fifth

Circuit stated:

[W]e now hold that evidence is not to be suppressed
under the exclusionary rule where it is discovered by
officers in the course of actions that are taken in
good faith and in the reasonable, though mistaken,
belief that they are authorized. We do so because the
exclusionary rule exists to deter willful or flagrant
actions by police, not reasonable, good-faith ones.
Where the reason for the rule ceases, its application
must cease also.22

21
I agree with Chief Justice Abrahamson's dissent that
there was sufficient time and information for the police to get
a warrant.
22
United States v. Williams, 622 F.2d 830, 840 (5th Cir.
1980).

8
 2010AP3016-CR.npc

¶120 The United States Supreme Court in United States v.

Leon23 recognized the good faith exception to the exclusionary

rule in the context of a search based on a subsequently

invalidated warrant. However, as a treatise writer has

recognized, Leon's sweeping language supports the extension of

the good faith exception beyond the warrant situation to non-

warrant cases where a police officer's conduct is objectively

reasonable:

Although the holding in both Sheppard and Leon is
limited to with-warrant cases, the possibility that
these decisions will serve as stepping stones to a
more comprehensive good faith exception to the Fourth
Amendment exclusionary rule cannot be discounted.
Certainly the author of those two decisions, Justice
White, was prepared to go farther, as he clearly
indicated prior to and contemporaneously with the
rulings in those two cases, and some current members
of the Court may be equally prepared to take such a
step. If they are, much of the reasoning in Leon will
offer support for such an extension of that case
beyond the with-warrant situation. Particularly
noteworthy is the Leon majority's broad assertion that
whenever the police officer's conduct was objectively
reasonable the deterrence function of the exclusionary
rule is not served and that "when law enforcement
officers have acted in objective good faith or their
transgressions have been minor, the magnitude of the
benefit conferred on such guilty defendants offends
basic concepts of the criminal justice system."24
23
United States v. Leon, 468 U.S. 897, 907-08 (1984).
24
1 Wayne R. LaFave, Search and Seizure § 1.3(f), at 128
(5th ed. 2012) (citations omitted). See also Wesley MacNeil
Oliver, Toward A Better Categorical Balance of the Costs and
Benefits of the Exclusionary Rule, 9 Buff. Crim. L. Rev. 201,
270-71 (2005) (advocating a broader application of the good
faith exception to cases involving serious crimes wherein the
police officers involved reasonably believed probable cause
existed for the search or seizure)
9
 2010AP3016-CR.npc

¶121 The good faith exception does not contravene the

purpose of the exclusionary rule. “When there has been an

unlawful search, a common judicial remedy for the constitutional

error is exclusion."25 Specifically, "[t]he exclusionary rule

bars evidence obtained in an illegal search and seizure from a

criminal proceeding against the victim of the constitutional

violation."26 That the exclusionary rule is a judicially created

remedy, not a right, is significant; "its application is

restricted to cases where its remedial objectives will best be

served."27

¶122 Thus, a court considering whether to apply the

exclusionary rule must bear in mind the primary purpose of the

rule: deterring police misconduct.28 "[M]arginal deterrence is

not enough to justify exclusion; 'the benefits of deterrence

must outweigh the costs.'"29 In employing this type of

cost/benefit analysis to the facts of a particular case, a court

should recognize the "substantial social costs exacted by the

25
State v. Dearborn, 2010 WI 84, ¶15, 327 Wis. 2d 252, 786
N.W.2d 97.
26
State v. Ward, 2000 WI 3, ¶46, 231 Wis. 2d 723, 604
N.W.2d 517 (citing Illinois v. Krull, 480 U.S. 340, 347 (1987)).
27
Dearborn, 327 Wis. 2d 252, ¶35 (citing Herring v. United
States, 555 U.S. 135, 129 S.Ct 695, 700 (2009)).
28
Id., ¶41 (citing Krull, 480 U.S. at 347).
29
Id., ¶35 (citing Herring, 129 S.Ct at 700).

10
 2010AP3016-CR.npc

exclusionary rule for the vindication of Fourth Amendment rights

. . . ."30 The social costs of deterrence are particularly high

where "law enforcement officers have acted in objective good

faith or their transgressions have been minor" because “the

magnitude of the benefit conferred on such guilty defendants

offends basic concepts of the criminal justice system.”31

¶123 The exclusionary rule is based on a desire to deter

law enforcement from violating the constitutional right of a

citizen to be free from illegal searches and seizures. "Where

the official action was pursued in complete good faith, however,

the deterrence rationale loses much of its force."32 On that

basis, we have refused to apply the exclusionary rule where it

would otherwise apply where officers proceeded consistent with

"law that was controlling at the time of the search,"33 and where

police reasonably relied on a subsequently invalidated search

warrant.34 We stated specifically, "[T]he laudable purpose of the

exclusionary rule——deterring police from making illegal searches

30
Id. at 907.
31
Id. at 907-908.
32
State v. Gums, 69 Wis.2d 513, 517, 230 N.W.2d 813 (1975)
(quoting Michigan v. Tucker, 417 U.S. 433, 447) (1979).
33
State v. Ward, 2000 WI 3, ¶3, 231 Wis.2d 723, 604 N.W.2d
517.
34
Eason, 245 Wis. 2d 206, ¶2.

11
 2010AP3016-CR.npc

and seizures——would not be furthered by applying the

exclusionary rule."35

¶124 That is a guiding principle in the application of the

exclusionary rule. We have, consistent with the United States

Supreme Court, stressed that "just because a Fourth Amendment

violation has occurred does not mean the exclusionary rule

applies. . . . The application of the exclusionary rule should

focus on its efficacy in deterring future Fourth Amendment

violations. Moreover . . . 'the benefits of deterrence must

outweigh the costs.'"36 Citing to Eason, Dearborn made clear

that in those circumstances where "the exclusionary rule cannot

deter objectively reasonable law enforcement activity, . . . it

should not apply . . . ."37 Many courts have endorsed this

approach and have declined to apply the exclusionary rule in a

rigid manner where law enforcement acted reasonably.38

35
Id.
36
Dearborn, 327 Wis. 2d 252, ¶35 (citations omitted)
(citing Herring v. United States, 555 U.S. 135, 129 S.Ct 695,
700 (2009).
37
Id., ¶37.
38
See State v. Coats, 797 P.2d 693, 696 (Ariz. Ct. App.
1990) (discussing Ariz. Rev. Stat. § 13-3925, Arizona's
statutory good-faith exception); Toland v. State, 688 S.W.2d 718
(Ark. 1985); Matter of M.R.D., 482 N.E.2d 306, 310 (Ind. Ct.
App. 1985); State v. Sweeney, 701 S.W.2d 420, 426 (Mo. 1985);
State v. Welch, 342 S.E.2d 789, 795 (N.C. 1986); State v.
Gronlund, 356 N.W.2d 144, 146-47 (N.D. 1984); McCary v.
Commonwealth, 321 S.E.2d 637, 644 (Va. 1984).

12
 2010AP3016-CR.npc

¶125 I agree with that approach, and, based on the record

here, this case falls within the category of cases to which the

exclusionary rule should not apply because no deterrent purpose

would be served by requiring the exclusion of the cell phone

location evidence at issue.

¶126 Here police were investigating a murder, and, after

pursuing other investigative leads, police contacted the

Wisconsin Department of Justice, Division of Criminal

Investigation (DCI), and asked DCI to request location

information from Subdiaz-Osorio's cell phone provider.

Proceeding according to the requirements of the cell phone

provider, and pursuant to the terms of its user agreement, DCI

filled out and submitted to the cell phone provider a "Mandatory

Information for Exigent Circumstances Requests" form. There is

no evidence or allegation of police misconduct in this case.

¶127 What occurred here is certainly similar to what we

required in structuring the good faith exception:

We hold that where police officers act in objectively
reasonable reliance upon the warrant, which had been
issued by a detached and neutral magistrate, a good
faith exception to the exclusionary rule applies. We
further hold that in order for a good faith exception
to apply, the burden is upon the State to show that
the process used in obtaining the search warrant
included a significant investigation and a review by
either a police officer trained and knowledgeable in
the requirements of probable cause and reasonable
suspicion, or a knowledgeable government attorney. We
also hold that this process is required by Article I,
Section 11 of the Wisconsin Constitution, in addition
to those protections afforded by the good faith
13
 2010AP3016-CR.npc

exception as recognized by the United States Supreme
Court in United States v. Leon, 468 U.S. 897 (1984).39
Parallel to our reasoning in Eason, there was a "significant

investigation" underway into the murder of Subdiaz-Osorio's

brother, including multiple interviews with witnesses and a

search warrant executed at his home. Furthermore, as part of

the investigation, law enforcement consulted with the Department

of Justice, an outside entity certainly "trained and

knowledgeable" in these matters, whose staff then requested the

cell phone location data. These steps were of a similar nature
to the steps outlined in Eason.

¶128 Searches involving cell phone data represent a rapidly

evolving area of law where it is appropriate to recognize law

enforcement's good faith efforts to conduct investigations

consistent with constitutional restrictions. There is no

allegation that there was clearly established law that police

disregarded in the course of the investigation in this case.

The actions of the police here show that the officers were

acting in good faith, and, therefore, a good faith exception to

the warrant requirement is appropriate here.

¶129 For the reasons stated, I respectfully concur with the

mandate of the lead opinion but write separately.

39
Eason, 245 Wis. 2d 206, ¶74.

14
 No. 2010AP3016-CR.pdr

¶130 PATIENCE DRAKE ROGGENSACK, J. (concurring). I agree

with the lead opinion's conclusions that law enforcement acted

reasonably under the Fourth Amendment due to exigent

circumstances and that Subdiaz-Osorio failed to unequivocally

invoke his right to counsel. I write in concurrence, however,

because I cannot endorse the lead opinion's discussion of

whether a search occurred.1

¶131 The lead opinion says that it does not decide whether

law enforcement's activities constituted a search within the

meaning of the Fourth Amendment.2 It does so in order "to avoid

delivering a broad pronouncement about reasonable expectations

of privacy in the rapidly developing field of wireless

technology."3 While I wholeheartedly agree with the principles

of judicial restraint the lead opinion espouses, I write

separately because I believe the lead opinion has "elaborat[ed]

too fully on the Fourth Amendment implications of emerging

technology before its role in society has become clear."4 City

of Ontario, Cal. v. Quon, 560 U.S. 746, 759 (2010).

¶132 Specifically, while the lead opinion purports to

assume without deciding "that people have a reasonable

1
Lead op., ¶¶48-68.
2
Id., ¶¶9, 64, 68.
3
Id., ¶9.
4
As an example of the changing landscape, I note that on
April 23, 2014, 2013 Wis. Act 375 was enacted as Wis. Stat.
§ 968.373 and now governs "tracking the location of a cellular
telephone."

1
 No. 2010AP3016-CR.pdr

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," it nonetheless

applies Katz's two-part test for determining whether a search

occurred.5 See Katz v. United States, 389 U.S. 347, 361 (1967)

(Harlan, J., concurring). In doing so, it seems to decide

several points of law that are unrelated to its conclusion,

which is grounded in the exigent circumstances exception to the

Fourth Amendment's warrant requirement. Were I writing for the

majority of the court, I would write more narrowly, avoiding the

conclusions above and also those mentioned below.

¶133 First, the lead opinion concludes that the Subdiaz-

Osorio's Sprint policy suffers from multiple legal shortcomings.

After noting "piecemeal definitions and vague terminology" in

that contract, it concludes that "[i]t is possible that a

customer would read th[e] Policy and understand that his cell

phone may be tracked at all times, but that is not the only

possible reading."6 Whether a contract is capable of more than
one reasonable interpretation, and is therefore ambiguous, is a

question of law that may have important legal ramifications.7 I
5
Lead op., ¶¶9, 51-68.
6
Id., ¶56, 58.
7
Most commonly, if a statute is ambiguous, meaning "it is
capable of being understood by reasonably well-informed persons
in two or more senses," we may turn to extrinsic sources, such
as legislative history, to aid in our interpretation of a
statute. State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, ¶¶47, 50, 271 Wis. 2d 633, 681 N.W.2d 110. In the
context of contract interpretation, the ambiguous term may be
construed against its drafter. Folkman v. Quamme, 2003 WI 116,
¶20, 264 Wis. 2d 617, 665 N.W.2d 857.
2
 No. 2010AP3016-CR.pdr

would therefore refrain from interpreting the contract when

doing so is unnecessary to our holding.

¶134 The lead opinion further states that even if the cell

phone contract were clear, "[i]t does not necessarily follow

that law enforcement may lawfully seek and obtain the

information without a court order or without satisfying the

exigent circumstances exception."8 It concludes that "a customer

might still reasonably assume that the cell phone company will

disclose information only when presented with a valid court

order."9

¶135 This pronouncement calls into serious question the

ability of a defendant's voluntary disclosure of information to

shape the defendant's expectation of privacy, and therefore

questions the continued viability of the third party disclosure

doctrine itself, under which a defendant "typically retains no

. . . constitutional reasonable expectation of privacy in

information conveyed to a third party." ABA Standards for

Criminal Justice, Law Enforcement Access to Third Party Records,
6 (3d ed. 2013). This is a developing issue that I believe is

better evaluated in a decision that requires us to address third

party disclosures. See United States v. Jones, 132 S. Ct. 945,

957 (2012) (Sotomayor, J., concurring) ("it may be necessary to

reconsider the premise that an individual has no reasonable

expectation of privacy in information voluntarily disclosed to

third parties").

8
Lead op., ¶60.
9
Id.

3
 No. 2010AP3016-CR.pdr

¶136 Finally, the lead opinion notes that law enforcement

will not know, in each instance, whether a suspect's cell phone

contract contains language similar to the Sprint contract in the

present case.10 It then expresses concern that law enforcement

will "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."11 This will, in

turn, "invite[] law enforcement to be complacent in its requests

for tracking," according to the lead opinion.12 As distasteful

as that idea may be, I would not evaluate cell phone contract

rationales that do not drive our decision.

¶137 In sum, while the lead opinion "believe[s] it prudent

to heed the cautionary advice of the Supreme Court" and to

decide the case on the narrowest grounds possible, its wide-

ranging discussion fails to implement that directive.13 Instead,

its decision all but forecloses argument "that a search under

the Fourth Amendment depends on the specific language in an

individual's cell phone policy" or that the defendant's
disclosure of information to a third party shapes his

expectation of privacy.14 Because I do not wish to decide

whether a search occurred in this case, or any of the issues

10
Id., ¶61.
11
Id.
12
Id., ¶63.
13
Id., ¶64.
14
Id., ¶60-61.

4
 No. 2010AP3016-CR.pdr

that are unnecessary to that inquiry, I do not join the lead

opinion, and respectfully concur in its mandate.

¶138 I am authorized to state that Justice ANNETTE

KINGSLAND ZIEGLER joins this concurrence.

5
 No. 2010AP3016-CR.akz

¶139 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join

Justice Roggensack's concurrence, but write separately to

address the United States Supreme Court's recent decision in

Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014).

Riley addressed whether a warrantless search of the contents of

a suspect's cell by police was constitutionally permissible, id.

at 2477, while in the case at issue, Subdiaz-Osorio objects to

the disclosure of location data by his cell phone service

provider. See Lead op., ¶2. The location of a cell phone and

the contents contained therein may or may not be subject to the

same constitutional analysis. At this point, the parties have

not had a reasonable opportunity to brief or argue that point,

or address the import of Riley on the case at issue. Especially

considering the recent U.S. Supreme Court precedent, I agree

with Justice Roggensack, and I would decide this case on the

narrowest possible grounds.

¶140 The Riley decision explicitly stated that it was not

addressing "the question whether the collection or inspection of
aggregated digital information amounts to a search under other

circumstances." 134 S. Ct. at 2489 n.1. The Court further

clarified that "[o]ur holding, of course, is not that the

information on a cell phone is immune from search; it is instead

that a warrant is generally required before such a

search . . . ." Id. at 2493 (emphasis added). The Riley

decision acknowledged that "[i]f the police are truly confronted

with a now or never situation,——for example, circumstances
suggesting that a defendant's phone will be the target of an

1
 No. 2010AP3016-CR.akz

imminent remote-wipe attempt——they may be able to rely on

exigent circumstances to search the phone immediately." Id. at

2487 (citations and internal quotation marks omitted).

¶141 In further limiting its holding to the facts of the

case, the Riley court also stated:

Moreover, even though the search incident to
arrest exception does not apply to cell phones, other
case-specific exceptions may still justify a
warrantless search of a particular phone. One well-
recognized exception applies when the exigencies of
the situation make the needs of law enforcement so
compelling that [a] warrantless search is objectively
reasonable under the Fourth Amendment. Such
exigencies could include the need to prevent the
imminent destruction of evidence in individual cases,
to pursue a fleeing suspect, and to assist persons who
are seriously injured or are threatened with imminent
injury. . . .

In light of the availability of the exigent
circumstances exception, there is no reason to believe
that law enforcement officers will not be able to
address some of the more extreme hypotheticals that
have been suggested: a suspect texting an accomplice
who, it is feared, is preparing to detonate a bomb, or
a child abductor who may have information about the
child's location on his cell phone. The defendants
here recognize——indeed, they stress——that such fact-
specific threats may justify a warrantless search of
cell phone data. The critical point is that, unlike
the search incident to arrest exception, the exigent
circumstances exception requires a court to examine
whether an emergency justified a warrantless search in
each particular case.
Id. at 2494 (citations and internal quotation marks omitted).

¶142 Thus, the Supreme Court in Riley did not necessarily

address the specific question presented in the case at issue,

presumably because that question was not squarely presented by
the facts of Riley. I conclude that, given these uncertainties,

2
 No. 2010AP3016-CR.akz

we should exercise restraint and cabin our analysis to the facts

of this case.

¶143 We have received no briefing or argument on the

broader privacy questions that are addressed in the lead opinion

or in Riley. As a practical matter, the issue of what actions

law enforcement needs to take when seeking cell phone location

information has also been addressed by the legislature. See

Wis. Stat. §§ 968.373 and 968.375(3)(c) (2013-14).1 The

technological implications of a broader approach are vast and

difficult to predict, and we are generally obliged to decide our

cases on the "narrowest possible grounds." Barland v. Eau

Claire Cnty., 216 Wis. 2d 560, 566 n.2, 575 N.W.2d 691 (1998);

see also State v. Robinson, 2010 WI 80, ¶23, 327 Wis. 2d 302,

786 N.W.2d 463. As a result, I join Justice Roggensack's

concurrence.

¶144 For the foregoing reasons I respectfully concur.

¶145 I am authorized to state that Justices PATIENCE DRAKE

ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.

1
Wisconsin Stat. §§ 968.373 and 968.375(3)(c) were enacted
after the commencement of the case at issue and so are not
directly applicable. Our inability to consider the new statutes
in this case is an additional argument in favor of a narrow
approach.

3
 No. 2010AP3016-CR.ssa

¶146 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). "Advances

in technology offer great benefits to society in many areas. At

the same time, they can pose significant risks to individual

privacy rights."1 The proliferation of cell phones and their

location tracking capabilities exemplify the risks to privacy

rights posed by technological advancement.

¶147 The criminal cases State v. Tate2 and State v. Subdiaz-

Osorio3 raise the question whether individuals have a

constitutional right of privacy in their cell phone location

data. In other words, do the United States4 and Wisconsin

Constitutions5 permit law enforcement to access a person's cell

phone location data without a warrant?

1
State v. Earls, 70 A.3d 630, 631-32 (N.J. 2013).
2
State v. Tate, 2014 WI 89, ___ Wis. 2d ___, ___
N.W.2d ___.
3
State v. Subdiaz-Osorio, 2014 WI 87, ___ Wis. 2d ___, ___
N.W.2d ___.
4
The Fourth Amendment to the United States Constitution
provides:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
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.
5
Article 1, Section 11 of the Wisconsin Constitution
provides:

The right of the people to be 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
1
 No. 2010AP3016-CR.ssa

¶148 Cell phones are a "pervasive and insistent part of

daily life . . . ."6 The vast majority of Americans own cell

phones; the Pew Research Center has reported that, as of May

2013, 91% of American adults have a cell phone and 56% have a

smartphone.7 Cell phones are literally and figuratively attached

to their users' persons, such that "the proverbial visitor from

Mars might conclude they were an important feature of human

anatomy."8 Unlike land-line phones, people generally carry cell

phones with them at all times——at home, in the car, at work, and

at play.

¶149 Cell phones can thus serve as powerful tracking

devices that can pinpoint our movements with remarkable

accuracy. They can isolate in time and place our presence at

shops, doctors' offices, religious services, Alcoholics

Anonymous meetings, AIDS treatment centers, abortion clinics,

political events, theaters, bookstores, and restaurants, and

the place to be searched and the persons or things to
be seized.
6
Riley v. California, 134 S. Ct. 2473, 2484 (2014).
7
Earls, 70 A.3d at 638.
8
Riley, 134 S. Ct. at 2484. The Riley Court additionally
noted that "nearly three-quarters of smart phone users report
being within five feet of their phones most of the time, with
12% admitting that they even use their phones in the shower."
Id. at 2490.

2
 No. 2010AP3016-CR.ssa

identify with whom the user of the cell phone associates.9

Cellular service providers have records of the geographic

location of almost every American at almost every moment of the

day and night.10 Accessing this information reveals intimate

details about a person and intrudes on the constitutional right

of association. The United States Supreme Court characterizes

location data as "qualitatively different" from physical

records, noting that location data can "reconstruct someone's

specific movements down to the minute, not only around town but

also within a particular building."11 The more precise the

tracking, the greater the privacy concerns.

¶150 Cell phone location data can also be a formidable

instrument in fighting crime. In both Tate and Subdiaz-Osorio,

the law enforcement officers were performing their important

public safety duties by investigating violent crimes. Both

criminal suspects were apprehended in relatively short order

through law enforcement use of cell phone location data.

¶151 The officers in Tate and Subdiaz-Osorio had to deal
with the thorny issues raised by seeking access to individuals'

9
See Earls, 70 A.3d at 632. See also Riley, 134 S. Ct. at
2489 ("Cell phones differ in both a quantitative and a
qualitative sense from other objects that might be kept on an
arrestee's person. . . . [Cell phones] could just as easily be
called cameras, video players, rolodexes, calendars, tape
recorders, libraries, diaries, albums, televisions, maps, or
newspapers.").
10
See Noam Cohen, It's Tracking Your Every Move and You May
Not Even Know, N.Y. Times, Mar. 26, 2011, at A1.
11
Riley, 134 S. Ct. at 2490 (citing United States v. Jones,
132 S. Ct. 945 (2012) (Sotomayor, J., concurring)).

3
 No. 2010AP3016-CR.ssa

cell phone location data. Law enforcement is the first word in

interpreting constitutional requirements; the courts are the

last.

¶152 It is this court's responsibility to evaluate a

potential search "by assessing, on the one hand, the degree to

which it intrudes upon an individual's privacy and, on the

other, the degree to which it is needed for the promotion of

legitimate governmental interests." Wyoming v. Houghton, 526

U.S. 295, 300 (1999).

¶153 This court owes it to law enforcement, lawyers,

litigants, circuit courts, the court of appeals, and the public

at large to provide clarity about when a search has occurred

regarding cell phone location data and what procedures must be

undertaken by the government to render such searches

constitutional.12 A clear set of rules will protect privacy

interests and also give guidance to individuals evaluating these

interests.

¶154 Rather than dance around the issue of whether
government access to cell phone location data in the instant

cases is a search within the meaning of the Constitutions, I

propose that the court address it head-on. Government access to

cell phone location data raises novel legal questions of great

importance for the privacy rights of the public in an emerging

12
"[W]e promote clarity in the law of search and seizure
and provide straightforward guidelines to governmental officers
who must apply our holdings." State v. Williams, 2012 WI 59,
¶25, 341 Wis. 2d 191, 814 N.W.2d 460.

4
 No. 2010AP3016-CR.ssa

area of technology——exactly the type of questions appropriate

for resolution pursuant to this court's law-developing function.

¶155 I conclude that government access to cell phone

location data in the instant cases, which involves invasive

surveillance of an individual's movements, is a search within

the meaning of the Constitutions.13 To read the Constitutions

more narrowly is to ignore the vital role that the cell phone

has come to play in private communications, to paraphrase the

United States Supreme Court in Katz v. United States, 389 U.S.

347, 352 (1967).14

¶156 People do not buy cell phones to have them serve as

government tracking devices. They do not expect the government

to track them by using location information the government gets

from cell phones.15 People have a subjective expectation of

privacy in cell phone location data that society is prepared to

13
Justices Ann Walsh Bradley and N. Patrick Crooks agree
with this conclusion.
14
"To read the Constitution more narrowly is to ignore the
vital role that the public telephone has come to play in private
communication." Katz v. United States, 389 U.S. 347, 352
(1967).
15
See, e.g., United States v. Davis, ___ F.3d ___, 2014 WL
2599917, at *9 (11th Cir. 2014) ("[I]t is unlikely that cell
phone customers are aware that their cell phone providers
collect and store historical location information.") (quoting In
re Application of U.S. for an Order Directing a Provider of
Elec. Commc'n Serv. To Disclose Records to Gov't, 620 F.3d 304,
317 (3d Cir. 2010)); Earls, 70 A. 3d at 632.

5
 No. 2010AP3016-CR.ssa

recognize as reasonable. Thus, absent a warrant, such a search

is per se unreasonable.16

¶157 If the State does not have a warrant, the State can

access cell phone location data only if the State can

demonstrate one of the narrowly drawn exceptions to the warrant

requirement. In both Tate and Subdiaz-Osorio, law enforcement

officers could have accessed cell phone location data with a

properly authorized warrant that complied with existing relevant

statutes.17 They did not.

¶158 I address the balance between privacy interests and

law enforcement interests as presented by Tate and Subdiaz-

Osorio.18 These two cases address substantially similar issues

regarding government access to cell phone location data but pose

distinct fact patterns.

¶159 Neither the Tate majority opinion nor Justice

Prosser's lead opinion in Subdiaz-Osorio decides whether the

government access in question constituted a search within the

meaning of the United States and Wisconsin Constitutions. Both
opinions assume that a search occurred.

¶160 Despite the insistence of the Tate majority opinion

and Justice Prosser's lead opinion in Subdiaz-Osorio that they

16
State v. Sanders, 2008 WI 85, ¶27, 311 Wis. 2d 257, 752
N.W.2d 713; State v. Payano-Roman, 2006 WI 47, ¶30, 290
Wis. 2d 380, 714 N.W.2d 548.
17
I refer to the court order issued in Tate as a "warrant,"
as does the Tate majority opinion. The applicable statute
refers to a court issuing a "subpoena" requiring the production
of documents. Wis. Stat. § 968.135.
18
"Privacy comes at a cost." Riley, 134 S. Ct. at 2493.

6
 No. 2010AP3016-CR.ssa

merely assume, without deciding, that the government access was

a search in each case,19 both opinions address the search issue

as they elaborate on cases and principles underlying their

assumption that a search occurred.

¶161 The Tate majority opinion and Justice Prosser's lead

opinion in Subdiaz-Osorio refer to and draw guidance from the

same Wisconsin and United States Supreme Court cases, including

the recently mandated Riley v. California, 573 U.S. ___, 134 S.

Ct. 2473 (2014).20

¶162 The Tate majority opinion and Justice Prosser's lead

opinion announce principles of law that overlap and to an extent

19
Tate, 2014 WI 89, ¶¶2, 26; Subdiaz-Osorio, Justice
Prosser's lead op., ¶¶9, 70 (Prosser, J., lead op.). But see
Subdiaz-Osorio, Justice Roggensack's concurrence, ¶132 (accusing
Justice Prosser's lead opinion of not merely assuming the issue
of the reasonable expectation of privacy but in effect deciding
the issue).
20
See Riley, 134 S. Ct. 2473 (cited in Tate, 2014 WI 89,
¶20 n.11; in Subdiaz-Osorio, Justice Prosser's lead op., ¶47
n.23); Katz, 389 U.S. at 353 (cited in Tate, 2014 WI 89, ¶¶19-
21; in Subdiaz-Osorio, Justice Prosser's lead op., ¶¶51-52, 65-
66; in Subdiaz-Osorio, Justice Roggensack's concurrence, ¶132);
Jones, 132 S. Ct. 945 (2012) (cited in Tate, 2014 WI 89, ¶¶17-
25; in Subdiaz-Osorio, Justice Prosser's lead op., ¶¶43, 48, 51;
in Subdiaz-Osorio, Justice Roggensack's concurrence, ¶135; State
v. Brereton, 2013 WI 17, 345 Wis. 2d 563, 826 N.W.2d 369 (cited
in Tate, 2014 WI 89, ¶¶16-18, 40; in Subdiaz-Osorio, Justice
Prosser's lead op., ¶¶38, 49; State v. Sveum, 2010 WI 92, 328
Wis. 2d 369, 787 N.W.2d 317 (cited in Tate, ¶¶14, 23, 28, 30,
40-43; in Subdiaz-Osorio, Justice Prosser's lead op., ¶49).

7
 No. 2010AP3016-CR.ssa

conflict with each other.21 The two opinions, as well as the

separate writings in Subdiaz-Osorio of Justices Ann Walsh

Bradley, N. Patrick Crooks, and Patience Drake Roggensack, must

thus be read together carefully to understand the court's

position on the constitutionality of law enforcement access to a

person's cell phone location data.22

¶163 To address the overlapping issues raised by these two

cases, I organize my dissenting opinions as follows. Each

heading number corresponds to the relevant subdivision of each

dissent.

¶164 In my dissent in Tate, I address the following main

points:

Part I. The police access to the defendant's cell phone

location data, an issue in both Tate and Subdiaz-Osorio,

was a search within the meaning of the Constitutions.23

21
See Subdiaz-Osorio, Justice Roggensack's concurrence,
¶¶131-132 (criticizing Justice Prosser's lead opinion for
"elaborate[ing] too fully on the Fourth Amendment implications
of emerging technology before its role in society has become
clear"); Subdiaz-Osorio, Justice Prosser's lead op., ¶50 (noting
that Tate shares similarities with Subdiaz-Osorio even though it
is ultimately decided on other issues).
22
In footnotes 23 through 30, I consolidate and summarize
the position of each opinion in Tate and Subdiaz-Osorio
regarding particular topics.
23
For discussions of whether a search existed, see:

Tate, 2014 WI 89, ¶26: Assumes, without deciding, that
there was a search.

Subdiaz-Osorio, Justice Prosser's lead op., ¶9: Assumes,
without deciding, that there was a search but hints
strongly that a search existed.

8
 No. 2010AP3016-CR.ssa

Part II. The search existed as a trespass.24

Part III. The search existed as an invasion of an

individual's reasonable expectation of privacy.

A. The subjective expectation of privacy was not

undermined by:

1. The cell phone contract;25 or

Subdiaz-Osorio, Justice Bradley's concurrence, ¶89; Justice
Crooks' concurrence, ¶116: Determine that there was a
search.

Subdiaz-Osorio, Justice Roggensack's concurrence, ¶¶131-
137: Criticizes Justice Prosser's lead opinion for
elaborating too fully on right to privacy in cell phone
location data.

Subdiaz-Osorio, Justice Ziegler's concurrence, ¶139-143:
Joining Justice Roggensack's concurrence, and requesting
additional briefing on whether a search existed.

Tate, 2014 WI 89, ¶61 (Abrahamson, C.J., dissenting): Yes,
access to cell phone location data is a search. See also
Subdiaz-Osorio, Chief Justice Abrahamson's dissent, ¶155.
24
For discussions of whether a trespass existed, see:

Tate, 2014 WI 89, ¶¶18-20: Discusses trespass but refers to
the search only as "nontrespassory."

Subdiaz-Osorio, Justice Prosser's lead op., ¶¶48-50:
Trespass analysis would be "unnatural."

Tate, 2014 WI 89, ¶¶101-102 (Abrahamson, C.J., dissenting):
State does not disclose how information was obtained;
appears to be a trespass. See also Subdiaz-Osorio, Chief
Justice Abrahamson's dissent, ¶168.
25
For discussions of whether the cell phone contract
created consent to access the cell phone location data, see:

Tate, 2014 WI 89, ¶22: Defendant might consent through
purchase of cell phone.

Subdiaz-Osorio, Justice Prosser's lead op., ¶¶53-63:
Consent through cell phone purchase contract was invalid.
9
 No. 2010AP3016-CR.ssa

2. The third-party doctrine.26

B. Society recognizes a reasonable expectation of

privacy in cell phone location data.27

Subdiaz-Osorio, Justice Roggensack's concurrence, ¶¶133-
135: Questions Justice Prosser's lead opinion regarding
contract.

Tate, 2014 WI 89, ¶¶116-121 (Abrahamson, C.J., dissenting):
Adhesion contract will not be enforced to waive
constitutional rights. See also Subdiaz-Osorio, Chief
Justice Abrahamson's dissent, ¶168.
26
For discussions of the impact of third-party doctrine,
see:

Tate, 2014 WI 89, ¶¶24-25: Third-party doctrine may need
reevaluation.

Subdiaz-Osorio, Justice Roggensack's concurrence, ¶134-135:
Questions whether expectation of privacy exists in third-
party records.

Tate, 2014 WI 89, ¶122-135, (Abrahamson, C.J., dissenting):
Third-party doctrine in inapplicable to cell phone location
data.
27
For discussions of whether society recognizes a
reasonable expectation of privacy, see:

Tate, 2014 WI 89, ¶¶2, 16-25: Expectation of privacy may be
lower for cell phone location, especially in a public area;
expectation of privacy was dependent on the cell phone's
location in a home.

Subdiaz-Osorio, Justice Prosser's lead op., ¶¶65-68: Public
expects privacy in cell phone location data and worries
about invasion of privacy.

Subdiaz-Osorio, Justice Roggensack's concurrence, ¶¶134-
135: Questions whether expectation of privacy exists in
third-party records.

10
 No. 2010AP3016-CR.ssa

Part IV. Wisconsin Stat. § 968.135, the statute setting

forth the requirements for a subpoena of documents, should

have been followed——it was not in either Tate or in

Subdiaz-Osorio.28

¶165 In my dissent in Subdiaz-Osorio, I address two main

points:

Part V. The State failed to meet its burden to demonstrate

the existence of exigent circumstances;29 and

Tate, 2014 WI 89, ¶136-149 (Abrahamson, C.J., dissenting):
Case law, public policy, and Wisconsin legislation point to
society recognizing reasonable expectation of privacy in
cell phone location data. See also Subdiaz-Osorio, Chief
Justice Abrahamson's dissent, ¶168.
28
For discussions of the warrant requirement, see:

Tate, 2014 WI 89, ¶¶33-50: Warrant did not comply with Wis.
Stat. § 968.135, subpoena for third-party information.
Non-statutory warrant met constitutional requirements.
Non-statutory warrants met "spirit" of warrant statutes.

Subdiaz-Osorio, Justice Prosser's lead op., ¶5 n.2: No
warrant at issue, but warrants must meet Fourth Amendment
and statutory requirements.

Subdiaz-Osorio, Justice Bradley's concurrence, ¶89: A
warrant was needed and the State's warrant failed to comply
in either case.

Subdiaz-Osorio, Justice Crooks' concurrence, ¶118: A
warrant was needed but the good-faith exception applied.

Tate, 2014 WI 89, ¶¶150-163 (Abrahamson, C.J., dissenting):
State fails to comply with statutory warrant requirements.
Warrant was invalid. See also Subdiaz-Osorio, Chief
Justice Abrahamson's dissent, ¶168.
29
For discussions of exigent circumstances, see:

Tate: Exigent circumstances not at issue.

11
 No. 2010AP3016-CR.ssa

Part VI. The defendant invoked his Miranda right to an

attorney at his interrogation.30

¶166 My discussion in Parts I-IV of my Tate dissent is

relevant to Subdiaz-Osorio, and I incorporate Parts I-IV of my

Tate dissent into my Subdiaz-Osorio dissent without repeating

Subdiaz-Osorio, Justice Prosser's lead op., ¶¶69-81:
Exigent circumstances exception to warrant requirement was
satisfied.

Subdiaz-Osorio, Justice Bradley's concurrence, ¶89: there
were no exigent circumstances.

Subdiaz-Osorio, Justice Crooks' concurrence, ¶118: there
were no exigent circumstances.

Subdiaz-Osorio, Justice Roggensack's concurrence, ¶130: Law
enforcement acted reasonably under the Fourth Amendment due
to exigent circumstances.

Subdiaz-Osorio, Chief Justice Abrahamson's dissent, ¶169-
208: State fails to meet its burden to show exigent
circumstances.
30
For discussions of the Miranda right to an attorney, see:

Tate: Miranda rights not at issue.

Subdiaz-Osorio, Justice Prosser's lead op., ¶¶82-87:
Defendant failed to invoke unequivocally right to an
attorney.

Subdiaz-Osorio, Justice Bradley's concurrence, ¶89:
Defendant successfully invoked Miranda right.

Subdiaz-Osorio, Justice Crooks' concurrence, ¶109; Justice
Roggensack's concurrence, ¶130: Defendant failed to invoke
unequivocally right to an attorney.

Subdiaz-Osorio, Chief Justice Abrahamson's dissent, ¶¶209-
219: A reasonable person would understand Subdiaz-Osorio to
have invoked his Miranda right.

12
 No. 2010AP3016-CR.ssa

them in full. Parts V and VI address issues found only in my

Subdiaz-Osorio dissent.31

¶167 Accordingly, I dissent in both cases.

I-IV

¶168 Parts I-IV of my dissent in Tate constitute Parts I-IV

of this dissent. In other words, I incorporate by reference

Parts I-IV of the Tate dissent. See Tate, 2014 WI 89, ¶¶52-163

(Abrahamson, C.J., dissenting).

V

¶169 Law enforcement did not obtain a warrant for the

defendant's cell phone location data in Subdiaz-Osorio.

Warrantless searches are "per se unreasonable under the Fourth

31
The two cases raise numerous additional issues that I do
not address, including the applicability of federal statutes,
the good-faith exception, and the proper standard for reviewing
and remedying an illegal search of cell phone location data.

Justice Crooks' concurrence in Subdiaz-Osorio asserts that
an illegal warrantless search occurred, Justice Crooks'
concurrence, ¶¶125-128, but that the good-faith exception
applies, and that the evidence should not have been excluded.
As I explain in Parts I-IV, our state's case law already set
forth the need for a warrant and the statutes provide procedures
for obtaining a warrant. These rules of law existed at the time
that the officers initiated the search in the instant cases.

I am unconvinced that the usual harmless-error analysis is
the proper approach in Tate and Subdiaz-Osorio. See Subdiaz-
Osorio, Justice Bradley's concurrence, ¶¶97-105 (applying
harmless-error analysis in Subdiaz-Osorio). When illegally
obtained cell phone location data forms the entire basis for the
apprehension and arrest of the defendant, rather than evidence
of the crime, the usual harmless-error analysis appears to be a
poor fit.

13
 No. 2010AP3016-CR.ssa

Amendment . . . ."32 of the United States Constitution and under

the Wisconsin Constitution.

¶170 The government bears the burden of proving by clear

and convincing evidence that a warrantless search falls within

one of the narrowly delineated exceptions to the warrant

requirement.33 One such exception is exigent circumstances.

¶171 By definition, exigent circumstances justifying an

exception to the warrant requirement must be exceptional; the

circumstances must generate a sense of urgency. Furthermore,

the particular warrantless search must be justified by weighing

"the urgency of the officer's need to [search] against the time

needed to obtain a warrant." State v. Richter, 2000 WI 58, ¶28,

235 Wis. 2d 524, 612 N.W.2d 29.

¶172 In order to show that an urgent situation existed and

that there was no time to secure a warrant, "[t]he officer must

be able to point to specific and articulable facts which, taken

with rational inferences from those facts," constitute grounds

to believe an emergency existed and there was a need to act.34
Each case must be decided on its facts, not on a court's

acceptance of overgeneralizations.35

32
Sanders, 311 Wis. 2d 257, ¶27.
33
Payano-Roman, 290 Wis. 2d 380, ¶30; State v. Kieffer, 217
Wis. 2d 531, 541, 577 N.W.2d 352 (1998).
34
3 Wayne R. LaFave, Search and Seizure, § 6.6(a), at 599
(5th ed. 2013) (citation and quotations omitted).
35
Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 1561
(2013) (citing Richards v. Wisconsin, 520 U.S. 385, 393 (1997)
(blanket rules cannot be used to justify a lack of a warrant)).

14
 No. 2010AP3016-CR.ssa

¶173 The State failed to demonstrate that any of the three

purported circumstances advanced by Justice Prosser's lead

opinion——threat to safety, risk of destruction of evidence, and

increased likelihood of flight36——existed with sufficient urgency

to justify the privacy violation in the instant case. To get

around the State's paucity of evidence in the record to support

urgency, Justice Prosser's lead opinion engages in the type of

overgeneralizations condemned by Missouri v. McNeely, 569 U.S.

___, 133 S. Ct. 1552, 1561 (2013).

¶174 In most criminal investigations, at least one of these

three purported circumstances exist. If the mere allegation of

one of these circumstances is sufficient to demonstrate exigent

circumstances, an officer could simply presume exigent

circumstances in most cases. Justice Prosser's lead opinion's

holding allows the exigent circumstances exception to swallow

the warrant requirement in the present case.

¶175 In addition to its failure to show urgency, the State

also failed to show that there was not sufficient time to get a
warrant under the circumstances.

¶176 Because the State failed to meet its burden to prove

exigent circumstances, I dissent. Justice Bradley and Justice

Crooks agree that in the instant case, the State failed to

demonstrate exigent circumstances to justify an exception to the

warrant requirement.37

36
Lead op., ¶76.
37
See Justice Bradley's concurrence, ¶89; Justice Crooks'
concurrence, ¶118.

15
 No. 2010AP3016-CR.ssa

A

¶177 In the instant case, the State entered no evidence

that alleged exigencies posed the urgent threat necessary to

justify the warrantless search in question.

¶178 Justice Prosser's lead opinion relies on three exigent

circumstances: (1) "a threat to safety"; (2) "risk of

destruction of evidence"; and (3) "a likelihood that [the

defendant] would flee." Lead op., ¶76.

¶179 First, Justice Prosser's lead opinion states that

because the murder weapon (a knife) was not recovered, "a

potentially armed individual who recently committed a homicide"

created a "threat to safety." Lead op., ¶77.

¶180 I agree that a threat to safety exists when an armed

and dangerous suspect is at large, but not every suspect

believed to be armed and dangerous poses an exigent

circumstance.

¶181 State v. Richter, 2000 WI 58, 235 Wis. 2d 524, 612

N.W.2d 29, is instructive. In Richter, the court held that an
imminent threat to safety existed when an officer knew that one

home had been burglarized, had evidence that the suspect had

fled to a second home, observed signs of forced entry into that

home, and saw that there were people sleeping inside the second

home at the time the intruder entered. Richter, 235

Wis. 2d 524, ¶41. This combination of factors "creat[ed] a

situation fraught with potential for physical harm if something

was not immediately done to apprehend the suspect." Richter,
235 Wis. 2d 524, ¶41 (emphasis added).

16
 No. 2010AP3016-CR.ssa

¶182 Conversely, in the instant case, there was no such

immediate threat. The police could identify only a generalized

threat that exists any time a suspect is believed to be armed

and is sought on suspicion of having committed a violent

offense. If exigent circumstances exist any time a suspect is

armed and is under suspicion of having committed a violent

offense, exigent circumstances would exist in most criminal

investigations and the warrant requirement would be rendered a

nullity.

¶183 Justice Prosser's lead opinion bases its determination

that a "threat to safety" existed here on pure speculation and

conjecture, repeatedly citing information that the police "had

no way of knowing." Lead op., ¶78. The police had no way of

knowing or even inferring, as Justice Prosser's lead opinion

supposes, "that [the defendant] might become violent if

confronted," or "how desperate [the defendant] might become to

avoid apprehension." Id.

¶184 Second, Justice Prosser's lead opinion asserts that
there was a "risk of destruction of evidence." Lead op., ¶76.

For this proposition, Justice Prosser's lead opinion offers no

reasonable or articulable facts, because none were offered by

the State. Nothing in the record demonstrates an imminent

17
 No. 2010AP3016-CR.ssa

threat of destruction of evidence.38 Unlike other cases in our

jurisprudence, there were no signs of evidence being destroyed,39

or particular facts to support an officer's suspicion of the

destruction of evidence.40

¶185 Third, Justice Prosser's lead opinion asserts that

there was "a likelihood that [the defendant] would flee." Lead

op., ¶76. The defendant was no longer at the scene. The police

knew the following: the suspect had already fled; the suspect

had family in Mexico; and the suspect had told a friend that he

did not want to be arrested.

¶186 Criminal suspects are often no longer at the scene of

a crime when law enforcement officers arrive. Criminal suspects

often have family and friends in places other than the place of

the crime. Criminal suspects can usually access various forms

of transportation. Criminal suspects rarely intend to be

arrested.

38
See McNeely, 133 S. Ct. at 1559 ("[I]n some circumstances
law enforcement officers may conduct a search without a warrant
to prevent the imminent destruction of evidence.") (emphasis
added); id. at 1569 (Roberts, C.J., concurring, joined by
Breyer, J. & Alito, J.) ("[The exigent circumstances exception]
applies when there is a compelling need to prevent the imminent
destruction of important evidence, and there is no time to
obtain a warrant.") (emphasis added).
39
See, e.g., State v. Hughes, 2000 WI 24, ¶26, 233
Wis. 2d 280, 607 N.W.2d 621; State v. Robinson, 2010 WI 80, ¶31,
327 Wis. 2d 302, 786 N.W.2d 463 (in which such signs appeared).
40
See State v. Meyer, 216 Wis. 2d 729, 751-53, 576
N.W.2d 260 (1998) ("[P]articular facts must be shown in each
case to support an officer's reasonable suspicion that exigent
circumstances exist.").

18
 No. 2010AP3016-CR.ssa

¶187 If these facts alone are enough to justify exigent

circumstances, then the rule that the State must show

"particular facts" to meet its burden is rendered a nullity.

¶188 Beyond the sparse facts I have stated, the State makes

no showing of the delay that would have occurred had the police

pursued a warrant. Nor does the State make any showing that a

delay, had it existed, would have had any impact on the

defendant's flight. The State thus failed to show that getting

a warrant would "greatly enhance the likelihood of the suspect's

escape."41

¶189 Instead, using 20/20 hindsight, the lead opinion

relies upon the defendant's travel time and location upon arrest

to justify its assertion that there was an increased risk of

flight.42 Justice Prosser's lead opinion speculates about where

the defendant went and how he could have moved after he began

driving.43 Justice Prosser wonders where the defendant could

have gone, listing in great detail the transportation options

available in Chicago, then noting that the defendant could have
gone elsewhere as well.44

¶190 Justice Prosser's lead opinion admits that "the police

could only speculate as to [the defendant's] plans or his

route". Lead op., ¶80. Justice Prosser's lead opinion then

41
Lead op., ¶79 (citing Hughes, 233 Wis. 2d 280, ¶24)
(emphasis added).
42
Id., ¶¶80-81
43
Id., ¶80.
44
Id.

19
 No. 2010AP3016-CR.ssa

speculates about what the police might have speculated——a

tenuous chain of reasoning with no basis in fact.

¶191 Thus, Justice Prosser's lead opinion bases its

determination that there was a greatly enhanced flight risk upon

speculation about speculation, creating its own narrative and

ignoring the glaring failure of the State to offer one iota of

evidence that increased flight risk existed at all.

B

¶192 Even if we accept that there was some urgent threat

created by the defendant's apparent flight with the murder

weapon, the State can meet its burden to establish the exigent

circumstances exception to the warrant requirement only when

"there is compelling need for official action and no time to

secure a warrant."45

¶193 All warrants necessarily require some amount of time

to secure, but the inquiry for exigent circumstances is whether

the State can demonstrate specific, articulable facts showing

that the warrant process would "significantly increase" the
delay before the officers can act.46

¶194 Justice Prosser's lead opinion lays out in careful

detail the timeline of the events leading up to the defendant's

arrest, yet it is missing any evidence about the existence of or

length of a delay that would have been caused by obtaining a

45
McNeely, 133 S. Ct. at 1559 (citing Michigan v. Tyler,
436 U.S. 499, 509 (1978)); id. at 1570 (Roberts, C.J.,
concurring, joined by Breyer, J. & Alito, J.) (same).
46
Id. at 1561.

20
 No. 2010AP3016-CR.ssa

warrant or any evidence that such a delay would have adversely

affected law enforcement's ability to act to apprehend the

suspect.

¶195 Nothing in the record tells us why the officers, who

had obtained a warrant for a search of the defendant's

residence, could not have obtained a warrant for the defendant's

cell phone location data. In other words, there is no reason,

based on the record before us, to suppose that it was

impracticable for the officers to obtain a search warrant for

the defendant's cell phone location data as well.47

¶196 The United States Supreme Court has recently informed

us once again of the burden of proof the State must meet to

fulfill the exigent circumstances exception to a warrant.

McNeely, 133 S. Ct. 1552, is instructive.

¶197 In McNeely, the State of Missouri urged that the

dissipation of alcohol in the bloodstream created a per se

exigent circumstance that created an exception to the warrant

requirement for a blood draw. The Court held that such a rule
would be contrary to the totality-of-the-circumstances analysis

that it has employed in the past and would potentially relieve

the state of any burden to show the actual delay created by

securing a warrant:

In those drunk-driving investigations where police
officers can reasonably obtain a warrant before a
blood sample can be drawn without significantly
undermining the efficacy of the search, the Fourth
Amendment mandates that they do so. See McDonald v.
United States, 335 U.S. 451, 456, 69 S. Ct. 191, 93

47
Vale v. Louisiana, 399 U.S. 30, 35 (1970).

21
 No. 2010AP3016-CR.ssa

L.Ed. 153 (1948) ("We cannot . . . excuse the absence
of a search warrant without a showing by those who
seek exemption from the constitutional mandate that
the exigencies of the situation made [the search]
imperative").

. . . .

Consider, for example, a situation in which the
warrant process will not significantly increase the
delay before the blood test is conducted because an
officer can take steps to secure a warrant while the
suspect is being transported to a medical facility by
another officer. In such a circumstance, there would
be no plausible justification for an exception to the
warrant requirement.
McNeely, 133 S. Ct. at 1561.

¶198 Thus, the burden on the State in the present case was

to show that the situation made the warrantless search in

question "imperative" and that securing a warrant "significantly

increases" the delay before the officers can take action.

¶199 In the instant case, the record does not include any

testimony or evidence demonstrating

• at what time the police decided to seek the

defendant's cell phone location data;

• the estimated amount of time needed to obtain a

warrant for the data and the duration of any delay; or
• the timeline for obtaining the data absent a warrant,

i.e., at what time the law enforcement officer's

request was made to the Department of Justice to

obtain the cell phone location data; at what time the

Department made the request of the cell phone service

provider; at what time the cell phone service provider
received the Department's request; at what time the

22
 No. 2010AP3016-CR.ssa

cell phone service provider processed the request; and

at what time the information was transmitted to

Arkansas law enforcement.

¶200 Rather than a clear timeline of the events that

demonstrates the need for a warrantless search, the record

reveals only the barest of facts. Sometime between 10 a.m. and

12 p.m., while interviewing the defendant's girlfriend, the

Kenosha police received the information regarding the

defendant's departure in a car. The police stated that their

interviews, which finished around 12 p.m., established probable

cause to send the temporary "want" to CIB/NCIC "within an hour

and a half of obtaining information from the witnesses."

¶201 The record reflects that some time transpired between

the time that the "want" was executed with CIB/NCIC and the time

that the request for cell phone location data was made to the

Wisconsin Department of Justice, which then requested the data

from Sprint, the cell phone service provider. The State was not

able to pinpoint the relevant times:

[PROSECUTOR]: Prior to contacting the state of
Wisconsin agents for assistance, had you received any
hits or any feedback or any communication back from
CIB or NCIC?

[OFFICER]: No.

[PROESCUTOR]: And you indicate that at a point in time
then that you contacted state agents to assist in your
investigation to locate the defendant?

[OFFICER]: Yes.

[PROESCUTOR]: Do you recall what time that occurred?

[OFFICER]: I don't know the specific time. It was
probably sometime after 12:00 in the afternoon.
23
 No. 2010AP3016-CR.ssa

On cross-examination, defense counsel was not able to get the

officer to pinpoint the approximate time frame for the various

events:

[DEFENSE COUNSEL]: And it was after you had received
information from [four witnesses] that you put in the
information for the Temporary Felony Worksheet, the
document submitted to CIB/NCIC?

[OFFICER]: I had not spoken with [one witness] before
that was entered. I don't know exactly when the
temporary want was entered because, like I said, I
didn't do that. But it was after we had gathered
enough information to establish probable cause for
[the defendant].
¶202 After CIB/NCIC did not respond with any hits, the

Kenosha police requested the defendant's location data "sometime

after 12:00 p.m." The police received the data from state law

enforcement "sometime in the afternoon." The information was

not transmitted to Arkansas until 5:37 p.m.

¶203 The record does not show that any additional wait time

would have resulted from obtaining a warrant. The record does

not show that the time to secure a warrant would have made any

demonstrable difference in the time it took to obtain the cell
phone location data.

¶204 On the contrary, the law enforcement officers'

testimony reveals the efficiency and speed of the existing

system to approve warrants. When the police in the instant case

sought to obtain a search warrant for the defendant's residence,

it took a mere ten to fifteen minutes after the affidavit was

completed for a judge to arrive. Within half an hour of the
judge's arrival, the search warrant was approved. From the time

the police began working on the affidavit for a search warrant
24
 No. 2010AP3016-CR.ssa

for the defendant's residence until the warrant was approved, a

maximum of an hour and a half had elapsed.

¶205 On this record, the State cannot meet its burden to

demonstrate that the time to secure a warrant would

significantly delay, or indeed, delay at all, the disclosure of

the defendant's cell phone location data or the apprehension of

the defendant.

¶206 In sum, the State failed to carry its burden of proof.

Through conjecture and speculation, the lead opinion fills in

the many blanks of key facts missing from the record.

¶207 The lead opinion's exigent circumstances exception

swallows the rule of the warrant requirement. According to

Justice Prosser's lead opinion's reasoning, almost every

criminal investigation presents exigent circumstances.

¶208 I decline to undercut the warrant requirement or

ignore the heavy burden placed on the State to prove the exigent

circumstances exception to the warrant requirement.

VI
¶209 I turn at last to the issue of the defendant's

invocation of his right to counsel. The key holding of Miranda

v. Arizona48 was straightforward: "If [an] individual states that

he [or she] wants an attorney, the interrogation must cease

until an attorney is present."49

48
Miranda v. Arizona, 384 U.S. 436 (1966).
49
Miranda, 834 U.S. at 474.

25
 No. 2010AP3016-CR.ssa

¶210 Justice Prosser's lead opinion requires a suspect to

make an "unequivocal invocation" of the right to counsel. This

test stems from Davis v. United States, 512 U.S. 452 (1994).

¶211 The Davis "unequivocal" or "unambiguous" invocation

test has been heavily criticized on a number of grounds,

including that the "unequivocal" test invites equivocation on

the part of courts——identical statements appear "unequivocal" to

one court but "equivocal" to another.50 In applying the

"unequivocal invocation" test, courts have "rejected as

ambiguous an array of statements whose meaning might otherwise

be thought plain."51

50
Compare United States v. Martin, 664 F.3d 684 (7th Cir.
2011) (invocation was unequivocal when defendant said "I'd
rather talk to an attorney first before I do that") with
Delashmit v. State, 991 So. 2d 1215 (Miss. 2008) (invocation was
equivocal when defendant said "I prefer a lawyer"). Compare
also Wood v. Ercole, 644 F.3d 83 (2d Cir. 2011) (invocation was
unequivocal when defendant said "I think I should get a lawyer")
with Commonwealth v. Morganti, 917 N.E.2d 191 (Mass. 2009)
(invocation was equivocal when defendant said he was "thinking I
might need a lawyer and want to talk to him before talking to
you").
51
Berghuis v. Thompkins, 560 U.S. 370, 410-11 & n.9
(Sotomayor, J., dissenting). Justice Sotomayor cites a variety
of cases in the context of invocations of the Miranda right to
remain silent in which courts have applied the test
subjectively.

As Marcy Strauss notes in her empirical overview of cases
regarding the application of the "unequivocal invocation" rule,
courts apply their own subjective spin to a purportedly
objective test:

[T]he evidence suggests gross inconsistencies in the
approaches of the courts. Some courts deem seemingly
clear demands as ambiguous. Yet in other cases,
virtually identical language is treated differently in
ways inexplicable by the context. It is drastically
unfair that a suspect in one jurisdiction who says, "I
26
 No. 2010AP3016-CR.ssa

¶212 Davis requires a court to make an objectively

reasonable analysis of the circumstances to determine whether an

individual's request for a lawyer is unequivocal. The defendant

need evince only "a certain and present desire to consult with

counsel" to invoke the right. United States v. Hunter, 708 F.3d

938, 942 (7th Cir. 2013). Courts are required "to evaluate a

defendant's request as ordinary people would understand it, and

to give a broad, rather than a narrow, interpretation to a

defendant's request for counsel." Hunter, 708 F.3d at 942

(internal quotation marks and citations omitted).52

think I would like to talk to my attorney," can be
ignored, while a similar statement in another
jurisdiction is treated as invoking Edwards. It makes
no logical sense whatsoever that the police may
continue questioning a suspect who says, "Can I call
my lawyer?" in one station house, while in another one
the comment, "Can I have my lawyer present when [I
tell you my story]?" is deemed an invocation of rights
requiring the cessation of questions. Such
contradictory results are not only unfair, they are
pernicious.

Marcy Strauss, Understanding Davis v. United States, 40 Loy.
L.A. L. Rev. 1011, 1061-62 (2007) (footnotes and citations
omitted).
52
"Although a suspect need not speak with the
discrimination of an Oxford don, he must articulate his desire
to have counsel present sufficiently clearly that a reasonable
police officer in the circumstances would understand the
statement to be a request for an attorney." Davis, 512 U.S. at
459 (citations & internal quotation marks omitted).

In United States v. Hunter, 708 F.3d 938 (7th Cir. 2013),
the court held that the defendant's asking "Can you call my
attorney?" while giving the officer the name of the attorney
constituted an unequivocal invocation of the right to an
attorney.

27
 No. 2010AP3016-CR.ssa

¶213 In the instant case, the defendant said, "How can I do

to get an attorney here because I don't have enough to afford

for one" (emphasis added).

¶214 An ordinary reasonable person, looking at the

defendant's statement, would understand the defendant to be

making a request for a lawyer. The defendant is saying he

cannot afford an attorney and wants to know how to get an

attorney at that place and time.

¶215 Justice Prosser's lead opinion ignores the broad

interpretation of the defendant's words. Instead, Justice

Prosser's lead opinion gives them a narrow interpretation,

squinting hard at the record, searching for ambiguity or

equivocation where a reasonable person would find none. Lead

op., ¶¶86-87.

¶216 Justice Prosser's lead opinion focuses on the

discussion of extradition to twist the defendant's request for a

lawyer into a request for counsel at the extradition hearing.

Lead op., ¶86-87. Justice Prosser's lead opinion claims that
the officer had "just explained the extradition process to [the

defendant]," which made it reasonable for the officer to infer

that "here" meant "at the extradition hearing." Lead op., ¶87.

¶217 Here is what happened: The officer interrogating the

defendant described the extradition hearing ("What happens is

that you have to 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 then, the officer added, "But we are not
going to do that right now. We are not going to know that right

28
 No. 2010AP3016-CR.ssa

now" (emphasis added).53 The officer made clear that the

extradition hearing was no longer the subject of conversation.

¶218 It is not objectively reasonable to assume that the

defendant used the word "here" to mean anything other than its

generally understood definition. The word "here" is generally

intended to mean "in or at this place or time." A reasonable

person would not understand "here" to mean "at some later point

in time." What was happening "here"? The interrogation. To a

reasonable person, the defendant is saying that he wants a

lawyer and wants a lawyer at the interrogation.

¶219 Justice Prosser's lead opinion requires the defendant

to speak with the discrimination of an Oxford don54 and to use an

"exact formula" or "magic words"55 to invoke the right to

counsel. That's not the law.

* * * *

53
The relevant portion of the interrogation was transcribed
by the circuit court as follows:

[POLICE OFFICER]: 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 . . . .

[DEFENDANT]: How can I do to get an attorney here
because I don't have enough to afford for one.
54
Davis, 512 U.S. at 459.
55
United States v. Lee, 413 F.3d 622, 625 (7th Cir. 2005)
("[T]here is no exact formula or magic words for an accused to
invoke his [or her] right.").

29
 No. 2010AP3016-CR.ssa

¶220 In sum, for the reasons stated, I conclude that in the

instant case the State failed to meet its burden of

demonstrating the existence of exigent circumstances. I further

conclude that Subdiaz-Osorio invoked his Miranda right to an

attorney at his interrogation.

¶221 For the foregoing reasons and the reasons stated in my

dissent in Tate, 2014 WI 89, ¶¶52-165 (Abrahamson, C.J.,

dissenting), I dissent.

30
 No. 2010AP3016-CR.ssa

1