People v. Licona-Ortega

• Decision Date: 03 March 2022
• Docket Number: Court of Appeals No. 19CA0011
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Miguel Angel LICONA-ORTEGA, Defendant-Appellant.
• Court: Colorado Court of Appeals

511 P.3d 721

2022 COA 27

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Miguel Angel LICONA-ORTEGA, Defendant-Appellant.

Court of Appeals No. 19CA0011

Colorado Court of Appeals, Division VII.

Announced March 3, 2022

Philip J. Weiser, Attorney General, Hanna Bustillo, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. O'Harris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE BERGER

¶ 1 A jury convicted defendant, Miguel Angel Licona-Ortega, of first degree murder.

The trial court imposed the mandatory sentence of life in prison without the possibility of parole. Licona-Ortega claims on appeal that he is entitled to a reversal of his conviction because

• the trial court erroneously denied his motion to suppress all evidence arising from a warrantless ping of his cell phone to determine his whereabouts;¹

• the court erroneously denied his Batson challenge; and

• prosecutorial misconduct deprived him of a fair trial.

¶ 2 As a matter of first impression in Colorado, we hold that under the facts presented, exigent circumstances supported the warrantless ping of Licona-Ortega's cell phone to locate him. Accordingly, the trial court correctly denied his suppression motion. We also reject his other contentions of error and affirm the judgment of conviction.

I. Relevant Facts

¶ 3 Evidence admitted at trial permitted the jury to find the following facts. Licona-Ortega was seated in the dining area of a bar one summer evening when Javier Chacon-Ortega and his brother entered the bar area.

¶ 4 About a month earlier, Chacon-Ortega's brother had heard that Licona-Ortega had insulted Chacon-Ortega. When Chacon-Ortega's brother saw Licona-Ortega at the bar, he went to talk to him. Licona-Ortega told him that he "didn't want to have any problems" and lifted his shirt to show that he was carrying a gun in his waistband. Chacon-Ortega's brother texted and telephoned Chacon-Ortega to warn him that Licona-Ortega was armed.

¶ 5 Video surveillance from the bar showed Chacon-Ortega walk more than once from the bar area to the dining area where Licona-Ortega was located. Chacon-Ortega's brother testified that Chacon-Ortega and Licona-Ortega were arguing. At one point, Licona-Ortega said, "You better leave or I'm going to empty the gun on your head." Chacon-Ortega responded, "Let's go outside." But before he agreed to take the fight outside, Licona-Ortega called for his ride and confirmed it had arrived.

¶ 6 Licona-Ortega followed Chacon-Ortega to the front door of the bar. As Chacon-Ortega stepped outside, Licona-Ortega pulled the gun from his waistband and shot Chacon-Ortega in the back of the head. Chacon-Ortega fell down the front steps of the bar. Licona-Ortega then stepped over Chacon-Ortega and shot him in the head four more times, emptying his gun. Chacon-Ortega died from the gunshot wounds.

¶ 7 Police officers responded to the bar, reviewed video surveillance, and spoke with witnesses who identified the shooter as Licona-Ortega. Internal police records revealed that the police had contacted Licona-Ortega at an Alaska Place address in Aurora about a week before the shooting. The records also contained a cell phone number for Licona-Ortega. Based on this information, the police set up surveillance at the Alaska Place address. The police saw approximately ten people in the residence. The police also contacted T-Mobile, Licona-Ortega's cellular service provider, and requested that T-Mobile ping Licona-Ortega's cell phone to determine its location. For reasons not revealed by the record, T-Mobile denied the request.

¶ 8 The police obtained the homeowner's consent to enter the Alaska Place residence and confirmed that Licona-Ortega was not there. The police also spoke with a witness who had been in contact with Licona-Ortega via text message. The witness allowed the police to look at her phone. The text messages from Licona-Ortega had been sent from the same cell phone number that the police had in their internal records.

¶ 9 Having no other leads on Licona-Ortega's whereabouts and believing that he was still armed and dangerous because the police did not find the murder weapon at the scene, the police again requested that T-Mobile ping Licona-Ortega's cell phone to obtain its real-time location. This time T-Mobile did so, and the ping revealed that Licona-Ortega's cell phone was located at a Kenton Street address in Aurora. Officers responded to the Kenton Street address and arrested Licona-Ortega. Immediately after his arrest Licona-Ortega confessed to the murder.

II. The Trial Court Correctly Denied Licona-Ortega's Motion to Suppress

¶ 10 Licona-Ortega moved to suppress all evidence obtained from the warrantless ping of his cell phone, claiming that the warrantless ping was a search in violation of the Fourth Amendment to the United States Constitution. Licona-Ortega contended that the evidence of his interrogation and confession and all evidence resulting from the search of his apartment was the fruit of the allegedly unlawful warrantless search. The trial court denied the suppression motion, concluding that exigent circumstances justified the warrantless search.

A. Preservation and Standard of Review

¶ 11 Licona-Ortega's motion to suppress preserved this issue for appellate review. A trial court's suppression ruling presents a mixed question of fact and law. People v. Davis , 2019 CO 24, ¶ 14, 438 P.3d 266. "We accept the trial court's findings of historic fact if those findings are supported by competent evidence, but we assess the legal significance of the facts de novo." People v. Chavez-Barragan , 2016 CO 16, ¶ 9, 365 P.3d 981.

B. Applicable Law

1. The Fourth Amendment and Colorado Statutory Authority for Obtaining Real-Time Cell Phone Location Information

¶ 12 Two Colorado statutes authorize the police to request or order a wireless cellular carrier to disclose real-time cell phone location information. § 18-9-312, C.R.S. 2021; § 16-3-303.5, C.R.S. 2021.

¶ 13 Section 18-9-312(1.5)(a) allows a "supervising representative of a law enforcement agency" to

order a previously designated security employee of a wireless telecommunications provider to provide ... location information concerning the telecommunications device of a named person if the supervising representative has probable cause to believe that:

(I) An emergency situation exists that involves the risk of death or serious bodily injury to the named person or to another person who is in the named person's company; and

(II) The time required to obtain a search warrant or other court order authorizing the acquisition of the information would increase such risk.²

¶ 14 Section 16-3-303.5(3) describes a variety of grounds on which such a request may be made, including when "[t]here exist exigent circumstances such that the search would be recognized as constitutionally permissible without the warrant." § 16-3-303.5(3)(d).

¶ 15 Neither the United States Supreme Court nor the Colorado Supreme Court has held that a ping of a cell phone to determine its real-time location is a search within the meaning of the Fourth Amendment. In Carpenter v. United States , the Supreme Court held that extensive historical "location information obtained from Carpenter's wireless carriers" was the product of a search under the Fourth Amendment. 585 U.S. ––––, ––––, 138 S. Ct. 2206, 2217, 201 L.Ed.2d 507 (2018). But the Court expressly stated that it was not deciding the question presented in this case. Id. at ––––, 138 S. Ct. at 2220 ("We do not express a view on matters not before us [including] real-time CSLI [cell-site location information] ....").

¶ 16 Last year, after the briefing was completed in this case, the United States Court of Appeals for the Seventh Circuit held that the real-time location information obtained by pinging a suspect's cell phone was not the product of a search within the meaning of the Fourth Amendment. See United States v. Hammond , 996 F.3d 374, 391-92 (7th Cir. 2021). But see Unit ed States v. Baker , ––– F.Supp. 3d ––––, –––– (M.D. Pa., 2021) ("[ T]he court concludes that the government's requested ping of Defendant Baker's cellphone ... constitutes a Fourth Amendment search.").

¶ 17 Nevertheless, sections 16-3-303.5 and 18-9-312 appear to assume that real-time location information obtained by the police is the product of a search under Colorado law. Indeed, section 16-3-303.5(5) provides that location information obtained in violation of the statute is inadmissible in any criminal proceeding, a statutory exclusionary rule that may be broader than the exclusionary rule applicable under the Fourth Amendment.³

¶ 18 Perhaps because of these circumstances, the Attorney General does not argue that the location information obtained from T-Mobile was not the product of a search under the Fourth Amendment. And, for obvious reasons, Licona-Ortega accepts that implicit concession.

¶ 19 Given the parties’ positions, we assume, without deciding, that the location information obtained from T-Mobile was the product of a search within the meaning of the Fourth Amendment, and we analyze the suppression issue under Fourth Amendment principles.

2. Fourth Amendment Search Principles: Probable Cause and Exigent Circumstances

¶ 20 The United States and Colorado Constitutions prohibit unreasonable searches and seizures. U.S. Const. amend. IV ; Colo. Const. art. II, § 7. A warrantless search is presumed to violate the constitutional provisions prohibiting unreasonable searches and seizures. People v. Winpigler , 8 P.3d 439, 443 (Colo. 1999). To overcome this presumption, the prosecution has the burden of establishing that the warrantless search was justified by one of the narrowly defined exceptions to the warrant requirement. Id.

¶ 21 One exception to the warrant requirement is when exigent circumstances necessitate immediate police action. People v. Pate , 71 P.3d 1005,...