State v. Subdiaz-Osorio, 2010AP3016–CR.

CourtUnited States State Supreme Court of Wisconsin
Citation849 N.W.2d 748,2014 WI 87
Docket NumberNo. 2010AP3016–CR.,2010AP3016–CR.
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Nicolas SUBDIAZ–OSORIO, Defendant–Appellant–Petitioner.
Decision Date24 July 2014

849 N.W.2d 748
2014 WI 87

STATE of Wisconsin, Plaintiff–Respondent,
Nicolas SUBDIAZ–OSORIO, Defendant–Appellant–Petitioner.

No. 2010AP3016–CR.

Supreme Court of Wisconsin.

Argued Oct. 3, 2013.
Decided July 24, 2014.

[849 N.W.2d 751]

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.


¶ 1 This is a review of an unpublished decision of the court of appeals, State v. Subdiaz–Osorio, No. 2010AP3016–CR, unpublished slip op., 2012 WL 5512066 (Wis.Ct.App. Nov. 15, 2012).

¶ 2 The case involves the increasingly busy intersection between Fourth Amendment privacy considerations and the constant advancement of electronic technology. The court must determine whether law enforcement officers may contact a homicide suspect's cell phone provider to obtain the suspect's cell phone location information without first securing a court order based on probable cause. The court also must consider whether the suspect effectively invoked his right to counsel during an interrogation when he asked how he could get an attorney rather than affirmatively requesting the presence of counsel.

¶ 3 The homicide here occurred in Kenosha, Wisconsin. After fatally stabbing his brother, Nicolas Subdiaz–Osorio (Subdiaz–Osorio) 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 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

[849 N.W.2d 752]

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 order 2 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?

¶ 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 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

[849 N.W.2d 753]

for his extradition hearing rather than asking for counsel to be present at the interrogation. Therefore, the interviewing officers did not violate Subdiaz–Osorio's Fifth Amendment rights when they continued to question him after he asked about how he could get an attorney.5


¶ 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–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 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.

[849 N.W.2d 754]

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...

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