State v. Nicolas Subdiaz-Osorio
849 N.W.2d 748
Wis.2014Background
- In Feb 2009 Nicolas Subdiaz-Osorio allegedly fatally stabbed his brother in Kenosha, then fled in a borrowed car; police suspected he was leaving the state/country and the murder weapon was missing.
- Kenosha investigators, via the Wisconsin DOJ (DCI), requested real‑time/location data and historic cell‑site/GPS info from Sprint without first obtaining a court order; the phone was tracked and Subdiaz‑Osorio was arrested in Arkansas.
- Kenosha officers flew to Arkansas, Mirandized and interviewed him in Spanish; after an explanation of extradition he asked, “How can I do to get an attorney here because I don't have enough to afford for one.” Officers replied that Arkansas would provide counsel for extradition and continued questioning; he later signed waivers and consent forms.
- Subdiaz‑Osorio moved to suppress evidence obtained after arrest, arguing the cell‑phone tracking violated the Fourth Amendment and the continued interrogation violated his Fifth Amendment right to counsel; the circuit court denied suppression and he pleaded to a reduced homicide charge.
- The court of appeals assumed, without deciding, there may have been error but held any error harmless beyond a reasonable doubt; the Wisconsin Supreme Court affirmed (plurality lead opinion), but issued multiple separate writings on whether tracking is a search, exigency, invocation of counsel, and the proper remedy.
Issues
| Issue | Plaintiff's Argument (Subdiaz‑Osorio) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether obtaining a suspect's cell‑phone location from a provider without a court order is a Fourth Amendment search requiring a warrant | Tracking location is a search; warrant required absent a specific exception | Even if a search, probable cause existed and exigent circumstances permitted warrantless acquisition; provider policies and statutes permit emergency disclosure | Lead opinion assumed (but did not decide) tracking is a search; did not suppress because exigent‑circumstances/probable cause justified warrantless tracking (affirmed) |
| Whether exigent‑circumstances exception justified warrantless location tracking (i.e., armed homicide suspect likely to flee, risk of destruction of evidence, threat to public safety) | No; State failed to prove urgent, particularized facts or that delay to get a warrant would have materially hindered capture | Police had probable cause, suspect was potentially armed, had fled, was in the country illegally and likely to keep fleeing — time was of the essence | Lead opinion: exigent circumstances existed and justified warrantless tracking. Chief Justice dissent & some concurrences disagreed; concurring opinions urged narrower holdings or good‑faith analysis |
| Whether defendant unequivocally invoked his Miranda right to counsel by asking how to get an attorney | The question was an unambiguous request for counsel during interrogation and interrogation should have ceased | The question was equivocal — asking procedure for obtaining counsel (esp. after extradition explanation) not an immediate request for lawyer at that interview; officers reasonably continued | Court held the statement was equivocal under Davis and Jennings; officers did not violate Miranda by continuing to question |
| Whether any appellate error in denying suppression was harmless beyond a reasonable doubt given plea deal | Suppression would have materially affected plea decision and ability to present defenses (e.g., self‑defense) | Evidence was strong (eyewitness, admissions, post‑arrest forensic evidence), and plea to reduced charge produced significant benefit; any error was harmless | Several justices (concurring) concluded any error was harmless and affirmed judgment; dissent argued warrant requirement and Miranda invocation errors were not harmless |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (1967) (establishes reasonable‑expectation‑of‑privacy test for non‑trespassory searches)
- United States v. Jones, 565 U.S. 400 (2012) (GPS installation on vehicle was a search; distinguishes trespass and Katz analyses)
- Riley v. California, 573 U.S. 373 (2014) (police generally need a warrant to search the digital contents of a cell phone; exigent circumstances remain case‑specific exception)
- Davis v. United States, 512 U.S. 452 (1994) (suspect must unambiguously request counsel to invoke Miranda right to counsel)
- Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation warnings and right to counsel framework)
- United States v. Leon, 468 U.S. 897 (1984) (good‑faith exception to exclusionary rule for invalid warrants; discussed in concurrences regarding good‑faith reliance)
- State v. Richter, 235 Wis. 2d 524 (2000) (Wisconsin exigent‑circumstances framework; factors: hot pursuit, threat to safety, destruction of evidence, likelihood of flight)