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State v. Nicolas Subdiaz-Osorio, 2010AP3016-CR, petition for review granted, 3/13/13

Review of per curiam court of appeals decision; case activity

Issues (from the Petition for Review):

  • 1. Without obtaining a warrant, police tracked Subdiaz-Osorio’s location through the signal transmitted from his cell phone. Did the trial court err in denying his motion to suppress this evidence?

  • 2. Did the court of appeals in deciding that the evidence that came from the illegal search was harmless?

  • 3. Did the trial court err in denying Subdiaz-Osorio’s motion to suppress statements obtained during his custodial interrogation after he made the following statement: “How can I do to get an attorney here because I don’t have enough to afford one”?

  • 4. Did the court of appeals err in concluding that any error was harmless in admitting evidence that came after Subdiaz-Osorio’s request for an attorney during interrogation?

Reading the court of appeals’ decision reveals virtually nothing about the important substantive legal issues raised by the case. The decision says only that Subdiaz-Osorio “moved to suppress evidence” (¶2) and that the two pieces of evidence he sought to suppress were his presence in Arkansas (¶7) and a statement he made during interrogation (¶10). Instead of addressing the legal arguments for and against suppression, the court assumed without deciding that the evidence should have been suppressed and concludes that denial of the suppression motion was harmless. As revealed in parties’ court of appeals briefs, the police asked Subdiaz-Osorio’s cell phone company to locate him using the transmissions continuously emitted by his phone. The company obliged, and found him in Arkansas heading south on I-55. He was arrested there and interrogated, even after his statement about getting an attorney.

“Electronic surveillance is upon us, raising significant and rapidly emerging privacy issues. A device in common usage, such as your cell phone, might be used to track your whereabouts. The law will have to tackle each new challenge as it arises.” State v. Sveum, 2010 WI 92, ¶121, 328 Wis. 2d 369, 787 N.W.2d 317 (Abrahamson, C.J., dissenting). This case presents the challenge of warrantless cell phone tracking. (The court of appeals recently addressed cell phone tracking under a court order in an unpublished decision, on which there is more here.) The usual analogy in addressing the issue has been to tracking a car on public roadways, which isn’t a search because there is no reasonable expectation of privacy in one’s publicly observable movement,  U.S. v. Knotts, 460 U.S. 276 (1983)–though we now know from United States v. Jones, 132 S. Ct. 945 (2012), that placing the tracking device on the car is a search because of the physical trespass. But when the tracking device goes into a private space (such as the beeper in United States v. Karo, 468 U.S. 705 (1984)) or is used to reveal information about a private space (like the thermal imager in Kyllo v. United States, 533 U.S. 27 (2001)) there is a search. Cell phones go into private spaces, of course, though here Subdiaz-Osorio was tracked down on a public highway. And, unlike GPS devices that the police attach only after finding the suspect’s car, cell phones can be used by the police to find the person to track. Moreover, the ability to track the phone’s location easily and cheaply over a potentially long period of time raises the same expectation of privacy concerns raised by extended GPS tracking—concerns recognized by five concurring justices in Jones and acknowledged by our court in a recent case addressing GPS tracking done under a warrant, State v. Brereton, 2013 WI 17, ¶¶33-34 (see our post here). Obviously, this is an important and complex issue, and the court’s decision in this case will necessarily  have an impact on Wisconsin practice.

The third issue is also important. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), says that an unequivocal invocation of the right to counsel bars authorities from re-initiating the interrogation, but Davis v. Alaska, 512 U.S. 452, 459-60 (1994), says police have no obligation to stop and clarify ambiguous requests for counsel. Predictably, there are numerous cases parsing suspects’ references to counsel to decide whether they are unequivocal enough to have forced the police to stop interrogation. This will provide us with another example to work with (or against).

Finally, issues two and four are about the court of appeals’ application of the harmless error test. Because Subdiaz-Osorio pled to a lesser charge, the harmless error test asks whether it is clear beyond a reasonable doubt that the defendant would have accepted the plea agreement regardless of the decision on his motion to suppress. State v. Rockette, 2005 WI App 205, ¶¶25-27, 287 Wis. 2d 257, 704 N.W.2d 382. Given the other issues, it is safe to say the harmless error test is not the central focus of the case.

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