Divided justices uphold cellphone tracking cases

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The Wisconsin Supreme Court – while not always agreeing on the basis for its decisions – upheld two homicide cases Thursday where police found suspects by tracking their cellphones without a warrant.

The court, in different homicide cases, essentially held that search warrants were generally needed to track cellphone data, since there are Fourth Amendment privacy issues. And even though police did not obtain a warrant in either case, the circumstances allowed for an exception to the rule.

“The question we face is whether privacy must be eviscerated to accommodate innovation,” Justice David Prosser wrote in State v. Subdiaz-Osorio. “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.”

The cases seemingly left the court conflicted over what the rationale should be to uphold the cases. In State v. Tate, Bobby Tate was being pursued for a fatal shooting outside of Mother’s Foods Market on North 16th Street. Authorities obtained a judge’s order to use a “stingray” device to mimic a cellphone tower and use data to locate Tate. Tate was found in his mother’s apartment.

In that case, Justice Pat Roggensack wrote for the 5-2 majority that while the judge issued an order and not a warrant, the decision was in the spirit of Wisconsin’s search and warrant laws. Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented.

“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,” Abrahamson wrote. “Government access to cell phone location data raises novel legal questions of great importance for the privacy rights of the public in an emerging area of technology …”

And in State v. Subdiaz-Osorio, Nicolas Subdiaz-Osorio was being pursued for fatally stabbing his brother in Kenosha County. Police requested – and received – permission from Subdiaz-Osorio’s cellphone provider to track the phone, and Subdiaz-Osorio was found in Arkansas.

In that case, the court agreed 6-1 – though Bradley, Roggensack and Justices Patrick Crooks, Annette Ziegler and Michael Gablemen either wrote or signed on to concurrences, and Abrahamson again dissented. Prosser’s majority opinion ultimately said there was enough probable cause for a warrant, even if police did not obtain one, and that the extenuating circumstances in the case were enough to justify the search.

“Kenosha police had no way of knowing how desperate Subdiaz-Osorio might become to avoid apprehension, or to obtain money or shelter to facilitate escape,” Prosser wrote. “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.”

John Pray, a University of Wisconsin Law School professor and attorney who represented Subdiaz-Osorio, said he is disappointed for his client. He said that cellphone providers generally would not provide the level of scrutiny that a judge gives to a request for a warrant.

“I think law enforcement calls Sprint or a phone provider, and most are going to say ‘That’s fine,’” Pray said. “They are not are prepared to be judges and say ‘Is this an emergency?’”

He also said that with cellphones, it has become less burdensome for police to quickly obtain a warrant from a judge.

Byron Lichstein, who represented Tate on appeal, did not immediately return a phone call Thursday.

The decisions come on the heels of a June U.S. Supreme Court decision in Riley v. California that said police cannot search a cellphone’s contents without a warrant. However, Prosser differentiated that case from Subdiaz-Osorio because the U.S. Supreme Court did not specifically address obtaining location information. Roggensack noted in her opinion in Tate that the highest court’s decision’s relevance is “diminished” because the order in that case was obtained before Riley was released.

However, Crooks wrote in his concurrence in Subdiaz-Osorio that Riley led him to believe that a warrant was needed to get location information, even if he felt a good-faith exception should apply to this case. And Ziegler wrote in another concurrence that she thought Riley was narrow and may not apply to Subdiaz-Osorio.

Dana Brueck, Attorney General J.B. Van Hollen’s spokeswoman, said in an email attributed to her that the Department of Justice is reviewing the decision. Follow @eheisigWLJ