GPS tracking argument goes to state Supreme Court

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Defense counsel argues police overstepped their boundaries in capture

When murder suspect Nicolas Subdiaz-Osorio was pulled over as a passenger on south Route 55 in Arkansas and later charged with the murder of his brother, quick thinking and timely police work played a big role in his capture.

But in the case pending before the Wisconsin Supreme Court, State of Wisconsin v. Nicolas Subdiaz-Osorio, state justices will consider whether Kenosha police overstepped their boundaries when, without a warrant, they used location information from Subdiaz-Osorio’s cell phone to pinpoint the fleeing murder suspect.

“No one would expect that the government would be allowed, without a warrant and without their consent, to locate them anywhere in the world through something as commonplace as a cell phone,” counsel for Subdiaz argued.

The state asserted that exigent circumstances showed that Subdiaz-Osorio was a dangerous criminal fleeing a murder scene and information suggested he might leave the country for Mexico.

But defense counsel argued there was no “crime spree,” just an unfortunate domestic fight “that had a tragic result.”

On Feb. 7, 2009, the defendant got into a heated argument with his brother Marco Antonio Ojeda Rodriguez in a Kenosha trailer home they shared with two other men.

The brothers came to blows. Although Rodriguez was bigger and had trained as a boxer in Mexican prisons, the fight had to be broken up by a friend after Rodriguez landed a gut punch.

Hours later, Rodriguez forced his way into Subdiaz-Osorio’s room and the defendant punched his older brother square in the face. Rodriguez staggered, “fell back hard” into a dresser and collapsed onto a nearby bed.

Subdiaz-Osorio drew two concealed knives from a nearby closet and stabbed Rodriguez twice, once in the chest and below the eye. He allegedly continued to punch and stomp his battered brother until a friend begged him to stop.

Several witnesses tried to clean up and bandage Rodriguez’s wounds, and the injured brother was left on a couch. Subdiaz-Osorio allegedly refused to call for emergency assistance, afraid that he would get in trouble.

Rodriguez was dead the next morning. Subdiaz-Osorio had borrowed his girlfriend’s Saturn station wagon and disappeared. Kenosha police were told that the defendant had family in Illinois and Mexico.

Unable to find him, Kenosha police reached out to the Wisconsin Division of Criminal Investigation. Without applying for a search warrant, DCI contacted Subdiaz-Osorio’s cell phone provider, Sprint, and asked the telecommunications company to find Subdiaz-Osorio through trace transmissions that most cell phones continually emit.

On the same day as Rodriguez was found dead in his trailer, Subdiaz-Osorio was tracked, via cell phone transmissions, heading southbound on Route 55 in Arkansas. Local police pulled over a vehicle in which he was passenger, and Subdiaz-Osorio was taken into custody.

While he was being questioned by an Arkansas police officer, Subdiaz-Osorio reportedly asked about acquiring legal representation, and then the questioning continued. Days later, the defendant was extradited to Wisconsin.

After counsel for Subdiaz-Osorio failed to get the trial court to suppress the statements he made to Arkansas police, Subdiaz-Osorio entered a plea agreement to first-degree reckless homicide and use of a dangerous weapon, and was sentenced to 20 years initial confinement and 15 years extended supervision.

On appeal, the defendant restated his belief that the circuit court was wrong in denying his request to suppress because of what he believed was the unlawful tracking of his location by GPS, in addition to the continued questioning after he had requested an attorney.

The appellate court was not completely unsympathetic to the defendant’s arguments, but suggested that any violation of Fourth or Fifth Amendment protections was harmless error. Even if Subdiaz-Osorio had succeeded in getting the police statements tossed, the appellate court indicated, the state’s case was strong enough to indicate he likely would have accepted the plea deal either way.

The defendant’s appeal to the Wisconsin Supreme Court doubled down on the fact that the Fourth Amendment has a strong presumption that searches should be legal.

After Rodriguez was found dead, Kenosha police had all morning to get the warrant, but didn’t, defense counsel said. Also, none of the factors for “exigent circumstances” existed. The arrest did not involve hot pursuit, it was difficult to argue that there was a threat to the safety of the defendant or others, there was no risk that evidence would be destroyed, and although the defendant could flee, it was 1,400 miles to Mexico, giving law enforcement plenty of time to obtain a warrant.

Recent decisions by the U.S. Supreme Court in U.S. v. Bedford and U.S. v. Jones carved out limited circumstances where GPS tracking may be constitutional, counsel for Subdiaz-Osorio said, and where it might go over the line.

After finding a cellphone search constitutional in U.S. v. Bedford, the Supreme Court cautioned that slightly different facts could lead to a different result.

“The situation may be different if the government dialed an individual cell-phone number for the purpose of obtaining cell-site data to locate the individual,” the Bedford court wrote.

Counsel for the state argued that the Wisconsin Supreme Court only was being asked for an advisory opinion, and had every reason to find harmless error similar to the Court of Appeals.

The state had multiple witnesses who saw the defendant at the trailer home, fighting with Rodriguez, as well as an intact crime scene; all of which underscored that the state had a strong case, independent of any statements Subdiaz-Osorio made to Arkansas investigators.

Also, the defendant’s incentive to plead down to reckless homicide was substantial, as a conviction for first-degree premeditated murder had no chance of parole. A reckless homicide plea could mean a chance of parole in 20 years or even less.

Counsel for Subdiaz-Osorio pointed to language in the Sprint phone agreement that explicitly said that user cellphones would not be used to track them absent “extraordinary circumstances.”

The state countered that the Sprint agreement disclosure exception correctly applied to the circumstances here because the defendant was a fleeing, dangerous murder suspect who was possibly about to leave the country.

Defense counsel pointed to case law from around the country where tracking was deemed in violation of the state and not the federal constitution. New York, Washington and Oregon all had cases where state protections against improper invasion of privacy actually were stronger than their equivalent federal language.

A key determinant in both federal and state cases, said the state, is whether officers had to commit a physical intrusion to initiate the tracking, and whether that tracking went into areas that normally would be beyond the routine observation of a law enforcement officer.

“There was no trespass here,” concluded the state.

And regarding the defendant’s claim that questioning continued after he asked for an attorney, the state argued that his statement about wanting an attorney was not unequivocal, and in fact could be interpreted as possibly just requesting an attorney for the extradition hearing.