DAVID T. PROSSER, J.
¶ 1 This is a review of an unpublished decision of the court of appeals, State v. Subdiaz-Osorio, No. 2010AP3016-CR, unpublished slip op., 2012 WL 5512066 (Wis.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)
¶ 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
¶ 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
¶ 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.
¶ 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.
¶ 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
¶ 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.
¶ 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.
¶ 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 said that he did not want to be arrested. Subdiaz-Osorio then asked his girlfriend, Estella Carreno-Lugo (Estella), to help him take care of Ojeda-Rodriguez. Estella came to Subdiaz-Osorio's trailer and helped bandage Ojeda-Rodriguez's wounds and clean him up. She and Subdiaz-Osorio then left the trailer for her home. Despite Estella's efforts, Liborio found Ojeda-Rodriguez dead the next morning. At 9:27 a.m. on February 8, Liborio, Damien, and Norma Romero (Norma) reported to the front counter of the Kenosha Safety Building that there had been a stabbing.
¶ 18 The police found Ojeda-Rodriguez's body battered and stabbed with "purple swelling" on his face and eyes and bandages on his left cheek and shoulder. Emergency Medical Services personnel confirmed that Ojeda-Rodriguez was dead. The medical examiner noted that there was a fatal stab wound under Ojeda-Rodriguez's left eye and two stab wounds on Ojeda-Rodriguez's left shoulder. The fatal stab occurred when Subdiaz-Osorio thrust the knife into Ojeda-Rodriguez's left eye, causing the blade to penetrate Ojeda-Rodriguez's brain three to four inches.
¶ 19 Detective David May (Detective May) and Detective Gerald Kaiser (Detective Kaiser) became the lead detectives for the investigation. Detective May testified that he learned about the incident about 9:30 a.m. on Sunday, February 8. Several Spanish speaking officers interviewed the three individuals who came to the Safety Building. Officer Ernan DelaRosa arrived at 10:25 a.m. and interviewed Liborio, who said that Subdiaz-Osorio admitted that he had stabbed Ojeda-Rodriguez. Officer Gloria Gonzales arrived at 11:55 a.m. and interviewed Norma. Officer Arturo Gonzalez arrived at 12:06 p.m. and interviewed Damien.
¶ 20 Officer Pablo Torres
¶ 21 After compiling essential information from the witnesses, the Kenosha police put a temporary want
¶ 22 The notification of a temporary want was old technology. Kenosha police also wanted to track Subdiaz-Osorio's cell phone location to find the vehicle in which
¶ 23 Subdiaz-Osorio's Sprint Nextel Privacy Policy (Policy) contains a "Disclosure of Personal Information" section that reads:
"[P]ersonal information" is "information that is directly associated with a person such as his or her name, address, telephone number, e-mail address, activities and preferences." The Policy also refers to Customer Proprietary Network Information (CPNI), which is "information Sprint Nextel obtains or creates when it provides wireline or mobile wireless telecommunications services to a customer." Under the Policy, location information is CPNI and is protected as described in the above block quotation. The Policy informs the subscriber that the "network knows the general location of your phone or wireless device whenever it is turned on." It goes on to say in a section titled "Presence, Location and Tracking Information" that in the event of an emergency, "The law also permits us to disclose the call location of a device on our network without a user's consent...."
¶ 24 In addition to pursuing the cell phone location information, the police applied for a search warrant to search Subdiaz-Osorio's trailer. Detective Kaiser later stated that it usually takes between two and three hours to draft a search warrant and have it signed by a judge. This case was no different. Kenosha County Circuit Judge Bruce Schroeder issued the search warrant for the trailer on February 8 at 2:37 p.m. Judge Schroeder happened to be in his car when he was called and was able to stop at the police station relatively quickly. After obtaining
¶ 25 Sometime during the afternoon, DCI obtained tracking information for Subdiaz-Osorio's cell phone without obtaining a warrant. The only information that DCI received from the cell phone provider was location information, not conversations or other data. After obtaining Subdiaz-Osorio's location information, Detective Kaiser called Arkansas police to inform them that Subdiaz-Osorio was traveling South on I-55 and that the knives used in the murder were never recovered. Detective Kaiser gave the license plate information, the make, and the model of the car to an Arkansas patrol officer around 5:43 p.m. The Arkansas patrol officer pulled the car over in Luxora, Arkansas around 6:11 p.m. and took Subdiaz-Osorio and Roberto, who was driving the car, into custody. On the Sunday night he was arrested, Subdiaz-Osorio signed a consent form allowing police to obtain trace evidence from him, including DNA and fingernail clippings. The Arkansas police did not interrogate him that evening.
¶ 26 On Monday, February 9, Detective Kaiser traveled to Arkansas with Detective May and Officer Torres. The Arkansas police obtained a search warrant for the car at 2:34 p.m., and Detective Kaiser processed the car for evidence.
¶ 27 Officer Torres and Detective May interviewed Subdiaz-Osorio in the Mississippi County Jail in Luxora. The room was well-lit and roughly eight feet by eight feet in size with a table separating the suspect from the two officers. When Officer Torres entered the interrogation room, he removed Subdiaz-Osorio's handcuffs, and Subdiaz-Osorio accepted a Coke at the beginning of the interview. Subdiaz-Osorio told the police that he preferred that the interview be in Spanish, so that Officer Torres provided translation assistance. Officer Torres believed that Subdiaz-Osorio understood him "very well," and Subdiaz-Osorio never said that he was having trouble comprehending Officer Torres's Spanish. Before speaking with Subdiaz-Osorio, Officer Torres informed Subdiaz-Osorio of his constitutional rights (Miranda
¶ 28 The officers made an audiovisual recording of the interview, portions of which were later played in court and translated contemporaneously from Spanish into English. During the interview, Subdiaz-Osorio asked if Officer Torres would be taking him back to Kenosha, and Officer Torres replied that he and Detective May would not be taking Subdiaz-Osorio back. Officer Torres explained the extradition process:
Immediately after Officer Torres explained how extradition would work in the above quotation, Subdiaz-Osorio asked, "How can I do to get an attorney here because I don't have enough to afford for one." Officer
¶ 29 At no point in the interview in Arkansas did Officer Torres or Detective May threaten, coerce, or make any promises to Subdiaz-Osorio to get him to sign the Waiver of Constitutional Rights or the consent to obtain DNA and trace evidence.
¶ 30 On February 9, after the police had collected a substantial amount of evidence against him, Subdiaz-Osorio was charged with first-degree intentional homicide contrary to Wis. Stat. §§ 940.01(1)(a) (2009-10),
¶ 31 Officer Torres and Detective May interviewed Subdiaz-Osorio again on February 22, this time at the Kenosha Police Department, after Subdiaz-Osorio's return to Wisconsin. Again, the officers read Subdiaz-Osorio the Waiver of Rights form, and Subdiaz-Osorio consented and signed it. Subdiaz-Osorio also signed a "Consent to Search" form that allowed the Kenosha police to search his trailer. The Kenosha police applied for and obtained another search warrant for the trailer, but they did not need the warrant because they had Subdiaz-Osorio's consent. On February 22 Subdiaz-Osorio accompanied Detective May, Officer Torres, and other Kenosha police personnel to the scene of the stabbing, and Subdiaz-Osorio walked through and assisted the officers in the investigation. Subdiaz-Osorio described the incident and again claimed that Ojeda-Rodriguez had brought a knife into the bedroom. The officers told Subdiaz-Osorio that his story conflicted with Lanita's account, and Subdiaz-Osorio then admitted that he had procured the knives.
¶ 32 On April 1, 2009, Subdiaz-Osorio filed a pretrial motion to suppress all statements and evidence that the police obtained after his arrest.
¶ 33 On June 26, 2009, Judge Wagner denied Subdiaz-Osorio's motion to suppress
¶ 34 Therefore, Judge Wagner denied all motions to suppress evidence. The State filed an amended information on February 15, 2010, charging Subdiaz-Osorio with first-degree reckless homicide by use of a dangerous weapon contrary to Wis. Stat. §§ 940.02(1) and 939.63(1)(b), and Subdiaz-Osorio pled guilty to the charge in the amended information. The circuit court accepted the plea and found Subdiaz-Osorio guilty of first-degree reckless homicide by use of a dangerous weapon. On June 28, 2010, the circuit court sentenced Subdiaz-Osorio to 20 years of confinement and 15 years of extended supervision.
¶ 35 Subdiaz-Osorio appealed the judgment of conviction and the denial of his suppression motion under Wis. Stat. § 971.31(10).
¶ 36 The court also rejected the argument that without evidence that he fled to Arkansas, Subdiaz-Osorio could have shown that he did not act with utter disregard for life (a required element of first-degree reckless homicide). Id., ¶¶ 6, 9. According to the court of appeals, Subdiaz-Osorio's flight from Wisconsin and his false statement to the police about Ojeda-Rodriguez bringing one or more knives into his room were not especially important evidence in proving that Subdiaz-Osorio was acting with utter disregard; thus, the failure to suppress that evidence did not significantly impact the State's ability to prove that Subdiaz-Osorio acted with utter disregard. Id., ¶¶ 9-11. Finally, the court of appeals noted that the State had a strong eyewitness account of the murder, and Subdiaz-Osorio received a significant benefit in pleading to first-degree reckless homicide. Id., ¶ 12. Therefore, the court of appeals concluded that any error by the
¶ 37 Subdiaz-Osorio petitioned this court for review, which we granted on March 13, 2013.
¶ 38 Whether law enforcement agents have violated a suspect's Fourth or Fifth Amendment rights is a question of constitutional fact. State v. Phillips, 218 Wis.2d 180, 189-91, 577 N.W.2d 794 (1998); see State v. Brereton, 2013 WI 17, ¶ 17, 345 Wis.2d 563, 826 N.W.2d 369; State v. Sveum, 2010 WI 92, ¶ 16, 328 Wis.2d 369, 787 N.W.2d 317. Although the court upholds findings of historical fact unless they are clearly erroneous, constitutional questions are questions of law that this court reviews independently. Brereton, 345 Wis.2d 563, ¶ 17, 826 N.W.2d 369; Phillips, 218 Wis.2d at 189-91, 577 N.W.2d 794. In addition, the court applies a de novo standard of review to "determine whether the historical or evidentiary facts establish exigent circumstances" to justify a warrantless search. State v. Richter, 2000 WI 58, ¶ 26, 235 Wis.2d 524, 612 N.W.2d 29 (citation omitted).
¶ 39 This case involves a brutal killing, but the law enforcement effort to apprehend the killer has implications for citizens at large. Thus, I begin my analysis with a general discussion of privacy and citizens' concerns about protecting personal information in an era when technology is chipping away at traditional notions of privacy.
¶ 40 Privacy is a pillar of freedom. There is great value in being able to enter and withdraw from public spaces and disclose the details of our thoughts and movements at our discretion. We share pieces of ourselves with loved ones and bond over the secrets of our identities. We perfect ideas behind closed doors and reveal them to the public when they are ready. We take comfort in seclusion from the world in moments of intimacy. Privacy is not insignificant; it is not something to be taken for granted; and even as it diminishes as our world becomes more interconnected and dangerous, privacy must not become a legal fiction.
¶ 41 It would be difficult to overstate the value of privacy:
Stephen E. Henderson, Expectations of Privacy in Social Media, 31 Miss. C.L.Rev. 227, 233 (2012) (quoting Benjamin Goold, Surveillance and the Political Value of Privacy, 1 Amsterdam L. Forum 3, 3-4 (2009)). Thus, privacy serves more than the individual; it is an integral component of a well-ordered society.
¶ 42 The privacy landscape is shifting as we embrace new technologies. Electronic devices afford us great convenience and efficiency, but unless our law keeps pace with our technology, we will pay for the benefit of our gadgets in the currency of privacy. As we incorporate more of our lives into our smartphones and tablets, we
¶ 43 As Samuel Warren and Louis Brandeis noted presciently well over a century ago, "Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right `to be let alone.'"
¶ 44 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. There will be times at which privacy must yield to security in order to thwart crimes, from identity theft to terrorism. The Fourth Amendment often conjures the image of a scale on which we balance the needs of law enforcement and the rights of individuals. Technological innovation does not change the need for balance, but it makes the act of balancing difficult. It is no small task to afford law enforcement officers and government agencies the leeway they need to keep citizens safe while ensuring that citizens retain a reasonable degree of privacy.
¶ 45 The balancing is especially important as citizens pay close attention to their privacy rights in the context of wireless technology. As awareness of our dwindling privacy increases, surveys consistently reveal that people are apprehensive about losing privacy with regard to their personal information.
¶ 46 The Fourth Amendment of the United States Constitution provides:
U.S. Const. amend. IV.
¶ 47 This case requires the court to consider whether the tracking of Subdiaz-Osorio's cell phone location was a search under the above-quoted constitutional provisions and, if so, whether it required a warrant or was subject to one of the well-delineated exceptions to the warrant requirement. My analysis keeps in mind Justice Kennedy's caution that: "The judiciary
¶ 48 Recent decisions from both the United States Supreme Court and this court have utilized the common law trespass theory to analyze whether a search violated the Fourth Amendment. Case law interpreting the Fourth Amendment "was tied to common-law trespass, at least until the latter half of the 20th century." Jones, 132 S.Ct. at 949 (citations omitted). Recently, the Court has turned again to trespass theory, deciding in Jones that government installation of a GPS tracking device under a suspect's Jeep without a valid warrant was a search because the placement of the device was an impermissible physical intrusion. Id. Trespass theory would not be applicable to the effort to obtain cell phone location information unless one were to deem the cell phone provider's electronic interaction with Subdiaz-Osorio's cell phone as a physical trespass. Such an analysis would be unnatural.
¶ 49 This court has not had the opportunity to analyze whether the tracking of cell phones in complete absence of a warrant implicates a suspect's Fourth Amendment rights, but the court has decided that valid warrants may permit GPS tracking of vehicles. See Brereton, 345 Wis.2d 563, ¶ 3, 826 N.W.2d 369 (installation of GPS device did not go beyond scope of warrant); Sveum, 328 Wis.2d 369, ¶ 74, 787 N.W.2d 317 (warrant for GPS tracking was valid and execution of warrant was reasonable). Although those prior cases involved tracking facilitated by technology, the present case falls under the category of a non-trespassory search and does not benefit from an analysis that relies on the trespass theory of Fourth Amendment searches.
¶ 50 This court's opinion in State v. Tate, 2014 WI 89, ___ Wis.2d ___, 849 N.W.2d 798, discusses the requirements to obtain a warrant for cell phone location tracking.
¶ 51 The Supreme Court expanded the traditional concept of a search in 1967 by extending Fourth Amendment protections to circumstances in which technology enabled an invasion of privacy without a trespass. See Katz, 389 U.S. at 360-61, 88 S.Ct. 507 (Harlan, J., concurring) (determining that regardless of trespass, the Fourth Amendment protects a person's "reasonable expectation of privacy"); see also Jones, 132 S.Ct. at 953 ("Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis."). In Katz, the government used evidence of the defendant's incriminating phone conversations that the FBI secretly recorded with a device attached to the outside of a public phone booth.
¶ 52 Justice Harlan's concurrence set forth a two-part test to determine when a non-trespassory search implicates the Fourth Amendment: (1) the person must have a subjective expectation of privacy; and (2) the expectation of privacy must be "one that society is prepared to recognize as `reasonable.'" Id. at 361, 88 S.Ct. 507 (Harlan, J., concurring). As the Supreme Court suggested in Jones, Katz offers the proper test to determine whether cell phone location tracking receives Fourth Amendment protection. See Jones, 132 S.Ct. at 953.
¶ 53 The State contends that Subdiaz-Osorio did not have a reasonable expectation of privacy in his cell phone location data because his Sprint Policy said that Sprint would disclose location information to law enforcement in the event of an emergency. A recent federal case from Vermont offers an intriguing analysis of a suspect's subjective expectation of privacy based on his cell phone policy. United States v. Caraballo, 963 F.Supp.2d 341 (D.Vt.2013).
¶ 54 In Caraballo, the defendant carried out an execution-style murder when he bound up a woman, shot her in the back of the head, and left her body in the woods. Id. at 343. The victim had been arrested in the past and had told police that she was engaged in drug activity with a man named Frank Caraballo. Id. In her past discussions with police, the victim said that she was very afraid of Caraballo because he would kill her if he knew she was talking to the police, and he had many weapons. Id. Given what they knew about the defendant, the police decided that they would track his cell phone so that they could find and arrest him as quickly as possible. Id. at 345-46. Because time was precious, they did not obtain a warrant. Id.
¶ 55 Caraballo argued that the warrantless search of his cell phone location data violated his Fourth Amendment rights. Id. at 342. The court went through a
¶ 56 First, the Policy in this case is confusing and difficult to interpret. It consists of nine pages that include piecemeal definitions and vague terminology. For example, the Policy creates confusion by defining the term "CPNI" at several different points with varying degrees of specificity.
¶ 57 The Policy is also unclear about what information Sprint will disclose in the event of an emergency. For example, in a paragraph titled "Protection of Sprint Nextel and Others,"
¶ 58 The Policy later says in a section titled "Presence, Location and Tracking Information" that "[l]ocation information derived from providing our voice service, in addition to being covered by this Policy, is CPNI and is protected as described above." Thus, the full definition of CPNI does not come until after the section that discusses disclosure of CPNI. Moreover, it is difficult to see how the customer's CPNI is "protected as described above" as the paragraph above enumerates only circumstances in which information will be disclosed. The "Presence, Location and Tracking Information" section goes on to say that Sprint may disclose "call location" information, but the term "call location," like the phrase "disclosure of communications," misleadingly implies that only location data obtained from a phone call may be disclosed. It is possible that a customer would read this Policy and understand that his cell phone may be tracked at all times, but that is not the only possible reading.
¶ 59 In sum, I am reluctant to say that a person loses his reasonable expectation of privacy based on an opaque contract. The Fourth Amendment is complicated enough
¶ 60 Second, even if the Policy clearly provided that Sprint may disclose location information to law enforcement in an emergency, that language merely governs the conduct of Sprint.
¶ 61 Third, although it is likely that all cell phone policies contain language similar to the Sprint Policy in this case, law enforcement may not know what any given individual's cell phone policy actually says. It is untenable to contend that a search under the Fourth Amendment depends on the specific language in an individual's cell phone policy — that law enforcement may track a cell phone without a warrant, understanding that if the policy does not alert the suspect that he may be tracked, the search will violate the Fourth Amendment.
¶ 62 Fourth, the language in Sprint's Policy mirrors the language in the exigent circumstance exception to the warrant requirement. One example of this exception requires law enforcement to show probable cause and a reasonable belief that there is "a threat to safety of a suspect or others." State v. Hughes, 2000 WI 24, ¶¶ 19, 25, 233 Wis.2d 280, 607 N.W.2d 621. The Policy says that Sprint discloses information "if we reasonably believe that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure." Thus, both the exigent circumstances exception and the Policy contemplate the government obtaining location data where someone's safety is in jeopardy. However, the exigent circumstances exception contains the additional requirement of probable cause. I believe it is more appropriate to interpret the Policy as permitting the wireless services provider to disclose information in exigent circumstances rather than saying that the clause nullifies a customer's reasonable subjective expectation of privacy.
¶ 63 Fifth, interpreting the cell phone policy to eliminate a customer's reasonable subjective expectation of privacy invites law enforcement to be complacent in its requests for tracking. The Caraballo court noted that Sprint processes thousands of emergency requests each year, and it is Sprint's practice not to second-guess law enforcement's emergency requests. Caraballo, 963 F.Supp.2d at 349. If law enforcement agents say that there is
¶ 64 Finally, I believe it prudent to heed the cautionary advice of the Supreme Court when it comes to determining whether a policy can render an expectation of privacy unreasonable. See Quon, 560 U.S. at 759, 130 S.Ct. 2619. In Quon, the Ontario Police Department (OPD) in California distributed to various officers pagers that could send and receive text messages. Id. at 750-51, 130 S.Ct. 2619. OPD explicitly informed the officers that messages on the pagers were not private and that the officers should have no expectation of privacy when sending texts on the pagers. Id. at 758, 130 S.Ct. 2619. When Police Sergeant Jeff Quon (Quon) challenged the OPD's decision to look at his sexually explicit text messages, claiming a Fourth Amendment violation, the Court decided not to determine whether Quon had a reasonable expectation of privacy in the texts. Id. at 752-53, 760, 130 S.Ct. 2619 ("A broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds."). The Court then assumed Quon had a reasonable expectation of privacy and decided that the special-needs-of-the-workplace exception applied to allow the warrantless search. Id. at 760-61, 130 S.Ct. 2619. Because I can avoid a broad pronouncement regarding reasonable expectations of privacy by analyzing this case under the exigent circumstances exception, I need not decide whether Subdiaz-Osorio's cell phone Policy nullified his subjective reasonable expectation of privacy in his cell phone location information.
¶ 65 Despite its apparent simplicity, the Katz test's second prong — whether society is prepared to recognize an expectation of privacy as reasonable — has been the subject of much confusion, debate, and analysis, and it is far from an easy touchstone to apply.
¶ 66 Although it is difficult to apply, the interpretation of what society is prepared to recognize as a "reasonable expectation of privacy" is an important part of the analysis under Katz. See Florida v. Riley, 488 U.S. 445, 451-52, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989). In Riley, the Court considered whether police surveillance of a greenhouse from a helicopter 400 feet in the air was a search that required a warrant. Id. at 447-48, 109 S.Ct. 693. A plurality of the Court said that because anyone could have flown a helicopter and observed the top of the greenhouse without violating the law, it was not reasonable for the respondent to expect privacy when
¶ 67 In accordance with Justice O'Connor's Riley concurrence, the Court later determined that it was presumptively unreasonable for the government to use technology that was not in general public use to conduct a warrantless search that would normally require a physical intrusion of the home subject to the search. Kyllo v. United States, 533 U.S. 27, 40, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). In Kyllo, the government's use of thermal imaging to determine whether the defendant's house contained high-intensity lamps used to grow marijuana constituted a search under the Fourth Amendment. Id. at 29, 40, 121 S.Ct. 2038. The Court concluded that because the government used a thermal imaging device not in general public use to see details inside a house that would normally require a physical intrusion, the warrantless surveillance was an improper search. Id. at 40, 121 S.Ct. 2038. Kyllo demonstrates that surveillance aided by technology can rise to the level of an impermissible search even absent a physical intrusion.
¶ 68 Because the concept of an objective reasonable expectation of privacy is elusive, this opinion makes no definitive pronouncement as to whether society is prepared to recognize as reasonable an expectation of privacy in cell phone location data. Given the widespread apprehension of government intrusion in citizens' electronic personal information, we cannot say that an expectation of privacy in cell phone location data is unreasonable even if it were true that the public is generally aware that cell phone tracking is possible. On the other hand, cell phone location tracking might be better understood and more prevalent than, say, thermal imaging. I need not decide the issue of an objective reasonable expectation of privacy on these facts to decide this case.
¶ 69 Irrespective of whether Subdiaz-Osorio had both a subjective and objective reasonable expectation of privacy in his cell phone location data, and irrespective of whether obtaining that data was a search without a warrant under the Fourth Amendment, I conclude that the tracking of Subdiaz-Osorio's cell phone location fell within the exigent circumstances exception to the warrant requirement. Consequently, the search did not violate Subdiaz-Osorio's Fourth Amendment rights.
¶ 70 Seeking and obtaining the defendant's cell phone location information is assumed to be a search in this opinion because of the privacy implications. Under the exigent circumstances exception,
¶ 71 The probable cause standard also has been employed when there is "probable cause to believe that the evidence sought will aid in a particular apprehension or conviction for a particular offense." State v. Henderson, 2001 WI 97, ¶ 19, 245 Wis.2d 345, 629 N.W.2d 613 (quoting Dalia v. United States, 441 U.S. 238, 255, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979)) (internal quotation marks omitted); see Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). This formulation may be a more suitable fit for searches of cell phone location information when the primary goal of the search is to obtain information to apprehend the suspect.
¶ 72 The court determines whether there was probable cause by an objective standard and asks whether the police acted reasonably.
¶ 73 Exigent circumstances exist if, "measured against the time needed to obtain a warrant," and under the facts known at the time, it was objectively reasonable for law enforcement to conduct a warrantless search when: (1) law enforcement was engaged in a "hot pursuit"; (2) there was a threat to the safety of either the suspect or someone else; (3) there was a risk of destruction of evidence; or (4) the suspect was likely to flee. Hughes, 233 Wis.2d 280, ¶¶ 24-25, 607 N.W.2d 621 (citing State v. Smith, 131 Wis.2d 220, 229, 388 N.W.2d 601 (1986)). The objective exigent circumstances test asks "whether a police officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of the suspect's escape." Id., ¶ 24 (citing Smith, 131 Wis.2d at 230, 388 N.W.2d 601). The State has the burden to prove that exigent circumstances justified the search. Ferguson, 317 Wis.2d 586, ¶ 20, 767 N.W.2d 187.
¶ 74 Kenosha police had probable cause to conduct a search because there was a "fair probability" that evidence of the stabbing
¶ 75 Of course, the police wanted to apprehend Subdiaz-Osorio because of the accumulated evidence they had against him, but the police also had a hope and expectation that Subdiaz-Osorio's apprehension would yield additional evidence of the crime. This evidence included the defendant's clothing if he was wearing any of the same clothing he wore at the time of the stabbing, the murder weapon if he had not discarded his knives, and his cell phone if he made calls to additional people to whom he made admissions. The defendant himself could yield DNA evidence and could make inculpatory statements when questioned. Any person accompanying Subdiaz-Osorio would likely have heard incriminating admissions. For instance, the driver of the vehicle, Roberto, would surely be asked why he was driving Subdiaz-Osorio south. Where were they going and why were they going there? Did they avoid major highways at any point during the trip to avoid detection? If so, why?
¶ 76 Given that they had probable cause to track Subdiaz-Osorio's cell phone, the Kenosha police arguably had their pick of three exigent circumstances.
¶ 77 Moreover, it would be difficult to say that a potentially armed individual who recently committed a homicide did not create a threat to safety. Subdiaz-Osorio argues that stabbing his brother did not automatically support the inference that he was dangerous to others, but police do not have to have conclusive proof that a suspect is likely to harm someone in order to satisfy the exigent circumstances exception. Richter, 235 Wis.2d 524, ¶ 40, 612 N.W.2d 29.
¶ 79 In addition, the police reasonably could have believed that the likelihood that Subdiaz-Osorio would flee created an exigent circumstance. The exigent circumstance exception for a fleeing suspect exists if getting a warrant would "greatly enhance the likelihood of the suspect's escape." Hughes, 233 Wis.2d 280, ¶ 24, 607 N.W.2d 621 (citation omitted). Subdiaz-Osorio was in the country illegally, had just committed a grisly murder, and the police determined that his family in Illinois had not heard from him. The police knew that he was from Mexico and had family there.
¶ 80 It is not clear from the record exactly when Subdiaz-Osorio left Kenosha. Clearly, it was before 10 a.m. on February 8, 2009, because the police began to interview Estella by 10 a.m. It was probably before 9:27 a.m. because three of Subdiaz-Osorio's acquaintances went to the Kenosha Safety Building at 9:27 a.m. Kenosha County borders the State of Illinois so that Subdiaz-Osorio would likely have been in Illinois in less than 15 minutes after he left Estella. He probably would have been able to be in Chicago in less than an hour and a half. Chicago provides multiple forms of transportation out of the area besides automobile — airplanes, trains, buses. Chicago also provided the opportunity to buy or rent a different vehicle and buy a different cell phone, perhaps a prepaid cell phone. All this is predicated on Subdiaz-Osorio traveling south rather than north or west. The police could only speculate as to his plans or his route.
¶ 82 In addition to his Fourth Amendment claims, Subdiaz-Osorio argues that Kenosha police violated his Fifth Amendment rights when they continued to question him after he asked about how he could get an attorney. I conclude that Subdiaz-Osorio's question about obtaining an attorney was equivocal, and Officer Torres did not violate Subdiaz-Osorio's Fifth Amendment rights by continuing to question him.
¶ 83 The Fifth Amendment to the United States Constitution reads in part: "No person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...."
¶ 84 Having been advised of his right to an attorney and his right to remain silent, a suspect in custody must clearly invoke those rights. "[A]fter a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). "If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Jennings, 252 Wis.2d 228, ¶ 29, 647 N.W.2d 142 (quoting Davis, 512 U.S. at 459, 114 S.Ct. 2350). The suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id., ¶ 30 (quoting Davis, 512 U.S. at 459, 114 S.Ct. 2350).
¶ 85 In Davis, the Supreme Court determined that when the suspect said, "Maybe I should talk to a lawyer," it was not an unequivocal request for counsel. Davis, 512 U.S. at 462, 114 S.Ct. 2350. This court followed Davis in Jennings and decided that the defendant's statement, "I think
¶ 86 In the present case, Subdiaz-Osorio said, "How can I do to get an attorney here because I don't have enough to afford for one." The interview took place in Spanish (so that what we have before us is a translation at the suppression hearing), but it appears as though Subdiaz-Osorio was asking about the process of obtaining an attorney rather than asking for counsel to be present during the interview.
¶ 87 The context in which Subdiaz-Osorio's question arose is important and a vital element in the totality of the circumstances. Officer Torres had just explained the extradition process to Subdiaz-Osorio and told him that he would have to appear before a judge in Arkansas before a decision on whether he would return to Wisconsin. It was reasonable for Officer Torres to assume Subdiaz-Osorio was asking about how he could get an attorney for his extradition hearing, especially since Subdiaz-Osorio continued to answer questions and remained cooperative for the rest of the interview. In addition, prior to sitting down for the interview, Subdiaz-Osorio signed a waiver of rights form, which Officer Torres had read to him in Spanish. Our case law is clear that it is not enough for a suspect to say something that the interviewer might interpret as an invocation of the right to counsel. Id., ¶ 29. The invocation of that right must be unequivocal. In this case it was not.
¶ 88 Although the court is divided on the rationale for an affirmance, the decision of the court of appeals is affirmed.
The decision of the court of appeals is affirmed.
ANN WALSH BRADLEY, J. (concurring).
¶ 89 I agree with the dissent that the tracking of a cell phone constitutes a search in the context of the Fourth Amendment and that the warrantless search here was not justified by exigent circumstances. Dissent, parts I-V. Likewise, I agree that Subdiaz-Osorio's statement was sufficient to invoke his right to counsel. Dissent, part VI.
¶ 90 However, I part ways with the dissent because, like the court of appeals, I conclude that the circuit court's errors in denying the defendant's suppression motion were harmless. There is no reasonable probability that the circuit court's failure to grant the suppression motion contributed to the conviction. Accordingly, I respectfully concur in the mandate of the lead opinion.
¶ 91 The facts in this case are for the most part uncontested. After a night of drinking the defendant, Subdiaz-Osorio, and his brother, Ojeda-Rodriguez, got into an argument in front of a guest, Mintz, at their trailer. The argument escalated and after his brother punched him, the defendant retrieved a knife and stabbed his brother in the eye. Then, after the brother fell down, the defendant began kicking and punching him in the face. After Mintz pushed Subdiaz-Osorio away from his brother, Subdiaz-Osorio left the room.
¶ 92 Subdiaz-Osorio asked his roommate, Martinez, for help bandaging Ojeda-Rodriguez. Martinez wanted to call the police, but Subdiaz-Osorio refused and threatened to stab Martinez if he did. Martinez telephoned Carreno-Lugo asking for assistance taking care of Ojeda-Rodriguez. Upon arriving she bandaged him, then she and the defendant went back to her trailer and went to bed. The next
¶ 93 Police arrived and found Ojeda-Rodriguez's badly beaten body. When they interviewed Carreno-Lugo, she told them that the defendant asked for help because he had stabbed his brother. He spent the night at her trailer, and after learning his brother was dead, he told her that he had to leave. Carreno-Lugo allowed the defendant to take her car. She told police that he had family in Illinois and Mexico and acknowledged that he might be headed to Mexico.
¶ 94 After tracking his cell phone, the police located Subdaiz-Osorio in Arkansas. They took trace evidence from him, including DNA. The next day, after officers read the defendant his Miranda
¶ 95 A few weeks later, after the defendant was read his Miranda rights again and signed another waiver of rights form, Subdiaz-Osorio recounted the events of the evening, again indicating that his brother brought the knife. When the officer interviewing the defendant told him that his version of the events conflicted with Mintz's version, the defendant admitted that he had retrieved the knife.
¶ 96 Subdiaz-Osorio was charged with first-degree intentional homicide. After his suppression motion was denied, Subdiaz-Osorio accepted a plea bargain and pled to a reduced charge of first-degree reckless homicide by use of a deadly weapon. Subdiaz-Osorio now argues that the circuit court erred in failing to suppress the DNA evidence, the location of his apprehension, and his statement in the interview that his brother brought the knife into the room.
¶ 97 In assessing whether a trial error is harmless, we focus on the effect of the error on the jury's verdict. State v. Weed, 2003 WI 85, ¶ 29, 263 Wis.2d 434, 666 N.W.2d 485. We have described the test as "whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. (quoting State v. Harvey, 2002 WI 93, ¶ 44, 254 Wis.2d 442, 647 N.W.2d 189, quoting in turn Neder v. United States, 527 U.S. 1, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). To make that determination, "a court must be able to conclude `beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.'" Id. (quoting Harvey, 254 Wis.2d 442, ¶ 48 n. 14, 647 N.W.2d 189).
¶ 98 However, in a guilty plea situation following the denial of a motion to suppress, the test for harmless error on appeal is whether there is a reasonable probability that the erroneous admission of the disputed evidence contributed to the conviction. State v. Semrau, 2000 WI App 54, ¶ 21, 233 Wis.2d 508, 608 N.W.2d 376;
Semrau, 233 Wis.2d 508, ¶ 22, 608 N.W.2d 376.
¶ 99 As an initial matter, neither the court of appeals nor the State addressed Subdiaz-Osorio's arguments relating to the DNA evidence. It is unclear if he previously raised this as evidence he wanted suppressed. In any event, the DNA evidence is not necessary to link him to the crime scene. Subdiaz-Osorio admitted to stabbing his brother and that his asserted defenses were that he acted in self-defense and did not act with utter disregard for human life. Thus, I conclude it is not reasonably probable that this evidence contributed to the conviction.
¶ 100 The second piece of evidence Subdiaz-Osorio believes should have been suppressed was the fact that he was located in Arkansas. This court has previously determined that evidence of flight has probative value as it tends to show consciousness of guilt. Wangerin v. State, 73 Wis.2d 427, 437, 243 N.W.2d 448 (1976). In this case, however, even without the evidence that the defendant was found in Arkansas, there was strong evidence against him, including an eyewitness to the stabbing, and other witnesses he spoke with after seeking help. See State v. Quiroz, 2009 WI App 120, ¶ 28, 320 Wis.2d 706, 772 N.W.2d 710 (admission of flight evidence harmless error where evidence of guilt was overwhelming).
¶ 101 To the extent that Subdiaz-Osorio's arrest location indicates flight, it was cumulative of other evidence. As the State asserts, the statements from Carreno-Lugo that Subdiaz-Osorio took her car and was possibly going to Mexico or Illinois, together with his absence from his home, could have independently established that he fled.
¶ 102 It is also notable that Subdiaz-Osorio received a reduced charge in exchange for his guilty plea. The charge of intentional homicide, which is a class A felony with a maximum sentence of life imprisonment, Wis. Stat. §§ 946.01(a), 939.50(3)(a), was reduced to a charge of reckless homicide, which is a class B felony with a maximum sentence of 65 years imprisonment, Wis. Stat. §§ 940.02(1), 939.50(3)(b), 939.63(1)(b).
¶ 103 Because Subdiaz-Osorio accepted a reduced plea, in the face of strong evidence against him, including eyewitness testimony and his own confession, I conclude it is not reasonably probable that the circuit court's failure to suppress the location information contributed to the conviction.
¶ 104 I turn next to the third piece of evidence Subdiaz-Osorio sought to suppress: his initial statement to officers that his brother brought the knife into the room. The harmless error analysis also applies here. State v. Armstrong, 223 Wis.2d 331, 368-370, 588 N.W.2d 606 (1999) (concluding that the admission of evidence obtained in violation of Miranda was harmless error); State v. Harris, 199 Wis.2d 227, 263, 544 N.W.2d 545 (1996) (determining that it was harmless error for the court to admit the fruits of a Miranda violation); State v. Rockette, 2005 WI App 205, ¶ 33, 287 Wis.2d 257, 704 N.W.2d 382 (determining that regardless of whether a Miranda violation occurred, the error was harmless as the defendant
¶ 105 As with the DNA evidence and the location evidence, the denial of Subdiaz-Osorio's suppression motion with respect to his statement about his brother bringing the knife to the room is also harmless error. As discussed above, the State had a strong case against Subdiaz-Osorio, there was an eyewitness who could testify about who brought the knives, and Subdiaz-Osorio confessed. In exchange for his guilty plea, he received a reduced charge. Accordingly, I conclude that it is not reasonably probable that the circuit court's failure to suppress Subdiaz-Osorio's statements contributed to the conviction.
¶ 106 In sum, although I determine that the circuit court erred in denying the defendant's motion to suppress, I conclude that the circuit court's errors were harmless. Accordingly, I respectfully concur in the mandate of the lead opinion.
N. PATRICK CROOKS, J. (concurring).
¶ 107 In the consolidated cases of Riley v. California and United States v. Wurie, the United States Supreme Court recently recognized that "[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans `the privacies of life.'"
¶ 108 Our decision in State v. Carroll,
¶ 109 The holdings of the United States Supreme Court in the Riley/Wurie cases and of this court in Carroll lead me to the conclusion that, absent case-specific exceptions, such as an emergency, a warrant is required for the search of a cell phone's location. Therefore, I cannot join the lead opinion. I write separately to express my concern with the broad pronouncements of the lead opinion, especially given that Fourth Amendment cell phone jurisprudence, cell phone technology, and related legislation are all rapidly evolving. However, for the reasons explained below, I would apply a good faith exception consistent with the rationale of State v. Eason
¶ 110 The Fourth Amendment provides:
¶ 111 "As the text makes clear, `the ultimate touchstone of the Fourth Amendment is reasonableness.'"
¶ 112 In general, law enforcement should be required to obtain a warrant to search the contents of a cell phone incident to arrest and to obtain location information from a cell phone provider.
The United States Supreme Court recognized that there is a balancing of interests required when determining whether there should be a definitive rule or some exceptions permitted:
¶ 113 Therefore, I would hold that law enforcement should obtain a warrant before obtaining cell phone location information from providers.
¶ 114 I am persuaded that the definitive approach of requiring a warrant for cell phone searches and cell phone location data is appropriate. I recognize that before the Riley/Wurie decisions, other jurisdictions that have considered cases involving cell phone location data have come to differing conclusions concerning a warrant requirement.
¶ 115 Furthermore, a general warrant requirement is preferable considering the rapid evolution of Fourth Amendment jurisprudence and related legislation in the area of cell phone and other location tracking technology.
¶ 116 It is noteworthy that the Wisconsin Legislature has quite recently enacted
¶ 117 There is no indication that law enforcement lacked the necessary time to obtain a warrant to access Subdiaz-Osorio's cell phone location through information disclosed by his cell phone provider. Furthermore, nothing suggests that a delay in obtaining a warrant would have hindered law enforcement efforts. Based on the record in this case, law enforcement could have and should have obtained a warrant in time to access the requested cell phone location data and apprehend the defendant.
¶ 118 Despite my view that usually law enforcement must obtain a warrant before obtaining a cell phone location, I would not exclude the location evidence in this case even though law enforcement did not first obtain a warrant. However, I do not agree with the lead opinion's conclusion that the warrantless search was justified on the grounds of probable cause and exigent circumstances. Instead, I would apply a good faith exception in this case to conclude that Subdiaz-Osorio's Fourth Amendment rights were not violated.
¶ 119 As the United States Court of Appeals for the Fifth Circuit stated:
¶ 120 The United States Supreme Court in United States v. Leon
¶ 121 The good faith exception does not contravene the purpose of the exclusionary rule. "When there has been an unlawful search, a common judicial remedy for the constitutional error is exclusion."
¶ 122 Thus, a court considering whether to apply the exclusionary rule must bear in mind the primary purpose of the rule: deterring police misconduct.
¶ 123 The exclusionary rule is based on a desire to deter law enforcement from violating the constitutional right of a citizen to be free from illegal searches and seizures. "Where the official action was pursued in complete good faith, however, the
¶ 124 That is a guiding principle in the application of the exclusionary rule. We have, consistent with the United States Supreme Court, stressed that "just because a Fourth Amendment violation has occurred does not mean the exclusionary rule applies.... The application of the exclusionary rule should focus on its efficacy in deterring future Fourth Amendment violations. Moreover ... `the benefits of deterrence must outweigh the costs.'"
¶ 125 I agree with that approach, and, based on the record here, this case falls within the category of cases to which the exclusionary rule should not apply because no deterrent purpose would be served by requiring the exclusion of the cell phone location evidence at issue.
¶ 126 Here police were investigating a murder, and, after pursuing other investigative leads, police contacted the Wisconsin Department of Justice, Division of Criminal Investigation (DCI), and asked DCI to request location information from Subdiaz-Osorio's cell phone provider. Proceeding according to the requirements of the cell phone provider, and pursuant to the terms of its user agreement, DCI filled out and submitted to the cell phone provider a "Mandatory Information for Exigent Circumstances Requests" form. There is no evidence or allegation of police misconduct in this case.
¶ 127 What occurred here is certainly similar to what we required in structuring the good faith exception:
Parallel to our reasoning in Eason, there was a "significant investigation" underway into the murder of Subdiaz-Osorio's brother, including multiple interviews with witnesses and a search warrant executed at his home. Furthermore, as part of the investigation, law enforcement consulted with the Department of Justice, an outside entity certainly "trained and knowledgeable" in these matters, whose staff then requested the cell phone location data. These steps were of a similar nature to the steps outlined in Eason.
¶ 128 Searches involving cell phone data represent a rapidly evolving area of law where it is appropriate to recognize law enforcement's good faith efforts to conduct investigations consistent with constitutional restrictions. There is no allegation that there was clearly established law that police disregarded in the course of the investigation in this case. The actions of the police here show that the officers were acting in good faith, and, therefore, a good faith exception to the warrant requirement is appropriate here.
¶ 129 For the reasons stated, I respectfully concur with the mandate of the lead opinion but write separately.
PATIENCE DRAKE ROGGENSACK, J. (concurring).
¶ 130 I agree with the lead opinion's conclusions that law enforcement acted reasonably under the Fourth Amendment due to exigent circumstances and that Subdiaz-Osorio failed to unequivocally invoke his right to counsel. I write in concurrence, however, because I cannot endorse the lead opinion's discussion of whether a search occurred.
¶ 131 The lead opinion says that it does not decide whether law enforcement's activities constituted a search within the meaning of the Fourth Amendment.
¶ 132 Specifically, while the lead opinion purports to assume without deciding "that people have a reasonable expectation of privacy in their cell phone location data
¶ 133 First, the lead opinion concludes that the Subdiaz-Osorio's Sprint policy suffers from multiple legal shortcomings. After noting "piecemeal definitions and vague terminology" in that contract, it concludes that "[i]t is possible that a customer would read th[e] Policy and understand that his cell phone may be tracked at all times, but that is not the only possible reading."
¶ 134 The lead opinion further states that even if the cell phone contract were clear, "[i]t does not necessarily follow that law enforcement may lawfully seek and obtain the information without a court order or without satisfying the exigent circumstances exception."
¶ 135 This pronouncement calls into serious question the ability of a defendant's voluntary disclosure of information to shape the defendant's expectation of privacy, and therefore questions the continued viability of the third party disclosure doctrine itself, under which a defendant "typically retains no ... constitutional reasonable expectation of privacy in information conveyed to a third party." ABA Standards for Criminal Justice, Law Enforcement Access to Third Party Records, 6 (3d ed.2013). This is a developing issue that I believe is better evaluated in a decision that requires us to address third party disclosures. See United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 957, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring) ("it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties").
¶ 136 Finally, the lead opinion notes that law enforcement will not know, in each instance, whether a suspect's cell phone contract contains language similar to the Sprint contract in the present case.
¶ 137 In sum, while the lead opinion "believe[s] it prudent to heed the cautionary advice of the Supreme Court" and to decide the case on the narrowest grounds possible, its wide-ranging discussion fails to implement that directive.
¶ 138 I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER joins this concurrence.
ANNETTE KINGSLAND ZIEGLER, J. (concurring).
¶ 139 I join Justice Roggensack's concurrence, but write separately to address the United States Supreme Court's recent decision in Riley v. California, 573 U.S. ___, 134 S.Ct. 2473, ___ L.Ed.2d ___ (2014). Riley addressed whether a warrantless search of the contents of a suspect's cell by police was constitutionally permissible, id. at 2477, while in the case at issue, Subdiaz-Osorio objects to the disclosure of location data by his cell phone service provider. See Lead op., ¶ 2. The location of a cell phone and the contents contained therein may or may not be subject to the same constitutional analysis. At this point, the parties have not had a reasonable opportunity to brief or argue that point, or address the import of Riley on the case at issue. Especially considering the recent U.S. Supreme Court precedent, I agree with Justice Roggensack, and I would decide this case on the narrowest possible grounds.
¶ 140 The Riley decision explicitly stated that it was not addressing "the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances." 134 S.Ct. at 2489 n. 1. The Court further clarified that "[o]ur holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search...." Id. at 2493 (emphasis added). The Riley decision acknowledged that "[i]f the police are truly confronted with a now or never situation, — for example, circumstances suggesting that a defendant's phone will be the target of an imminent remote-wipe attempt — they may be able to rely on exigent circumstances to search the phone immediately." Id. at 2487 (citations and internal quotation marks omitted).
¶ 141 In further limiting its holding to the facts of the case, the Riley court also stated:
Id. at 2494 (citations and internal quotation marks omitted).
¶ 142 Thus, the Supreme Court in Riley did not necessarily address the specific question presented in the case at issue, presumably because that question was not squarely presented by the facts of Riley. I conclude that, given these uncertainties, we should exercise restraint and cabin our analysis to the facts of this case.
¶ 143 We have received no briefing or argument on the broader privacy questions that are addressed in the lead opinion or in Riley. As a practical matter, the issue of what actions law enforcement needs to take when seeking cell phone location information has also been addressed by the legislature. See Wis. Stat. §§ 968.373 and 968.375(3)(c) (2013-14).
¶ 144 For the foregoing reasons I respectfully concur.
¶ 145 I am authorized to state that Justices PATIENCE DRAKE ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.
SHIRLEY S. ABRAHAMSON, C.J. (dissenting).
¶ 146 "Advances in technology offer great benefits to society in many areas. At the same time, they can pose significant risks to individual privacy rights."
¶ 147 The criminal cases State v. Tate
¶ 148 Cell phones are a "pervasive and insistent part of daily life...."
¶ 149 Cell phones can thus serve as powerful tracking devices that can pinpoint our movements with remarkable accuracy. They can isolate in time and place our presence at shops, doctors' offices, religious services, Alcoholics Anonymous meetings, AIDS treatment centers, abortion clinics, political events, theaters, bookstores, and restaurants, and identify with whom the user of the cell phone associates.
¶ 150 Cell phone location data can also be a formidable instrument in fighting crime. In both Tate and Subdiaz-Osorio, the law enforcement officers were performing their important public safety duties by investigating violent crimes.
¶ 151 The officers in Tate and Subdiaz-Osorio had to deal with the thorny issues raised by seeking access to individuals' cell phone location data. Law enforcement is the first word in interpreting constitutional requirements; the courts are the last.
¶ 152 It is this court's responsibility to evaluate a potential search "by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999).
¶ 153 This court owes it to law enforcement, lawyers, litigants, circuit courts, the court of appeals, and the public at large to provide clarity about when a search has occurred regarding cell phone location data and what procedures must be undertaken by the government to render such searches constitutional.
¶ 154 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. 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 — exactly the type of questions appropriate for resolution pursuant to this court's law-developing function.
¶ 155 I conclude that government access to cell phone location data in the instant cases, which involves invasive surveillance of an individual's movements, is a search within the meaning of the Constitutions.
¶ 156 People do not buy cell phones to have them serve as government tracking devices. They do not expect the government to track them by using location information the government gets from cell phones.
¶ 157 If the State does not have a warrant, the State can access cell phone location data only if the State can demonstrate one of the narrowly drawn exceptions to
¶ 158 I address the balance between privacy interests and law enforcement interests as presented by Tate and Subdiaz-Osorio.
¶ 159 Neither the Tate majority opinion nor Justice Prosser's lead opinion in Subdiaz-Osorio decides whether the government access in question constituted a search within the meaning of the United States and Wisconsin Constitutions. Both opinions assume that a search occurred.
¶ 160 Despite the insistence of the Tate majority opinion and Justice Prosser's lead opinion in Subdiaz-Osorio that they merely assume, without deciding, that the government access was a search in each case,
¶ 161 The Tate majority opinion and Justice Prosser's lead opinion in Subdiaz-Osorio refer to and draw guidance from the same Wisconsin and United States Supreme Court cases, including the recently mandated Riley v. California, 573 U.S. ___, 134 S.Ct. 2473, ___ L.Ed.2d ___ (2014).
¶ 162 The Tate majority opinion and Justice Prosser's lead opinion announce principles of law that overlap and to an extent conflict with each other.
¶ 164 In my dissent in Tate, I address the following main points:
¶ 165 In my dissent in Subdiaz-Osorio, I address two main points:
¶ 166 My discussion in Parts I-IV of my Tate dissent is relevant to Subdiaz-Osorio, and I incorporate Parts I-IV of my Tate dissent into my Subdiaz-Osorio dissent without repeating them in full. Parts V and VI address issues found only in my Subdiaz-Osorio dissent.
¶ 168 Parts I-IV of my dissent in Tate constitute Parts I-IV of this dissent. In other words, I incorporate by reference Parts I-IV of the Tate dissent. See Tate, 2014 WI 89, ¶¶ 52-163, 849 N.W.2d 798 (Abrahamson, C.J., dissenting).
¶ 169 Law enforcement did not obtain a warrant for the defendant's cell phone location data in Subdiaz-Osorio. Warrantless searches are "per se unreasonable under the Fourth Amendment...."
¶ 170 The government bears the burden of proving by clear and convincing evidence that a warrantless search falls within one of the narrowly delineated exceptions to the warrant requirement.
¶ 171 By definition, exigent circumstances justifying an exception to the warrant requirement must be exceptional; the circumstances must generate a sense of urgency. Furthermore, the particular warrantless search must be justified by weighing "the urgency of the officer's need to [search] against the time needed to obtain a warrant." State v. Richter, 2000 WI 58, ¶ 28, 235 Wis.2d 524, 612 N.W.2d 29.
¶ 172 In order to show that an urgent situation existed and that there was no time to secure a warrant, "[t]he officer must be able to point to specific and articulable facts which, taken with rational inferences from those facts," constitute grounds to believe an emergency existed and there was a need to act.
¶ 173 The State failed to demonstrate that any of the three purported circumstances advanced by Justice Prosser's lead opinion — threat to safety, risk of destruction of evidence, and increased likelihood of flight
¶ 174 In most criminal investigations, at least one of these three purported circumstances exist. If the mere allegation of one of these circumstances is sufficient to demonstrate exigent circumstances, an officer could simply presume exigent circumstances
¶ 175 In addition to its failure to show urgency, the State also failed to show that there was not sufficient time to get a warrant under the circumstances.
¶ 176 Because the State failed to meet its burden to prove exigent circumstances, I dissent. Justice Bradley and Justice Crooks agree that in the instant case, the State failed to demonstrate exigent circumstances to justify an exception to the warrant requirement.
¶ 177 In the instant case, the State entered no evidence that alleged exigencies posed the urgent threat necessary to justify the warrantless search in question.
¶ 178 Justice Prosser's lead opinion relies on three exigent circumstances: (1) "a threat to safety"; (2) "risk of destruction of evidence"; and (3) "a likelihood that [the defendant] would flee." Lead op., ¶ 76.
¶ 179 First, Justice Prosser's lead opinion states that because the murder weapon (a knife) was not recovered, "a potentially armed individual who recently committed a homicide" created a "threat to safety." Lead op., ¶ 77.
¶ 180 I agree that a threat to safety exists when an armed and dangerous suspect is at large, but not every suspect believed to be armed and dangerous poses an exigent circumstance.
¶ 181 State v. Richter, 2000 WI 58, 235 Wis.2d 524, 612 N.W.2d 29, is instructive. In Richter, the court held that an imminent threat to safety existed when an officer knew that one home had been burglarized, had evidence that the suspect had fled to a second home, observed signs of forced entry into that home, and saw that there were people sleeping inside the second home at the time the intruder entered. Richter, 235 Wis.2d 524, ¶ 41, 612 N.W.2d 29. This combination of factors "creat[ed] a situation fraught with potential for physical harm if something was not immediately done to apprehend the suspect." Richter, 235 Wis.2d 524, ¶ 41, 612 N.W.2d 29 (emphasis added).
¶ 182 Conversely, in the instant case, there was no such immediate threat. The police could identify only a generalized threat that exists any time a suspect is believed to be armed and is sought on suspicion of having committed a violent offense. If exigent circumstances exist any time a suspect is armed and is under suspicion of having committed a violent offense, exigent circumstances would exist in most criminal investigations and the warrant requirement would be rendered a nullity.
¶ 183 Justice Prosser's lead opinion bases its determination that a "threat to safety" existed here on pure speculation and conjecture, repeatedly citing information that the police "had no way of knowing." Lead op., ¶ 78. The police had no way of knowing or even inferring, as Justice Prosser's lead opinion supposes, "that [the defendant] might become violent if confronted," or "how desperate [the defendant] might become to avoid apprehension." Id.
¶ 184 Second, Justice Prosser's lead opinion asserts that there was a "risk of destruction of evidence." Lead op., ¶ 76. For this proposition, Justice Prosser's lead opinion offers no reasonable or articulable facts, because none were offered by the State. Nothing in the record demonstrates an imminent threat of destruction of evidence.
¶ 185 Third, Justice Prosser's lead opinion asserts that there was "a likelihood that [the defendant] would flee." Lead op., ¶ 76. The defendant was no longer at the scene. The police knew the following: the suspect had already fled; the suspect had family in Mexico; and the suspect had told a friend that he did not want to be arrested.
¶ 186 Criminal suspects are often no longer at the scene of a crime when law enforcement officers arrive. Criminal suspects often have family and friends in places other than the place of the crime. Criminal suspects can usually access various forms of transportation. Criminal suspects rarely intend to be arrested.
¶ 187 If these facts alone are enough to justify exigent circumstances, then the rule that the State must show "particular facts" to meet its burden is rendered a nullity.
¶ 188 Beyond the sparse facts I have stated, the State makes no showing of the delay that would have occurred had the police pursued a warrant. Nor does the State make any showing that a delay, had it existed, would have had any impact on the defendant's flight. The State thus failed to show that getting a warrant would "greatly enhance the likelihood of the suspect's escape."
¶ 189 Instead, using 20/20 hindsight, the lead opinion relies upon the defendant's travel time and location upon arrest to justify its assertion that there was an increased risk of flight.
¶ 190 Justice Prosser's lead opinion admits that "the police could only speculate as to [the defendant's] plans or his route". Lead op., ¶ 80. Justice Prosser's lead opinion then speculates about what the police might have speculated — a tenuous chain of reasoning with no basis in fact.
¶ 191 Thus, Justice Prosser's lead opinion bases its determination that there was a greatly enhanced flight risk upon speculation about speculation, creating its own narrative and ignoring the glaring failure of the State to offer one iota of evidence that increased flight risk existed at all.
¶ 192 Even if we accept that there was some urgent threat created by the defendant's apparent flight with the murder weapon, the State can meet its burden to
¶ 193 All warrants necessarily require some amount of time to secure, but the inquiry for exigent circumstances is whether the State can demonstrate specific, articulable facts showing that the warrant process would "significantly increase" the delay before the officers can act.
¶ 194 Justice Prosser's lead opinion lays out in careful detail the timeline of the events leading up to the defendant's arrest, yet it is missing any evidence about the existence of or length of a delay that would have been caused by obtaining a warrant or any evidence that such a delay would have adversely affected law enforcement's ability to act to apprehend the suspect.
¶ 195 Nothing in the record tells us why the officers, who had obtained a warrant for a search of the defendant's residence, could not have obtained a warrant for the defendant's cell phone location data. In other words, there is no reason, based on the record before us, to suppose that it was impracticable for the officers to obtain a search warrant for the defendant's cell phone location data as well.
¶ 196 The United States Supreme Court has recently informed us once again of the burden of proof the State must meet to fulfill the exigent circumstances exception to a warrant. McNeely, 133 S.Ct. 1552, is instructive.
¶ 197 In McNeely, the State of Missouri urged that the dissipation of alcohol in the bloodstream created a per se exigent circumstance that created an exception to the warrant requirement for a blood draw. The Court held that such a rule would be contrary to the totality-of-the-circumstances analysis that it has employed in the past and would potentially relieve the state of any burden to show the actual delay created by securing a warrant:
McNeely, 133 S.Ct. at 1561.
¶ 198 Thus, the burden on the State in the present case was to show that the situation made the warrantless search in question "imperative" and that securing a warrant "significantly increases" the delay before the officers can take action.
¶ 199 In the instant case, the record does not include any testimony or evidence demonstrating
¶ 200 Rather than a clear timeline of the events that demonstrates the need for a warrantless search, the record reveals only the barest of facts. Sometime between 10 a.m. and 12 p.m., while interviewing the defendant's girlfriend, the Kenosha police received the information regarding the defendant's departure in a car. The police stated that their interviews, which finished around 12 p.m., established probable cause to send the temporary "want" to CIB/NCIC "within an hour and a half of obtaining information from the witnesses."
¶ 201 The record reflects that some time transpired between the time that the "want" was executed with CIB/NCIC and the time that the request for cell phone location data was made to the Wisconsin Department of Justice, which then requested the data from Sprint, the cell phone service provider. The State was not able to pinpoint the relevant times:
On cross-examination, defense counsel was not able to get the officer to pinpoint the approximate time frame for the various events:
¶ 202 After CIB/NCIC did not respond with any hits, the Kenosha police requested the defendant's location data "sometime after 12:00 p.m." The police received the data from state law enforcement "sometime in the afternoon." The information was not transmitted to Arkansas until 5:37 p.m.
¶ 203 The record does not show that any additional wait time would have resulted from obtaining a warrant. The record does not show that the time to secure a warrant would have made any demonstrable difference in the time it took to obtain the cell phone location data.
¶ 204 On the contrary, the law enforcement officers' testimony reveals the efficiency
¶ 205 On this record, the State cannot meet its burden to demonstrate that the time to secure a warrant would significantly delay, or indeed, delay at all, the disclosure of the defendant's cell phone location data or the apprehension of the defendant.
¶ 206 In sum, the State failed to carry its burden of proof. Through conjecture and speculation, the lead opinion fills in the many blanks of key facts missing from the record.
¶ 207 The lead opinion's exigent circumstances exception swallows the rule of the warrant requirement. According to Justice Prosser's lead opinion's reasoning, almost every criminal investigation presents exigent circumstances.
¶ 208 I decline to undercut the warrant requirement or ignore the heavy burden placed on the State to prove the exigent circumstances exception to the warrant requirement.
¶ 209 I turn at last to the issue of the defendant's invocation of his right to counsel. The key holding of Miranda v. Arizona
¶ 210 Justice Prosser's lead opinion requires a suspect to make an "unequivocal invocation" of the right to counsel. This test stems from Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).
¶ 211 The Davis "unequivocal" or "unambiguous" invocation test has been heavily criticized on a number of grounds, including that the "unequivocal" test invites equivocation on the part of courts — identical statements appear "unequivocal" to one court but "equivocal" to another.
¶ 212 Davis requires a court to make an objectively reasonable analysis of the circumstances
¶ 213 In the instant case, the defendant said, "How can I do to get an attorney here because I don't have enough to afford for one" (emphasis added).
¶ 214 An ordinary reasonable person, looking at the defendant's statement, would understand the defendant to be making a request for a lawyer. The defendant is saying he cannot afford an attorney and wants to know how to get an attorney at that place and time.
¶ 215 Justice Prosser's lead opinion ignores the broad interpretation of the defendant's words. Instead, Justice Prosser's lead opinion gives them a narrow interpretation, squinting hard at the record, searching for ambiguity or equivocation where a reasonable person would find none. Lead op., ¶¶ 86-87.
¶ 216 Justice Prosser's lead opinion focuses on the discussion of extradition to twist the defendant's request for a lawyer into a request for counsel at the extradition hearing. Lead op., ¶ 86-87. Justice Prosser's lead opinion claims that the officer had "just explained the extradition process to [the defendant]," which made it reasonable for the officer to infer that "here" meant "at the extradition hearing." Lead op., ¶ 87.
¶ 217 Here is what happened: The officer interrogating the defendant described the extradition hearing ("What happens is that you have to appear in front of a judge here in Arkansas then they will find out if there is enough reason to send you back to Kenosha"). But then, the officer added, "But we are not going to do that right now. We are not going to know that right now" (emphasis added).
¶ 218 It is not objectively reasonable to assume that the defendant used the word "here" to mean anything other than its generally understood definition. The word "here" is generally intended to mean "in or at this place or time." A reasonable person would not understand "here" to mean "at some later point in time." What was happening "here"? The interrogation. To a reasonable person, the defendant is saying that he wants a lawyer and wants a lawyer at the interrogation.
¶ 219 Justice Prosser's lead opinion requires the defendant to speak with the discrimination of an Oxford don
¶ 220 In sum, for the reasons stated, I conclude that in the instant case the State failed to meet its burden of demonstrating the existence of exigent circumstances. I further conclude that Subdiaz-Osorio invoked his Miranda right to an attorney at his interrogation.
¶ 221 For the foregoing reasons and the reasons stated in my dissent in Tate, 2014 WI 89, ¶¶ 52-165, 849 N.W.2d 798 (Abrahamson, C.J., dissenting), I dissent.
TIME System Newsletter Crime Information Bureau, Wis. Dep't of Justice, https://wilenet.org/html/cib/news-time/201211.pdf (Nov. 2012).
Privacy Act of 1974; Notice of Modified Systems of Records, 64 Fed.Reg. 52343-01 (Sept. 28, 1999).
Wis. Stat. § 968.27(13) (2009-10).
"`Trap and trace device' means a device that captures the incoming electronic or other impulses that identify the originating number of an instrument or device from which a wire or electronic communication was transmitted." Wis. Stat. § 968.27(15) (2009-10).
Susan Freiwald, Cell Phone Location Data and the Fourth Amendment: A Question of Law, Not Fact, 70 Md. L.Rev. 681, 744 (2011) (brackets in original) (footnote omitted). Others have similarly posited that "[w]hile society may be willing to accept the idea of collecting information associated with the origination and termination of calls, people are likely to reject the prospect of turning every cell phone into a tracking device." Who Knows Where You've Been?, supra note 19, at 316.
Wis. Const. art. I, § 11. "Historically, we have interpreted Article I, Section 11 of the Wisconsin Constitution in accord with the Supreme Court's interpretation of the Fourth Amendment." State v. Arias, 2008 WI 84, ¶ 20, 311 Wis.2d 358, 752 N.W.2d 748 (citations omitted). Thus, this opinion will not explicitly address the Wisconsin Constitution in the analysis, but the analysis will apply to both constitutions.
The virtual elimination of telephone booths and payphones has made it difficult for a citizen away from home to make a telephone call without using a traceable cell phone. Even at home, people today are less reliant on a land line than in the past.
On page four, the Policy says CPNI "is information about your phone usage, which is a special category of personal information."
Page seven adds to the definition by stating that "Location information derived from providing our voice service ... is CPNI...."
Wis. Stat. § 968.375(15)(b). Section 968.375 took effect on May 28, 2010. The Federal Stored Communications Act also permits a similar disclosure. 18 U.S.C. § 2702(c)(4) (2006) (provider may disclose information "to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency"). However, statutes granting cell phone companies authority to disclose information do not necessarily grant law enforcement authority to conduct the search for that information without a court order.
Justice Crooks' concurrence in Subdiaz-Osorio asserts that an illegal warrantless search occurred, Justice Crooks' concurrence, ¶¶ 125-128, but that the good-faith exception applies, and that the evidence should not have been excluded. As I explain in Parts I-IV, our state's case law already set forth the need for a warrant and the statutes provide procedures for obtaining a warrant. These rules of law existed at the time that the officers initiated the search in the instant cases.
I am unconvinced that the usual harmless-error analysis is the proper approach in Tate and Subdiaz-Osorio. See Subdiaz-Osorio, Justice Bradley's concurrence, ¶¶ 97-105 (applying harmless-error analysis in Subdiaz-Osorio). When illegally obtained cell phone location data forms the entire basis for the apprehension and arrest of the defendant, rather than evidence of the crime, the usual harmless-error analysis appears to be a poor fit.
As Marcy Strauss notes in her empirical overview of cases regarding the application of the "unequivocal invocation" rule, courts apply their own subjective spin to a purportedly objective test:
Marcy Strauss, Understanding Davis v. United States, 40 Loy. L.A. L.Rev. 1011, 1061-62 (2007) (footnotes and citations omitted).
In United States v. Hunter, 708 F.3d 938 (7th Cir.2013), the court held that the defendant's asking "Can you call my attorney?" while giving the officer the name of the attorney constituted an unequivocal invocation of the right to an attorney.
