United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS (DKT. NO. 1)
PAMELA PEPPER United States District Judge.
Nicolas Subdiaz-Osorio filed a petition for a writ of
habeas corpus under 28 U.S.C. §2254, seeking
relief from the sentence he received after his 2010 plea to
and conviction for first-degree reckless homicide. Dkt. No.
1. The petitioner alleges that investigating officers
violated his Fourth Amendment rights by tracking his cell
phone without a warrant, id. at 6, and that the
Wisconsin Supreme Court erred in concluding that exigent
circumstances provided an exception to the warrant
requirement, id. at 9. He also alleges that his Fifth
Amendment rights were violated when he was questioned without
an attorney present. Id. at 14. Finally, he argues
that the Wisconsin Court of Appeals' harmless error
analysis was contrary to federal law. Id. at 17. The
court denies the petition.
February 7, 2009, the petitioner and his brother got into an
argument in the mobile home they shared, and Marcos hit the
petitioner in the mouth. Dkt. No. 1 at 7; Dkt. No. 18 at 3.
The petitioner then retrieved two knives from the closet and
stabbed Marcos with the knives - once in the chest and once
under the eye. Id. Marcos fell to the floor, where
the petitioner kicked and punched him multiple times, despite
the pleas of eyewitness Lanita Mintz. Dkt. No. 18 at 3. The
next morning, a friend of the petitioner returned to the
mobile home and found Marcos dead. Id. The police
went to the mobile home later that day; they found that
Marcos' body was “severely battered and appeared to
have been stabbed, ” surrounded by blood and evidence
of heavy drinking. Id.
meantime, the petitioner had borrowed his girlfriend's
car and left the state. Dkt. No. 1 at 7; Dkt. No. 11-2 at 2.
The police suspected that the petitioner might be on his way
to Mexico, given that he was in the country illegally. Dkt.
No. 11-2 at 2. Without getting a warrant, they asked the
petitioner's cell phone service provider to track the
location of the petitioner's phone. Id. The
officers tracked the petitioner to a highway in Arkansas,
where they arrested him. Id. Several police officers
traveled to Arkansas to interrogate the petitioner.
Id. An officer named Torres translated the
interrogation into Spanish. Id. at 16. Torres read
the petitioner his Miranda warnings in Spanish, and had
him sign a waiver form titled “Waiver of Constitutional
Rights.” Id. During the interrogation, the
petitioner asked if the officer was going to take him back to
Kenosha. Id. The following dialogue ensued:
We aren't going to take you back to Kenosha. What happens
is that you have to appear in front of a judge … And
after you 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 we are not going to do that right
now. We are not going to know that right now . . . .
Id. at 16-17. The petitioner then asked, “How
can I do to get an attorney here because I don't have
enough to afford for one.” Id. at 17. The
officer responded, “If you need an attorney . . . by
the time you're going to appear in the court, the state
of Arkansas will get an attorney for you . . . .”
Id. at 17. The interrogation then continued.
state charged the petitioner with first-degree intentional
homicide for stabbing his brother, Marcos, to death on
February 8, 2009. Dkt. No. 18 at 2. A couple of months later,
the petitioner filed a pretrial motion “to suppress all
statements and evidence that the police obtained after his
arrest.” Dkt. No. 11-2 at 18-19. He argued that the
police had violated his Fourth Amendment rights by obtaining
his cell phone location data without a warrant. Id.
at 19. Two weeks later, he filed another suppression motion,
seeking to suppress the statements he made during the
interrogation in Arkansas on the ground that Torres had not
properly warned him of his Miranda rights.
Id. The trial court denied both motions.
Id. at 19-20. The court that ruled there was no
violation of either the Fourth or Fifth Amendments.
state reduced the charge to first-degree reckless homicide by
use of a dangerous weapon. Id. at 20. The petitioner
pled guilty to that charge. Id. On June 29, 2010,
the Circuit Court of Kenosha County entered a judgment of
conviction against the petitioner, and sentenced him to
twenty years of confinement, followed by fifteen years of
extended supervision Dkt. No. 11-1 at
petitioner appealed under Wis.Stat. §971.31(10),
challenging the order denying his suppression motions. Dkt.
No. 11-7. The Wisconsin Court of Appeals affirmed the trial
court's judgment in a per curiam decision issued
on November 15, 2012, State v Subdiaz-Osorio, No.
2010AP3016-CR (Wis. Ct. App. Nov. 15, 2012). Id. The
court of appeals assumed for the purposes of its decision
that the trial court should have suppressed the evidence, and
focused its analysis on whether the failure to do so
constituted harmless error. Id. at 2. The court
concluded that the petitioner “would have accepted the
same plea deal even if the suppression motion had been
granted, ” and thus that the trial court's failure
to grant the suppression motions constituted harmless error.
Id. at 5.
Wisconsin Supreme Court granted review. State v.
Subdiaz-Osorio, 849 N.W.2d 748 (Wis. 2014); Dkt. No.
11-2. The Court affirmed the court of appeals, but in a
somewhat fractured decision. Dkt. No. 11-2. Justice Prosser
wrote the majority opinion; five justices concurred in the
mandate. Id. at 4. Unlike the court of appeals,
Justice Prosser analyzed in depth the question of whether
officers violated the petitioner's Fourth Amendment
rights by obtaining his cell location data without a warrant.
He concluded that even if the petitioner had possessed a
reasonable expectation of privacy in his cell location data,
and even if the act of obtaining the data constituted a
search, the search would have fallen into the exigent
circumstances exception to the warrant requirement. Dkt. No.
11-2 at 41-42. He also analyzed the petitioner's argument
that the interviewing officers violated his Fifth Amendment
right against self-incrimination when they did not stop the
interrogation and provide him a lawyer once he asked about
how to hire one. Justice Prosser concluded that the
petitioner did not unequivocally assert his Sixth Amendment
right to counsel when he asked about a lawyer. Id.
Bradley concluded that obtaining the petitioner's cell
location data constituted a warrantless search, not justified
by exigent circumstances. She also concluded that the
petitioner had invoked his Sixth Amendment right to counsel
by asking about how to get a lawyer. But she found that these
errors were harmless, and so concurred in the mandate.
Id. at 54. Justice Crooks also found that obtaining
the cell location data constituted a search, but stated that
he would not apply the exclusionary rule because of the
good-faith exception to the warrant requirement. Id.
at 62. He agreed that the petitioner had not unequivocally
invoked his Sixth Amendment right to counsel, and so
concurred in the mandate. Id.
Roggensack also held that obtaining the petitioner's cell
location data constituted a search, but agreed with Justice
Prosser that the search fell within the exigent circumstances
exception. She also agreed that the petitioner did not
unequivocally invoke his Sixth Amendment rights. Thus, she
concurred in the mandate. Id. at 75. Justices
Ziegler and Gableman joined Justice Roggensack's opinion,
although Justice Ziegler wrote separately to comment on the
possible impact of a recently-decided Supreme Court case,
Riley v. California, ___U.S.___, 134 S.Ct. 2473
(2014). Id. at 80. Chief Justice Abrahamson
dissented. Id. at 83.
petitioner filed a petition for a writ of certiorari
to the United States Supreme Court, which that Court ...