                                                                   2014 WI 87

                  SUPREME COURT           OF    WISCONSIN
CASE NO.:               2010AP3016-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Nicolas Subdiaz-Osorio,
                                  Defendant-Appellant-Petitioner.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 345 Wis. 2d 396, 824 N.W.2d 927
                                  (Ct. App. 2012 – Unpublished)

OPINION FILED:          July 24, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 3, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Kenosha
   JUDGE:               Mary K. Wagner

JUSTICES:
   CONCURRED:           BRADLEY, J., concurs. (Opinion filed.) CROOKS,
                        J., concurs. (Opinion filed.) ROGGENSACK,
                        ZIEGLER, JJ. concur. (Opinion filed.) ZIEGLER,
                        ROGGENSACK, GABLEMAN, JJJ. Concur. (Opinion
                        filed.)
  DISSENTED:            ABRAHAMSON, C.J., dissents. (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by John A. Pray and Frank J. Remington Center, University of
Wisconsin Law School, and oral argument by Lanny Glinberg.




       For      the    plaintiff-respondent,   the   cause   was   argued   by
Daniel J. O’Brien, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
                                                                        2014 WI 87
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.   2010AP3016-CR
(L.C. No.   2009CF149)

STATE OF WISCONSIN                          :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                                   FILED
      v.
                                                              JUL 24, 2014
Nicolas Subdiaz-Osorio,
                                                                 Diane M. Fremgen
            Defendant-Appellant-Petitioner.                   Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.              Affirmed.



      ¶1    DAVID    T.   PROSSER,   J.    This     is    a    review      of     an
unpublished decision of the court of appeals, State v. Subdiaz-

Osorio, No. 2010AP3016-CR, unpublished slip op. (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
                                                                            No.      2010AP3016-CR



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)1          borrowed      his      girlfriend's          car        and    fled     the

scene      of    the   crime.       Kenosha         police      quickly           suspected      that

Subdiaz-Osorio, who was in the country illegally, was heading

for Mexico and carrying the murder weapon.                                    They marshalled

their information and, acting through the Wisconsin Department

of Justice, asked Subdiaz-Osorio's cell phone provider to track

his    cell      phone    location.         The      tracking         was     successful,          and

Subdiaz-Osorio           was   arrested     on      a    highway       in     Arkansas        as    he

headed      south.         Several       Kenosha         officers       promptly          went     to

Arkansas         to    interrogate       the        suspect.           Subdiaz-Osorio              was

questioned in Spanish and given his rights in Spanish.                                        After

the officers explained the extradition process, Subdiaz-Osorio
asked how he could get an attorney because he could not afford

one.       The officers told him that Arkansas would provide him an

attorney if he needed one but then continued to question him.

Subdiaz-Osorio           later   moved     to    suppress        all    evidence           obtained

after his arrest on grounds that the search of his cell phone's

       1
       This opinion refers to Nicolas Subdiaz-Osorio and his
brother, Marco Antonio Ojeda-Rodriguez, by their full hyphenated
last names.   For the sake of simplicity, the opinion refers to
all other witnesses, other than police officers, by their first
names.

                                                2
                                                                 No.         2010AP3016-CR



location information violated his Fourth Amendment rights and

that he was denied his Fifth Amendment right to counsel.                               He

also       alleged    violations    of     his   rights     under      the     Wisconsin

Constitution.

       ¶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 by the circuit court was harmless

because it was beyond a reasonable doubt that Subdiaz-Osorio

would have entered the same plea even if the evidence obtained

after his arrest had been suppressed.

       ¶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 order2 based on probable cause?

Second,      did     Kenosha    police    officers   violate        Subdiaz-Osorio's
Fifth       Amendment    right     to     counsel    when      they    continued       to

interview him after he asked how he could get an attorney?


       2
       A court order that meets the requirements of the Fourth
Amendment may function as a warrant. State v. Tate, 2014 WI 89,
¶2 & n.4, ___ Wis. 2d ___, ___ N.W.2d ___; see also State v.
Sveum, 2010 WI 92, ¶39, 328 Wis. 2d 369, 787 N.W.2d 317.
However, when a statute provides procedures for obtaining a
warrant in a given set of circumstances, law enforcement should
follow the statute to ensure that a search conducted under the
circumstances contemplated by the statute does not violate a
person's Fourth Amendment rights.

                                            3
                                                                No.       2010AP3016-CR



       ¶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.3

       ¶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




       3
       Justice Ann Walsh Bradley and Justice N. Patrick Crooks
believe that tracking a cell phone's location is a search that
requires a search warrant. Chief Justice Shirley S. Abrahamson
shares this view in her dissent.

                                         4
                                                                   No.        2010AP3016-CR



that the exigent circumstances of this case created an exception

to the warrant requirement.4

     ¶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 for his extradition

hearing rather than asking for counsel to be present at the

interrogation.         Therefore,       the    interviewing        officers      did    not
violate     Subdiaz-Osorio's         Fifth      Amendment         rights      when     they




     4
       Justice  Patience   Drake   Roggensack, Justice Annette
Kingsland Ziegler, and Justice Michael J. Gableman agree that
the facts of this case qualify for the exigent circumstance
exception to the warrant requirement.

                                          5
                                                                  No.        2010AP3016-CR



continued to question him after he asked about how he could get

an attorney.5

              I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

      ¶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,

2009.6      Late on February 7, Subdiaz-Osorio and Roberto Gonzales-

      5
       Justice  N.  Patrick  Crooks,  Justice  Patience  Drake
Roggensack, Justice Annette Kingsland Ziegler, and Justice
Michael J. Gableman agree that there was no Fifth Amendment
Miranda violation in this case.   Miranda v. Arizona, 384 U.S.
436 (1966).
      6
       Unless otherwise indicated, the events described in this
section occurred in 2009.

                                           6
                                                                 No.      2010AP3016-CR



Carreno      (Roberto)    had   a    few    beers   and    called       Lanita   Mintz

(Lanita) to come and dance for them.                Lanita knew Subdiaz-Osorio

and    Ojeda-Rodriguez        because      the    three    of    them    had     worked

together     for     approximately      four     months.        Subdiaz-Osorio      and

Roberto picked up Lanita and brought her to the trailer around

10:45 p.m.      The three of them went to Subdiaz-Osorio's bedroom,

and Lanita changed into lingerie.                   Roberto left around 11:20

p.m.    At some point after that, Ojeda-Rodriguez tried to force

his way into Subdiaz-Osorio's bedroom while Subdiaz-Osorio tried

to keep him out.          Ojeda-Rodriguez, a former boxer, was heavier

than Subdiaz-Osorio and was able to gain entry into the bedroom.

       ¶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
                                           7
                                                                   No.      2010AP3016-CR



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.

Lanita       refused,        and   Subdiaz-Osorio       turned      back        to    Ojeda-

Rodriguez      and    punched       him    two   more     times.         Lanita       pushed

Subdiaz-Osorio off of Ojeda-Rodriguez and into the doorway.

       ¶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,
                                             8
                                                                           No.         2010AP3016-CR



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    Torres7        (Officer       Torres)        spoke          with

Estella      around     10     a.m.   at    her       home,    and    she        told       him    that


       7
       There is no dispute that Officer Torres speaks Spanish
fluently.

                                                 9
                                                       No.         2010AP3016-CR



Subdiaz-Osorio came to her trailer asking for help because he

had stabbed Ojeda-Rodriguez.       Estella gave Subdiaz-Osorio's name

to Officer Torres and told him that she allowed Subdiaz-Osorio

to borrow her silver Saturn station wagon when he asked for it.

She also gave Officer Torres Subdiaz-Osorio's cell phone number

and the license plate number of her car.          Police determined that

Subdiaz-Osorio had family living in two communities in nearby

Lake County, Illinois, but witnesses also informed the police

that Subdiaz-Osorio was in the country illegally, and Estella

thought that it was possible that Subdiaz-Osorio was on his way

to Mexico, where he also had family.            Officer Torres continued

to interview Estella back at the police station until about 12

p.m.       Following up on the information from Estella, the police

contacted      Subdiaz-Osorio's   family   in   Illinois     and   determined

that they had not heard from him.          Officer Torres believed that

since Subdiaz-Osorio's family in Illinois did not know where he

was, it was likely he was on his way to Mexico.

       ¶21    After   compiling   essential      information        from    the
witnesses, the Kenosha police put a temporary want8 on Subdiaz-




       8
       A temporary want means "that the suspect was alleged to
have committed a felony and should be apprehended promptly, and
that there was information sufficient to support an arrest
warrant, but that no arrest warrant had yet been issued." State
v. Collins, 122 Wis. 2d 320, 322 n.1, 363 N.W.2d 229 (Ct. App.
1984).

                                    10
                                               No.    2010AP3016-CR



Osorio into the Crime Information Bureau (CIB)9 and National

Crime Information Center (NCIC).10   CIB is a state system and

    9
       CIB is part of the Wisconsin Department of Justice's
Division of Law Enforcement Services. Crime Information Bureau,
Wis.               Dep't                of               Justice,
http://www.doj.state.wi.us/dles/cib/crime-information-bureau
(last visited July 14, 2014).     CIB "operates and manages the
Transaction Information for the Management of Enforcement or
TIME System."   Time & Technical Unit, Wis. Dep't of Justice,
http://www.doj.state.wi.us/dles/cib/time-and-technical-unit
(last visited July 14, 2014).

         The TIME/NCIC Systems allow for entry of a wanted
    person record even if no warrant has been issued in
    special circumstances.    Agencies that have knowledge
    by police that a felony was committed and who the
    person was that committed the felony but no warrant
    has been issued yet may enter the subject as a wanted
    person in the Temporary Felony category while the
    process for obtaining a felony warrant is pursued.

         The want can be entered into CIB only or CIB and
    NCIC, and the entry remains on file for 48 hours
    before being automatically purged.      As the entry
    remains on the system for such a short amount of time,
    agencies are not allowed to add detainer information
    to such a record.

TIME System Newsletter Crime Information Bureau, Wis. Dep't of
Justice, https://wilenet.org/html/cib/news-time/201211.pdf (Nov.
2012).
    10
       NCIC is "an electronic clearinghouse of crime data that
can be tapped into by virtually every criminal justice agency
nationwide, 24 hours a day, 365 days a year."   National Crime
Information Center, FBI, http://www.fbi.gov/about-us/cjis/ncic
(last visited July 14, 2014).      The FBI operates NCIC in
conjunction with other federal, state, local, and tribal
criminal justice entities. Id. For NCIC,

    A "Temporary Felony Want" may be entered when a law
    enforcement agency has need to take prompt action to
    establish a "want" entry for the apprehension of a
    person   who  has  committed,  or  the   officer  has
    reasonable grounds to believe has committed, a felony
                               11
                                                                     No.        2010AP3016-CR



NCIC is a national system.           The systems work together by sharing

information.        To enter information into the CIB and NCIC, the

police had to demonstrate probable cause.                           The Kenosha police

had    probable     cause    to   believe         Subdiaz-Osorio           committed     the

homicide based on their investigation, and they entered Subdiaz-

Osorio's information into the systems.                        Together, the CIB and

NCIC notified all law enforcement agencies in the country about

the temporary want for Subdiaz-Osorio.

       ¶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 he was

travelling.        Sometime after 12 p.m., having heard nothing from

CIB    and   NCIC,    they    contacted           the       Wisconsin      Department     of

Justice, Division of Criminal Investigation (DCI), and asked DCI

to    seek   information      from    Sprint            Nextel      (Sprint),      Subdiaz-

Osorio's cell phone provider.                DCI filled out and submitted a

"Mandatory Information for Exigent Circumstances Requests" form

to    Sprint.      The   description         on       the    form    said,      "Local   law


       and   who   may   seek    refuge   by  fleeing   across
       jurisdictional boundaries and circumstances preclude
       the immediate procurement of a felony warrant.        A
       "Temporary   Felony    Want"   shall  be   specifically
       identified as such and subject to verification and
       support by a proper warrant within 48 hours following
       the entry of a temporary want. The agency originating
       the "Temporary Felony Want" shall be responsible for
       subsequent verification or re-entry of a permanent
       want.

Privacy Act of 1974; Notice of Modified Systems of Records, 64
Fed. Reg. 52343-01 (Sept. 28, 1999).

                                         12
                                                         No.         2010AP3016-CR



enforcement homicide suspect.           Believed that suspect will flee

the state or the country to avoid prosecution.                 Suspect has no

ties    to    Wisconsin.    Suspect    considered    armed     and   dangerous.

Suspect poses a threat to the public."              DCI requested Subdiaz-

Osorio's subscriber information, his call records with cell site

information within the past week, his precision location (GPS

location), and his real-time Pen Register, Trap & Trace.11

       ¶23    Subdiaz-Osorio's Sprint Nextel Privacy Policy (Policy)

contains      a   "Disclosure   of   Personal   Information"     section     that

reads:

       We disclose personal information when we believe
       release is appropriate to comply with the law (e.g.,
       legal   process,  E911   information) . . . or   if   we
       reasonably   believe   that   an  emergency    involving
       immediate danger of death or serious physical injury

       11
            According to Wis. Stat. § 968.27(13) (2009-10),

            "Pen register" means a device that records or
       decodes electronic or other impulses that identify the
       numbers dialed or      otherwise transmitted on the
       telephone line to which the device is attached. "Pen
       register" does not include any device used by a
       provider   or  customer   of   a wire   or  electronic
       communication service for billing, or recording as an
       incident to billing, for communications services
       provided by the provider or any device used by a
       provider or customer of a wire communication service
       for cost accounting or other like purposes in the
       ordinary course of its business.

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).

                                       13
                                                                         No.      2010AP3016-CR


      to any person requires disclosure of communications or
      justifies disclosure of records without delay.
"[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 the warrant, the Kenosha police searched the


                                              14
                                                            No.      2010AP3016-CR



trailer around 3 p.m.         The police did not find any knives that

could have been the murder weapon at the scene of the crime, and

thus did not know whether Subdiaz-Osorio had the knives with

him.

       ¶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
                                      15
                                                                     No.      2010AP3016-CR



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      (Miranda12       warning),      and      Subdiaz-Osorio

signed a waiver form titled "Waiver of Constitutional Rights."

Officer Torres read the form written in Spanish, Subdiaz-Osorio

read the form himself, and Subdiaz-Osorio signed the form in

Officer Torres's presence on February 9 at 3:34 p.m.

      ¶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:

      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

      12
           Miranda, 384 U.S. 436.

                                             16
                                                                   No.         2010AP3016-CR


       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 . . . .
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       Torres        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 . . . ."

Then    their      interview      continued.              Subdiaz-Osorio        was     very

cooperative throughout the interview, which lasted less than an

hour.        Although   he     was      cooperative,        he   did     at    one    point

contradict Lanita's version of the stabbing when he claimed that

Ojeda-Rodriguez brought a knife into the bedroom and that he

disarmed Ojeda-Rodriguez.                After the interview, Officer Torres

read a form titled "Consent to Search and Seizure," and Subdiaz-

Osorio agreed to give up DNA and trace evidence when he signed

the form at 4:12 p.m.

       ¶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.




                                             17
                                                                         No.      2010AP3016-CR



Stat.          §§ 940.01(1)(a)              (2009-10),13           939.50(3)(a),            and

939.63(1)(b).

      ¶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




      13
       All subsequent references to the Wisconsin Statutes are
to the 2009-10 version unless otherwise indicated.

                                                  18
                                                                  No.        2010AP3016-CR



obtained after his arrest.14             In the suppression motion, Subdiaz-

Osorio argued that the warrantless search of his cell phone's

location         data     violated     his    Fourth       Amendment       rights,     and

therefore        all    evidence     obtained      after    the   arrest      should   be

suppressed.         Subdiaz-Osorio also filed a motion challenging the

sufficiency of the criminal complaint and the bindover, and he

moved to dismiss the information.15                   On May 14, 2009, Subdiaz-

Osorio filed a separate motion to suppress the statements he

made    during      the    interrogation      in     Arkansas,        on   grounds   that

Officer Torres failed to properly inform Subdiaz-Osorio of his

Miranda rights.

       ¶33       On June 26, 2009, Judge Wagner denied Subdiaz-Osorio's

motion      to    suppress     statements         based    on   the    alleged    Fourth

Amendment        violation.          Judge   Wagner       cited   United     States    v.

Forest, 355 F.3d 942 (6th Cir. 2004), vacated sub nom. on other

grounds, Garner v. United States, 543 U.S. 1100 (2005), for the

proposition that tracking a phone on a public roadway is not a

violation of the Fourth Amendment because there is no legitimate
expectation of privacy on public roadways.                        Alternatively, the


       14
       It is unclear exactly what evidence the police obtained
after Subdiaz-Osorio's arrest.      However, the State filed a
"Notice of Intent to Use DNA Evidence at Trial and Summary of
Expert   Testimony"  and   attached   Laboratory  Findings that
contained an analysis of blood stains on Subdiaz-Osorio's shoes
and pants. In the DNA analyst's opinion, the blood on Subdiaz-
Osorio's shoes and pants belonged to Ojeda-Rodriguez.
       15
       In his motion, Subdiaz-Osorio argued that there was no
probable cause to suggest he had the requisite intent to kill
under Wis. Stat. § 940.01(1)(a).

                                             19
                                                                     No.         2010AP3016-CR



court determined that there were exigent circumstances because

an alleged murderer was fleeing and was unpredictable.                                      The

court also denied the motion challenging the sufficiency of the

complaint         and    bindover       and     refused      to    dismiss        the     case.

Finally, the circuit court concluded that Officer Torres did not

fail    to   properly          inform    Subdiaz-Osorio       or    honor        his    Miranda

rights: Subdiaz-Osorio's question about an attorney was not a

request      to    have    an    attorney       with   him    during       the    interview;

rather, Subdiaz-Osorio was asking about how he could obtain an

attorney for the extradition hearing.

       ¶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).16            State       v.   Subdiaz-Osorio,        No.     2010AP3016-CR,


       16
       "An order denying a motion to suppress . . . may be
reviewed   upon  appeal   from  a   final  judgment   or  order
notwithstanding the fact that the judgment or order was entered
upon a plea of guilty . . . ." Wis. Stat. § 971.31(10).

                                                20
                                                                    No.     2010AP3016-CR



unpublished slip op., ¶2 (Wis. Ct. App. Nov. 15, 2012).                               The

court of appeals assumed without deciding that the circuit court

should have granted the suppression motion.                        Id., ¶3.      However,

the court determined that any error by the circuit court was

harmless because it was beyond a reasonable doubt that Subdiaz-

Osorio would have accepted the same plea absent the error.                           Id.,

¶12.     The court of appeals rejected Subdiaz-Osorio's argument

that he could have pursued a self-defense theory if the evidence

would have been suppressed inasmuch as Subdiaz-Osorio continued

to assault Ojeda-Rodriguez after stabbing him and did not seek

medical help.        Id., ¶5.

       ¶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    circuit      court     was    harmless
                                            21
                                                               No.     2010AP3016-CR



beyond    a    reasonable      doubt    and    affirmed        the    judgment     of

conviction.      Id.

    ¶37       Subdiaz-Osorio petitioned this court for review, which

we granted on March 13, 2013.

                             II. STANDARD OF REVIEW

    ¶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; Phillips, 218 Wis. 2d at 189-91.                  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).

                                III. DISCUSSION

                       A. The Current Privacy Landscape

    ¶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.
                                        22
                                                                      No.         2010AP3016-CR



       ¶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:

       Privacy is valuable because it is necessary for the
       proper development of the self, the establishment and
       control of personal identity, and the maintenance of
       individual dignity.     Without privacy, it not only
       becomes harder to form valuable social relationships——
       relationships based on exclusivity, intimacy, and the
       sharing of personal information——but also to maintain
       a variety of social roles and identities.       Privacy
       deserves to be protected as a right because we need it
       in order to live rich, fulfilling lives, lives where
       we can simultaneously play the role of friend,
       colleague, parent and citizen without having the
       boundaries   between   these    different   and   often
       conflicting identities breached without our consent.
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




                                                23
                                                                        No.      2010AP3016-CR



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 are not merely using technology

as    a        tool   for   societal      and   professional       navigation;         we   are

digitizing            our    identities.           Thus,      efforts     to     access     the

information           in    our   electronic       devices     invade     and    expose     the

marrow of our individuality.

          ¶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.'"17                                Perhaps

in this age of technology, that right is not as strong as it
once was, but it should be our goal to quell its attenuation

insofar as it is safe and reasonable to do so.                                It used to be

that           "the   greatest         protections      of     privacy        were     neither

constitutional nor statutory, but practical."                            United States v.

Jones, 565 U.S. ___, 132 S. Ct. 945, 963 (2012) (Alito, J.,

concurring).               Today, in an environment of rapid technological


          17
       Samuel D. Warren & Louis D. Brandeis, The Right                                      to
Privacy, 4 Harv. L. Rev. 193, 195 (1890) (footnote omitted).

                                                24
                                                                          No.         2010AP3016-CR



advancement that allows tracking via electronic data, practical

limitations          on        surveillance            are     quickly            dissipating.

Technology, it seems, has been irreversibly incorporated into

our modern lives.              The question we face is whether privacy must

be eviscerated to accommodate innovation.

      ¶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




                                                25
                                                     No.      2010AP3016-CR



information.18    As cell site location and GPS technology become

ubiquitous,19    Americans   are    adding    cell    phone      location

information to the list of concerns.20       This concern makes sense




     18
       See Vera Bergelson, It's Personal But Is It Mine? Toward
Property Rights in Personal Information, 37 U.C. Davis L. Rev.
379, 427-29 (2003) (citing numerous polls in which citizens
expressed concerns about their privacy and revealed that they
wanted more legal protection for privacy, especially for
personal information on the internet).
     19
       There are different ways in which cell phone companies,
and consequently, the government, can track a cell phone.
Providers can obtain a subscriber's location information using
global positioning system (GPS) technology or triangulation.
GPS technology can calculate an accurate location within 20
meters by "measuring the time it takes for a signal to travel
the distance between satellites and a cell phone's GPS chip."
Who Knows Where You've Been? Privacy Concerns Regarding the Use
of Cellular Phones As Personal Locators, 18 Harv. J.L. & Tech.
307, 308 (2004) [hereinafter Who Knows Where You've Been?]. To
locate a phone by triangulation, two or more cell towers that
receive signals from an active phone compare the phone's signals
and calculate location based on the difference between the times
that the signals arrived or the angle of the signals. Id. When
a cell phone provider "pings" a phone pursuant to law
enforcement's request, the provider enters the phone number in a
computer program to make the cell phone identify its GPS
coordinates to the provider. United States v. Caraballo, 963 F.
Supp. 2d 341, 350 (D. Vt. 2013).
     20
          One commentator noted:

          Not surprisingly, cell phone users regard access
     to their location data as yielding private data about
     their locations.      A research report found that
     seventy-three percent of cell phone users surveyed
     favored "a law that required the police to convince a
     judge that a crime has been committed before obtaining
     [historical] location information from the cell phone
     company."

                                   26
                                                          No.    2010AP3016-CR



as an estimated 335.65 million wireless subscriber connections

existed in the United States at the end of 2013.21              The court is

mindful of the pervasiveness of wireless technology and of our

citizens'     concern   for   their        privacy   as   we    analyze   the

constitutional     protections     against       unreasonable     government

intrusions.

               B. Constitutional Protections of Privacy

    ¶46     The Fourth Amendment of the United States Constitution

provides:

         The right of the people to be secure in their
    persons,   houses,   papers,   and  effects,  against
    unreasonable searches and seizures, shall not be
    violated, and no Warrants shall issue, but upon
    probable cause, supported by Oath or affirmation, and
    particularly describing the place to be searched, and
    the persons or things to be seized.
U.S. Const. amend. IV.22         In the event of a Fourth Amendment

violation, the usual remedy is suppression of evidence obtained


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.
    21
       Annual      Wireless      Industry      Survey,  CTIA,
http://www.ctia.org/your-wireless-life/how-wireless-
works/annual-wireless-industry-survey (last visited July 14,
2014).
    22
       The Wisconsin Constitution's text is almost identical to
the language in the United States Constitution.

    The right of the people to be secure in their persons,
    houses, papers, and effects against unreasonable
                                      27
                                                                 No.     2010AP3016-CR



in    the    search.         State    v.    Ferguson,   2009    WI     50,    ¶21,   317

Wis. 2d 586,          767    N.W.2d 187.          However,     there    are    several

exceptions to the warrant requirement.                  See State v. Krajewski,

2002 WI 97, ¶24, 255 Wis. 2d 98, 648 N.W.2d 385 (noting that

exceptions       to    the    warrant       requirement      include    consent      and

exigent circumstances).              Particularly relevant to this case is

the    exception       for   exigent       circumstances,     which    this    opinion

discusses below.

     C. Judicial Interpretations of Constitutional Protections of

                                           Privacy

       ¶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

risks error by elaborating too fully on the Fourth Amendment

implications of emerging technology before its role in society


       searches and seizures shall not be violated; and no
       warrant shall issue but upon probable cause, supported
       by oath or affirmation, and particularly describing
       the place to be searched and the persons or things to
       be seized.

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.

                                             28
                                                                       No.         2010AP3016-CR



has become clear."             City of Ontario, Cal. v. Quon, 560 U.S. 746,

759   (2010)       (citing       Olmstead      v.     United    States,      277     U.S.    438

(1928),      overruled         by    Katz     v.     United    States,       389     U.S.    347

(1967)).23

                                1. Trespassory Searches

      ¶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




      23
       The United States Supreme Court recently issued a
decision in Riley v. California, 573 U.S. ___, No. 13-132, slip
op. (June 25, 2014), in which it determined that police must
obtain a warrant before searching the contents of a cell phone
in a search incident to an arrest.      Id. at *28.    The Court
acknowledged that cell phones are capable of containing large
quantities of private information, including historical location
information,   but  the   Court's  decision   did  not    address
acquisition of contemporaneous cell phone location information
like the tracking of Subdiaz-Osorio's cell phone in this case.
See id. at *18 & n.1, 19-20.

                                                29
                                                                   No.     2010AP3016-CR



electronic     interaction         with   Subdiaz-Osorio's          cell   phone    as   a

physical trespass.        Such an analysis              would be unnatural.24

      ¶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 (installation of

GPS   device    did    not    go    beyond      scope     of   warrant);    Sveum,    328

Wis. 2d 369,        ¶74   (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 ___, ___ N.W.2d ___, discusses the requirements to

obtain a warrant for cell phone location tracking.25                            Tate is
      24
       See, United States v. Jones, 565 U.S. ___, 132 S. Ct.
945, 953 (2012) ("Situations involving merely the transmission
of electronic signals without trespass would remain subject to
Katz analysis."); Marc McAllister, The Fourth Amendment and New
Technologies: The Misapplication of Analogical Reasoning, 36 S.
Ill. U. L.J. 475, 517-18 (2012) (footnote omitted) (stating that
cell phone tracking "does not require the installation of any
device; rather, the telephone itself does the work, making the
Jones majority's trespass rationale inapplicable.").
      25
       During the writing of Tate and this opinion, Governor
Scott Walker signed into law 2013 A.B. 536, which requires law
enforcement, with some exceptions, to obtain a warrant before
obtaining cell phone location information.  2013 Wis. Act 375;
see Wis. Stat. § 968.373 (2013-14).     The new law went into
effect on April 25, 2014.

                                             30
                                                          No.      2010AP3016-CR



similar to this case in that it does not involve a trespass.

However, Tate focuses on whether the court order there was valid

to authorize tracking of the defendant's cell phone location,

whereas this case involves an assumed non-trespassory search in

the absence of a court order.

                       2. Non-Trespassory Searches

    ¶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 (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.26                     Katz, 389
U.S. at 348.    Because the defendant had a reasonable expectation

of privacy in the phone booth, and because the government failed

    26
       An anachronism in today's wireless world, the phone booth
calls forth both a sense of irony and nostalgia as it sits
unassumingly   at  the   center  of   modern   Fourth  Amendment
jurisprudence.

     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.

                                     31
                                                                             No.      2010AP3016-CR



to    get    a    warrant,              the    FBI's       eavesdropping            violated      the

defendant's Fourth Amendment rights.                            Id. at 353-59.

       ¶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

(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.

      3. The Cell Phone Policy and the Subjective Expectation of

                                               Privacy

       ¶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
                                                    32
                                                              No.       2010AP3016-CR



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 variety of analyses but

determined    that     the   defendant     did    not    have       a    reasonable

expectation of privacy in his cell phone location data because

his Sprint privacy policy informed him that Sprint may disclose

personal information in response to emergencies.                    Id. at 362-63.

Hence, the court said, the defendant knew that the police could

track him because the situation was an emergency.                       Id. at 363.

Although the facts of Caraballo and the cell phone policy there

are similar to the present case, I choose to decide this case on
different    grounds    because   total    reliance      on    Subdiaz-Osorio's

Policy to decide this case would be problematic.

      ¶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




                                      33
                                                                      No.         2010AP3016-CR



different   points         with    varying     degrees     of     specificity.27            The

definition of CPNI is important because it includes location

information, but because the full definition is spread out over

several pages, references to CPNI are difficult to understand.

    ¶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,"28

the Policy says that Sprint discloses personal information (of

which    CPNI    is   a     "special        category")      if    Sprint          "reasonably

believe[s] that an emergency involving immediate danger of death

or serious physical injury to any person requires disclosure of

communications        or     justifies        disclosure         of    records        without

delay."         (Emphasis         added.)          The   "communications"            language

suggests that Sprint will disclose only information related to

communications——like          phone     calls——and        there       is    no    attempt    to

define the "records" that Sprint will disclose.

    27
       The Policy defines CPNI on pages one and two of the
Policy: "CPNI is information Sprint Nextel obtains or creates
when it provides wireline or mobile wireless telecommunications
services to a customer.    CPNI includes the types of services
purchased, how the services are used, and the billing detail for
those services."

     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 . . . ."
    28
       The title of this paragraph suggests that the disclosure
disclaimer is to protect Sprint, not the customer.

                                              34
                                                                 No.      2010AP3016-CR



       ¶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 without introducing

contract interpretation into the calculus.

       ¶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




                                          35
                                                                 No.     2010AP3016-CR



Sprint.29        It 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.30       Thus, a customer might still reasonably assume that

the   cell      phone    company    will   disclose      information      only    when

presented with a valid court order.

      ¶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


      29
       Wisconsin Stat. § 968.375(15) permits Sprint and other
wireless services providers to disclose customer information
without a subpoena or warrant if:

      The provider of electronic communication or remote
      computing service believes in good faith that an
      emergency involving the danger of death or serious
      physical injury to any person exists and that
      disclosure of the information is required to prevent
      the death or injury or to mitigate the injury.

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.
      30
       See United States v. Takai, 943 F. Supp. 2d 1315, 1323
(D. Utah 2013) (probable cause and exigent circumstances
justified detective's application for cell phone pinging under
18 U.S.C. § 2702).

                                           36
                                                                           No.      2010AP3016-CR



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
                                                 37
                                                                        No.        2010AP3016-CR



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    an   emergency,      wireless

providers      apparently         give    up    the       location     information      almost

without exception.           The deference to law enforcement's tracking

requests is not inherently wrong, but requiring police to have

probable      cause   and    an     exigent          circumstance       before      requesting

location data, if they do not have a warrant, diminishes the

potential for abuse.

       ¶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.               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.            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.    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 ("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
                                                38
                                                               No.        2010AP3016-CR



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.         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.

4. The Objective Reasonableness of the Expectation of Privacy in

                        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.31           See, e.g., California v. Greenwood, 486

U.S.    35,    46-49    (1988)   (Brennan,       J.,   dissenting)       (disagreeing

with the majority about whether respondents had a reasonable
expectation of privacy in their trash); Smith v. Maryland, 442

U.S. 735, 747 (1979) (Stewart, J., dissenting) (disagreeing with

the    majority    and    suggesting       that    people     have   a    reasonable

expectation of privacy in the phone numbers that they dial).




       31
       See Orin S. Kerr, Four Models of Fourth Amendment
Protection, 60 Stan. L. Rev. 503, 504-05 (2007) (criticizing the
numerous, inconsistent tests to determine what society accepts
as a reasonable expectation of privacy).

                                           39
                                                                        No.         2010AP3016-CR



       ¶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 (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.              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 he

left the top of the greenhouse partially open.                                Id. at 450-51.

Justice      O'Connor's          concurrence      tempered          Riley's       plurality    by

emphasizing that the search was not permissible simply because

the   helicopter       complied          with   FAA       regulations       or     because    any

citizen could have conducted the same search.                                 Id. at 454-55

(O'Connor, J., concurring).                 Instead, Justice O'Connor suggested

that "consistent with Katz, we must ask whether the helicopter

was in the public airways at an altitude at which members of the
public travel with sufficient regularity" to determine if the

search       was    "one    that     society         is    prepared     to       recognize     as

'reasonable.'"         Id. at 454 (quoting Katz, 389 U.S. at 361).

       ¶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.
                                                40
                                                                        No.       2010AP3016-CR



27,   40    (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.          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.       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.

                               D. Exigent Circumstances

      ¶69    Irrespective            of    whether         Subdiaz-Osorio        had    both    a
subjective and objective reasonable expectation of privacy in
                                                 41
                                                                       No.      2010AP3016-CR



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,32 a warrantless search does not violate

a suspect's Fourth Amendment rights if: (1) the government can

show that there is probable cause to believe that "evidence of a

crime will be found"; and (2) there are exigent circumstances.

Hughes,      233    Wis. 2d 280,       ¶¶17,      21     (citations          omitted).      To

establish probable cause for a search, the government must show

that there is a "'fair probability' that contraband or evidence

of a crime will be found in a particular place."                                     Id., ¶21
(citation omitted).

       ¶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


       32
       When the exigent circumstances exception applies, a
citizen's privacy right "must give way to the compelling public
interest in effective law enforcement." State v. Robinson, 2010
WI 80, ¶24, 327 Wis. 2d 302, 786 N.W.2d 463 (citations omitted).

                                             42
                                                              No.     2010AP3016-CR



Wis. 2d 345, 629 N.W.2d 613 (quoting Dalia v. United States, 441

U.S. 238, 255 (1979)) (internal quotation marks omitted); see

Warden v. Hayden, 387 U.S. 294, 307 (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.33                "In regard to probable

cause, the supreme court has stated that [the Court] deal[s]

with    probabilities.        These   are     not    technical;     they    are     the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, [must] act."

State v. Secrist, 224 Wis. 2d 201, 215, 589 N.W.2d 387 (1999)

(quoting      State     v.   Wisumierski,      106    Wis. 2d 722,         739,     317

N.W.2d 484 (1982)) (brackets in original) (internal quotation

marks omitted).

       ¶72    The court determines whether there was probable cause

by   an     objective   standard   and    asks      whether   the   police        acted

reasonably.34      State v. Robinson, 2010 WI 80, ¶26, 327 Wis. 2d

302, 786 N.W.2d 463.           "The core requirement of probable cause


       33
       The new statute requiring a warrant to track cell phone
location information requires "probable cause to believe the
criminal activity has been, is, or will be in progress and that
identifying or tracking the communications device will yield
information relevant to an ongoing criminal investigation."
Wis. Stat. § 968.373(3)(e) (2013-14).
       34
       "In both an arrest warrant and a search warrant context,
probable cause eschews technicality and legalisms in favor of a
'flexible,   common-sense   measure  of   the   plausibility   of
particular conclusions about human behavior.'"    State v. Kiper,
193 Wis. 2d 69, 83, 532 N.W.2d 698 (1995) (quoting State v.
Higginbotham, 162 Wis. 2d 978, 989, 471 N.W.2d 24 (1991)).

                                         43
                                                                No.      2010AP3016-CR



serves to 'safeguard the privacy and security of individuals

against arbitrary invasions by government officials.'"                      State v.

Kiper,    193    Wis. 2d 69,    81,    532   N.W.2d      698    (1995)     (emphasis

added)    (quoting    State    v.    DeSmidt,    155     Wis. 2d 119,      130,   454

N.W.2d 780 (1990)).

    ¶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 (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).           The State has the burden to prove that

exigent    circumstances       justified     the   search.            Ferguson,   317

Wis. 2d 586, ¶20.

    ¶74        Kenosha police had probable cause to conduct a search

because there was a "fair probability" that evidence of the

stabbing would be found at the location of Subdiaz-Osorio's cell

phone.    Eyewitnesses had informed the police that Subdiaz-Osorio
had fatally stabbed his brother less than 24 hours before the
                                        44
                                                              No.        2010AP3016-CR



search and that he had admitted to the stabbing.                    Subdiaz-Osorio

was now missing but known to have borrowed an automobile.                          The

murder weapon had not been found.                Subdiaz-Osorio's cell phone

had not been located.             There was a fair probability that if

Subdiaz-Osorio had his phone, evidence would be found at that

location.

      ¶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




                                       45
                                                               No.         2010AP3016-CR



of three exigent circumstances.35               There was a threat to safety,

risk of destruction of evidence, and a likelihood that Subdiaz-

Osorio     would      flee.36     The     threat    to   safety         and     risk    of

destruction      of    evidence   stem    in    part   from    the      fact    that   no

murder weapon was ever recovered after Subdiaz-Osorio killed his

brother.      It was important to find Subdiaz-Osorio quickly to

prevent    him     from   destroying      or    disposing     of    his    knives      and

clothes.

     ¶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




     35
       Wisconsin Stat. § 968.373(8)(a)2. (2013-14) provides an
exception to the warrant requirement based on exigency if "[a]n
emergency involving danger of death or serious physical injury
to any person exists and identifying or tracking the location of
the communications device is relevant to preventing the death or
injury or to mitigating the injury."
     36
       "Hot pursuit" is not at issue in this case because a "hot
pursuit" occurs "where there is an immediate or continuous
pursuit of [a suspect] from the scene of a crime."      State v.
Richter, 2000 WI 58, ¶32, 235 Wis. 2d 524, 612 N.W.2d 29
(brackets in original) (citation omitted) (internal quotation
marks omitted). The pursuit of Subdiaz-Osorio was not immediate
or continuous.

                                          46
                                                        No.      2010AP3016-CR



order to satisfy the exigent circumstances exception.                 Richter,

235 Wis. 2d 524, ¶40.37

      ¶78    Richter   demonstrates     that   reasonableness    is    at   the

center of the exigent circumstances analysis, and in the present

case, it was reasonable for the Kenosha police to believe that a

potentially armed homicide suspect created an exigent threat to

the safety of others.      See id. ("[P]ursuit of a suspect known to

be   armed   and   dangerous   would    establish   exigent   circumstances

implicating a threat to physical safety.").             Though it is not

necessarily    required,   the   police     had   evidence    that    Subdiaz-

Osorio was armed and dangerous because he had just committed a

homicide, and it was likely that he still had the murder weapon.

In fact, Subdiaz-Osorio told Liborio that he did not want to be

arrested, which could lead a reasonable law enforcement officer

to infer Subdiaz-Osorio might become violent if confronted.                 The

Kenosha police had no way of knowing how desperate Subdiaz-

Osorio might become to avoid apprehension, or to obtain money or


      37
       Richter involved a situation in which an eyewitness told
police that a burglar fled from her trailer and went into a
trailer across the street. Richter, 235 Wis. 2d 524, ¶1. This
court determined that even though there was no information to
suggest that the burglar was armed or had violent tendencies,
the officer could reasonably believe that there was a threat to
safety and could conduct a warrantless search of the trailer
based on exigent circumstances.    Id., ¶¶40-41.   A requirement
that law enforcement "have affirmative evidence of the presence
of firearms or known violent tendencies on the part of the
suspect before acting to protect the safety of others is
arbitrary and unrealistic and unreasonably handicaps the officer
in the performance of one of his core responsibilities."    Id.,
¶40.

                                       47
                                                              No.         2010AP3016-CR



shelter to facilitate escape.              They did know that this was an

individual who was dangerous enough to stab someone in the head,

and they could reasonably believe that the delay in getting a

warrant would seriously endanger life.                Therefore, it was proper

for them to conduct a warrantless search to find Subdiaz-Osorio

as quickly as possible.

       ¶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 (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.38      They knew that he had borrowed his girlfriend's car and

had    warned    Liborio   that      he   did   not    want   to     be     arrested.

Therefore, there was a strong inference that he would try to



       38
       This case calls to mind the situation in State v. Ndina,
2009 WI 21, ¶¶99-102, 315 Wis. 2d 653, 761 N.W.2d 612 (Prosser,
J., concurring), in which the defendant booked a flight back to
his home country of Albania after stabbing a relative in the
neck. An arrest warrant was obtained, and authorities tried to
act quickly before the defendant could fly back to Albania.
Even though he spoke almost no English, Ndina evaded capture in
the United States and was not apprehended in Albania until
several months later. Id., ¶¶101-02. The warrant in Ndina was
for an arrest, not a search, but that case illustrates how
precious time can be when authorities are trying to capture a
fleeing suspect.

                                          48
                                                          No.         2010AP3016-CR



flee, and time was of the essence to find him before he left the

country.

       ¶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.
       ¶81    By the time he was arrested at 6:11 p.m. on February

8,   Subdiaz-Osorio     was   in    Arkansas,   which    meant   that     he    had

traveled a significant distance since he left that morning.                    The

police could not have known what method of transportation he

would use as he attempted to escape or how quickly he would be

able to leave the country if that were his goal.                 Because time

was crucial to apprehend a fleeing suspect, the Kenosha police




                                        49
                                                            No.      2010AP3016-CR



acted properly in the face of exigent circumstances and could

not delay to secure an additional warrant.39

     E. Constitutional Protections Against Self-Incrimination

     ¶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 . . . ."40         U.S. Const. amend. V.     The Fifth Amendment is the

source     of    the    so-called    Miranda    warnings,    which     advise     a


     39
       The events in this case occurred on February 7 and 8,
2009, in Kenosha. The events in Tate occurred on June 9, 2009,
in Milwaukee.   This case represents the earliest reported case
of cell phone location tracking in Wisconsin.
     40
       Similar to the United States Constitution, the Wisconsin
Constitution provides, "No person may be held to answer for a
criminal offense without due process of law, and no person for
the same offense may be put twice in jeopardy of punishment, nor
may be compelled in any criminal case to be a witness against
himself or herself." Wis. Const. art I, § 8(1). The Wisconsin
Constitution has been interpreted to offer the same protection
as the United States Constitution's Fifth Amendment when it
comes to invoking the right to counsel in a custodial
interrogation.   State v. Jennings, 2002 WI 44, ¶¶41-42, 252
Wis. 2d 228, 647 N.W.2d 142.

                                        50
                                                                      No.        2010AP3016-CR



defendant that he has a right to an attorney, as a means to

safeguard his right to remain silent.                           Miranda v. Arizona, 384

U.S. 436, 467-73 (1966).

       ¶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 (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

(quoting Davis, 512 U.S. at 459).                      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).

       ¶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.             This

court     followed       Davis          in    Jennings        and    decided       that    the

defendant's       statement,        "I       think    maybe     I   need    to   talk     to   a

lawyer," was not clear enough to invoke the right to counsel,

and the interrogating officers did not have to cease questioning


                                                51
                                                               No.      2010AP3016-CR



or attempt to clarify what the suspect meant.                         Jennings, 252

Wis. 2d 228, ¶44.

      ¶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.
                                 IV. CONCLUSION
                                         52
                                                      No.        2010AP3016-CR



    ¶88     Although the court is divided on the rationale for an

affirmance, the decision of the court of appeals is affirmed.

    By    the   Court.—The   decision   of   the   court    of   appeals   is

affirmed.




                                   53
                                                                         No.    2010AP3016-CR.awb


      ¶89      ANN WALSH BRADLEY, J.                     (concurring).           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.

                                                   I

      ¶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

                                                   1
                                                                             No.    2010AP3016-CR.awb


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 morning Martinez found the brother dead.                                       After

telling          the   defendant        that        his       brother       was    dead     and       that

Martinez was calling the police, Subdiaz-Osorio left.

       ¶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.

Careeno-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 Miranda1 rights, he signed a waiver of rights form and agreed
to speak without an attorney present.                               During the interview, the

defendant asked if he would be taken back to Kenosha.                                                 The

officer informed him that he would first have to appear before a

judge in Arkansas who would make that determination.                                            At that

point the defendant asked "How can I do [sic] to get an attorney

here because I don't have enough to afford one?"                                          The officer

told       him    that     Arkansas      would       appoint          him    a     lawyer       for   the

hearing, and continued the interview.                                At one point during the

       1
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                                     2
                                                                     No.    2010AP3016-CR.awb


interview,     the    defendant      gave      a    version          of     the   stabbing,

indicating that his brother brought the knife into the room.

       ¶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.

                                          II
       ¶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 (1999)).                                 To make that
determination,       "a   court    must   be       able    to       conclude      'beyond    a

                                          3
                                                       No.    2010AP3016-CR.awb


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).

    ¶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; State v. Sturgeon, 231 Wis. 2d 487, 503-04,

605 N.W.2d 589 (Ct. App. 1999).             As part of this inquiry, the

court considers:

    (1) the relative strength and weakness of the State's
    case and the defendant's case; (2) the persuasiveness
    of the evidence in dispute; (3) the reasons, if any,
    expressed by the defendant for choosing to plead
    guilty; (4) the benefits obtained by the defendant in
    exchange for the plea; and (5) the thoroughness of the
    plea colloquy.
Semrau, 233 Wis. 2d 508, ¶22.

    ¶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
                                      4
                                                                      No.   2010AP3016-CR.awb


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

                                                  5
                                                          No.    2010AP3016-CR.awb


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 would still

have accepted the State's plea deal).

      ¶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

                                       6
                                              No.   2010AP3016-CR.awb


that the circuit court's errors were harmless.      Accordingly, I

respectfully concur in the mandate of the lead opinion.




                                7
                                                                             2010AP3016-CR.npc




     ¶107 N.        PATRICK       CROOKS,         J.     (concurring).              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.'"1                                     By

generally      requiring      a    warrant        before       a    cell    phone    search

following      an   arrest,       the    Supreme        Court      unanimously      took     a

definitive     approach,      which      it       stated      in   simple    terms:       "Our

answer to the question of what police must do before searching a

cell phone seized incident to an arrest is accordingly simple—

get a warrant."2

     ¶108 Our decision in State v. Carroll,3 a cell phone case,

is consistent with the United States Supreme Court's decision in

Riley/Wurie.          In   Carroll,      we   held       that      an   officer     was    not

justified in searching through images stored on a suspect's cell

phone absent a warrant.4            We reasoned that the images stored on

the cell phone were "not in immediate danger of disappearing

before [the officer] could obtain a warrant."5                          Like Riley/Wurie,
     1
       Riley v. California, Nos. 13-132, 13-212, slip op., at *20
(U.S. June 25, 2014) (quoting Boyd v. United States, 116 U.S.
616, 630 (1886)). I will refer to the two consolidated cases as
Riley/Wurie.
     2
         Id.
     3
         State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d
1.
     4
         See id., ¶33.
     5
         Id.
                                              1
                                                                               2010AP3016-CR.npc


our    decision    in    Carroll       demonstrates          a   definitive        approach,

requiring a warrant to search the contents of a cell phone.

       ¶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.    Eason6     and      would

decline to apply the exclusionary rule here.                            I agree that the

location      evidence      obtained     from         Subdiaz-Osorio's          cell       phone

provider should not be suppressed.                      In addition, I agree that

Subdiaz-Osorio        did     not     unequivocally            invoke     his     right         to

counsel.      Therefore, I respectfully concur with the mandate of

the lead opinion.

                                             I.

       ¶110 The Fourth Amendment provides:

       The right of the people to be secure in their persons,
       houses, papers, and effects, against unreasonable
       searches and seizures, shall not be violated, and no
       Warrants shall issue, but upon probable cause,
       supported by Oath or affirmation, and particularly



       6
           State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d
625.

                                             2
                                                                       2010AP3016-CR.npc

     describing the place to be searched, and the persons
     or things to be seized.7
     ¶111 "As the text makes clear, 'the ultimate touchstone of

the Fourth Amendment is reasonableness.'"8                     The United States

Supreme Court has also "determined that '[w]here a search is

undertaken by law enforcement officials to discover evidence of

criminal wrongdoing, . . . reasonableness generally requires the

obtaining of a judicial warrant.'"9

     ¶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.10           In addressing the facts of         the      Wurie   case, for

example,        the    United    States     Supreme    Court      held    that     law

enforcement was required to obtain a warrant to search a cell

phone     for    information     as    to   the   location   of    the    arrestee's



     7
       U.S. Const. amend IV. In similar language, the Wisconsin
Constitution provides:

     The right of the people to be secure in their persons,
     houses, papers, and effects against unreasonable
     searches and seizures shall not be violated; and no
     warrant shall issue but upon probable cause, supported
     by oath or affirmation, and particularly describing
     the place to be searched and the persons or things to
     be seized.

     Wis. Const. art. I, § 11.
     8
       Riley v. California, Nos. 13-132, 13-212, slip op. at *6
(U.S. June 25, 2014) (quoting Brigham City v. Stuart, 547 U.S.
398, 403 (2006)).
     9
       Id. (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S.
646, 653 (1995)).
     10
          See id.; see also Carroll, 322 Wis. 2d 299.

                                            3
                                                                          2010AP3016-CR.npc


apartment.11       I see a definite connection between the location

information       obtained    in   Wurie        and   the    location      information

obtained     in   this     case.      As   the   United      States   Supreme      Court

explained,

      Data on a cell phone can also reveal where a person
      has been. Historic location information is a standard
      feature on many smart phones and can reconstruct
      someone's specific movements down to the minute, not
      only around town but also within a particular
      building. See United States v. Jones, 565 U.S. __, __
      (2012) (Sotomayor, J., concurring) (slip op., at 3)
      ("GPS monitoring generates a precise, comprehensive
      record of a person's public movements that reflects a
      wealth of detail about her familial, political,
      professional, religious and sexual associations.").12
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:

      Absent more precise guidance from the founding era, we
      generally determine whether to exempt a given type of
      search from the warrant requirement "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 (1999).13
      ¶113 Therefore, I would hold that law enforcement should

obtain      a     warrant     before       obtaining        cell    phone      location

information from providers.




      11
       Riley v. California, Nos. 13-132, 13-212, slip op. at *5,
9 (U.S. June 25, 2014).
      12
           Id. at *19.
      13
           Id. at *9.

                                            4
                                                                          2010AP3016-CR.npc


     ¶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.14

     ¶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




     14
       See Adam Koppel, Note, Warranting A Warrant: Fourth
Amendment Concerns Raised by Law Enforcement's Warrantless Use
of GPS and Cellular Phone Tracking, 64 U. Miami L. Rev. 1061,
1079 (2010).   Compare In re U.S. for an Order Authorizing the
Release of Prospective Cell Site Info., 407 F. Supp. 2d 134, 135
(D.D.C. 2006) (holding that the government must demonstrate
probable cause in order to obtain cell site tracking information
due to Fourth Amendment privacy concerns), and In re Application
of the U.S. for an Order (1) Authorizing the Use of a Pen
Register & a Trap & Trace Device, 396 F. Supp. 2d 294, 295
(E.D.N.Y. 2005) (holding same), and In re Application of U.S.
for an Order Authorizing Installation & Use of a Pen Register &
a Caller Identification Sys. on Tel. Nos. (Sealed), 402 F. Supp.
2d 597, 598 (D. Md. 2005) (holding same), and In re Application
for Pen Register & Trap/Trace Device with Cell Site Location
Auth., 396 F. Supp. 2d 747, 757 (S.D. Tex. 2005) (holding same),
with In re U.S. for an Order, 433 F. Supp. 2d 804, 806 (S.D.
Tex. 2006) (holding that probable cause was not required for
cell site location information), and In re Application of U.S.
For an Order, 411 F. Supp. 2d 678, 680 (W.D. La. 2006) (holding
same), and In re Application of U.S. for an Order for
Prospective Cell Site Location Info. on a Certain Cellular Tel.,
460 F. Supp. 2d 448, 462 (S.D.N.Y. 2006) (holding same), and In
re Application of U.S. for an Order for Disclosure of Telecomms.
Records & Authorizing the Use of a Pen Register & Trap & Trace,
405 F. Supp. 2d 435, 450 (S.D.N.Y. 2005) (holding same).



                                              5
                                                                  2010AP3016-CR.npc


and   other     location      tracking       technology.15      Justice     Alito

recognized this very principle when he concurred in part and

concurred in the judgment in Riley/Wurie, where he stated:

      In light of these developments, it would be very
      unfortunate if privacy protection in the 21st century
      were left primarily to the federal courts using the
      blunt    instrument    of   the    Fourth    Amendment.
      Legislatures, elected by the people, are in a better
      position than we are to assess and respond to the
      changes that have already occurred and those that
      almost certainly will take place in the future.16


      ¶116 It is noteworthy that the Wisconsin Legislature has

quite recently enacted17 Wis. Stat. § 968.373, which generally

requires law enforcement to obtain a warrant before "track[ing]

the   location    of     a   communications      device."18     This    statute,

however,      provides       an   exception      to   the     general     warrant


      15
       In addition to Riley, the United States Supreme Court has
also recently considered questions arising under the Fourth
Amendment as they relate to location tracking technology.
United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012)
(holding that a GPS device placed on an automobile to record the
vehicle's location constituted a search under the Fourth
Amendment).
      16
       Riley v. California, Nos. 13-132, 13-212, slip op. at *22
(U.S. June 25, 2014).
      17
       At the time the police obtained the location information
at issue here, our case law was not clear as to the need for a
warrant, nor were the statutes clear as to the procedures
necessary to obtain a warrant, as those procedures are spelled
out in the recently enacted provision (Wis. Stat. § 968.373(2)).
See Dissent, ¶ ___ n.32; State v. Tate, 2014 WI 89, ¶___ n.33,
___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J., dissenting).
      18
           Wis. Stat. § 968.373(2) (2011-12) (Effective April 25,
2014).

                                         6
                                                                          2010AP3016-CR.npc

requirement if "[t]he customer or subscriber provides consent

for the action" or if "[a]n emergency involving the danger of

death     or   serious     physical     injury     to    any     person    exists      and

identifying      or   tracking       the    location     of    the     communications

device    is    relevant    to   preventing        the   death    or   injury     or    to

mitigating the injury."19            Furthermore, Wis. Stat. §968.373(8)(b)

provides       guidance    to    cell      phone    providers      faced      with     law

enforcement requests for location data absent a warrant.20                              In

the fast developing area of Fourth Amendment jurisprudence and

emerging       technology,       I   would      generally      require       that      law

enforcement obtain a warrant to obtain cell phone location data.

     ¶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




     19
          Wis. Stat. § 968.373(8)(a).
     20
       Wis. Stat. § 968.373(8)(b) (instructing providers to
disclose information to law enforcement in situations where
customers have provided consent or when the provider has a good
faith belief that such information is necessary to prevent death
or serious injury).

                                            7
                                                                   2010AP3016-CR.npc

should have obtained a warrant in time to access the requested

cell phone location data and apprehend the defendant.21

                                         II

     ¶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:


     [W]e now hold that evidence is not to be suppressed
     under the exclusionary rule where it is discovered by
     officers in the course of actions that are taken in
     good faith and in the reasonable, though mistaken,
     belief that they are authorized. We do so because the
     exclusionary rule exists to deter willful or flagrant
     actions by police, not reasonable, good-faith ones.
     Where the reason for the rule ceases, its application
     must cease also.22




     21
       I agree with Chief Justice Abrahamson's dissent that
there was sufficient time and information for the police to get
a warrant.
     22
          United States v. Williams, 622 F.2d 830, 840 (5th Cir.
1980).

                                         8
                                                                  2010AP3016-CR.npc

       ¶120 The United States Supreme Court in United States v.

Leon23 recognized the good faith exception to the exclusionary

rule    in    the    context   of   a   search   based   on   a   subsequently

invalidated         warrant.    However,    as    a   treatise     writer     has

recognized, Leon's sweeping language supports the extension of

the good faith exception beyond the warrant situation to non-

warrant cases where a police officer's conduct is objectively

reasonable:


       Although the holding in both Sheppard and Leon is
       limited to with-warrant cases, the possibility that
       these decisions will serve as stepping stones to a
       more comprehensive good faith exception to the Fourth
       Amendment exclusionary rule cannot be discounted.
       Certainly the author of those two decisions, Justice
       White, was prepared to go farther, as he clearly
       indicated prior to and contemporaneously with the
       rulings in those two cases, and some current members
       of the Court may be equally prepared to take such a
       step. If they are, much of the reasoning in Leon will
       offer support for such an extension of that case
       beyond   the   with-warrant   situation.   Particularly
       noteworthy is the Leon majority's broad assertion that
       whenever the police officer's conduct was objectively
       reasonable the deterrence function of the exclusionary
       rule is not served and that "when law enforcement
       officers have acted in objective good faith or their
       transgressions have been minor, the magnitude of the
       benefit conferred on such guilty defendants offends
       basic concepts of the criminal justice system."24
       23
            United States v. Leon, 468 U.S. 897, 907-08 (1984).
       24
       1 Wayne R. LaFave, Search and Seizure § 1.3(f), at 128
(5th ed. 2012) (citations omitted).   See also Wesley MacNeil
Oliver, Toward A Better Categorical Balance of the Costs and
Benefits of the Exclusionary Rule, 9 Buff. Crim. L. Rev. 201,
270-71 (2005) (advocating a broader application of the good
faith exception to cases involving serious crimes wherein the
police officers involved reasonably believed probable cause
existed for the search or seizure)
                                9
                                                                            2010AP3016-CR.npc



       ¶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."25             Specifically, "[t]he exclusionary rule

bars evidence obtained in an illegal search and seizure from a

criminal      proceeding       against    the    victim    of    the    constitutional

violation."26        That the exclusionary rule is a judicially created

remedy,      not    a    right,    is    significant;        "its      application        is

restricted to cases where its remedial objectives will best be

served."27

       ¶122 Thus,        a     court    considering       whether      to     apply      the

exclusionary rule must bear in mind the primary purpose of the

rule: deterring police misconduct.28                  "[M]arginal deterrence is

not enough to justify exclusion; 'the benefits of deterrence

must    outweigh         the   costs.'"29        In   employing        this       type    of

cost/benefit analysis to the facts of a particular case, a court

should recognize the "substantial social costs exacted by the


       25
       State v. Dearborn, 2010 WI 84, ¶15, 327 Wis. 2d 252, 786
N.W.2d 97.
       26
       State v. Ward, 2000 WI 3, ¶46, 231 Wis. 2d 723, 604
N.W.2d 517 (citing Illinois v. Krull, 480 U.S. 340, 347 (1987)).
       27
       Dearborn, 327 Wis. 2d 252, ¶35 (citing Herring v. United
States, 555 U.S. 135, 129 S.Ct 695, 700 (2009)).
       28
            Id., ¶41 (citing Krull, 480 U.S. at 347).
       29
            Id., ¶35 (citing Herring, 129 S.Ct at 700).

                                            10
                                                                  2010AP3016-CR.npc

exclusionary rule for the vindication of Fourth Amendment rights

. . . ."30        The social costs of deterrence are particularly high

where "law enforcement officers have acted in objective good

faith       or   their   transgressions    have   been   minor"   because    “the

magnitude of the benefit conferred on such guilty defendants

offends basic concepts of the criminal justice system.”31

       ¶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 deterrence rationale loses much of its force."32                    On that

basis, we have refused to apply the exclusionary rule where it

would otherwise apply where officers proceeded consistent with

"law that was controlling at the time of the search,"33 and where

police reasonably relied on a subsequently invalidated search

warrant.34       We stated specifically, "[T]he laudable purpose of the

exclusionary rule——deterring police from making illegal searches




       30
            Id. at 907.
       31
            Id. at 907-908.
       32
       State v. Gums, 69 Wis.2d 513, 517, 230 N.W.2d 813 (1975)
(quoting Michigan v. Tucker, 417 U.S. 433, 447) (1979).
       33
            State v. Ward, 2000 WI 3, ¶3, 231 Wis.2d 723, 604 N.W.2d
517.
       34
            Eason, 245 Wis. 2d 206, ¶2.

                                          11
                                                                          2010AP3016-CR.npc

and     seizures——would            not   be     furthered         by     applying     the

exclusionary rule."35

      ¶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.'"36              Citing to Eason, Dearborn made clear

that in those circumstances where "the exclusionary rule cannot

deter objectively reasonable law enforcement activity, . . . it

should     not    apply . . . ."37            Many    courts      have   endorsed    this

approach and have declined to apply the exclusionary rule in a

rigid manner where law enforcement acted reasonably.38



      35
           Id.
      36
       Dearborn, 327 Wis. 2d 252, ¶35 (citations omitted)
(citing Herring v. United States, 555 U.S. 135, 129 S.Ct 695,
700 (2009).
      37
           Id., ¶37.
      38
       See State v. Coats, 797 P.2d 693, 696 (Ariz. Ct. App.
1990) (discussing Ariz. Rev. Stat. § 13-3925, Arizona's
statutory good-faith exception); Toland v. State, 688 S.W.2d 718
(Ark. 1985); Matter of M.R.D., 482 N.E.2d 306, 310 (Ind. Ct.
App. 1985); State v. Sweeney, 701 S.W.2d 420, 426 (Mo. 1985);
State v. Welch, 342 S.E.2d 789, 795 (N.C. 1986); State v.
Gronlund, 356 N.W.2d 144, 146-47 (N.D. 1984); McCary v.
Commonwealth, 321 S.E.2d 637, 644 (Va. 1984).

                                           12
                                                                            2010AP3016-CR.npc

    ¶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:


    We hold that where police officers act in objectively
    reasonable reliance upon the warrant, which had been
    issued by a detached and neutral magistrate, a good
    faith exception to the exclusionary rule applies. We
    further hold that in order for a good faith exception
    to apply, the burden is upon the State to show that
    the process used in obtaining the search warrant
    included a significant investigation and a review by
    either a police officer trained and knowledgeable in
    the requirements of probable cause and reasonable
    suspicion, or a knowledgeable government attorney. We
    also hold that this process is required by Article I,
    Section 11 of the Wisconsin Constitution, in addition
    to those protections afforded by the good faith
                              13
                                                                         2010AP3016-CR.npc

      exception as recognized by the United States Supreme
      Court in United States v. Leon, 468 U.S. 897 (1984).39
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.




      39
           Eason, 245 Wis. 2d 206, ¶74.

                                          14
                                                                     No.    2010AP3016-CR.pdr



      ¶130 PATIENCE DRAKE ROGGENSACK, J. (concurring).                                 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.1

      ¶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.2                    It does so in order "to avoid

delivering a broad pronouncement about reasonable expectations

of    privacy     in     the     rapidly       developing           field       of    wireless

technology."3         While I wholeheartedly agree with the principles

of    judicial       restraint     the     lead       opinion       espouses,         I    write

separately because I believe the lead opinion has "elaborat[ed]

too   fully     on    the    Fourth      Amendment        implications          of     emerging

technology before its role in society has become clear."4                                    City

of Ontario, Cal. v. Quon, 560 U.S. 746, 759 (2010).

      ¶132 Specifically,           while       the     lead     opinion         purports       to

assume     without       deciding        "that       people      have       a        reasonable


      1
          Lead op., ¶¶48-68.
      2
          Id., ¶¶9, 64, 68.
      3
          Id., ¶9.
      4
       As an example of the changing landscape, I note that on
April 23, 2014, 2013 Wis. Act 375 was enacted as Wis. Stat.
§ 968.373 and now governs "tracking the location of a cellular
telephone."

                                               1
                                                                No.   2010AP3016-CR.pdr


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," it nonetheless

applies Katz's two-part test for determining whether a search

occurred.5        See Katz v. United States, 389 U.S. 347, 361 (1967)

(Harlan,      J.,   concurring).        In   doing   so,   it     seems    to   decide

several points of law that are unrelated to its conclusion,

which is grounded in the exigent circumstances exception to the

Fourth Amendment's warrant requirement.               Were I writing for the

majority of the court, I would write more narrowly, avoiding the

conclusions above and also those mentioned below.

       ¶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."6          Whether a contract is capable of more than
one reasonable interpretation, and is therefore ambiguous, is a

question of law that may have important legal ramifications.7                          I
       5
           Lead op., ¶¶9, 51-68.
       6
           Id., ¶56, 58.
       7
       Most commonly, if a statute is ambiguous, meaning "it is
capable of being understood by reasonably well-informed persons
in two or more senses," we may turn to extrinsic sources, such
as legislative history, to aid in our interpretation of a
statute.   State ex rel. Kalal v. Circuit Court for Dane Cnty.,
2004 WI 58, ¶¶47, 50, 271 Wis. 2d 633, 681 N.W.2d 110. In the
context of contract interpretation, the ambiguous term may be
construed against its drafter. Folkman v. Quamme, 2003 WI 116,
¶20, 264 Wis. 2d 617, 665 N.W.2d 857.
                                2
                                                                        No.    2010AP3016-CR.pdr


would      therefore      refrain         from      interpreting        the    contract       when

doing so is unnecessary to our holding.

       ¶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."8                       It concludes that "a customer

might still reasonably assume that the cell phone company will

disclose         information       only      when     presented     with       a    valid    court

order."9

       ¶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, 132 S. Ct. 945,

957 (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").

       8
           Lead op., ¶60.
       9
           Id.

                                                  3
                                                                 No.    2010AP3016-CR.pdr


      ¶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.10         It then expresses concern that law enforcement

will "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."11                         This will, in

turn, "invite[] law enforcement to be complacent in its requests

for tracking," according to the lead opinion.12                         As distasteful

as that idea may be, I would not evaluate cell phone contract

rationales that do not drive our decision.

      ¶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.13                          Instead,

its decision all but forecloses argument "that a search under

the Fourth Amendment depends on the specific language in an

individual's        cell    phone     policy"      or     that      the       defendant's
disclosure         of   information     to     a    third      party          shapes      his

expectation        of   privacy.14     Because     I     do   not      wish    to   decide

whether a search occurred in this case, or any of the issues


      10
           Id., ¶61.
      11
           Id.
      12
           Id., ¶63.
      13
           Id., ¶64.
      14
           Id., ¶60-61.

                                          4
                                                   No.   2010AP3016-CR.pdr


that are unnecessary to that inquiry, I do not join the lead

opinion, and respectfully concur in its mandate.

    ¶138 I   am   authorized   to   state   that     Justice     ANNETTE

KINGSLAND ZIEGLER joins this concurrence.




                                5
                                                                        No.    2010AP3016-CR.akz


       ¶139 ANNETTE KINGSLAND ZIEGLER, J.                         (concurring).            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    (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

                                                1
                                                     No.   2010AP3016-CR.akz


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:

         Moreover, even though the search incident to
    arrest exception does not apply to cell phones, other
    case-specific   exceptions    may  still   justify    a
    warrantless search of a particular phone.     One well-
    recognized exception applies when the exigencies of
    the situation make the needs of law enforcement so
    compelling that [a] warrantless search is objectively
    reasonable   under  the    Fourth  Amendment.      Such
    exigencies could include the need to prevent the
    imminent destruction of evidence in individual cases,
    to pursue a fleeing suspect, and to assist persons who
    are seriously injured or are threatened with imminent
    injury. . . .

         In light of the availability of the exigent
    circumstances exception, there is no reason to believe
    that law enforcement officers will not be able to
    address some of the more extreme hypotheticals that
    have been suggested: a suspect texting an accomplice
    who, it is feared, is preparing to detonate a bomb, or
    a child abductor who may have information about the
    child's location on his cell phone. The defendants
    here recognize——indeed, they stress——that such fact-
    specific threats may justify a warrantless search of
    cell phone data.   The critical point is that, unlike
    the search incident to arrest exception, the exigent
    circumstances exception requires a court to examine
    whether an emergency justified a warrantless search in
    each particular case.
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,


                                   2
                                                                        No.    2010AP3016-CR.akz


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).1          The

technological implications of a broader approach are vast and

difficult to predict, and we are generally obliged to decide our

cases      on   the    "narrowest       possible           grounds."          Barland   v.   Eau

Claire Cnty., 216 Wis. 2d 560, 566 n.2, 575 N.W.2d 691 (1998);

see also State v. Robinson, 2010 WI 80, ¶23, 327 Wis. 2d 302,

786    N.W.2d      463.      As    a   result,         I    join   Justice       Roggensack's

concurrence.

       ¶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.




       1
       Wisconsin Stat. §§ 968.373 and 968.375(3)(c)                              were enacted
after the commencement of the case at issue and                                   so are not
directly applicable. Our inability to consider the                               new statutes
in this case is an additional argument in favor                                  of a narrow
approach.

                                                  3
                                                               No.   2010AP3016-CR.ssa


     ¶146 SHIRLEY S. ABRAHAMSON, C.J.                  (dissenting).       "Advances

in technology offer great benefits to society in many areas.                       At

the same time, they can pose significant risks to individual

privacy rights."1        The proliferation of cell phones and their

location tracking capabilities exemplify the risks to privacy

rights posed by technological advancement.

     ¶147 The criminal cases State v. Tate2 and State v. Subdiaz-

Osorio3    raise      the   question          whether     individuals       have    a

constitutional right of privacy in their cell phone location

data.     In   other    words,   do     the     United   States4     and   Wisconsin

Constitutions5 permit law enforcement to access a person's cell

phone location data without a warrant?

     1
         State v. Earls, 70 A.3d 630, 631-32 (N.J. 2013).
     2
       State     v.     Tate,    2014      WI    89,     ___    Wis. 2d ___,       ___
N.W.2d ___.
     3
       State v. Subdiaz-Osorio, 2014 WI 87, ___ Wis. 2d ___, ___
N.W.2d ___.
     4
       The Fourth Amendment to the United States Constitution
provides:

     The right of the people to be secure in their persons,
     houses, papers, and effects, against unreasonable
     searches and seizures, shall not be violated, and no
     Warrants shall issue, but upon probable cause,
     supported by Oath or affirmation, and particularly
     describing the place to be searched, and the persons
     or things to be seized.
     5
       Article     1,    Section      11   of    the     Wisconsin     Constitution
provides:

     The right of the people to be secure in their persons,
     houses, papers, and effects against unreasonable
     searches and seizures shall not be violated; and no
     warrant shall issue but upon probable cause, supported
     by oath or affirmation, and particularly describing
                               1
                                                             No.   2010AP3016-CR.ssa


     ¶148 Cell phones are a "pervasive and insistent part of

daily life . . . ."6          The vast majority of Americans own cell

phones; the Pew Research Center has reported that, as of May

2013, 91% of American adults have a cell phone and 56% have a

smartphone.7       Cell phones are literally and figuratively attached

to their users' persons, such that "the proverbial visitor from

Mars might conclude they were an important feature of human

anatomy."8     Unlike land-line phones, people generally carry cell

phones with them at all times——at home, in the car, at work, and

at play.

     ¶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




     the place to be searched and the persons or things to
     be seized.
     6
         Riley v. California, 134 S. Ct. 2473, 2484 (2014).
     7
         Earls, 70 A.3d at 638.
     8
       Riley, 134 S. Ct. at 2484. The Riley Court additionally
noted that "nearly three-quarters of smart phone users report
being within five feet of their phones most of the time, with
12% admitting that they even use their phones in the shower."
Id. at 2490.

                                         2
                                                                     No.     2010AP3016-CR.ssa


identify       with     whom    the    user    of     the   cell     phone        associates.9

Cellular       service        providers       have    records      of      the      geographic

location of almost every American at almost every moment of the

day and night.10               Accessing this information reveals intimate

details about a person and intrudes on the constitutional right

of association.           The United States Supreme Court characterizes

location       data      as     "qualitatively          different"           from     physical

records, noting that location data can "reconstruct someone's

specific movements down to the minute, not only around town but

also       within   a   particular      building."11           The    more        precise   the

tracking, the greater the privacy concerns.

       ¶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.        Both

criminal      suspects        were    apprehended      in     relatively          short   order

through law enforcement use of cell phone location data.

       ¶151 The officers in Tate and Subdiaz-Osorio had to deal
with the thorny issues raised by seeking access to individuals'


       9
       See Earls, 70 A.3d at 632. See also Riley, 134 S. Ct. at
2489 ("Cell phones differ in both a quantitative and a
qualitative sense from other objects that might be kept on an
arrestee's person. . . . [Cell phones] could just as easily be
called cameras, video players, rolodexes, calendars, tape
recorders, libraries, diaries, albums, televisions, maps, or
newspapers.").
       10
       See Noam Cohen, It's Tracking Your Every Move and You May
Not Even Know, N.Y. Times, Mar. 26, 2011, at A1.
       11
       Riley, 134 S. Ct. at 2490 (citing United States v. Jones,
132 S. Ct. 945 (2012) (Sotomayor, J., concurring)).

                                               3
                                                                    No.    2010AP3016-CR.ssa


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 (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.12         A clear set of rules will protect privacy

interests and also give guidance to individuals evaluating these

interests.

     ¶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



     12
       "[W]e promote clarity in the law of search and seizure
and provide straightforward guidelines to governmental officers
who must apply our holdings."    State v. Williams, 2012 WI 59,
¶25, 341 Wis. 2d 191, 814 N.W.2d 460.

                                            4
                                                          No.    2010AP3016-CR.ssa


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.13              To read the Constitutions

more narrowly is to ignore the vital role that the cell phone

has come to play in private communications, to paraphrase the

United States Supreme Court in Katz v. United States, 389 U.S.

347, 352 (1967).14

     ¶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.15          People have a subjective expectation of

privacy in cell phone location data that society is prepared to




     13
       Justices Ann Walsh Bradley and N. Patrick Crooks agree
with this conclusion.
     14
        "To read the Constitution more narrowly is to ignore the
vital role that the public telephone has come to play in private
communication."    Katz v. United States, 389 U.S. 347, 352
(1967).
     15
       See, e.g., United States v. Davis, ___ F.3d ___, 2014 WL
2599917, at *9 (11th Cir. 2014) ("[I]t is unlikely that cell
phone customers are aware that their cell phone providers
collect and store historical location information.") (quoting In
re Application of U.S. for an Order Directing a Provider of
Elec. Commc'n Serv. To Disclose Records to Gov't, 620 F.3d 304,
317 (3d Cir. 2010)); Earls, 70 A. 3d at 632.

                                        5
                                                                No.    2010AP3016-CR.ssa


recognize as reasonable.           Thus, absent a warrant, such a search

is per se unreasonable.16

      ¶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 the warrant

requirement.         In both Tate and Subdiaz-Osorio, law enforcement

officers could have accessed cell phone location data with a

properly authorized warrant that complied with existing relevant

statutes.17       They did not.

      ¶158 I address the balance between privacy interests and

law   enforcement      interests       as   presented     by    Tate    and       Subdiaz-

Osorio.18     These two cases address substantially similar issues

regarding government access to cell phone location data but pose

distinct fact patterns.

      ¶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

      16
       State v. Sanders, 2008 WI 85, ¶27, 311 Wis. 2d 257, 752
N.W.2d 713; State v. Payano-Roman, 2006 WI 47, ¶30, 290
Wis. 2d 380, 714 N.W.2d 548.
      17
       I refer to the court order issued in Tate as a "warrant,"
as does the Tate majority opinion.       The applicable statute
refers to a court issuing a "subpoena" requiring the production
of documents. Wis. Stat. § 968.135.
      18
           "Privacy comes at a cost."           Riley, 134 S. Ct. at 2493.

                                            6
                                                        No.   2010AP3016-CR.ssa


merely assume, without deciding, that the government access was

a search in each case,19 both opinions address the search issue

as   they   elaborate   on   cases   and   principles    underlying     their

assumption that a search occurred.

      ¶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 (2014).20

      ¶162 The Tate majority opinion and Justice Prosser's lead

opinion announce principles of law that overlap and to an extent




      19
       Tate, 2014 WI 89, ¶¶2, 26; Subdiaz-Osorio, Justice
Prosser's lead op., ¶¶9, 70 (Prosser, J., lead op.).     But see
Subdiaz-Osorio, Justice Roggensack's concurrence, ¶132 (accusing
Justice Prosser's lead opinion of not merely assuming the issue
of the reasonable expectation of privacy but in effect deciding
the issue).
      20
       See Riley, 134 S. Ct. 2473 (cited in Tate, 2014 WI 89,
¶20 n.11; in Subdiaz-Osorio, Justice Prosser's lead op., ¶47
n.23); Katz, 389 U.S. at 353 (cited in Tate, 2014 WI 89, ¶¶19-
21; in Subdiaz-Osorio, Justice Prosser's lead op., ¶¶51-52, 65-
66; in Subdiaz-Osorio, Justice Roggensack's concurrence, ¶132);
Jones, 132 S. Ct. 945 (2012) (cited in Tate, 2014 WI 89, ¶¶17-
25; in Subdiaz-Osorio, Justice Prosser's lead op., ¶¶43, 48, 51;
in Subdiaz-Osorio, Justice Roggensack's concurrence, ¶135; State
v. Brereton, 2013 WI 17, 345 Wis. 2d 563, 826 N.W.2d 369 (cited
in Tate, 2014 WI 89, ¶¶16-18, 40; in Subdiaz-Osorio, Justice
Prosser's lead op., ¶¶38, 49; State v. Sveum, 2010 WI 92, 328
Wis. 2d 369, 787 N.W.2d 317 (cited in Tate,    ¶¶14, 23, 28, 30,
40-43; in Subdiaz-Osorio, Justice Prosser's lead op., ¶49).

                                     7
                                                            No.    2010AP3016-CR.ssa


conflict with each other.21               The two opinions, as well as the

separate        writings   in     Subdiaz-Osorio      of   Justices    Ann     Walsh

Bradley, N. Patrick Crooks, and Patience Drake Roggensack, must

thus    be      read   together    carefully    to    understand      the    court's

position on the constitutionality of law enforcement access to a

person's cell phone location data.22

       ¶163 To address the overlapping issues raised by these two

cases,      I   organize   my     dissenting   opinions    as     follows.     Each

heading number corresponds to the relevant subdivision of each

dissent.

       ¶164 In my dissent in Tate, I address the following main

points:

       Part I. The police access to the defendant's cell phone

       location data, an issue in both Tate and Subdiaz-Osorio,

       was a search within the meaning of the Constitutions.23


       21
       See Subdiaz-Osorio, Justice Roggensack's concurrence,
¶¶131-132 (criticizing Justice Prosser's lead opinion for
"elaborate[ing] too fully on the Fourth Amendment implications
of emerging technology before its role in society has become
clear"); Subdiaz-Osorio, Justice Prosser's lead op., ¶50 (noting
that Tate shares similarities with Subdiaz-Osorio even though it
is ultimately decided on other issues).
       22
       In footnotes 23 through 30, I consolidate and summarize
the position of each opinion in Tate and Subdiaz-Osorio
regarding particular topics.
       23
            For discussions of whether a search existed, see:

       Tate, 2014 WI 89,           ¶26:    Assumes,   without     deciding,     that
       there was a search.

       Subdiaz-Osorio, Justice Prosser's lead op., ¶9: Assumes,
       without deciding, that there was a search but hints
       strongly that a search existed.

                                           8
                                                         No.    2010AP3016-CR.ssa


    Part II. The search existed as a trespass.24

    Part    III.   The   search     existed   as    an     invasion       of   an

    individual's reasonable expectation of privacy.

              A. The   subjective   expectation     of     privacy       was   not

                undermined by:

                       1. The cell phone contract;25 or

    Subdiaz-Osorio, Justice Bradley's concurrence, ¶89; Justice
    Crooks' concurrence, ¶116: Determine that there was a
    search.

    Subdiaz-Osorio, Justice Roggensack's concurrence, ¶¶131-
    137:   Criticizes Justice  Prosser's  lead  opinion  for
    elaborating too fully on right to privacy in cell phone
    location data.

    Subdiaz-Osorio, Justice Ziegler's concurrence, ¶139-143:
    Joining Justice Roggensack's concurrence, and requesting
    additional briefing on whether a search existed.

    Tate, 2014 WI 89, ¶61 (Abrahamson, C.J., dissenting): Yes,
    access to cell phone location data is a search.     See also
    Subdiaz-Osorio, Chief Justice Abrahamson's dissent, ¶155.
    24
         For discussions of whether a trespass existed, see:

    Tate, 2014 WI 89, ¶¶18-20: Discusses trespass but refers to
    the search only as "nontrespassory."

    Subdiaz-Osorio,   Justice  Prosser's   lead                 op.,     ¶¶48-50:
    Trespass analysis would be "unnatural."

    Tate, 2014 WI 89, ¶¶101-102 (Abrahamson, C.J., dissenting):
    State does not disclose how information was obtained;
    appears to be a trespass.    See also Subdiaz-Osorio, Chief
    Justice Abrahamson's dissent, ¶168.
    25
       For discussions of whether the cell phone contract
created consent to access the cell phone location data, see:

    Tate, 2014 WI 89, ¶22:          Defendant      might       consent   through
    purchase of cell phone.

    Subdiaz-Osorio,   Justice  Prosser's   lead  op.,   ¶¶53-63:
    Consent through cell phone purchase contract was invalid.
                                     9
                                                      No.   2010AP3016-CR.ssa


                        2. The third-party doctrine.26

                B. Society   recognizes   a   reasonable    expectation   of

                   privacy in cell phone location data.27




       Subdiaz-Osorio,   Justice Roggensack's concurrence, ¶¶133-
       135: Questions    Justice Prosser's lead opinion regarding
       contract.

       Tate, 2014 WI 89, ¶¶116-121 (Abrahamson, C.J., dissenting):
       Adhesion   contract   will   not  be   enforced  to   waive
       constitutional rights.     See also Subdiaz-Osorio, Chief
       Justice Abrahamson's dissent, ¶168.
       26
            For discussions of the impact of third-party doctrine,
see:

       Tate, 2014 WI 89, ¶¶24-25: Third-party doctrine may need
       reevaluation.

       Subdiaz-Osorio, Justice Roggensack's concurrence, ¶134-135:
       Questions whether expectation of privacy exists in third-
       party records.

       Tate, 2014 WI 89, ¶122-135, (Abrahamson, C.J., dissenting):
       Third-party doctrine in inapplicable to cell phone location
       data.
       27
       For   discussions   of   whether          society     recognizes    a
reasonable expectation of privacy, see:

       Tate, 2014 WI 89, ¶¶2, 16-25: Expectation of privacy may be
       lower for cell phone location, especially in a public area;
       expectation of privacy was dependent on the cell phone's
       location in a home.

       Subdiaz-Osorio, Justice Prosser's lead op., ¶¶65-68: Public
       expects privacy in cell phone location data and worries
       about invasion of privacy.

       Subdiaz-Osorio, Justice Roggensack's concurrence, ¶¶134-
       135: Questions whether expectation of privacy exists in
       third-party records.

                                    10
                                                          No.    2010AP3016-CR.ssa


    Part     IV.    Wisconsin   Stat.    § 968.135,     the     statute   setting

    forth the requirements for a subpoena of documents, should

    have     been    followed——it   was      not   in   either     Tate   or   in

    Subdiaz-Osorio.28

    ¶165 In my dissent in Subdiaz-Osorio, I address two main

points:

    Part V. The State failed to meet its burden to demonstrate

    the existence of exigent circumstances;29 and



    Tate, 2014 WI 89, ¶136-149 (Abrahamson, C.J., dissenting):
    Case law, public policy, and Wisconsin legislation point to
    society recognizing reasonable expectation of privacy in
    cell phone location data.    See also Subdiaz-Osorio, Chief
    Justice Abrahamson's dissent, ¶168.
    28
          For discussions of the warrant requirement, see:

    Tate, 2014 WI 89, ¶¶33-50: Warrant did not comply with Wis.
    Stat. § 968.135, subpoena for third-party information.
    Non-statutory warrant met constitutional requirements.
    Non-statutory warrants met "spirit" of warrant statutes.

    Subdiaz-Osorio, Justice Prosser's lead op., ¶5 n.2: No
    warrant at issue, but warrants must meet Fourth Amendment
    and statutory requirements.

    Subdiaz-Osorio, Justice Bradley's concurrence, ¶89: A
    warrant was needed and the State's warrant failed to comply
    in either case.

    Subdiaz-Osorio,   Justice  Crooks'   concurrence,  ¶118:                    A
    warrant was needed but the good-faith exception applied.

    Tate, 2014 WI 89, ¶¶150-163 (Abrahamson, C.J., dissenting):
    State fails to comply with statutory warrant requirements.
    Warrant was invalid.       See also Subdiaz-Osorio, Chief
    Justice Abrahamson's dissent, ¶168.
    29
          For discussions of exigent circumstances, see:

    Tate: Exigent circumstances not at issue.

                                        11
                                                No.   2010AP3016-CR.ssa


    Part VI.    The defendant invoked his    Miranda     right to an

    attorney at his interrogation.30

    ¶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




    Subdiaz-Osorio,  Justice   Prosser's lead   op.,  ¶¶69-81:
    Exigent circumstances exception to warrant requirement was
    satisfied.

    Subdiaz-Osorio, Justice Bradley's concurrence, ¶89: there
    were no exigent circumstances.

    Subdiaz-Osorio, Justice Crooks'      concurrence,    ¶118:   there
    were no exigent circumstances.

    Subdiaz-Osorio, Justice Roggensack's concurrence, ¶130: Law
    enforcement acted reasonably under the Fourth Amendment due
    to exigent circumstances.

    Subdiaz-Osorio, Chief Justice Abrahamson's dissent, ¶169-
    208: State fails to meet its burden to show exigent
    circumstances.
    30
         For discussions of the Miranda right to an attorney, see:

    Tate: Miranda rights not at issue.

    Subdiaz-Osorio, Justice Prosser's lead  op.,  ¶¶82-87:
    Defendant failed to invoke unequivocally right to an
    attorney.

    Subdiaz-Osorio,   Justice    Bradley's   concurrence,         ¶89:
    Defendant successfully invoked Miranda right.

    Subdiaz-Osorio, Justice Crooks' concurrence, ¶109; Justice
    Roggensack's concurrence, ¶130: Defendant failed to invoke
    unequivocally right to an attorney.

    Subdiaz-Osorio, Chief Justice Abrahamson's dissent, ¶¶209-
    219: A reasonable person would understand Subdiaz-Osorio to
    have invoked his Miranda right.

                                 12
                                                          No.   2010AP3016-CR.ssa


them in full.     Parts V and VI address issues found only in my

Subdiaz-Osorio dissent.31

     ¶167 Accordingly, I dissent in both cases.

                                 I-IV

     ¶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

(Abrahamson, C.J., dissenting).

                                     V

     ¶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




     31
       The two cases raise numerous additional issues that I do
not address, including the applicability of federal statutes,
the good-faith exception, and the proper standard for reviewing
and remedying an illegal search of cell phone location data.

     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.

                                     13
                                                           No.    2010AP3016-CR.ssa


Amendment . . . ."32 of the United States Constitution and under

the Wisconsin Constitution.

       ¶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.33      One such exception is exigent circumstances.

       ¶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.34
Each    case    must   be   decided   on    its   facts,   not    on   a   court's

acceptance of overgeneralizations.35


       32
            Sanders, 311 Wis. 2d 257, ¶27.
       33
       Payano-Roman, 290 Wis. 2d 380, ¶30; State v. Kieffer, 217
Wis. 2d 531, 541, 577 N.W.2d 352 (1998).
       34
       3 Wayne R. LaFave, Search and Seizure, § 6.6(a), at 599
(5th ed. 2013) (citation and quotations omitted).
       35
       Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552, 1561
(2013) (citing Richards v. Wisconsin, 520 U.S. 385, 393 (1997)
(blanket rules cannot be used to justify a lack of a warrant)).

                                       14
                                                            No.    2010AP3016-CR.ssa


     ¶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 flight36——existed with sufficient urgency

to justify the privacy violation in the instant case.                       To get

around the State's paucity of evidence in the record to support

urgency, Justice Prosser's lead opinion engages in the type of

overgeneralizations condemned by Missouri v. McNeely, 569 U.S.

___, 133 S. Ct. 1552, 1561 (2013).

     ¶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 in most cases.           Justice Prosser's lead opinion's

holding allows the exigent circumstances exception to swallow

the warrant requirement in the present case.

     ¶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.37


     36
          Lead op., ¶76.
     37
       See Justice Bradley's concurrence, ¶89; Justice Crooks'
concurrence, ¶118.

                                       15
                                                                       No.    2010AP3016-CR.ssa


                                                 A

       ¶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.         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 (emphasis added).

                                                16
                                                                 No.   2010AP3016-CR.ssa


      ¶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




                                            17
                                                    No.    2010AP3016-CR.ssa


threat of destruction of evidence.38       Unlike other cases in our

jurisprudence, there were no signs of evidence being destroyed,39

or particular facts to support an officer's suspicion of the

destruction of evidence.40

      ¶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.



      38
       See McNeely, 133 S. Ct. at 1559 ("[I]n some circumstances
law enforcement officers may conduct a search without a warrant
to prevent the imminent destruction of evidence.") (emphasis
added); id. at 1569 (Roberts, C.J., concurring, joined by
Breyer, J. & Alito, J.) ("[The exigent circumstances exception]
applies when there is a compelling need to prevent the imminent
destruction of important evidence, and there is no time to
obtain a warrant.") (emphasis added).
      39
       See, e.g., State v. Hughes, 2000 WI 24, ¶26, 233
Wis. 2d 280, 607 N.W.2d 621; State v. Robinson, 2010 WI 80, ¶31,
327 Wis. 2d 302, 786 N.W.2d 463 (in which such signs appeared).
      40
       See State v. Meyer, 216 Wis. 2d 729, 751-53, 576
N.W.2d 260 (1998) ("[P]articular facts must be shown in each
case to support an officer's reasonable suspicion that exigent
circumstances exist.").

                                    18
                                                                No.   2010AP3016-CR.ssa


     ¶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."41

     ¶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.42       Justice Prosser's lead opinion speculates about where

the defendant went and how he could have moved after he began

driving.43       Justice Prosser wonders where the defendant could

have gone, listing in great detail the transportation options

available in Chicago, then noting that the defendant could have
gone elsewhere as well.44

     ¶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

     41
       Lead op.,         ¶79     (citing     Hughes,      233    Wis. 2d 280,       ¶24)
(emphasis added).
     42
          Id., ¶¶80-81
     43
          Id., ¶80.
     44
          Id.

                                           19
                                                                  No.    2010AP3016-CR.ssa


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.

                                             B

       ¶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 establish the exigent

circumstances        exception       to    the    warrant     requirement      only    when

"there is compelling need for official action and no time to

secure a warrant."45

       ¶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.46

       ¶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


       45
       McNeely, 133 S. Ct. at 1559 (citing Michigan v. Tyler,
436 U.S. 499, 509 (1978)); id. at 1570 (Roberts, C.J.,
concurring, joined by Breyer, J. & Alito, J.) (same).
       46
            Id. at 1561.

                                             20
                                                                        No.    2010AP3016-CR.ssa


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.47

      ¶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:

      In those drunk-driving investigations where police
      officers can reasonably obtain a warrant before a
      blood sample can be drawn without significantly
      undermining the efficacy of the search, the Fourth
      Amendment mandates that they do so.  See McDonald v.
      United States, 335 U.S. 451, 456, 69 S. Ct. 191, 93

      47
           Vale v. Louisiana, 399 U.S. 30, 35 (1970).

                                                 21
                                                               No.   2010AP3016-CR.ssa

      L.Ed. 153 (1948) ("We cannot . . . excuse the absence
      of a search warrant without a showing by those who
      seek exemption from the constitutional mandate that
      the exigencies of the situation made [the search]
      imperative").

             . . . .

      Consider, for example, a situation in which the
      warrant process will not significantly increase the
      delay before the blood test is conducted because an
      officer can take steps to secure a warrant while the
      suspect is being transported to a medical facility by
      another officer. In such a circumstance, there would
      be no plausible justification for an exception to the
      warrant requirement.
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

        • at       what     time    the     police        decided    to     seek     the

            defendant's cell phone location data;

        • the      estimated       amount      of   time    needed    to    obtain    a

            warrant for the data and the duration of any delay; or
        • the timeline for obtaining the data absent a warrant,

            i.e.,    at     what   time     the     law    enforcement      officer's

            request       was   made   to   the      Department      of    Justice   to

            obtain the cell phone location data; at what time the

            Department made the request of the cell phone service

            provider; at what time the cell phone service provider
            received the Department's request; at what time the


                                          22
                                                                 No.   2010AP3016-CR.ssa


             cell phone service provider processed the request; and

             at   what    time      the       information   was        transmitted    to

             Arkansas law enforcement.

      ¶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:

      [PROSECUTOR]: Prior to contacting the state of
      Wisconsin agents for assistance, had you received any
      hits or any feedback or any communication back from
      CIB or NCIC?

      [OFFICER]: No.

      [PROESCUTOR]: And you indicate that at a point in time
      then that you contacted state agents to assist in your
      investigation to locate the defendant?

      [OFFICER]: Yes.

      [PROESCUTOR]: Do you recall what time that occurred?

      [OFFICER]: I don't know the specific time.      It was
      probably sometime after 12:00 in the afternoon.
                                 23
                                                         No.    2010AP3016-CR.ssa


On cross-examination, defense counsel was not able to get the

officer to pinpoint the approximate time frame for the various

events:

    [DEFENSE COUNSEL]: And it was after you had received
    information from [four witnesses] that you put in the
    information for the Temporary Felony Worksheet, the
    document submitted to CIB/NCIC?

    [OFFICER]: I had not spoken with [one witness] before
    that was entered.     I don't know exactly when the
    temporary want was entered because, like I said, I
    didn't do that.    But it was after we had gathered
    enough information to establish probable cause for
    [the defendant].
    ¶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    and    speed    of     the    existing

system to approve warrants.       When the police in the instant case

sought to obtain a search warrant for the defendant's residence,

it took a mere ten to fifteen minutes after the affidavit was

completed for a judge to arrive.          Within half an hour of the
judge's arrival, the search warrant was approved.                From the time

the police began working on the affidavit for a search warrant
                                    24
                                                               No.   2010AP3016-CR.ssa


for the defendant's residence until the warrant was approved, a

maximum of an hour and a half had elapsed.

     ¶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.

                                           VI
     ¶209 I    turn     at    last    to    the    issue     of    the    defendant's

invocation of his right to counsel.                 The key holding of Miranda

v. Arizona48 was straightforward: "If [an] individual states that

he [or she] wants an attorney, the interrogation must cease

until an attorney is present."49




     48
          Miranda v. Arizona, 384 U.S. 436 (1966).
     49
          Miranda, 834 U.S. at 474.

                                           25
                                                           No.   2010AP3016-CR.ssa


       ¶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 (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.50      In    applying     the

"unequivocal      invocation"       test,    courts      have     "rejected     as

ambiguous an array of statements whose meaning might otherwise

be thought plain."51

       50
       Compare United States v. Martin, 664 F.3d 684 (7th Cir.
2011) (invocation was unequivocal when defendant said "I'd
rather talk to an attorney first before I do that") with
Delashmit v. State, 991 So. 2d 1215 (Miss. 2008) (invocation was
equivocal when defendant said "I prefer a lawyer").      Compare
also Wood v. Ercole, 644 F.3d 83 (2d Cir. 2011) (invocation was
unequivocal when defendant said "I think I should get a lawyer")
with Commonwealth v. Morganti, 917 N.E.2d 191 (Mass. 2009)
(invocation was equivocal when defendant said he was "thinking I
might need a lawyer and want to talk to him before talking to
you").
       51
       Berghuis v. Thompkins, 560 U.S. 370, 410-11 & n.9
(Sotomayor, J., dissenting). Justice Sotomayor cites a variety
of cases in the context of invocations of the Miranda right to
remain   silent  in   which  courts  have  applied   the  test
subjectively.

     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:

       [T]he evidence suggests gross inconsistencies in the
       approaches of the courts. Some courts deem seemingly
       clear demands as ambiguous.      Yet in other cases,
       virtually identical language is treated differently in
       ways inexplicable by the context.    It is drastically
       unfair that a suspect in one jurisdiction who says, "I
                                 26
                                                             No.       2010AP3016-CR.ssa


      ¶212 Davis     requires       a    court    to      make     an     objectively

reasonable analysis of the circumstances to determine whether an

individual's request for a lawyer is unequivocal.                       The defendant

need evince only "a certain and present desire to consult with

counsel" to invoke the right.              United States v. Hunter, 708 F.3d

938, 942 (7th Cir. 2013).               Courts are required "to evaluate a

defendant's request as ordinary people would understand it, and

to   give   a   broad,    rather    than    a   narrow,    interpretation           to   a

defendant's     request    for     counsel."       Hunter,       708    F.3d   at    942

(internal quotation marks and citations omitted).52



      think I would like to talk to my attorney," can be
      ignored,   while  a   similar   statement  in  another
      jurisdiction is treated as invoking Edwards. It makes
      no logical sense whatsoever that the police may
      continue questioning a suspect who says, "Can I call
      my lawyer?" in one station house, while in another one
      the comment, "Can I have my lawyer present when [I
      tell you my story]?" is deemed an invocation of rights
      requiring   the   cessation   of   questions.     Such
      contradictory results are not only unfair, they are
      pernicious.

Marcy Strauss, Understanding Davis v. United States, 40 Loy.
L.A. L. Rev. 1011, 1061-62 (2007) (footnotes and citations
omitted).
      52
       "Although   a    suspect   need   not   speak with  the
discrimination of an Oxford don, he 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." Davis, 512 U.S. at
459 (citations & internal quotation marks 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.

                                           27
                                                                       No.    2010AP3016-CR.ssa


    ¶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

                                           28
                                                               No.   2010AP3016-CR.ssa


now"    (emphasis      added).53       The    officer      made    clear      that    the

extradition hearing was no longer the subject of conversation.

       ¶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 don54 and to use an

"exact      formula"    or    "magic   words"55       to   invoke    the      right    to

counsel.      That's not the law.

                                       * * * *



       53
       The relevant portion of the interrogation was transcribed
by the circuit court as follows:

       [POLICE OFFICER]: 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 . . . .

       [DEFENDANT]:   How can I do to get an attorney here
       because I don't have enough to afford for one.
       54
            Davis, 512 U.S. at 459.
       55
       United States v. Lee, 413 F.3d 622, 625 (7th Cir. 2005)
("[T]here is no exact formula or magic words for an accused to
invoke his [or her] right.").

                                         29
                                                          No.   2010AP3016-CR.ssa


    ¶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   (Abrahamson,       C.J.,

dissenting), I dissent.




                                     30
    No.   2010AP3016-CR.ssa




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