SCOW unable to agree on whether cell phone tracking is a search

State v. Bobby L. Tate, 2014 WI 89, 7/24/14, affirming an unpublished court of appeals decision; majority opinion by Justice Roggensack; case activity

State v. Nicolas Subdiaz-Osorio, 2014 WI 87, 7/24/14, affirming an unpublished per curiam court of appeals decision; lead opinion by Justice Prosser; case activity

In two decisions consisting of 8 separate opinions spread out across almost 200 pages, the supreme court is unable to muster a majority on the central issue presented: Whether cell phone location tracking is a search under the Fourth Amendment. Instead, in both cases a majority assumes without deciding that cell phone tracking is a search and then affirms the convictions, although on different grounds. If you’re looking only for the holdings, here they are: In Tate, a majority holds that the circuit court’s “order” that a cell phone service provide information about the cell phone location was reasonable because it met the requirements for a search warrant. In Subdiaz-Osorio, a majority holds that the warrantless acquisition of the cell phone location data was supported by probable cause and exigent circumstances. If you’re looking for more information, read on.

Because the decisions are lengthy, we start with a short summary of each case’s facts and then provide a breakdown of the opinions in case.

Tate

The police obtained tracking information on a cell phone of a man who, shortly after purchasing the phone, was seen fatally shooting another man. (¶¶3-5). They obtained the information after preparing an affidavit about their investigation and, based on that affidavit, getting a court order authorizing (a) the installation and use of a trap and trace device and a pen register device and (b) the release of information from the cell phone subscriber information. (¶6). The police used cell site information from the phone company and from a “stingray” mobile device that mimics a cell tower, police determined the phone was in an apartment building and found Tate, the cell phone, and other evidence in one of the apartments. (¶¶7-11).

1. Justice Roggensack’s majority opinion assumes without deciding that the cell phone tracking constituted a search, as the state conceded the point. (¶¶20, 26). But it concludes the search to obtain the data was reasonable because the court order met the requirements for a warrant (¶¶33-41) and, relying on State v. Sveum, 2010 WI 92, ¶¶69-72, 328 Wis. 2d 369, 787 N.w.2d 317, there was no need for specific statutory authorization for the order—though in any event the order did comply with the “spirit” of §§ 968.12 and 968.135 (¶¶42-50).
2. Chief Justice Abrahamson and Justice Bradley dissent. They believe the court should explicitly address whether obtaining cell phone location data is a search (¶¶52-60); argue that it’s a search because people have a subjective expectation of privacy in cell phone location data that society is prepared to recognize as reasonable, relying especially on State v. Brereton, 2013 WI 17, 345 Wis. 2d 563, 826 N.W.2d 369, and because obtaining the data appears to involve a trespass, United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012) (¶¶74-149); and conclude the court order can’t validate the collection of the cell phone data because it didn’t comply with §§ 968.12 and 968.135 (¶¶150-63).

Subdiaz-Osorio

The defendant stabbed and killed his brother during a fight. (¶¶12-18). After the officers investigating the incident learned Subdiaz-Osorio had left town in a borrowed car, they contacted Wisconsin DOJ, who filed a form with Subdiaz-Osorio’s cell phone service provider to locate his cell phone. (¶¶20, 22-23). The company obliged, and told the police they found the phone in Arkansas, where Subdiaz-Osorio was soon apprehended in the car he’d borrowed. (¶25).

1. Justice Prosser’s lead opinion assumes without deciding that people have a reasonable expectation of privacy in their cell phone location data, so when police track a phone they are conducting a search. (¶9). While police did not have a court order when they tracked Subdiaz-Osorio’s cell phone location, police did have probable cause for a warrant and the exigent circumstances of this case created an exception to the warrant requirement. (¶¶10, 69-81). Thus, the circuit court correctly declined to suppress the cell phone data, and the conviction is affirmed.
2. Justice Bradley concurs only in the mandate. (¶90). While she joins the dissent in concluding there was a search that was not justified by exigent circumstances, she concludes any failure to suppress the cell phone evidence was harmless. (¶¶90-105).
3. Justice Crooks concurs only in the mandate. (¶109). He concludes a warrant is required for cell phone tracking (¶¶112-16), but applies a good-faith exception to the exclusionary rule because there would be no deterrent purpose in excluding the evidence here because the police acted in good faith, given the officers’ significant investigation, their reliance on DOJ, and the lack of clearly established law on the status of cell phone tracking. (¶¶126-28).
4. Justice Roggensack, joined by Justice Ziegler, concurs in the mandate, but writes separately because the lead opinion goes too far in discussing whether a search occurred and therefore seems to decide points of law unrelated to its conclusion. (¶¶130-32).
5. Justice Ziegler, joined by Justices Roggensack and Gableman, also concurs in the mandate, but notes the parties and the court have not considered the impact of Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014), which may or may not prove relevant in analyzing cell phone tracking. (¶¶139-43).
6. Chief Justice Abrahamson dissents, incorporating her reasoning from her dissent in Tate about why cell phone tracking is a search (¶¶164-68) and disputing the conclusion that there were exigent circumstances justifying a warrantless search (¶¶169-208).

Subdiaz-Osorio also claimed his confession should have been suppressed because he invoked the right to counsel, but the lead opinion concludes, without any quibble from the concurrences, that he didn’t unequivocally ask for a lawyer. (¶¶28, 82-87). The dissent rejects that conclusion (¶¶209-19), and Justice Bradley agrees, but finds any error in admitting his confession to be harmless (¶¶89, 104-05). (UPDATE: 1/9/2020: Subdiaz-Osorio pursued federal habeas relief on this issue; with one judge dissenting, the Seventh Circuit rejected his petition—not surprisingly, given the daunting challenge of challenging state court decisions under AEDPA. The decision is here.)

The upshot: Because there’s a majority in both cases that assumes the primary legal issue and agrees on a mandate on other grounds, whether there is a reasonable expectation of privacy in the cell phone location data is still an open question. Three justices (the Chief Justice and Justices Crooks and Bradley) believe cell phone tracking constitutes a search. One more (Justice Prosser) seems sympathetic to this view based on his discussion of the reasonable-expectation-of-privacy test in Subdiaz-Osorio (¶¶51-68). Convince him, and there’s a majority.

On the other hand, at least two justices (Justices Roggensack and Ziegler) seem inclined to look for ways to allow police access to tracking information, at least if one reads anything into the criticisms of Justice Prosser’s discussion of consent based on the cell phone service contract (cf. ¶¶53-63 (Prosser) with ¶¶133-35 (Roggensack)) and the third-party doctrine (cf. ¶¶65-68 (Prosser) with ¶¶134-35 (Roggensack)). If you’re looking for ammunition in making an argument that there is a reasonable expectation of privacy in the cell phone location data and want to anticipate the counterarguments, the dissent in Tate (which also addresses the consent and third-party issues (¶¶116-35)) and Justice Prosser’s main opinion in Subdiaz-Osorio are good places to start.

Note that while Justice Prosser seemingly rejects the application of the trespass approach to finding a search in this situation (¶¶48-50), that may in part be due to the lack of information in the record about how the location information was gathered. (Tate, ¶¶97, 106 (Abrahamson, dissenting)). Developing those details may strengthen the trespass argument (id., ¶¶93-106)—though if the police used a “stingray,” you may not be able to find out how it works because the police don’t want that information divulged (id., ¶101).

Finally, a majority in Tate agreed the search was valid because of the order that complied, at least in “spirit,” with §§ 968.12 and 968.135. To the extent an order in a particular both departs from those statutes and is distinguishable from the order in Tate, there is an argument that the search was no good. Soon, though, we will start seeing orders issued under a new statute, § 968.373 (effective April 25, 2014), which the Tate dissent (¶¶146-48) cites as evidence there’s an expectation of privacy in tracking data. That means the next issues to litigate will include what it takes to comply with that statute, and the consequences for non-compliance.