November 7, 2019
from the United States District Court for the Eastern
District of Wisconsin. No. 14-cv-1227 - Pamela Pepper, Chief
Hamilton, Scudder, and St. Eve, Circuit Judges.
Eve, Circuit Judge.
Subdiaz-Osorio stabbed his brother to death during a drunken
fight. He attempted to flee the country but was stopped in
Arkansas while driving to Mexico. Officers interrogated
Subdiaz-Osorio in Arkansas and during the interview, after
discussing the extradition process, Subdiaz-Osorio asked in
Spanish, "How can I do to get an attorney here because I
don't have enough to afford for one?" The state
courts were tasked with deciphering what "here"
state argued that the question referred to the extradition
hearing "here" in Arkansas; Subdiaz-Osorio argued
this was an unequivocal invocation of his right to the
presence of counsel "here" in the interrogation
room. The state trial court found, and the Wisconsin Supreme
Court affirmed, that Subdiaz-Osorio did not unequivocally
invoke his Fifth Amendment right to counsel.
only issue in this habeas corpus appeal is whether that
finding was contrary to or based on an unreasonable
application of established Supreme Court precedent.
See 28 U.S.C. § 2254(d). Our review is
deferential and because the Wisconsin Supreme Court's
finding was reasonable, we affirm the district court's
denial of Subdiaz-Osorio's petition for writ of habeas
relevant facts in this case are largely
undisputed. The details of the underlying murder and
Subdiaz-Osorio's attempted flight do not bear on the
issue before us, but we first recount those facts necessary
to provide context. We then review the interrogation and the
state court proceedings, which are the focus of this appeal.
Subdiaz-Osorio lived with his brother, Marcos Antonio
Ojeda-Rodriguez, in a trailer in Kenosha, Wisconsin. The
brothers also worked for the same employer and a few weeks
before the incident, their employer laid off Ojeda-Rodriguez
but retained Subdiaz-Osorio. This caused tension and
arguments between the brothers.
tension came to a head on the night of February 7, 2009, and
carried over into the early morning hours of February 8. Late
in the evening on February 7, Subdiaz-Osorio was in his
bedroom with a friend and co-worker, Lanita Minrz. At some
point, Ojeda-Rodriguez, who was either home or came home,
tried to force his way into Subdiaz-Osorio's room.
Subdiaz-Osorio tried to keep his brother out, but
Ojeda-Rodriguez-a former boxer-was heavier and stronger than
Subdiaz-Osorio and was able to overpower Subdiaz-Osorio and
force his way into the bedroom.
Ojeda-Rodriguez entered, he and Subdiaz-Osorio began arguing
in Spanish. Minrz speaks little Spanish and could not
understand what the brothers were saying, but she could tell
both had been drinking. Things escalated quickly. The verbal
argument lasted less than two minutes and ended with
Ojeda-Rodriguez punching Subdiaz-Osorio in the face. The
punch knocked Subdiaz-Osorio back into his dresser and to the
ground. Subdiaz-Osorio got up and retrieved two knives from
his closet. Ojeda-Rodriguez said something aggressive
in Spanish to his brother, who was now armed with a knife in
each hand, and pounded his chest. So Subdiaz-Osorio stabbed
him in the chest. Ojeda-Rodriguez was un-fazed, perhaps
fueled by a combination of alcohol and adrenaline, and
continued to pound his chest. Subdiaz-Osorio then stabbed his
brother in the face, just under the left eye. The knife blade
pierced Ojeda-Rodriguez's left eye socket and entered the
right hemisphere of his brain. Ojeda-Rodriguez fell back into
the wall and Subdiaz-Osorio began kicking and punching him in
the face. Subdiaz-Osorio eventually stopped beating his
brother and left the room.
brothers' roommates came home shortly thereafter, saw
Ojeda-Rodriguez, and helped carry him to his own bed. Minrz
then left, but she remembered that Ojeda-Rodriguez was moving
and speaking when she departed. Apparently no one thought
Ojeda-Rodriguez's injuries were life-threatening. One
roommate, though, did suggest calling the police.
Subdiaz-Osorio refused because, as a shock to no one, he did
not want to be arrested. Instead, Subdiaz-Osorio called his
girlfriend-who was not Minrz-to come over and help take care
of Ojeda-Rodriguez. She did and then they both left and went
to her home. Despite the girlfriend's best efforts, the
roommates found Ojeda-Rodriguez dead the next morning. At
9:27 a.m. on February 8, 2009, the roommates reported the
stabbing to the Kenosha Safety Building.
officers and medical personnel arrived and found
Ojeda-Rodriguez's body beaten and battered and with
several stab wounds. They confirmed he was dead. The medical
examiner determined that the fatal stab occurred when
Sub-diaz-Osorio stabbed Ojeda-Rodriguez under his left eye,
causing the blade to penetrate Ojeda-Rodriguez's brain
three to four inches.
The search for Subdiaz-Osorio
quickly began their investigation and several
Spanish-speaking officers interviewed the roommates and
Subdiaz-Osorio's girlfriend. The girlfriend told officers
that she let Subdiaz-Osorio borrow her car and gave them the
license plate number along with Subdiaz-Osorio's cell
phone number. The officers also learned that Subdiaz-Osorio
was in the country illegally and had family in Mexico. They
surmised that Subdiaz-Osorio had fled and was driving to
Mexico. The Kenosha police put a "temporary want"
on Subdiaz-Osorio into the Crime Information Bureau, a state
system, and National Crime Information Center, a national
system, that together notified all law enforcement agencies
in the country about the temporary want for Subdiaz-Osorio.
because the notification system for the temporary want was
old technology, the Kenosha police also wanted to track
Subdiaz-Osorio's cell phone location and contacted the
Wisconsin Department of Justice (WDOJ). That same afternoon,
February 8, the WDOJ filled out and submitted a
"Mandatory Information for Exigent Circumstances
Requests" form to Sprint, Subdiaz-Osorio's cell
phone provider. Later in the afternoon the WDOJ received
tracking information for Subdiaz-Osorio from Sprint. They did
not have a warrant.
was tracked to Arkansas, driving south on 1-55. The Kenosha
police alerted Arkansas police, and around 6:11 p.m., still
February 8, an Arkansas patrol officer pulled Subdiaz-Osorio
over and took him into custody. The Arkansas police did not
interrogate Subdiaz-Osorio that evening.
next morning, on February 9, Detective David May and
Detective Gerald Kaiser, the lead detectives, and Officer
Pablo Torres, who is fluent in Spanish, travelled to
Arkansas. Later that same day, Detective May and Officer
Torres interviewed Subdiaz-Osorio in the Mississippi County
Jail in Lux-ora, Arkansas.
told the officers that he preferred they conduct the
interview in Spanish, so Officer Torres conducted the
interview in Spanish. There is no indication, and
Subdiaz-Osorio does not argue, that either Subdiaz-Osorio or
Officer Torres had any trouble understanding each other.
officers videotaped the interview, portions of which were
later played at the suppression hearing. During that hearing,
a court interpreter contemporaneously translated the
videotaped interview from Spanish to English. The video began
with Officer Torres administering the Miranda
warning to Subdiaz-Osorio. After Subdiaz-Osorio acknowledged
that he understood his rights, Officer Torres asked, "I
would like to ask you a few questions what you recall what
happened yesterday. Okay. Would you like to answer the
question that I will ask you. Sir?" (All grammatical
errors throughout appear in the original translation.)
Subdiaz-Osorio responded, "Depending on what type of -
Depending on the question, right?" Officer Torres then
asked Subdiaz-Osorio to sign a written Miranda
waiver form titled "Waiver of Constitutional
Rights/' which was also written in Spanish.
was then an inaudible statement by Detective May, followed by
this critical dialogue:
Subdiaz-Osorio: Are you going to I understand move me to
Officer Torres: 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.
Subdiaz-Osorio: How can I do to get an attorney here
because I don't have enough to afford for one.
Officer Torres: 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.
emphasized the key statement by Subdiaz-Osorio. For
clarification, counsel then requested the tape be rewound so
that the interpreter could repeat what Subdiaz-Osorio said
regarding an attorney. Unfortunately, the
"clarification" is not particularly helpful here
because the interpreter somewhat stumbles over it, at least
as it now appears in the written hearing transcript. The
interpreter translated Subdiaz-Osorio's statement twice
more when the tape was rewound as follows:
"To get an attorney here because I don't have enough
to pay for one."
"And to get an attorney and to get an attorney of- from
here because I don't have enough to pay, or I don't
have to pay."
original translation by the court interpreter, appearing in
the full dialogue above, is the version that all parties, and
the courts, used. Thus, we will too.
interview continued after that for about an hour. The
Wisconsin Supreme Court found that Subdiaz-Osorio was
"very cooperative throughout the interview."
Subdiaz-Osorio, 2014 WI87, ¶ 28.
Trial court proceedings
filed two pretrial motions to suppress all statements and
evidence that the police obtained after his arrest. He
primarily raised two grounds. First, he argued that the
warrantless search of his cell phone's location data
violated his Fourth Amendment rights. Second, Subdiaz-Osorio
argued that Officer Torres failed to properly inform him of
his Miranda rights. The trial court denied both
Fourth Amendment issue, the court found 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." Subdiaz-Osorio,2014 WI 87, ¶ 33. "Alternatively, the court
determined that there were exigent circumstances because ...