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Subdiaz-Osorio v. Humphreys

United States Court of Appeals, Seventh Circuit

January 9, 2020

Nicolas Subdiaz-Osorio, Petitioner-Appellant,
v.
Robert Humphreys, Respondent-Appellee.

          Argued November 7, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-cv-1227 - Pamela Pepper, Chief Judge.

          Before Hamilton, Scudder, and St. Eve, Circuit Judges.

          St. Eve, Circuit Judge.

         Nicolas 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" meant.

         The 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.

         The 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 corpus.

         I. Background

         The relevant facts in this case are largely undisputed.[1] 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.

         A. The stabbing

         Nicolas 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.

         The 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.

         When 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.[2] 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.

         The 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.

         Police 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.

         B. The search for Subdiaz-Osorio

         Detectives 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.

         But 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.

         Subdiaz-Osorio 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.

         C. The interrogation

         The 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.

         Subdiaz-Osorio 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.

         The 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.[3] 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.

         There was then an inaudible statement by Detective May, followed by this critical dialogue:

Subdiaz-Osorio: Are you going to I understand move me to Kenosha.
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.

         We 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."

         The 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.

         The 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.

         D. Trial court proceedings

         Subdiaz-Osorio 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 motions.

         On the 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, ΒΆ 33. "Alternatively, the court determined that there were exigent circumstances because ...


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