Appeals Court Says Cellphone Bing Without Court Permission Allowed to Find Murder Suspect | Courts

The state’s second highest court decided for the first time that police acted lawfully by obtaining the real-time cell phone location of a murder suspect from his wireless carrier.

Courts across the country have come to differing conclusions about whether cell location information — or “ping” — amounts to a search under the Fourth Amendment’s general prohibition on wrongful searches and seizures. A three-judge panel in the state court of appeals did not explicitly answer this question, assuming instead that if Miguel Angel’s phone call to Likuna Ortega was a search, “urgent circumstances” of public safety justified the police actions.

“We do not believe that the police always have a reasonable objective belief that there is an immediate danger to public safety any time a violent crime is committed, or that exigent circumstances will always excuse not obtaining an injunction in those circumstances,” Judge Michael H. Berger wrote in an opinion3. March. However, in the Licona-Ortega case, the public safety concern justified the search without warrant, the judge said.

Matthew Scott Martin, a criminal defense and personal injury attorney in Pueblo, believes the commission’s conclusion is reasonable given the authority that state law gives police to track the locations of wireless devices.

“TThe court applied a well-established law on excluding emergency circumstances from the order clause and found that the exception applied under the circumstances of the case.

Licona-Ortega was indicted in 2018 by a Arapahoe County jury for the murder of Javier Chacon-Ortega, 23, at the Tierra Maya Sports Bar and Grill in Aurora. Licona-Ortega was eating with his girlfriend and her child on July 29, 2017 when Chacon-Ortega approached him several times to argue. Although Licona-Ortega offered Chacon-Ortega his rifle, Chacon-Ortega offered to “get out” and “fight like men.”

The two men walked toward the front exit, where Licona-Oretga shot Chacon-Ortega in the back of the head, then four more times.

Lt. Stephen Redfern, an officer involved in the investigation, called it “one of the most brazen executions” he had seen. Likona Ortega claimed that he feared for his life that Chacon Ortega would beat him. Licona-Ortega is serving a life sentence without the possibility of parole.

The defense appealed the police’s actions to ascertain his whereabouts after leaving the restaurant. Police had previously made contact with Licona-Ortega at a home in Alaska Place, and their surveillance of the home after the shooting showed there were at least 10 people present.

Redfearn, citing a danger to the public and believing that Licona-Ortega was still armed, requested that police send a T-Mobile contact to ping the Licona-Ortega phone and check if it is on Alaska Place. T-Mobile declined for reasons not mentioned in the court documents.

Instead, officers determined Licona-Ortega was not at home, but checked his phone number with someone at home. Redfearn again sent a ping request, and this time T-Mobile complied. Police used the cell’s location information to find Licona-Ortega in Building 1300 on Kenton Street, where they arrested him without incident.

The defense asked District Judge Andrew Bohm to conceal evidence obtained after the contact test, including the interrogation, confession, phone numbers, passcodes for Licona-Ortega and the location of the gun. Under a Colorado law, law enforcement can obtain the location information of a wireless device if there is a risk of death or serious injury to someone with the person the police are trying to locate. Baum, arguing that the police did not know who the Licona-Ortega was with, refused to have ping justified under this law.

However, under different Colorado law, police may also obtain location information without a warrant based on “Emergency conditions. Those circumstances have been defined by the Colorado Supreme Court as including ‘hot pursuit’ of a suspect, imminent destruction of evidence, and emergencies that threaten the life or safety of others.

Baum determined that the police were reasonably afraid for the lives and safety of others given the shooting in broad daylight, the belief that Licona-Ortega kept his rifle with him and a lack of knowledge of who the Licona-Ortega might be with.

On appeal, Licona-Ortega argued that the prosecution failed to provide evidence that seeking a warrant would have caused delays and endangered others. His attorneys at the Office of the Solicitor General also claimed that Bohm’s reasoning would allow police to make a connection between cell phones in all circumstances in which the shooter leaves with the gun, “the most common of all shoot-outs.”

The government responded that the public had an interest in the police being able to respond quickly to rapidly evolving situations, and that the seriousness of the Licona-Ortega crime was assessed in favor of swift action.

Neither the defense nor the prosecution argued that the ping in question constituted Fourth Amendment search, although the use of positioning information has been a disputed topic in other cases. In April of last year, the Chicago-based Federal Court of Appeals found that under the specific circumstances of the case, a police search for making a phone call to an armed robbery suspect over several hours while he was traveling on public roads was not possible.

Several months later, a different federal judge in Pennsylvania determined that it was indeed a search when police used cell location information to track an aggravated assault suspect home. However, the judge considered the illegal ping order reasonable due to the “urgent circumstances” of the suspect being armed and dangerous to others.

The appellate panel applied the same reasoning to the Licona-Ortega case and adopted the trial judge’s view of the facts. Police believed that Licona-Ortega was a danger to the public while he was at large, and that their use of “limited” tracking technology only served to locate and arrest him, Berger explained. He emphasized that the court’s reasoning on the constitutionality of the order applies only to “the specific facts presented in this case.”

The Appeals Committee also disputed that Licona-Ortega should receive a new trial because the attorney general in his case expelled a Hispanic juror, for allegedly violating the ban on race discrimination in jury selection.

The woman, known as “Juror 83,” was reportedly the only Hispanic person on the jury until the prosecutor removed her using a peremptory strike, which does not require a reason for dismissal. The defense raised a response to the “Batson Challenge”, named after the US Supreme Court’s decision in Batson vs Kentucky that outlawed intentional racial discrimination.

In response to Bateson’s challenge, the attorney general referred to a statement made by juror 83 during jury selection that “it is important to give people the benefit of the doubt in any situation, just because we don’t know what was going through the mind, we don’t know what was going on in the mind of the other person.”

Providing a non-racist justification for the dismissal of juror 83, the attorney general stated, somewhat inaccurately, that juror 83 said “you can’t tell what’s on people’s minds.” The attorney general expressed concern that juror 83 would hold the government to a higher level to prove Likuna Ortega’s guilt, which in the case of first-degree murder would require that he act “after deliberation and with intent” to cause death.

The defense pointed out that the prosecutor erred in saying juror 83, and that juror 83 also agreed to burden the prosecution with the burden of proof. Bohm agreed with the government and dismissed the 83rd juror.

On appeal, Licona-Ortega claimed that juror 83’s statements were identical to those made by the non-Hispanic jurors who ended up serving. On the other hand, the Colorado District Attorney’s Office found it insignificant that the prosecutor misrepresented what juror 83 had said, stating that the purpose of Bateson’s challenges was “to expose and prevent racial discrimination in jury selection, not to test the prosecutor’s memory.”

The appellate panel held that some of the comments from non-Hispanic people who eventually served on the jury were similar to Juror 83. The judges also agreed that Baum echoed the attorney general’s wrong language of what juror 83 said in choosing to impeach her.

In the end, the committee believed that Baum was in the best position to dismiss Batson’s challenge and deferred to his handling of the matter.

the case People against Licona-Ortega.