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

Courts around the country have reached different conclusions about whether cell site location information – or a “ping” – amounts to a search under the Fourth Amendment’s general prohibition on warrantless searches and seizures. A three-judge panel for the state’s Court of Appeals did not explicitly answer that question, assuming instead that, if the ping of Miguel Angel Licona-Ortega’s cell phone was a search, “exigent circumstances” relating to public safety justified the police’s actions.

“We do not hold that the police always will have an objectively reasonable belief that there is an immediate risk to public safety anytime a violent crime is committed, or that exigent circumstances will always excuse the failure to obtain a warrant in these circumstances,” wrote Judge Michael H. Berger in the March 3 opinion. However, in Licona-Ortega’s case, the public safety concern justified the warrantless search, the judge said.

Matthew Scott Martin, a criminal defense and personal injury attorney in Pueblo, believes the panel’s conclusion is reasonable in light of the authority state law gives to police for tracking wireless device locations.

“The court applied well-settled law concerning the exigent circumstances exception to the warrant requirement and found that the exception applied under the circumstances of the case,” he said.

An Arapahoe County jury convicted Licona-Ortega in 2018 for the murder of Javier Chacon-Ortega, 23, at 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 multiple times to argue. Although Licona-Ortega showed Chacon-Ortega his gun, Chacon-Ortega offered to “go outside” and “fight like men.”

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

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

The defense challenged the actions of police to ascertain his location after he left the restaurant. Police had previously made contact with Licona-Ortega at a residence on Alaska Place, and their surveillance of the home after the shooting indicated at least 10 people present.

Redfearn, citing a risk to the public and the belief that Licona-Ortega was still armed, requested that police dispatch contact T-Mobile to ping Licona-Ortega’s phone and verify whether he was on Alaska Place. T-Mobile declined for reasons not given in court documents.

Officers instead determined that Licona-Ortega was not present at the home, but verified his phone number with someone in the house. Redfearn again had dispatch request a ping, and this time T-Mobile complied. Police used the cell site location information to find Licona-Ortega in the 1300 block of Kenton Street, where they arrested him without incident.

The defense asked District Court Judge Andrew Baum to suppress evidence obtained after the ping, including an interrogation, confession, Licona-Ortega’s phone numbers and passcodes, and the location of the gun. Under one Colorado law, law enforcement can obtain location information for a wireless device if there is risk of death or serious injury to someone who is with the person police are trying to locate. Baum, reasoning that police did not know who Licona-Ortega was with, declined to find the ping justified under that law.

However, under a different Colorado law, police may also obtain location information without a warrant based on “exigent circumstances.” The Colorado Supreme Court has defined those circumstances as including the “hot pursuit” of a suspect, the imminent destruction of evidence, and emergencies that threaten the life or safety of others.

Baum decided the police had reasonably feared for the life and safety of others given the broad-daylight shooting, the belief that Licona-Ortega kept his gun with him and the lack of knowledge about who Licona-Ortega could be with.

On appeal, Licona-Ortega argued the prosecution failed to present evidence that seeking a warrant would have caused a delay and put others in danger. His lawyers with the public defender’s office also claimed that Baum’s logic would allow police to ping cell phones in all circumstances where a shooter leaves with the gun, “which is most shootings.”

The government countered that the public has an interest in police being able to quickly respond to rapidly-developing situations, and the seriousness of Licona-Ortega’s crime weighed in favor of fast action.

Neither the defense nor the prosecution disputed that the ping at issue constituted a search under the Fourth Amendment, although the use of locational information has been a contested issue in other cases. In April of last year, the federal appeals court based in Chicago found that under the specific circumstances of the case, it was not a search for police to ping the phone of an armed robbery suspect over several hours when he was traveling on public roadways.

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

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

The appellate panel also disagreed that Licona-Ortega should receive a new trial because the prosecutor on his case had dismissed a Hispanic juror, allegedly in violation of the prohibition on race-based discrimination in jury selection.

The woman, identified 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 in response raised a “Batson challenge,” named after the U.S. Supreme Court decision in Batson v. Kentucky that outlawed intentional racial discrimination. 

In response to the Batson challenge, the prosecutor pointed to a statement Juror 83 had made during jury selection that it was “important to give people the benefit of the doubt in any situation, just because we don’t know what was going on through his mind, we don’t know what was going through the other person’s mind.”

The prosecutor, in providing a non-racial justification for dismissing Juror 83, stated, somewhat inaccurately, that Juror 83 had said “you can’t know what is going through people’s minds.” The prosecutor worried that Juror 83 would hold the government to a higher standard of proving Licona-Ortega’s guilt, which for first-degree murder required that he acted “after deliberation and with the intent” to cause death.

The defense pointed out that the prosecutor had misstated what Juror 83 said, and that Juror 83 had also agreed to hold the prosecution to its burden of proof. Baum agreed with the government and dismissed Juror 83.

On appeal, Licona-Ortega claimed Juror 83’s statements were similar to those of non-Hispanic jurors who ended up serving. The Colorado Attorney General’s Office, on the other hand, found it unimportant that the prosecutor misremembered what Juror 83 said, noting that the purpose of Batson challenges is to “expose and prevent racial discrimination in jury selection, not to test a prosecutor’s memory.”

The appeals panel conceded that some of the comments from the non-Hispanic people who ultimately served on the jury were similar to Juror 83’s. The judges also agreed that Baum echoed the prosecutor’s erroneous paraphrase of what Juror 83 had said in electing to dismiss her.

Ultimately, the panel believed Baum was in the best position to adjudicate the Batson challenge and deferred to his handling of the matter.

The case is People v. Licona-Ortega.