CO: Warrantless cell phone ping of wanted murderer was based on exigency

Defendant was a suspect in a murder that just happened captured on surveillance video where the deceased was executed by five shots to the head. The police recovered no weapon, and defendant was on the run. They sought a cell phone ping from T-Mobile which was provided, and he was tracked and found. People v. Licona-Ortega, 2022 COA 27, 2022 Colo. App. LEXIS 306 (Mar. 3, 2022):

[*P28] The police responded to a report of a shooting at a bar. Video surveillance revealed that Licona-Ortega shot Chacon-Ortega in the back of the head, stepped over his body, and then shot Chacon-Ortega four more times in the head. Chacon-Ortega died from the gunshot wounds. Captain Stephen Redfearn described the shooting, which occurred in public and in broad daylight, as one of the most brazen crimes he had ever seen.

[*P29] In addition to the grave and violent nature of the offense, the police did not find a gun at the scene, giving them reason to believe that Licona-Ortega remained armed. These circumstances gave the police reasonable grounds to believe that the public was endangered as long as Licona-Ortega remained at large.

[*P30] Licona-Ortega argues that the trial court ignored the type of gun involved in the shooting, as well as the apparent fact that Licona-Ortega emptied the revolver at the scene when he killed the victim. According to Licona-Ortega, these facts negate an inference that Licona-Ortega remained armed and dangerous. We reject this argument because the police had no reason to believe that Licona-Ortega did not have additional ammunition. The police knew only that there was no gun at the murder scene. In testimony implicitly credited by the trial court, Captain Redfearn testified that “[u]ntil the time the defendant was taken into custody, we were under the belief that he was armed the entire time.”

[*P31] As discussed above, there was a clear showing of probable cause to believe that Licona-Ortega committed a serious crime.

. . .

[*P33] By contrast, this case involves a warrantless ping to a cell phone. Based on evidence previously discussed that law enforcement had at the time Licona-Ortega was at large, the police had strong reason to believe that the cell phone number belonged to Licona-Ortega and that a ping of that cell phone would reveal Licona-Ortega’s real-time location.

[*P34] Captain Redfearn did not testify about the likelihood that Licona-Ortega would escape if not swiftly apprehended, and unlike other Colorado cases analyzing exigent circumstances, this case does not involve a warrantless entry into a home. Therefore, the last two Brunsting factors do not bear on our inquiry.

. . .

[*P46] For all these reasons, we conclude that, under the specific facts presented by this case, exigent circumstances justified the warrantless ping of Licona-Ortega’s cell phone. Accordingly, the trial court correctly denied Licona-Ortega’s motion to suppress.

[*P47] 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. We hold only that under the specific facts of this case, and considering the nature of the intrusion on Licona-Ortega’s rights — a ping of a cell phone as opposed to a forced entry into a residence — the police had an objectively reasonable belief that there was an immediate risk to public safety and that exigent circumstances excused the procuring of a search warrant.