COURT OF APPEALS

DECISION

DATED AND FILED

October 26, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2021AP1927-CR Cir. Ct. No. 2016CF51

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

ROBERT A. OSOWSKI,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Ozaukee County: STEVEN MICHAEL CAIN, Judge. Affirmed. 

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2021AP1927-CR

2

¶1 PER CURIAM. Robert A. Osowski appeals from a judgment and 

an order of the circuit court, contending his counsel afforded him ineffective 

assistance related to the hearing on his motion to suppress evidence. For the 

following reasons, we affirm.

Background

¶2 M.B. and S.B. reported a burglary at their home. Law enforcement 

came to suspect Osowski as the perpetrator and made contact with his former 

girlfriend, who utilized her iPhone’s “find my iPhone” feature to locate Osowski 

for the police. This was possible because Osowski was in possession of an old 

iPhone that his former girlfriend had allowed him to use and that was still on her 

cellphone account. When located by police, Osowski was in possession of items 

that had been stolen from M.B. and S.B.’s home; at the police station later that 

day, he also made incriminating statements to the police. He was charged with 

burglary of a dwelling, theft, and criminal damage to property, all as a repeater,

and subsequently moved to suppress key physical evidence and incriminating 

statements on the ground that law enforcement violated his Fourth Amendment 

rights in the manner in which it located him, leading to the discovery of the 

evidence and his statements.

¶3 An evidentiary hearing was held on Osowski’s motion, after which 

the circuit court denied the motion on the basis that Osowski did not have a 

reasonable expectation of privacy “in the use of that [feature] to locate him in light 

of the testimony that we heard primarily from” Osowski’s former girlfriend. This 

ruling was based on the court’s findings, supported by the former girlfriend’s 

testimony at the hearing that: (1) she had upgraded her cellphone and then 

allowed Osowski to use her old iPhone 4; (2) she went to the AT&T store with 
No. 2021AP1927-CR

3

him to get the phone hooked up for him to use; (3) a new phone number was 

assigned to the phone “but the billing remained under her name” and the phone 

“remained her phone on her account”; (4) the phone was never gifted to Osowski 

“or [in] any way transferred” to him; (5) she “had [previously] attempted to use 

the find my iPhone [feature] to locate Mr. Osowski,” found that the feature had 

been turned off, had a discussion with him “that she was not going to continue to 

pay for the service or allow him to use the phone if that particular feature was 

turned off[,] ... [a]nd then lo and behold that feature was turned back on”; (6) she 

had used the “find my iPhone” feature “one or two times to locate [Osowski] after 

it had been turned back on”; and (7) Osowski “was aware that she had the ability 

to use that feature.” The court added: 

[T]he phone was not Mr. Osowski’s property. The phone 

number was linked to [the former girlfriend’s] account. 

Although in his mind it may have been his phone number 

to reach him, it was not. It was linked to her account. She 

paid for the service. Mr. Osowski gave the login 

information to [her] to be used, and he knew she had access 

to that information, and he certainly did not have dominion 

and control over that device in light of the fact that she 

could, one, access his location, and two, based on the fact 

that it was on her account had the ability to shut it down at 

any point.

¶4 Osowski eventually pled guilty to the burglary charge and the other 

two charges were dismissed. Following his sentencing, Osowski filed the 

postconviction motion that underlies this appeal, contending his trial counsel 

performed ineffectively by not calling him to testify at the suppression hearing. At 

the postconviction hearing that followed, both Osowski and his trial counsel 

testified.

¶5 Osowski’s trial counsel testified that prior to the suppression 

hearing, he and Osowski had discussed “how he thought [his former girlfriend] 
No. 2021AP1927-CR

4

may have gotten” his cellphone-related information that allowed her to track him 

from her phone. Counsel agreed that prior to that hearing, he also had discussed 

with Osowski and explored issues related to the “password[/login information] 

that was given on that cellphone” and “the consent given on that password[/login 

information].” When then asked whether Osowski “could have been able to 

contradict the testimony of his girlfriend” at the suppression hearing, counsel 

responded, “[N]ot based on the information that I had.” Counsel expounded: “I 

think the specific issue was how the girlfriend found, you know, this login 

information. I believe she testified at the hearing that she obtained the information 

essentially because she was at the AT&T store when the phone was switched 

over.... That was consistent with what I understood the situation to be.” When 

asked, “And through your discussions with Mr. Osowski do you think that there’s 

a possibility that he would have contradicted her testimony had he testified,” 

counsel responded: “No. I don’t believe so.” When asked, “Do you think that the 

outcome of the suppression motion could have had a different result if the 

defendant were allowed to testify,” counsel responded, “I don’t believe so.”

¶6 Counsel further testified that after Osowski’s former girlfriend 

testified at the suppression hearing, counsel and Osowski “took a moment or two” 

to discuss whether Osowski should testify. When asked why he did not call 

Osowski to the stand to testify, counsel stated:

W[ith] the issue of the obtaining the login information and

the password, my recollection of my understanding of that 

going into [the suppression] hearing was that she obtained 

that simply by being kind of in the proximity of the iPhone 

being turned on ... with his number. It was not that ... he 

had provided it to her. But that she was there when it 

happened. So when she testified essentially in line with I 

think what I had put in my motion that she had gotten the 

information by being in the area, that was what I 

understood to be the situation. That that’s how she got that 

information. It was not provided by Mr. Osowski for the 
No. 2021AP1927-CR

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purposes of her using it in any way. She got it either by 

overhearing it or just kind of being there when it was put in 

place. 

¶7 On cross-examination, counsel indicated that as he prepared for the 

suppression motion hearing, it was his understanding that the former girlfriend 

owned the iPhone that she allowed Osowski to use and that she continued to pay 

the bill for it. He again acknowledged that from his discussions with Osowski 

leading into that hearing, it was his understanding that the former girlfriend 

became aware of the information for the iPhone Osowski used because she was 

present at the store when the phone was set up for his use and she either heard the 

information going back and forth between Osowski and the store clerk or was 

there next to him and witnessed him logging in to complete the set-up process. 

Counsel also acknowledged that he had discussed with Osowski the former 

girlfriend’s ability to track him and further acknowledged Osowski knew she was 

able to do that and nonetheless “continued to use the phone.” Counsel was also 

asked if, based upon his discussions with Osowski related to the suppression 

hearing, Osowski “was comfortable not testifying,” and counsel responded, “I 

believe so, yes.”

¶8 On redirect examination, counsel testified that he was satisfied with 

the former girlfriend’s testimony at the hearing because “she didn’t indicate that 

Mr. Osowski had given her permission for any of these things. She had simply 

obtained the information by kind of being near the information when it was

provided to the AT&T people.”

¶9 Osowski also testified at the postconviction hearing. He indicated he 

and counsel spoke in advance of and at the suppression hearing regarding whether 

he would testify, he informed counsel he wanted to testify, and it was his belief 
No. 2021AP1927-CR

6

following these discussions that he would. He indicated he informed counsel 

during the suppression hearing that his former girlfriend had lied in her testimony 

and he wanted to testify. He stated that if he had been called as a witness at the 

suppression hearing, he would have testified that: (1) his girlfriend gave him the 

iPhone, so he was its owner; (2) he never gave her his information related to the 

iPhone and did not know how she got it but “thought, you know, she worked at 

AT&T [and] had a way to find a lost or stolen phone”; (3) he never gave her 

permission to use the information and was not aware she was using it to locate 

him; and (4) he selected the phone number for the iPhone.

¶10 On cross-examination, Osowski admitted he had twenty-one prior 

criminal convictions and if he had testified at the suppression motion hearing, that 

fact could have been introduced to raise questions as to his character and 

credibility. He also testified that while the phone was on his former girlfriend’s 

account and she paid the bill, he “had an agreement with her to pay her $25 a 

month.” He acknowledged the police gave the phone back to his former girlfriend 

after it had been confiscated from him and stated she “gave it to her neighbor’s 

son or something like that.” Osowski admitted that prior to his arrest in this case, 

he was aware she had tracked him with the phone, and when he turned off that 

tracking feature, “[s]he called probably ten minutes later and ... told me to turn the 

locator on or she was going to shut the phone off.”

¶11 The circuit court denied Osowski’s postconviction motion, 

concluding trial counsel did not perform ineffectively. The court indicated that 

based upon the testimony presented at the postconviction hearing, the court still 

stood by its suppression-motion ruling “as to the contents of the phone and the 

right to privacy issue, the ownership of the phone, the control of the phone and the 

like.” The court found Osowski’s postconviction testimony “self-serving” and 
No. 2021AP1927-CR

7

trial counsel’s testimony credible and “more clear as to the facts leading up [to] or 

during that [suppression] motion hearing.” Referring to counsel’s testimony, the 

court specifically found that counsel and Osowski had discussed the strategy 

regarding whether Osowski would testify at the suppression hearing and that “they

didn’t believe the outcome would be affected by the decision not to testify, 

because [counsel] didn’t believe that Mr. Osowski would testify differently” than 

his former girlfriend. (Emphasis added.) Osowski appeals the court’s denial of 

his postconviction motion.

Discussion

¶12 Osowski asserts counsel afforded him ineffective assistance in 

relation to the suppression motion, and that the circuit court erred in concluding 

otherwise, because counsel “failed to call him as a rebuttal witness” at the 

suppression hearing. We conclude counsel was not ineffective.

¶13 To succeed on a claim of ineffective assistance of counsel, a 

defendant must show that counsel’s performance was deficient and that the 

deficiency prejudiced the defendant. State v. Erickson, 227 Wis. 2d 758, 768, 596 

N.W.2d 749 (1999). To prove deficient performance, the defendant must show 

that counsel’s specific acts or omissions were “outside the wide range of 

professionally competent assistance.” Strickland v. Washington, 466 U.S. 668, 

690 (1984). There is a strong presumption that a defendant received adequate 

assistance and that counsel’s decisions were justified in the exercise of reasonable 

professional judgment. State v. Domke, 2011 WI 95, ¶36, 337 Wis. 2d 268, 805 

N.W.2d 364; State v. Kimbrough, 2001 WI App 138, ¶¶31-35, 246 Wis. 2d 648, 

630 N.W.2d 752. “Reviewing courts should be ‘highly deferential’ to counsel’s 

strategic decisions and make ‘every effort ... to eliminate the distorting effects of 
No. 2021AP1927-CR

8

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to 

evaluate the conduct from counsel’s perspective at the time.’” Domke, 337 

Wis. 2d 268, ¶36 (citation omitted). Counsel’s performance is deficient only if the 

defendant proves that counsel’s challenged acts or omissions were objectively 

unreasonable under all the circumstances of the case. Kimbrough, 246 Wis. 2d 

648, ¶35. To prove prejudice, the defendant must demonstrate a reasonable 

probability that, but for counsel’s error, the outcome of the proceeding would have 

been different. Strickland, 466 U.S. at 694. If the defendant fails to prove one 

prong, we need not address the other. See id. at 697. We conclude Osowski has 

not shown that counsel performed deficiently by failing to call him as a witness.

¶14 At the postconviction hearing, counsel testified that prior to the 

suppression hearing, he and Osowski discussed the possibility of Osowski 

testifying at that hearing. After hearing the testimony of Osowski’s former 

girlfriend, he and Osowski again discussed whether Osowski should testify. 

Counsel indicated that following that discussion, Osowski “was comfortable not 

testifying.” Counsel further testified that he did not call Osowski as a witness 

because based upon his discussions with Osowski at the time, counsel didn’t 

“believe [Mr. Osowski] would have contradicted” his former girlfriend’s 

testimony. While Osowski’s postconviction testimony differed from counsel’s on 

several points, the circuit court found Osowski’s testimony self-serving and 

counsel’s testimony credible and “more clear as to the facts leading up [to] or 

during that [suppression] motion hearing.” Because the court’s credibility 

determination is not clearly erroneous, we uphold it. See Domke, 337 Wis. 2d 

268, ¶58. Additionally, the court specifically found that counsel and Osowski 

discussed the strategy regarding whether Osowski would testify at the suppression 

hearing and that “they didn’t believe the outcome would be affected by the 
No. 2021AP1927-CR

9

decision not to testify, because [counsel] didn’t believe that Mr. Osowski would 

testify differently” than his former girlfriend. (Emphasis added.) Thus, the court 

found it was a joint decision by counsel and Osowski that Osowski not testify, and 

that finding is supported by the reasonable inferences from counsel’s credible 

testimony. See State v. Breitzman, 2017 WI 100, ¶71, 378 Wis. 2d 431, 904 

N.W.2d 93 (concluding that defendant failed to demonstrate deficient performance 

where strategy pursued by counsel was “rationally based on counsel’s discussions” 

with defendant). Furthermore, because Osowski gave counsel every reason to 

believe his testimony would not be helpful, counsel had no rational reason to call 

him as a witness. Osowski has not met his burden to show that the circuit court 

erred in concluding that counsel did not perform deficiently in making this 

strategic decision.1

By the Court.––Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5. (2019-20).

 

1

 Osowski also claims the circuit court erred in denying his suppression motion because 

it “erroneously determined that [Osowski] had surrendered his expectation of privacy.” We do 

not address this issue as Osowski fails to develop any arguments based upon legal authority from 

which we could conclude the court erred. See Gaethke v. Pozder, 2017 WI App 38, ¶36, 376 

Wis. 2d 448, 899 N.W.2d 381 (“[O]n appeal ‘it is the burden of the appellant to demonstrate that 

the [circuit] court erred.’” (second alteration in original; citation omitted)); ABKA Ltd. P’ship v. 

Board of Rev., 231 Wis. 2d 328, 349 n.9, 603 N.W.2d 217 (1999) (we do not address 

undeveloped arguments); State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) 

(an appellate court may decline to review issues that are insufficiently briefed or unsupported by 

legal authority). More specifically, he develops no arguments supported by legal authority from 

which we could conclude that under the circumstances of this case he had a reasonable 

expectation of privacy related to the tracking of the phone or that law enforcement violated any 

such expectation of privacy.