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Wisconsin High Court OKs Second Search of Phone Data in Murder Case

Though the majority found neither police misconduct nor procedural issues blocked cellphone or Fitbit data at trial, justices disagreed on the Fourth Amendment implications of the evidence.

MADISON, Wis. (CN) --- A decision from the Wisconsin Supreme Court on Tuesday wrangled with the limits the Fourth Amendment places on police searches of cellphone data extracted while investigating a separate crime, as well as whether such evidence should have been excluded at a murder trial after police obtained the data without a warrant.

In June 2016, George Burch allowed the Green Bay Police Department to download unspecified information from his cellphone while they were investigating a hit-and-run incident after an officer initially asked to see some text messages on his phone. Burch signed a consent form, which put no specific limits on the scope of the search of his Samsung phone, and investigators were provided with a narrow portion of the data after all of the phone's contents were downloaded.

Around the same time a few miles away, the Brown County Sheriff's Office was investigating the murder of Nicole VanderHeyden, whose body was found in a nearby field in May 2016. Burch was investigated in connection with the murder based on DNA evidence taken from the victim's sock.

It was then that the sheriff's office learned Green Bay police possessed Burch's extracted cellphone data, obtained it without a warrant and used it to connect Burch to the murder, in part by pinpointing the phone's location near where VanderHeyden's body was found in the early morning hours on the day it was discovered.

Sheriff's office investigators also used data from VanderHeyden's boyfriend's Fitbit device to rule him out as a suspect, not the least of which because the device only logged 12 steps at the time of the VanderHeyden's murder.

At his trial, Burch unsuccessfully tried to get the cellphone and Fitbit data excluded from evidence -- the former because it was unconstitutionally acquired without a warrant in violation of the Fourth Amendment, and the latter because no expert testimony was heard and it was improperly authenticated -- but Brown County Circuit Court Judge John Zakowski denied both motions.

Burch, 43, was convicted of first-degree intentional homicide in May 2018 and is serving a life sentence at the Wisconsin Secure Program Facility in Boscobel, according to a Wisconsin Department of Corrections database.

Upon appeal, the Wisconsin Court of Appeals punted the case's novel Fourth Amendment concerns to the state's highest court, which heard arguments on the matter in April.

Writing for the high court's 4-3 majority, Justice Brian Hagedorn found there was no deliberate police misconduct that called for excluding the cellphone data the sheriff's office acquired, because for one thing "no case from this court or the federal courts has suggested that accessing evidence previously obtained by a sister law enforcement agency is a new search triggering a renewed warrant requirement."

Since Burch consented to the initial download of the data and sheriff's office investigators had no reason to think they were breaking the law by reviewing the data from interdepartmental records, the investigators did not act unconstitutionally by not getting a warrant, Hagedorn said.

As for the Fitbit data, Hagedorn saw nothing wrong with the circuit court's admission of that evidence without expert testimony "given the widespread availability of Fitbits and other similar wireless step-counting devices in today's consumer marketplace."

Despite agreeing that Fourth Amendment doctrine at the time of Burch's arrest and trial did not prohibit the second search of his cellphone data, Justice Rebecca Grassl Bradley concluded in a concurring opinion that law enforcement need to get a warrant for such searches in the future, as the massive amount of life-encompassing data one can extract from modern smartphones should be protected by the Fourth Amendment's warrant requirement.

"Because Burch's consent to search covered only the Green Bay Police Department's initial search of his smartphone for evidence related to a hit-and-run investigation, a warrant should have been procured before the sheriff's office searched Burch's smartphone data as part of an unrelated murder investigation," Grassl Bradley said.

Justice Rebecca Dallet agreed with the majority in terms of the Fitbit evidence but departed from its opinion regarding Burch's cellphone data, which she claimed "ignores the novel constitutional problems presented by private cell phone information, is inconsistent with the Fourth Amendment's text, and undermines the exclusionary remedy for Fourth Amendment violations." No reasonable person in Burch's position would think his initial consent was "an open invitation" for any other law enforcement agency to search the data again whenever it wanted without a warrant, she said.

Justice Ann Walsh Bradley joined Dallet's partial dissent relating to the cellphone data, along with Justice Jill Karofsky, but broke with her regarding the Fitbit data, finding that "ubiquitous use does not mean the average wearer of a Fitbit knows how it works" and that the inner workings of the way the devices capture and analyze motion data should not be assumed to be reliable enough for admission in a court of law.

Keith Findley, a professor at the University of Wisconsin Law School, found that while the majority of the court seemed to unanimously establish a rule requiring warrants for second searches of smartphone data, the majority also codified "a fairly significant expansion of the exception of good faith" in ruling on the exclusion of such evidence based on investigators' actions.

Instead of just relying on the existence of a warrant or on case law principles, Findley said the majority opinion "allows the good faith exception to be applied to an officer's own subjective assessment of the scope of consent that's been granted," which "if continued could threaten to be the exception that swallows the rule."

Ana Babcock, a Green Bay-based attorney who represented Burch at oral arguments in April, and the Wisconsin Department of Justice could not be immediately reached for comment on the high court's decision on Tuesday.

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