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Wisconsin high court: Cops can search phone data they already have

by | Jul 7, 2021 | Criminal Appeals

In 2016, George B. agreed to allow the Green Bay Police Department to review his phone for a hit-and-run investigation in which he was never charged. The consent form he signed didn’t specify exactly what the police would be allowed to download – and they downloaded everything.

Around the same time in Brown County, there had been a murder. Nicole VanderHeyden had been killed and her body had been left in a field.

DNA evidence taken from the victim’s sock pointed to George B. The Brown County Sheriff’s Office then learned that Green Bay had the contents of George’s cellphone. Brown County simply obtained that data from Green Bay without a warrant.

The cellphone data allegedly showed that George B. had been near the location of VanderHeyden’s body in the early morning hours of the day the body was discovered.

Also without a warrant, Brown County investigated the Fitbit device of VanderHeyden’s boyfriend. The Fitbit data appeared to rule him out as a suspect.

George B. was put on trial for VanderHeyden’s murder. At trial, he attempted to have the cellphone and Fitbit data stricken from evidence for two reasons. First, he argued, the lack of warrants made the seizure of the devices unconstitutional under the Fourth Amendment. Second, he said, in order for the data to be admissible, it would need to be authenticated by an expert witness, which it was not. A Brown County judge denied his motions and allowed in the evidence.

George B. was convicted of first-degree intentional homicide and was sentenced to live in prison. He appealed.

The Wisconsin Court of Appeals refused to decide the evidentiary issues, leaving them to the state’s highest court. Now, the Wisconsin Supreme Court has ruled 4-3 that the evidence should only have been excluded if there was deliberate police misconduct.

“No case from this court or the federal courts has suggested,” the majority wrote, “that accessing evidence previously obtained by a sister law enforcement agency is a new search triggering a renewed warrant requirement.”

In other words, since George B. consented to the original search, even if he didn’t fully understand what he was consenting to, it was not a violation for Brown County to access the data discovered by Green Bay.

As for the Fitbit, the majority argued that no expert testimony was needed considering the widespread use of wireless step-counting devices. Jurors were able to understand the meaning of the information presented.

The minority of the court wrote opinions suggesting that law enforcement would be wise to get warrants in such situations in the future.

Getting a warrant is easy. It’s often electronic and takes a few minutes. Why are officers so reluctant to get one?

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