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Wisconsin Supreme Court to decide on phone searches and seizures

by | Mar 30, 2021 | Criminal Appeals

Police in Wisconsin and in all 50 states are using mobile forensic tools to copy the entire contents of cellphones. While the law generally requires a search warrant before a cellphone can be searched, this technology allows the entire phone to be recorded and saved for later searches, if desired.

Should the police be allowed to make a copy of your phone, use it at their leisure, and share it with other law enforcement agencies? A case currently before the Wisconsin Supreme Court could decide.

In this particular case, State v. Burch, a man was initially suspected of being the driver in a hit-and-run accident because he had previously driven the car involved. In order to back up his alibi, he allowed a Green Bay officer to review his text messages.

Although Mr. Burch only consented to have his texts reviewed, the officer in fact copied the entire cellphone onto a forensic device and filed it away. Later, the department officially ruled Mr. Burch out as a suspect in the hit-and-run.

You might expect that the contents of the cellphone would be discarded at that point, but they were not. Instead, when the Brown County Sheriff’s Office came across Mr. Burch as a suspect in a homicide, it learned that Green Bay had a copy of his phone. Brown County received a copy, as well, and found evidence linking Mr. Burch to the crime.

Mr. Burch was convicted but argued that the evidence from his cellphone was obtained illegally because no warrant was obtained and his consent only applied to the text messages.

The nightmare scenario of the Fourth Amendment, which protects Americans from unreasonable searches and seizures, is that the government will give officers “unbridled discretion to rummage at will among a person’s private effects.”

Copying a person’s entire cellphone and sharing it with other law enforcement agencies seems to match that scenario.

Can a suspect’s consent be limited?

One of the big questions in this case is whether Mr. Burch granted only limited access to the Green Bay officer. He says he only consented to a review of his text messages. Was that limit effective?

It’s important because, according to an investigation by Upturn, police routinely use consent instead of getting warrants to extract and copy cellphone contents.

In Harris County, Texas, between August 2015 and July 2019, for example, officers conducted 53% of phone extraction searches without warrants. Generally, they claimed the suspect had consented or that the phone was abandoned. Similar findings have been noted nationwide.

Consent searches are troubling, in part because the consent is often obtained under pressure. Who would consent to having their entire phone copied and saved for later use against them?

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