Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized.
The case: State of Wisconsin v. George Steven Burch
Majority/Lead Opinion: Justice Brian Hagedorn (20 pages), joined by Justices Annette K. Ziegler, Patience Roggensack, and Rebecca Grassl Bradley; joined in part by Justices Rebecca F. Dallet and Jill J. Karofsky.
Concurrence: Grassl Bradley (20 pages).
Concurrence in part, dissent in part: Dallet (18 pages), joined by Karofsky and Justice Ann Walsh Bradley (except for a footnote).
Dissent: Justice Ann Walsh Bradley (11 pages).
We conclude that even if some constitutional defect attended either the initial download or subsequent accessing of the cell phone data, there was no law enforcement misconduct that would warrant exclusion of that data. Therefore, we conclude the circuit court correctly denied Burch's motion to suppress that data.
Nicole VanderHeyden went to a bar with her boyfriend, Douglass Detrie, on May 20, 2016. They got separated and got into an argument via phone call and text messages. VanderHeyden's body was found the next day near a field. Her bloody clothing was found near a freeway ramp, and some of her blood and hair were found outside the house of her neighbor. Detrie was initially a suspect, but became less of one when authorities learned his Fitbit logged only 12 steps during the hours around VanderHeyden's death.
The Brown County Sheriff's Department led the homicide investigation. The Green Bay Police Department, meanwhile, was looking into a stolen vehicle report, a hit-and-run, and a vehicle fire all involving the same auto. George Burch was a suspect and Officer Robert Bourdelais spoke to him on June 8, 2016. Burch denied involvement in the vehicle crimes, but said he was at a bar that night and texted a woman who lived nearby. Bourdelais asked to see the texts and Burch agreed. Bourdelais said he would rather download information from the phone because it was easier than taking pictures and scanning. Burch agreed to allow Bourdelais to do that and Bourdelais promised to immediately return the phone.
Burch signed a consent form. The form read: "I George Stephen Burch . . . voluntarily give Det. Danielski, Officer Bourdelais or any assisting personnel permission to search my . . . Samsung cellphone."
The Police Department's computer specialist downloaded all the data on the phone, made it into a readable format, and put it into long-term storage.
Two months later, Brown County sheriff's detectives matched a DNA sample from VanderHeyden's sock to Burch. The detectives searched records for police contacts with Burch and discovered the Green Bay Police Department's file stemming from the auto crimes investigation. They also obtained Burch's cell phone data that Green Bay police had stored.
The Sheriff's Office detectives reviewed the data downloaded from Burch's phone. They noted that Burch's internet history included 64 viewings of news stories about VanderHeyden's death. And they also discovered Burch had an email address associated with a Google account. In light of this discovery, the Sheriff's Office detectives procured a search warrant to obtain the "Google Dashboard" information from Google corresponding to Burch's email address. The data Google provided contained location information that placed Burch's phone at a bar VanderHeyden visited the night of her death, a location near VanderHeyden's residence, the place where VanderHeyden's body was found, and the on-ramp where VanderHeyden's discarded clothing was discovered.
Burch was charged with VanderHeyden's death.
Before trial, Burch sought to suppress the data obtained from his cell phone for two reasons: (1) the Police Department's extraction of the data exceeded the scope of Burch's consent by obtaining all the phone's data, rather than just the text messages; and (2) the Sheriff's Office unlawfully accessed the data in August 2016. The circuit court denied Burch's motion. It concluded that the conversation between Burch and Officer Bourdelais did not limit the scope of Burch's consent, and that "the sharing of such information, without first obtaining a warrant, is a common and long-understood practice between related departments."
Burch also moved to exclude evidence related to Detrie's Fitbit device. He argued the State must produce an expert to establish the reliability of the science underlying the Fitbit device's technology and that the State failed to sufficiently authenticate the records. The circuit court disagreed and refused to exclude the Fitbit evidence related to step-counting.
A jury convicted Burch and Brown County Circuit Judge John Zakowski sentenced him to life in prison.
Burch appealed, challenging the denial of his two pre-trial motions.
Before us, Burch argues the cell phone data was obtained in violation of the Fourth Amendment for three reasons: (1) the Police Department obtained the data without his consent; (2) the Police Department unlawfully retained the data after its investigation into the vehicle-related incidents had ended; and (3) the Sheriff's Office unlawfully accessed the data in the Police Department's records without a warrant. However, for the reasons that follow, regardless of whether the data was unlawfully obtained or accessed, we conclude suppression of the data is not warranted under the exclusionary rule....
The exclusionary rule is a judicially-created, prudential doctrine designed to compel respect for the Fourth Amendment's constitutional guaranty. In recent years, the United States Supreme Court has significantly clarified the purpose and proper application of the exclusionary rule. In Davis, the Supreme Court explained that prior cases suggested that the exclusionary rule "was a self-executing mandate implicit in the Fourth Amendment itself." However, more recent cases have acknowledged that the exclusionary rule is not one of "reflexive" application, but is to be applied only after a "rigorous weighing of its costs and deterrence benefits." Thus, in both Herring and Davis, the Court explained that to "trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system...."
Burch argues that the Sheriff's Office should have obtained a warrant before accessing the Police Department's data. But 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. Rather, the Sheriff's Office detectives reasonably relied on Burch's signed consent form and Officer Bourdelais' narrative to conclude that Burch consented to the download of the data. They had no reason to think they were engaging in illegal activity by reviewing interdepartmental files and evidence. Far from it. Reliance on well-documented computer records, like the detectives did here, is something the Supreme Court has characterized as objectively reasonable police conduct. Thus, there was no misconduct that would "render the evidence suppressible under the exclusionary rule."
Moreover, even if the Sheriff's Office's actions could be labeled as some kind of misconduct, nothing they did would rise beyond mere negligence....
In addition, the societal cost of excluding the cell phone data would far outweigh any deterrence benefit that exclusion might provide....
Burch also appeals the circuit court's denial of his motion to exclude evidence associated with Detrie's Fitbit device. Burch offers two arguments. First, he argues the Fitbit evidence must be excluded because the State did not produce expert testimony to establish its reliability. Second, he maintains the Fitbit evidence was insufficiently authenticated....
"Moreover, even if the Sheriff's Office's actions could be labeled as some kind of misconduct, nothing they did would rise beyond mere negligence...." – Wisconsin Supreme Court Justice Brian Hagedorn
Burch argues that the Fitbit evidence was improperly admitted because the circuit court should have required expert testimony to establish the reliability of the science underlying Fitbit's technology. He notes that the Fitbit device features "a three-axis accelerometer sensor that generates data representing the user's movements," but explains that his "greater concern is with how the device processes the data into a meaningful output, how that output is exchanged with a phone or computer, and how that evidence ultimately ended up in Fitbit's business records."
In its written order rejecting Burch's argument that expert testimony was required, the circuit court explained that Fitbit's step counters have been in the marketplace since 2009, and the "principle idea behind pedometers...for a significantly longer period than that." Many smartphones, the court added, "come equipped with a pedometer by default." Analogizing to a watch and a speedometer, the court noted that even though the average juror may not know "the exact mechanics" of a technology's "internal workings," the public may nevertheless "generally understand the principle of how it functions and accept its reliability." Similarly, the court reasoned, a Fitbit's use of sophisticated hardware and software does not render it an "unusually complex or esoteric" technology because the average juror is nevertheless familiar with what a Fitbit does and how it is operated.
This conclusion was reasonable and within the circuit court's discretionary authority. The circuit court correctly interpreted the standard for requiring expert testimony and reasonably applied that standard to the Fitbit evidence before it. Given the widespread availability of Fitbits and other similar wireless step-counting devices in today's consumer marketplace, the circuit court reasonably concluded Detrie's Fitbit was not so "unusually complex or esoteric" that the jury needed an expert to understand it. The circuit court's conclusion that expert testimony was not required under these circumstances was within the circuit court's discretion.
Burch's cell phone data was properly admitted because, even if there was some constitutional defect in how it was obtained or retained, exclusion would be an improper remedy. The circuit court also permissibly exercised its discretion in admitting the Fitbit evidence; no expert was required and the State sufficiently authenticated the records from Fitbit.
I join the majority opinion in full....I write separately to discuss the application of the Fourth Amendment to warrantless second searches of smartphones without consent.
Under the original meaning of the Fourth Amendment, law enforcement generally will need a warrant to search the contents of a smartphone, absent an exception to the warrant requirement. The consent-to-search exception, which the State argues authorized law enforcement to conduct a second search of Burch's smartphone data, does not extend to a second search of a smartphone by a different law enforcement agency investigating an entirely separate crime....The contents of smartphones constitute "papers" and "effects" secured by the Fourth Amendment, giving each of those categories their historical meanings and bearing in mind that "a cell phone search would typically expose to the government far more than the most exhaustive search of a house."...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. Because neither this court nor the United States Supreme Court has decided this novel issue, the Sheriff's Office committed no misconduct in searching Burch's cell phone and the circuit court properly admitted the evidence obtained from the search. Accordingly, I respectfully concur.
Just a few years ago, the United States Supreme Court addressed the Fourth Amendment's application to a modern phenomenon: the proliferation of smartphones and their ever-increasing capacity to store mass amounts of data. The Court held that law enforcement generally must obtain a warrant before conducting a search of smartphone data. Specifically, the Riley Court clarified that "[its] holding . . . is not that the information on a cell phone is immune from search," but "instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest." In reaching this holding, the Court recognized the "pervasiveness that characterizes cell phones" and how "[c]ell phones differ in both a quantitative and a qualitative sense from other objects." "The possible intrusion on privacy is not physically limited in the same way [as other objects] when it comes to cell phones." "An internet search and browsing history, for example, can be found on an internet-enabled phone and could reveal an individual's private interests or concerns," and "historic location information" could allow law enforcement to "reconstruct someone's specific movements down to the minute."
The United States Supreme Court fully understood that its decision "[would] have an impact on the ability of law enforcement to combat crime." After all, "[c]ell phones have become important tools in facilitating coordination and communication" for individuals committing crimes and "can provide valuable incriminating information about dangerous criminals." But "[p]rivacy comes at a cost." And the Fourth Amendment is designed to safeguard the people's security against unreasonable government intrusion. Riley recognizes that the Fourth Amendment safeguards this right by generally requiring law enforcement to procure a warrant before searching a smartphone.
For the reasons stated in the majority opinion, there was no misconduct by the Sheriff's Office. Neither this court nor the United States Supreme Court has declared that second searches of cell phone data by separate law enforcement agencies require a warrant. Accordingly, suppression of the evidence obtained during the Sheriff's Office's second search would be inappropriate and I respectfully concur.
Concurrence and dissent
Dallet explained her concurrence in a footnote: "I agree that the circuit court permissibly admitted evidence regarding a Fitbit device."
The unique privacy expectation in cell phone data informs why Burch's consent to the GBPD does not relieve the Sheriff's Office of its obligation to get a warrant for its own review. Burch's consent, as "the typical reasonable person [would] have understood" it, had the "expressed object" of the GBPD reviewing messages to verify his alibi for the GBPD's investigation. The GBPD officer's report explained that Burch "consented to Lt. Allen and I [two GBPD officers] looking at the text messages between him and [Burch's acquaintance] last night and also indicated I could take his phone to the department to have the information on it downloaded." Burch's signed consent form is also specific to the "City of Green Bay Police Department" and indicated that Burch gave certain members of the GBPD permission to search his phone. Critically absent from the report or the consent form is any mention of any other law enforcement agency, the possibility of the GBPD sharing the entirety of the downloaded data, or even that Burch was consenting to the GBPD retaining indefinitely all of his phone's information....
No reasonable person in Burch's position would have understood that his consent to the GBPD was an open invitation for any other law enforcement agency to search his private information whenever it wanted to and without a warrant. Therefore, the consent exception to the Fourth Amendment's warrant requirement does not apply to the Sheriff's Office's subsequent warrantless search of Burch's private cell phone data for an unrelated investigation. That search was unreasonable and violated the Fourth Amendment.
Having concluded that the Sheriff's Office's search violated the Fourth Amendment, the next question is whether the exclusionary rule applies; that is, whether excluding, or suppressing, the unlawfully obtained evidence would sufficiently deter the same police conduct in the future. Here, Burch's Google location data and his internet search history should be excluded because if they are not, other law enforcement agencies are likely to repeat the Sheriff's Office's unconstitutional search of downloaded cell phone data, especially given the ubiquity of cell phones and the increasing prevalence of personal digital data in criminal investigations.
The exclusionary rule applies in this case because it was the Sheriff's Office's conduct that rendered unlawful its search of Burch's cell phone....There was no statute or judicial precedent condoning a warrantless search of another agency's download of a person's private cell phone data. Instead, the Sheriff's Office judged for itself, incorrectly, that the Fourth Amendment's warrant requirement did not apply to Burch's cell phone data. The unlawful conduct here – not obtaining a warrant to search Burch's private cell phone data – is solely attributable to the Sheriff's Office's detectives. And because those detectives are directly engaged in the "competitive enterprise of ferreting out crime," the exclusionary rule should apply.
Applying the rule is also justified because the record demonstrates that warrantless searches of private cell phone information are commonplace, and therefore likely to recur. Officers from both the GBPD and the Sheriff's Office confirmed that it is "very common" for agencies to share "full downloads" of private cell phones with other agencies without first obtaining a warrant, adding that their agencies "regularly" do so. This widespread neglect of the Fourth Amendment's warrant requirement is just the kind of "systemic negligence" the exclusionary rule is designed to correct. The exclusionary rule thus squarely applies here.
Nor is the Sheriff's Office relieved of its Fourth Amendment duty to get a warrant simply because law enforcement agencies "regularly" share this type of information. The pervasiveness of this practice is no defense to the exclusionary rule; it is the reason to apply it....
It is a grave analytical error to "mechanically apply" to cell phone data Fourth Amendment rationales that were developed without such invasive technologies in mind. Or, as the United States Supreme Court put it, treating cell phone data the same as its non-digital analogues "is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together." The majority opinion, however, is content to toss a saddle on a spaceship and call it a horse. Nowhere does the majority opinion account for Burch's special privacy interest in his cell phone data, leaving a tremendous hole in its exclusionary rule analysis.
"The majority opinion, however, is content to toss a saddle on a spaceship and call it a horse. Nowhere does the majority opinion account for Burch's special privacy interest in his cell phone data, leaving a tremendous hole in its exclusionary rule analysis." – Wisconsin Supreme Court Justice Rebecca F. Dallet
More troubling is the majority's disregard for the Fourth Amendment's text. It is bedrock Fourth Amendment law that search warrants are generally required and that a search without a warrant is per se unlawful. The majority's assertion that "there is nothing concerning under current Fourth Amendment doctrine with how the Sheriff's Office detectives conducted themselves" shockingly discards this well-settled principle. Indeed, the majority opinion fails to even mention the presumption that warrantless searches violate the Fourth Amendment.
But worse than mere silence, the majority's refusal to apply the exclusionary rule flips this presumption on its head. According to the majority, if "no case from this court or the federal courts" directs the police to get a warrant, then the police act "reasonably" in not getting a warrant. The majority appears to create a new prerequisite for applying the exclusionary rule, holding that it applies only if a court has previously declared that the police conduct at issue is unconstitutional. Imposing this hurdle undermines the exclusionary remedy for Fourth Amendment violations and is directly contrary to both our and the United States Supreme Court's Fourth Amendment jurisprudence.
All of which makes inexcusable the majority opinion's refusal to address the constitutionality of the Sheriff's Office's search. Despite law enforcement's admittedly "very common" practice of sharing with other agencies entire downloads of private cell phone data, that recurring Fourth Amendment violation will continue with impunity unless and until the court engages with the specific Fourth Amendment issue raised by private cell phone information. By skipping straight to whether the exclusionary rule applies, the majority opinion deprives aggrieved defendants –and future courts – of the very prior precedent now necessary to remedy law enforcement's continued unconstitutional conduct....Together with its new prior-precedent requirement, the majority opinion's avoidance of the Fourth Amendment issues here perpetuates a cycle of diminished police accountability and courts' unwillingness to address it.
Hagedorn, in a footnote, dismisses Dallet's argument:
Justice Dallet's concurrence/dissent argues that courts should treat cell phone data collected by law enforcement differently than other types of evidence...We need not decide this question to conclude exclusion is not warranted in this case. Justice Dallet's approach would break new ground in Fourth Amendment jurisprudence, and as such, the violation of her new proposed rule does not implicate the kind of gross or systemic law enforcement misconduct the exclusionary rule is meant to deter.
Walsh Bradley joined with much of Dallet's opinion, but disagreed with Dallet's Fitbit concurrence.
Ubiquitous use does not mean the average wearer of a Fitbit knows how it works. Nor does ubiquitous use indicate reliability sufficient to be admissible in a court of law....
How does it work? A Fitbit device uses a microelectronic triaxial accelerometer to capture a person's body motion in three-dimensional space and record related data. This motion data is then analyzed by utilizing proprietary algorithms to surmise patterns and thus to identify daily steps taken.
The circuit court here determined that the technology underlying a Fitbit is not outside the realm of lay comprehension. It compared a Fitbit to a watch in that "the public generally understands the principle of how it functions and accepts its reliability without knowing the exact mechanics of its internal workings." Further, it determined that a Fitbit is not subject to "active manipulation by the wearer to achieve the results; the results are simply a record of the wearer's movements, i.e., their location or the number of steps they took."
But the expert testimony standards do not rest on ubiquity. Instead, they rest on the complexity of the subject matter. Although many members of the jury may have been wearing Fitbits or similar devices, such a fact would not inform the question of whether those jury members understand how a Fitbit works or whether the technology is reliable.
What does the average person really know about how a Fitbit works, much less its reliability? As one study described it, "Fitbit devices use a microelectronic triaxial accelerometer to capture body motion in 3-dimensional space, with these motion data analyzed using proprietary algorithms to identify patterns of motion to identify daily steps taken, energy expenditure, sleep, distance covered, and time spent in different intensity of activities." According to the majority, the average juror would understand, without expert testimony, not only what a "microelectronic triaxial accelerometer" is, but how it works. Really?
The evidentiary process requires that the scientific principles be presented to the court before the evidence is determined to be reliable. In a court of law, process matters. Without fulfilling one of these avenues, the threshold reliability determination cannot be made.
And what of Fitbit's reliability? Such reliability can depend on a number of factors, such as whether the user has self-manipulated the data, if the Fitbit is temporarily removed, where on the body the device is worn, or the type of physical activity in which the wearer is engaged.
"According to the majority, the average juror would understand, without expert testimony, not only what a "microelectronic triaxial accelerometer" is, but how it works. Really?" – Wisconsin Supreme Court Justice Ann Walsh Bradley
In a comprehensive aggregation of 67 different studies, researchers found that "[c]onsistent evidence indicated that Fitbit devices were likely to meet acceptable accuracy for step count approximately half the time." Yet in the view of the majority and of the circuit court, an expert is not necessary to establish the reliability of Detrie's step count – the Fitbit evidence can go before the jury with no technical or scientific explanation.
Indeed, questions arise about the reliability of wearable devices despite their widespread acceptance. If reliability questions exist, where better than the circuit court to present the case for and against such reliability? Instead of remanding to the circuit court for evaluation of the question, the majority curtly declares Fitbit's technology to be simple enough to be put before a jury without the benefit of an expert.
When new and popular devices emerge, courts should be wary of blindly accepting the data they produce without a thorough examination of the underlying technology. In many cases, such an examination will require an expert. In my view, this is such a case.
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