By Joe Kelly | Courthouse News

MADISON, Wis. (CN) — The Wisconsin Supreme Court heard arguments this week in a case hinging on how much reach police have when they want to search data extracted from a cellphone in the course of investigating a crime separate from the incident that led to the data’s extraction in the first place.

In June 2016, George Burch was questioned by officers with the Green Bay Police Department in connection with a hit-and-run incident, at which point an officer asked to see some text messages on Burch’s phone before asking if he could take the phone, have the information on it downloaded and then return it.

The officer did not qualify what he meant by “the information,” and Burch voluntarily signed a consent form giving the officer and any assisting personnel permission to search his Samsung cellphone without placing any limits on the scope of the search. All of the phone’s contents were downloaded, but the officer was only provided with a narrow portion of it pertaining to the hit-and-run investigation by forensics examiners.

Around the same time a few miles away, the Brown County Sheriff’s Office was investigating the murder of Nicole VanderHeyden, whose body was discovered in a nearby field in May 2016. Based on DNA evidence taken from the victim’s sock, the sheriff’s office began investigating Burch for the murder in August of that year.

It was then that the sheriff’s office learned Green Bay police possessed the extracted data from Burch’s phone, which was shared with them and was ultimately used to connect Burch to the murder, including by pinpointing that the phone was located near where VanderHeyden’s body was found in the early morning hours on the day it was discovered.

Burch was arrested, charged and convicted of VanderHeyden’s murder in Brown County Circuit Court and sentenced to life without parole. At his trial, he moved to suppress evidence the sheriff’s office got from his phone on the basis that searching it violated his Fourth Amendment rights, a motion that was denied by Judge John Zakowski. Burch, 43, remains incarcerated at the Wisconsin Secure Program Facility in Boscobel, according to a Wisconsin Department of Corrections database.

Upon appeal, the District III Court of Appeals found there were novel Fourth Amendment concerns presented by the case and certified it for review by Wisconsin’s highest court, leading to Monday’s virtual arguments.

Arguing on Burch’s behalf, Green Bay-based attorney Ana Babcock held up a thumb drive she said held data extractions of about a dozen peoples’ cellphones, which means “I have at my fingertips every intimate detail” of the peoples’ lives.

Babcock said the circuit court was wrong in determining that Burch expanded the scope of his consent of Green Bay police’s search of his cellphone beyond a few text messages when he technically consented to all of the phone’s data being downloaded, calling that “classic bait-and-switch deception.”

While Babcock argued that the justices need not go beyond the fact that law enforcement went above the limits of Burch’s consent when a different agency investigated his retained cellphone data for a different crime without a warrant, the high court tried to unpack how the tangled issues of scope, retention, privacy and consent related to physical evidence become challenging when dealing with the expansive, minutely detailed data on a person’s smartphone.

Assistant Attorney General Aaron O’Neil put it simply that because Burch gave blanket consent to searching his whole phone with no limitations, law enforcement can later look at it again without violating his constitutional rights.

Conservative Justice Rebecca Grassl Bradley resisted this logic, comparing it to the idea that giving police consent to search your home once means they can come back and search it again whenever they want, adding that cellphone searches are perhaps even more invasive.

Asking O’Neil to square with the Fourth Amendment the notion that police can retain cellphone data forever without limits and go back to it if they want to in subsequent investigations, the state’s attorney maintained that such subsequent investigations of the data are not unconstitutional if a person truly gives blanket consent with no limitations.

O’Neil also posited that a “search” is only conducted in the actual extraction of the data, which only happened once in Burch’s case, with his consent. The state’s attorney also put forth that a reasonable person would understand that if you let the police download everything on your phone, they are going to be able to access everything, and that such consent can be limited at the outset.

Many justices seemed wary of that kind of limitless search authority, with liberal Justice Jill Karofsky saying it’s hard to think about thousands of thumb drives with all of peoples’ data sitting around “without the hair on the back of my neck standing up.”

Babcock did not waver on rebuttal: if you want to conduct a new search, you need a new warrant, and the sheriff’s office did not get one, making the second look at Burch’s data unlawful.

Keith Findley, a professor at the University of Wisconsin Law School, agreed that the digital era presents complicated questions when it comes to law enforcement searches given the incredible amounts of data police can access.

Matters of the duration and scope of consent are important in Burch’s case, Findley said, as is the fact that the separate search at a later date was conducted by a law enforcement agency separate from the one that searched the phone in the first place. 

“The new gloss that’s added to this is the fact that what we’re talking about is using existing doctrines in ways that might subject this massive amount of data that we all carry around in our pockets,” to sudden law enforcement scrutiny, Findley said, calling the issue “virtually unparalleled in history.”

Another important aspect, the professor said, is ensuring a reasonable balance between the intrusion upon defendants and the needs of law enforcement, which is just one unique challenge the digital world presents to the courts.