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Court of Appeals certifies important cell phone search issues

State v. George Steven Burch, 2019AP404-CR, District 3 (10/20/20), review granted 11/18/20, circuit court judgment affirmed, 2021 WI 68; case activity (including briefs)

Burch … contends the [Green Bay Police Department] and the [Brown County Sheriff’s Office] violated his Fourth Amendment rights in three ways: (1) the GBPD exceeded the scope of his consent to search his cell phone by downloading the phone’s entire contents, rather than only the text messages; (2) the GBPD unlawfully retained the entire cell phone download after it completed its June 2016 investigation into the vehicle incidents; and (3) the BCSO had no lawful authority to conduct a second search of the cell phone download in August 2016. Because these issues raise novel questions regarding the application of Fourth Amendment jurisprudence to the vast array of digital information contained in modern cell phones, we certify this appeal to the Wisconsin Supreme Court.

As the court’s thorough discussion in this certification makes clear, this case presents important issues about searches of cell phones and their data that are both knotty and more likely than ever to crop up in many kinds of criminal cases. If you have a case with any issues regarding a cell phone search like the ones here, the certification is worth a read.

While investigating a vehicle theft, hit-and-run, and criminal damage to the vehicle, the police talked to Burch and got his consent to look at his cell phone, as he claimed he was texting a friend during times pertinent to the events being investigated. But the parties dispute what Burch consented to–a search of his text messages only, or to all the data on the phone. Having obtained the phone, the police then did an “extraction” (or copy) of all the data on the phone. Based on the police investigation Burch couldn’t be linked to the incidents being investigated, so the case was closed.

But the police kept his cell phone data, and a different officer investigating a homicide learned Burch’s DNA had been found on the victim’s clothing. After learning his colleagues had a data dump from Burch’s phone, he took a look at the data over and above the text messages, and that led him to incriminating evidence, a homicide charge, and a conviction.

As to the first issue, the question is how to assess what the scope of Burch’s consent was given the officer told Burch he wanted to look at the text messages that Burch claimed would exonerate him, even though that limitation was not apparently reiterated in subsequent discussions between Burch and the police. After canvassing the parties’ arguments and authority (pp. 6-9), the court says there’s no clear answer about how to decide what a reasonable person would have understood the scope of the search to be (pp. 9-10). “Given that our case law does not provide clear answers to these questions, and given potential concerns with granting unlimited access to an individual’s electronically stored information, we believe it is more appropriate for the supreme court, rather than the court of appeals, to address them in the first instance.” (P. 10).

On the second issue of whether the police lawfully retained the data they downloaded from Burch’s phone once the investigation was done, the certification does a thorough review of the competing authority the parties cite as well as a recent case the court itself found (pp. 11-20) and concludes that:

The GBPD’s retention of Burch’s cell phone download … raises numerous questions, none of which have been squarely answered by Wisconsin case law or by binding federal precedent. For instance, after the GBPD performed the download, what portion of Burch’s data could it lawfully retain—none of the material, only the material it actually searched during its investigation of the vehicle incidents, or the entire download? If the GBPD was permitted to retain some or all of the downloaded material, how long could it do so? Additionally, did the status of the original investigation that produced the download affect the GBPD’s ability to lawfully retain the downloaded material? …. Furthermore, did the GBPD have any obligation to return the downloaded material to Burch, and if so, when? Relatedly, was Burch required to request the return of the downloaded material in order to trigger the GBPD’s obligation to return it?

Finally, the third issue is the warrantless examination of the cell phone data as part of the homicide investigation, which was completely unrelated to the initial investigation that led to his arguably limited consent to search. Here again, the court reviews the authority relied on by the parties to support their arguments, and says that “after reviewing the authorities cited by the parties and conducting our own research, we are left with significant questions regarding whether the BCSO had authority to search Burch’s cell phone download” in conjunction with the homicide investigation. (Pp. 21-26).

In its closing the court invokes Riley v. California, 573 U.S. 373 (2014), and its recognition of the heightened privacy concerns implicated by searches of cell phones. We’ll see if SCOW is moved to accept the case and tackle these difficult issues.

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