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SCOW: No “sufficiently deliberate and sufficiently culpable” police misconduct, so no exclusion of evidence

State v. George Steven Burch, 2021 WI 68, on certification from the court of appeals, affirming the judgment of conviction; case activity (including briefs)

We said in our post on the court of appeals’ certification that this case presented novel and important issues about searches of cell phones and their data. So we anticipated a decision addressing the parameters of police searches of digital devices. But the majority doesn’t address those issues or decide whether Burch’s Fourth Amendment rights were violated. Instead, the majority holds that, regardless of the lawfulness of the search of Burch’s cell phone data, “there was no police misconduct to trigger application of the exclusionary rule.” (¶26). The majority’s approach bodes ill for the future of Fourth Amendment litigation and the freedom the Fourth Amendment is intended to protect—as illustrated by this case, given that a majority of the justices (one concurring, three dissenting) concludes the search of Burch’s phone data violated the Fourth Amendment.

While investigating a vehicle theft and hit-and-run, Green Bay Police investigators talked to Burch, who claimed he was texting a friend during times pertinent to the events being investigated. To verify his claim, police asked Burch for consent to a look at his cell phone. He agreed. But the parties dispute what Burch consented to—a search of his text messages only, or of all the data on the phone. Having obtained the phone, though, the police did an “extraction” of (i.e., copied) all the data on the phone. Police couldn’t link Burch to the incidents they were investigating, so that case was closed. Yet they kept a copy of all of Burch’s cell phone data. (¶¶5-6, 39-41; Certification at 5).

Fast-forward a couple of months. Brown County Sheriff’s investigators trying to solve a different crime—a homicide—learned Burch’s DNA had been found on the victim’s clothing. The sheriff’s investigators also learned the city police had the data from Burch’s phone, and  the police department’s reports didn’t indicate any limits on Burch’s consent to the search or copying of all his data. So without first seeking a warrant, the sheriff’s investigator reviewed the data and discovered evidence incriminating Burch, who was then charged with and convicted of the homicide. (¶¶4, 7-13, 42-44).

Burch unsuccessfully moved to suppress the evidence discovered from the cell phone download, raising three claims: (1) the download of all the phone data exceeded the scope of his consent to search his phone, which was limited to a search of the text messages; (2) it was unlawful for investigators to retain the entire cell phone download after they ended the initial investigation; and (3) the homicide investigator’s search of the cell phone download was an unlawful warrantless search. (¶15). (Burch also challenged the admission of Fitbit evidence, which we discuss in  a separate post.)

The majority (Hagedorn, joined by Ziegler, Roggensack, and R.G. Bradley) bypasses these substantive issues and goes right to application of the exclusionary rule. Relying on Herring v. United States, 555 U.S. 135 (2009); Davis v. United States, 564 U.S. 229 (2011); State v. Kerr, 2018 WI 87, 383 Wis. 2d 306, 913 N.W.2d 787), the majority says that the “sole purpose” of the exclusionary rule is to deter future Fourth Amendment violations, which means exclusion is warranted only where there is some police misconduct and where suppression will “appreciably deter” that type of misconduct in the future. Appreciable deterrence works only against “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” so when police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force, and exclusion cannot pay its way.” (¶17 (quoting Davis, 564 U.S. at 237-38; Herring, 555 U.S. at 144)). Thus, the majority declares, unless evidence was obtained by “sufficiently deliberate and sufficiently culpable police misconduct, ‘[r]esort to the massive remedy of suppressing evidence of guilt is unjustified.’” (¶21 (quoting Hudson v. Michigan, 547 U.S. 586, 599 (2006))).

Finding nothing untoward about one law enforcement agency sharing all the data they got off a phone with another law enforcement agency, the court finds no misconduct to deter and therefore no basis to suppress:

¶23     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.8 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. Arizona v. Evans, 514 U.S. 1, 15-16 (1995). Thus, there was no misconduct that would “render[] the evidence suppressible under the exclusionary rule.” Kerr, 383 Wis. 2d 306, ¶22.

¶24     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. See id., ¶22 (concluding that “to the extent that looking at a warrant before executing it may be best practice,” failing to do so was “at most negligent”); Herring, 555 U.S. at 140 (holding that a county’s failure to update a computer database was negligent and therefore “not enough by itself to require” exclusion). And mere negligence does not warrant suppression. Id. at 144-45.

¶25     In addition, the societal cost of excluding the cell phone data would far outweigh any deterrence benefit that exclusion might provide. . This is in part because there is nothing concerning under current Fourth Amendment doctrine with how the Sheriff’s Office detectives conducted themselves. Even if the Police Department’s initial download or retention gave cause for concern, it’s not clear what behavior by the Sheriff’s Office Burch would have this court seek to deter.9 Based on the arguments presented, Burch has given us no reason to deter law enforcement reliance on the computer records of other law enforcement agencies. In this case, the societal cost of exclusion would far outweigh the limited benefit—if any—its application could achieve.

8 Justice Dallet’s concurrence/dissent argues that courts should treat cell phone data collected by law enforcement differently than other types of evidence. It acknowledges that the sharing of already-collected evidence without a warrant by sister law enforcement agencies is routine and unproblematic, but maintains a different kind of analysis should attend cell phone 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.

9 Many of Burch’s arguments focus on the conduct of the Police Department and the initial download of his cell phone data. He argues that because the Police Department unlawfully obtained the data, any subsequent accessing of the data violated the Fourth Amendment because he retained a reasonable expectation of privacy in it. But the conduct of the Police Department has little bearing on whether we should apply the exclusionary rule against the Sheriff’s Office in this case. The Police Department’s involvement in this case was limited to an investigation of unrelated crimes and was only fortuitously useful to the Sheriff’s Office’s investigation of VanderHeyden’s homicide months later. Exclusion therefore would not serve as a meaningful deterrent for the Police Department and is not warranted on that basis.

We started by saying this approach bodes ill for the Fourth Amendment. With help from the  concurrence (R.G. Bradley) and dissent (Dallett, joined by A.W. Bradley and Karofsky), we’ll now explain why.

First, the majority makes a subtle shift from “data” and “evidence previously obtained” to “computer records” of the sort at issue in Evans and Herring. (¶23). This elides a crucial difference between what happened in Evans and Herring and what happened here. As the dissent observes, the common thread in Evans and Herring, which involved clerical errors relating to court-issued arrest warrants, as well as other “good faith” cases (like Davis), is that the fault for the unlawful conduct lies with someone who, unlike a law enforcement officer, is not engaged in the “competitive enterprise of ferreting out crime” and so has “no stake in the outcome of particular prosecutions.” (¶79 (quoting Evans, 514 U.S. at 15)). Unlike Evans and Herring, then, and contrary to the impression left by the majority’s equating those cases with this one, exclusion in this case would be squarely aimed at deterring police conduct. (¶81).

Second, is there really “nothing concerning under current Fourth Amendment doctrine” (¶25) about the search of data copied from Burch’s phone? What about, say, Riley v. California, 573 U.S. 373 (2014), which held that if police want to search a cell phone, they generally must get a warrant? The majority opinion doesn’t mention Riley, not even to distinguish it—but the concurrence does, as part of a lengthy explanation for why a smart phone is among the “papers” and “effects” the Fourth Amendment protects against unreasonable searches and seizure. (¶¶45-58). The concurrence holds that, based on the police officer’s testimony about Burch’s consent to search his phone, the second search by the sheriff’s investigator was unlawful because Burch didn’t consent to that. (¶59). The dissent agrees. (¶¶68-76). That’s four justices who find the search was unlawful. Yet, Burch loses because the concurring justice joins the majority “in full” on the ground that “[n]either this court nor the United States Supreme Court has declared that second searches of cell phone data by separate law enforcement agencies requires a warrant.” (¶62). No prior existing precedent barring the conduct means there’s no sufficiently deliberate culpable misconduct to be deterred.

Though the concurrence extols the Fourth Amendment for securing privacy against arbitrary government power and protecting citizens from “a too permeating” police surveillance (¶37), it is self-defeating for the concurrence to cast its lot with the majority and demands there be existing case law (“current” Fourth Amendment doctrine (¶25)) declaring the police conduct to be illegal. That perpetuates the very government overreaching the concurrence claims to abhor, for it allows the court to avoid deciding the legality of the police conduct, leaving the issue unresolved and freeing police to continue to engage in the conduct the concurrence deems unlawful—despite the fact that, as the dissent reminds us (¶84), “recurring” or “systemic” police misconduct is precisely one of the targets of the exclusionary rule. Herring, 555 U.S. at 144. The dissent provides a spot-on description of the result of the majority’s “inexcusable refusal to address” the legality of the search in this case:

¶89     …. 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:

Forgoing a knotty constitutional inquiry makes for easier sledding, no doubt. But the inexorable result is “constitutional stagnation”—fewer courts establishing law at all, much less clearly doing so, . . . [creating a] Catch-22. [Defendants] must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one’s answered them before. Courts then rely on that judicial silence to conclude there’s no equivalent case law on the books. . . . If courts leapfrog the underlying constitutional merits in cases raising novel issues like digital privacy, then constitutional clarity—matter-of-fact guidance about what the Constitution requires—remains exasperatingly elusive. …. Zadeh v. Robinson, 928 F.3d 457, 479-80 (5th Cir. 2019) (Willet, J., concurring), cert. denied, 141 S. Ct. 110 (2020).

That in turn paves the way for a regime that allows police to decide what the Fourth Amendment permits in every situation where there’s been no clear prior declaration by the courts—and probably never will be because future courts will, like the majority in this case, shrug their shoulders at police misconduct by saying there’s no clear rule prohibiting what the police did, so we can’t apply the exclusionary rule and won’t bother deciding the substantive issues, and so on, ad infinitum. As the dissent puts it, “[t]ogether 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.” (¶89).

Which brings us to a third and final point: the new “prior-precedent requirement”—or put another way, the need to show something “concerning under current Fourth Amendment doctrine” (¶25)—that a defendant must meet to show “sufficiently deliberate and sufficiently culpable” police misconduct. Again, the dissent is spot-on that this inverts long-standing rules of Fourth Amendment litigation. For starters:

¶87     …. It is bedrock Fourth Amendment law that search warrants are generally required and that a search without a warrant is per se unlawful. See, e.g., City of Ontario v. Quon, 560 U.S. 746, 760 (2010)… 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.

¶88     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. Majority op., ¶23. 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.

So instead of requiring police to “err on the side of constitutional behavior” and get a warrant in circumstances that are on the margins of the law regarding warrant exceptions (¶83), and instead of requiring the state prove the warrantless search was reasonable under one of the delineated exceptions to the warrant requirement, the majority appears to contemplate the defendant must show a constitutional violation under existing case law.

In addition to the conflict between the majority’s approach and long-standing precedent about the state’s burden to prove a warranties search was reasonable, what, exactly, does the majority expect a defendant prove? For instance, would Burch have succeeded if he proved the police deliberately exceeded his consent to search his phone, and then concealed that illegality from the sheriff’s department when they shared the data? Would that police conduct be “sufficiently deliberate” and “sufficiently culpable” (f0r both attributes would evidently have to be proven)? We can’t be sure because “sufficiently” deliberate and culpable is a vague and indeterminate standard the court makes no attempt to define, apparently leaving it to future reviewing courts to know sufficient deliberateness and sufficient culpability when they see it.

The amorphousness of the standard probably won’t matter in the long run because, to return to our second point, adherence to the majority’s approach will mean the law about what violates the Fourth Amendment will be left undeveloped, and the police will be the arbiters of the constitutionality of their own actions. So much for the Fourth Amendment “impos[ing] limits on search-and-seizure powers in order to prevent arbitrary and personal security of individuals.” (¶63 (quoted source omitted)).


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