State v. Burch

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The Supreme Court affirmed Defendant's conviction for first-degree intentional homicide, holding that Defendant was not entitled to relief on his claims that the trial court erred in denying two pre-trial evidentiary orders.

At issue was the denial of Defendant's motion to suppress the admission of incriminating cell phone data and the circuit court's discretionary decision to admit evidence from a Fitbit device allegedly worn by the victim's boyfriend at the time of the homicide. The Supreme Court affirmed, holding (1) even if some constitutional defect attended either the initial download of the cell phone data or subsequent accessing of the cell phone data, there was no law enforcement misconduct that would warrant exclusion of that data; and (2) the circuit court permissibly exercised its discretion in admitting the Fitbit evidence where no expert was required and the State sufficiently authenticated the records from Fitbit.

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2021 WI 68 SUPREME COURT OF WISCONSIN CASE NO.: 2019AP1404-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. George Steven Burch, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: June 29, 2021 April 12, 2021 Circuit Brown John Zakowski JUSTICES: HAGEDORN, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J, ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined, and in which DALLET and KAROFSKY, JJ., joined with respect to Parts I. and II.B. REBECCA GRASSL BRADLEY, J., filed a concurring opinion. DALLET, J., filed an opinion concurring in part and dissenting in part, in which KAROFSKY, J., joined and in which ANN WALSH BRADLEY, J., joined except for footnote 1. ANN WALSH BRADLEY, J., filed a dissenting opinion. NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant, there were briefs filed by Ana L. Babcock and Babcock Law, LLC. There was an oral argument by Ana L. Babcock. For the plaintiff-respondent, there was a brief filed by Aaron R. O’Neil, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Aaron R. O’Neil. An amicus curiae brief was filed on behalf of Legal Action of Wisconsin, Inc. by Rebecca M. Donaldson, Milwaukee. 2 2021 WI 68 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP1404-CR (L.C. No. 2016CF1309) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, FILED Plaintiff-Respondent, v. JUN 29, 2021 George Steven Burch, Sheila T. Reiff Clerk of Supreme Court Defendant-Appellant. HAGEDORN, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J, ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined, and in which DALLET and KAROFSKY, JJ., joined with respect to Parts I. and II.B. REBECCA GRASSL BRADLEY, J., filed a concurring opinion. DALLET, J., filed an opinion concurring in part and dissenting in part, in which KAROFSKY, J., joined and in which ANN WALSH BRADLEY, J., joined except for footnote 1. ANN WALSH BRADLEY, J., filed a dissenting opinion. APPEAL County. ¶1 from a judgment of the Circuit Court for Brown Steven Burch appeals Affirmed. BRIAN HAGEDORN, J. George a judgment of conviction for first-degree intentional homicide on the grounds that incorrectly denied. two pre-trial evidentiary motions were No. ¶2 2019AP1404-CR First, relying on the Fourth Amendment, Burch moved to suppress the admission of incriminating cell phone data. This data was obtained via an unrelated criminal investigation and kept in a police database. A different law enforcement agency investigating the homicide came upon this data and used it to connect Burch to the homicide. Burch argues that the initial download of the data exceeded the scope of his consent, the data was unlawfully retained, and the subsequent accessing of the data violated his reasonable expectation of privacy. 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. ¶3 Burch Regarding asks us to the second reverse pre-trial the circuit evidentiary court's motion, discretionary decision to admit evidence from a Fitbit device allegedly worn by the victim's boyfriend at the time of the homicide. evidence, Burch maintains, should have been This accompanied expert testimony and was insufficiently authenticated. by We agree with the State that the circuit court's decision to admit this evidence was not an erroneous exercise of discretion. Burch's judgment of conviction is affirmed. I. ¶4 BACKGROUND On May 20, 2016, Nicole VanderHeyden went to a bar with her boyfriend, Douglass Detrie. 2 The two became separated No. 2019AP1404-CR and, in the course of a subsequent phone call and text messages, got into an argument. home. Detrie returned alone to their shared The next day, VanderHeyden's body was discovered next to a nearby field. Her blood-stained clothing was later found discarded alongside a freeway on-ramp, and some of her blood and hair were identified neighbor. outside the house of VanderHeyden's The Brown County Sheriff's Office (the "Sheriff's Office") opened a homicide investigation that spanned the next several months. Detrie was initially a suspect, but the focus of the investigation shifted away from Detrie in part because his Fitbit device logged only 12 steps during the hours of VanderHeyden's death.1 ¶5 While the Sheriff's Office investigated VanderHeyden's homicide, the Department") Green undertook Bay an Police Department unrelated (the investigation "Police into three incidents involving the same vehicle——a stolen vehicle report, a vehicle fire, and a hit-and-run. this investigation, Bourdelais and interviewed George Burch was a suspect in Police him on Department June 8, Officer 2016. Burch Robert denied involvement and offered the alibi that he was at a bar that night and texting a woman who lived nearby. As Officer Bourdelais testified, "I asked [Burch] if I could see the text messages between him and [the woman], if my lieutenant and I could take a look at his text messages." Burch agreed. Officer Detrie wore a Fitbit Flex, a wrist-worn device that continuously tracks the wearer's steps and interfaces with the wearer's phone or computer. 1 3 No. Bourdelais then explained that he preferred 2019AP1404-CR to download information off the phone because "it's a lot easier to do that than try to take a bunch of pictures and then have to scan those in." "So I asked him if he would be willing to let me take his phone to this detective, download the information off the phone and then I'd bring the phone right back to him . . . and he said that would be fine." ¶6 Before Officer Bourdelais took downloaded, Burch signed a consent form. George Stephen Officer Burch . . . voluntarily Bourdelais or any assisting search my . . . Samsung cellphone." the phone to The form read: give Det. personnel be "I Danielski, permission to Officer Bourdelais took the phone and the signed consent form to the certified forensic computer examiner for the Police Department. The forensic expert performed a "physical extraction" of all the data on Burch's phone, brought the data into a readable format, and saved the storage. extraction to the Police Department's long-term At a motion hearing, the forensic expert testified that this was consistent with the Police Department's standard practice. ¶7 Two months later, two Sheriff's Office detectives continuing the investigation of VanderHeyden's homicide matched a DNA sample from VanderHeyden's sock to Burch. The detectives then searched their own department's records and the records of other local departments for prior police contacts with Burch. There they discovered the Police Department's file related to the three vehicle-related incidents. 4 The file included Burch's No. 2019AP1404-CR signed consent form and a copy of the data the Police Department extracted from contained a Burch's narrative phone during written by the search. Officer It Bourdelais also which indicated Burch said Officer Bourdelais "could take his phone to the department to have the information on it downloaded." Nothing in the consent form, the narrative, or anything else in the file, indicated that Burch limited the scope of the data he consented to have downloaded from his phone. ¶8 The Sheriff's Office downloaded from Burch's phone. history included 64 detectives of news stories discovery, the data about And they also discovered Burch had an email address associated with a Google account. this the They noted that Burch's internet viewings VanderHeyden's death. reviewed Sheriff's Office In light of detectives procured a search warrant to obtain the "Google Dashboard" information from Google corresponding to Burch's email address. The data Google provided placed contained location information that Burch's phone at a bar VanderHeyden visited the night of her death, a location near VanderHeyden's VanderHeyden's body was residence, found, and the the place where on-ramp where VanderHeyden's discarded clothing was discovered. ¶9 death. Burch was arrested and charged with VanderHeyden's He filed two pre-trial evidentiary motions relevant to this appeal. ¶10 In one motion, Burch sought to suppress obtained from his cell phone for two reasons: Department's extraction of the 5 data exceeded the data (1) the Police the scope of No. 2019AP1404-CR 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. Burch's motion. It concluded The circuit court2 denied that the conversation between Burch and Officer Bourdelais did not limit the scope of Burch's consent, first and that obtaining a "the sharing warrant, of is a such information, common and without long-understood practice between related departments." ¶11 Burch also moved Detrie's Fitbit device. to exclude evidence related to 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.3 ¶12 Burch testified in his own defense at trial. He denied killing VanderHeyden, but acknowledged he was with her the night she died. a bar, and the According to Burch, he met VanderHeyden at two left together. VanderHeyden's house, they became intimate. After parking near That, Burch said, was the last thing he remembered before waking up on the ground with Detrie there, and VanderHeyden dead. Burch told the jury that Detrie held him at gunpoint and instructed him to move The Honorable John P. Zakowski of the Brown County Circuit Court presided. 2 The circuit court granted Burch's motion in part, agreeing to exclude Fitbit evidence related to sleep-monitoring. 3 6 No. 2019AP1404-CR VanderHeyden's body into his vehicle, drive to a field, and carry VanderHeyden's body into the ditch. escape by pushing driving away. Detrie, running back Only then did Burch to his vehicle, and Burch added that on his way home he noticed that articles of VanderHeyden's clothing were still in his vehicle and threw them out the window in a panic. In the months that followed, Burch told no one this version of events, even as authorities sought the public's help in solving VanderHeyden's homicide. ¶13 The jury found Burch guilty of first-degree intentional homicide, and the circuit court sentenced him to life in prison. Burch appealed, challenging the circuit court's denial of his motion to suppress the cell phone data and his motion to exclude the Fitbit evidence. The court of appeals certified the case to us, and we accepted the certification. II. A. ¶14 DISCUSSION Cell Phone Data Burch asks us to reverse the circuit court's denial of his motion to suppress the cell phone data as contrary to the Fourth Amendment. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against Const. amend. IV. unreasonable searches and seizures." U.S. On review of a circuit court's denial of a suppression motion, we uphold the circuit court's findings of historical fact unless they are clearly erroneous, and independently apply constitutional principles to those facts. 7 No. State v. Robinson, 2010 WI 80, ¶22, 327 2019AP1404-CR Wis. 2d 302, 786 N.W.2d 463. ¶15 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.4 reasons that follow, regardless of However, for the whether the data was unlawfully obtained or accessed, we conclude suppression of the data is not warranted under the exclusionary rule. v. United States, 555 U.S. 135, 139 (2009) See Herring (accepting the "assumption that there was a Fourth Amendment violation" and analyzing whether the exclusionary rule applied); see also State v. Kerr, 2018 WI 87, ¶¶20-24, 383 Wis. 2d 306, 913 N.W.2d 787. 1. ¶16 judicial State v. "When there remedy for Dearborn, The Exclusionary Rule has the 2010 been an unlawful constitutional WI 84, ¶15, search, error 327 is a common exclusion." Wis. 2d 252, 786 Burch forfeited his argument related to the Police Department's retention of the cell phone data by not raising that argument before the circuit court. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W. 2d 727. His arguments regarding the initial download of the data and the subsequent accessing of the data are, however, properly before us. 4 8 No. N.W.2d 97. The exclusionary rule is a 2019AP1404-CR judicially-created, prudential doctrine designed to compel respect for the Fourth Amendment's constitutional guaranty. 564 U.S. 229, 236 (2011). Davis v. United States, In recent years, the United States Supreme Court has significantly clarified the purpose and proper application of the exclusionary rule. U.S. 135. See id.; Herring, 555 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." 237. 564 U.S. at 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." Id. at 238. 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." Herring, 555 U.S. at 144; see also Davis, 564 U.S. at 240. ¶17 The "sole purpose" of the exclusionary rule "is to deter future Fourth Amendment violations." 236-37. some Davis, 564 U.S. at Therefore, exclusion is warranted only where there is present police misconduct, and where suppression appreciably deter that type of misconduct in the future. 237. will Id. at The exclusionary rule applies only to police misconduct that can be "most efficaciously" deterred by exclusion. Id. (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). 9 No. 2019AP1404-CR Specifically, "the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Herring, 555 U.S. at 144. "But when the police act with an objectively reasonable goodfaith 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." Davis, 564 U.S. at 238 (cleaned up). ¶18 "Real deterrent value is a 'necessary condition for exclusion,' but it is not 'a sufficient' one." Id. at (quoting Hudson v. Michigan, 547 U.S. 586, 596 (2006)). 237 In Davis, the Court explained that the "analysis must also account for the 'substantial social costs' generated by the rule." Id. (quoting United States v. Leon, 468 U.S. 897, 907 (1984)). It elaborated: Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a "last resort." For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. Id. (citations omitted). ¶19 Applying this rationale, the Supreme Court in Herring held that a county's failure to update a computer database to reflect the recall of an arrest warrant was only negligent, and therefore was "not enough by itself to require 'the extreme 10 No. sanction of exclusion.'" U.S. at 916). 2019AP1404-CR 555 U.S. at 140 (quoting Leon, 468 Similarly, in Davis, the Supreme Court refused to exclude evidence that was obtained via a search conducted in compliance with binding, but subsequently overruled, precedent. 564 U.S. at 232. Exclusion, it explained, was inappropriate because it "would do nothing to deter police misconduct." ¶20 We have followed suit as well. Id. In Kerr, we explained that no police misconduct occurred when an officer conducted an arrest relying on dispatch's confirmation that the defendant had a warrant out for his arrest. was improper negligent, because and "the isolated 383 Wis. 2d 306, ¶22. officers' negligence purposes of the exclusionary rule." conduct is not Exclusion [was] at most 'misconduct' for Id. (citing Herring, 555 U.S. at 146-47). ¶21 Many principle is sufficiently misconduct, more examples clear: unless deliberate "[r]esort could to be provided,5 evidence and sufficiently the massive was remedy but obtained culpable of the by police suppressing See, e.g., United States v. Leon, 468 U.S. 897, 916 (1984) (reasonable reliance on a warrant later held invalid); Illinois v. Krull, 480 U.S. 340, 342 (1987) (reasonable reliance on subsequently invalidated statutes); Arizona v. Evans, 514 U.S. 1, 15-16 (1995) (reasonable reliance on arrest warrant information in a database maintained by judicial employees); State v. Ward, 2000 WI 3, ¶63, 231 Wis. 2d 723, 604 N.W.2d 517 (reasonable reliance on settled law subsequently overruled); State v. Dearborn, 2010 WI 84, ¶44, 327 Wis. 2d 252, 786 N.W.2d 97 (refusing to exclude evidence where doing so "would have absolutely no deterrent effect on officer misconduct"). 5 11 No. evidence of guilt is unjustified."6 2019AP1404-CR Hudson, 547 U.S. at 599. With these principles in mind, we turn to the facts at hand. 2. ¶22 Application In this case, the Sheriff's Office detectives acted by the book. After a DNA sample from VanderHeyden's sock matched Burch, officers checked the interdepartmental records already on file with the police.7 They discovered the two-month-old Police Department file documenting the investigation for the vehiclerelated incidents. In it, they found and reviewed Burch's signed consent form and Officer Bourdelais' narrative further documenting Burch's consent. The Sheriff's Office detectives observed that neither the consent form nor the narrative listed any limitations to the scope of consent. And the officers reviewed the downloaded data, having every reason to think it was lawfully obtained with Burch's unqualified consent. ¶23 obtained Burch a argues warrant that before the Sheriff's accessing the Office should have Police Department's Failure to apply exclusion is usually described in our cases as the "good faith" exception to the exclusionary rule. See, e.g., Dearborn, 327 Wis. 2d 252, ¶4. However, the United States Supreme Court has called the "good faith" label confusing. Herring v. United States, 555 U.S. 135, 142 (2009). The Supreme Court's most recent cases do not use that phrase as a catchall for cases where exclusion is improper, and do not describe their conclusion that exclusion was inappropriate as applying a "good faith" exception. See id. at 147-48; Davis v. United States, 564 U.S. 229, 249-50 (2011). 6 Officers from both the Police Department and the Sheriff's Office testified that it is common police practice for agencies to share records with other agencies. 7 12 No. data. 2019AP1404-CR But no case from this court or the federal courts has suggested sister that law renewed accessing enforcement warrant evidence agency is requirement.8 previously a new Rather, obtained search the by a triggering a 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. there was Arizona v. Evans, 514 U.S. 1, 15-16 (1995). no suppressible misconduct under the that would exclusionary "render[] rule." the Thus, evidence 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 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. 8 13 No. best practice," failing to do so was "at 2019AP1404-CR most negligent"); Herring, 555 U.S. at 140 (holding that a county's failure to update a computer database was negligent enough by itself to require" exclusion). does not warrant suppression. ¶25 phone and therefore "not And mere negligence Id. at 144-45. In addition, the societal cost of excluding the cell data would far outweigh any deterrence benefit that exclusion might provide. See Dearborn, 327 Wis. 2d 252, ¶35. This there is in part because is nothing concerning under current Fourth Amendment doctrine with how the Sheriff's Office detectives Department's conducted themselves. initial download or Even if retention the gave Police 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 enforcement agencies. on the In computer this case, records the of other societal cost law of 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. 9 14 No. 2019AP1404-CR exclusion would far outweigh the limited benefit——if any——its application could achieve. ¶26 We conclude that suppression of Burch's data is not warranted under the exclusionary rule. cell phone Regardless of whether a constitutional violation occurred, there was no police misconduct to trigger application of the exclusionary rule. B. ¶27 motion device. Fitbit to Fitbit Evidence Burch also appeals the circuit court's denial of his exclude Burch evidence evidence offers must two be associated arguments. excluded with First, because the Detrie's he argues State produce expert testimony to establish its reliability. he maintains authenticated.10 the We Fitbit review evidence these erroneous exercise of discretion. was evidentiary Fitbit did the not Second, insufficiently rulings for an State v. Nelis, 2007 WI 58, ¶26, 300 Wis. 2d 415, 733 N.W.2d 619. Burch also argues that admission of the Fitbit evidence violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. Burch concedes, however, that his novel argument "does not neatly fit within the test set forth in Crawford v. Washington, 541 U.S. 36 (2004)," and that he raised the issue solely "to preserve for review before higher courts." Accordingly, we reject Burch's Confrontation Clause claim and do not address it further. 10 15 No. 1. ¶28 We have 2019AP1404-CR Expert Testimony held that that "the requirement of expert testimony is an extraordinary one" and should apply only "when the issues before the jury are 'unusually complex or esoteric.'" State v. Kandutsch, 2011 WI 78, ¶28, N.W.2d 865 (quoting another source). testimony, "the circuit court underlying issue is within 'not experience of mankind.'" must the 336 Wis. 2d 478, 799 Before compelling expert first realm find of the that the ordinary Id. (quoting Cramer v. Theda Clark Mem'l Hosp., 45 Wis. 2d 147, 150, 172 N.W.2d 427 (1969)). What falls within the "ordinary experience of mankind," meanwhile, turns on the circuit court's exercise of its discretion "on a case-by-case basis" to decide whether "the issue is outside the realm of lay comprehension" or within the "common knowledge" of "the average juror." ¶29 Id., ¶29. 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. "a three-axis representing He notes that the Fitbit device features accelerometer the user's sensor movements," that but generates explains data 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." ¶30 In its written order rejecting Burch's argument that expert testimony was required, the circuit court explained that 16 No. 2019AP1404-CR Fitbit's step counters have been in the marketplace since 2009, and the "principle idea behind pedometers . . . for significantly longer period than that." court added, "come equipped with a a Many smartphones, the 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 nevertheless "internal "generally workings," understand[] the functions and accept[] its reliability." the public principle of how may it 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. ¶31 This conclusion was reasonable and within the circuit court's discretionary authority. interpreted the standard for The circuit court correctly requiring expert testimony and reasonably applied that standard to the Fitbit evidence before it. Given the widespread availability of Fitbits and other similar wireless marketplace, the step-counting circuit court devices in reasonably today's consumer concluded Detrie's Fitbit was not so "unusually complex or esoteric" that the jury needed an expert to understand it.11 The circuit court's To the extent Burch now argues that the Fitbit is outside the realm of lay comprehension because it is an "internet of things" device, we are unpersuaded. Wireless technology is nothing new. It is entirely within the "ordinary experience of mankind" to use a Bluetooth or Wi-Fi connection to transfer data from one device to another. 11 17 No. 2019AP1404-CR conclusion that expert testimony was not required under these circumstances was within the circuit court's discretion.12 2. ¶32 Wisconsin Authentication Stat. § 909.01 (2019-20)13 evidentiary standard for authentication: authentication or identification as a sets out the "The requirements of condition precedent to admissibility are satisfied by evidence sufficient to support a finding that claims." the matter in question is what its proponent Simply put, authentication requires that a circuit court conclude, within its discretion, that the finder of fact could reasonably determine that the evidence admitted is what its proponent says it is. sought to be Id.; State v. Smith, 2005 WI 104, ¶¶31-33, 283 Wis. 2d 57, 699 N.W.2d 508. In this case, that means the State's authentication obligation is to present sufficient records produced evidence by the to State support are in a finding fact that Fitbit's the records associated with Detrie's Fitbit device. ¶33 State's Notably, records Burch are does not accurate actually copies associated with Detrie's Fitbit device. challenge on whether the State of disagree Fitbit's that the records Instead, he focuses his properly authenticated "the Of course, opposing counsel may attack the reliability of admitted evidence. T.A.T. v. R.E.B., 144 Wis. 2d 638, 652-53, 425 N.W.2d 404 (1988). 12 All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated. 13 18 No. information within those records." 2019AP1404-CR Specifically, he argues that "the State failed to show that the Fitbit device reliably and accurately registered Detrie's steps that evening, and that that data was reliably and accurately transmitted to Fitbit's business records without manipulation." ¶34 Burch's argument reaches beyond the threshold question authentication presents. The circuit court's authentication obligation is simply to determine whether a fact-finder could reasonably conclude evidence is what its proponent claims it to be. Wis. Stat. § 909.01. reviewing authorized the Fitbit custodian The circuit court did so here by records of and Fitbit's the affidavit records" of averring "a that duly the records "are true and correct copies of Fitbit's customer data records," and then concluding the data was self-authenticating under Wis. Stat. § 909.02(12).14 The circuit court's obligation is not to scrutinize every line of data within a given record and decide whether each line is an accurate representation of the facts. Rather, once the circuit court concludes the fact- finder could find that the records are what their proponent claims them to be, the credibility and weight ascribed to those More precisely, the circuit court held that the records were self-authenticating as certified records of regularly conducted activity. See Wis. Stat. § 909.02(12). Burch has not, either before the circuit court or this court, challenged the statements in the affidavit from Fitbit certifying that the records it provided are accurate copies of its records associated with Detrie's Fitbit device. 14 19 No. 2019AP1404-CR records are questions left to the finder of fact.15 Roberson, The 2019 circuit WI 102, court's ¶25, 389 conclusion Wis. 2d 190, that the 935 Fitbit State v. N.W.2d 813. records were sufficiently authenticated therefore was within its discretion. III. ¶35 Burch's intentional appeal homicide evidentiary orders. the judgment of of CONCLUSION his challenged conviction the for denial of first-degree two pre-trial We uphold both orders, and therefore affirm conviction. 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. By the Court.——The judgment of the circuit court is affirmed. Here, too, opposing counsel can attack the reliability of admitted evidence. See T.A.T., 144 Wis. 2d at 652-53. 15 20 No. ¶36 REBECCA GRASSL BRADLEY, J. majority opinion in full. 2019AP1404-CR.rgb (concurring). I join the Because there are no controlling cases interpreting the Fourth Amendment to prohibit the second search of Burch's cellphone by the Brown County Sheriff's Office (Sheriff's Office), the exclusionary rule does not apply and suppression of the evidence obtained from that search would be improper.1 I write separately to discuss the application of the Fourth Amendment to warrantless second searches of smartphones without consent. ¶37 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. "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.'" Riley v. California, 573 U.S. 373, 403 (2014) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). Fourth Amendment 'arbitrary secures power,'" and "'the embodies privacies the of "central life' aim The against of the Framers . . . 'to place obstacles in the way of a too permeating I also agree with the majority that the circuit court did not erroneously exercise its discretion by admitting evidence from Douglass Detrie's Fitbit device. 1 1 No. police surveillance.'" 2019AP1404-CR.rgb Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018) (quoted sources omitted). ¶38 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." U.S. at 396. Riley, 573 Accordingly, law enforcement generally must get a warrant before searching a cell phone. Id. at 403. Burch's consent to search covered only the Green Bay Police Department's initial search of his smartphone for Because 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. I ¶39 In June 2016, a few weeks after Nicole VanderHeyden's murder and the ensuing investigation by the Sheriff's Office, the Green Bay Police Department (Police investigating an entirely unrelated crime: resulted in a hit-and-run incident.2 Burch's 2 roommate, and law began an auto theft that The stolen car belonged to enforcement The vehicle was also lit on fire. 2 Department) identified Burch as a No. 2019AP1404-CR.rgb person of interest because he had last driven the car. Robert about Bourdelais the hit of and the run. Police Burch Department denied any Officer interviewed Burch involvement, but informed Officer Bourdelais that, on the night of the hit and run, he was texting a woman who lived one block away from the location of the accident. Burch stated that he did not go to the woman's house on the night of the incident, and never made arrangements to go to her house. According to Officer Bourdelais' testimony, he and Burch had the following exchange: I asked him if I could see the text messages between him and [the woman], if my lieutenant and I could take a look at his text messages. He said that we could . . . . I [then] asked him if he would be willing to let me take his phone to this detective, download the information off the phone and then I'd bring the phone right back to him, probably take a half an hour and he said that would be fine. ¶40 inquired: The attorney eliciting Officer Bourdelais' testimony "When you asked [Burch] about downloading the information off of his phone, did you specifically limit the information to the text messages when you were talking to him?" Officer Bourdelais responded: No, I didn't. Initially, when I had asked him, hey, do you mind if we take a look at those text messages, I refer to them as text messages because he said he was texting [the woman] back and forth, but from my experience as a police officer I know people communicate [by] phone calls, text messages, texting apps like WhatsApp, MINE, Facebook Messenger, things like that. So that's the information, I wanted information to corroborate that whatever conversation he had with [the woman] or communication he had supported his claims that he never went over to her house or made arrangements to go over to her house. 3 No. ¶41 Following the exchange between 2019AP1404-CR.rgb Burch and Officer Bourdelais, Burch signed a consent form which read as follows: "I, George Stephen Burch, . . . voluntarily give Det. Danielski, Officer Bourdelais, or search my . . . Samsung any assisting personnel cellphone." permission Subsequently, at to the instruction of Officer Bourdelais, a Police Department forensic examiner downloaded all of the data from Burch's cellphone into the Police Department records database. The forensic examiner then converted the data into a readable format, and tabbed the data into categories such as text messages, images, and internet history. that the At the homicide trial, the forensic examiner testified Police Department retains smartphone data for an indefinite amount of time, noting that "[e]ver since [she] [has] been employed with [the Police Department], [they] have saved all extractions for long-term storage for as far back as [she] [has] been employed," which was roughly two years at the time of trial. ¶42 In August 2016 (two months after Burch consented to the search of his phone for the hit-and-run investigation), the Sheriff's Office identified Burch as a person of interest in the investigation into the murder of VanderHeyden based upon a DNA match on between VanderHeyden's the Sheriff's socks. Relying Office and on other databases local shared entities, detectives from the Sheriff's Office discovered that the Police Department had prior contact with Burch while investigating the unrelated hit-and-run incident. that the Police Department had 4 After the detectives learned extracted all of Burch's No. 2019AP1404-CR.rgb smartphone data in June 2016, they procured a copy of the data from the Police Department and searched its contents "for anything in the timeframe of the night of [the murder] into the [following] morning, whether it be calls, texts, internet history, any kind of location data available from that device." The detectives did not obtain a warrant for this search. reviewing the data, the detectives discovered that, In shortly after the murder, Burch repeatedly searched for news articles about the murder using his internet browser. ¶43 Additionally, during their warrantless search of the smartphone's contents, the detectives learned that Burch had a Google email account (Gmail). The detectives were aware that Gmail addresses are associated with a Google Dashboard, which tracks an individual's cellphone tower data. to obtain location Google data location upon GPS, Wi-Fi, and The detectives procured a search warrant Dashboard placed based Burch's information smartphone from at Google. various The critical places on the night of the murder, including the location of VanderHeyden's body and the on-ramp where her discarded clothing was discovered. ¶44 Burch was intentional homicide. arrested and charged with first-degree In a pre-trial motion, Burch moved to suppress the evidence obtained by the Sheriff's Office from the warrantless search of his smartphone data.3 Burch argued that the Sheriff's Office "violated the Fourth Amendment when [it] Burch also filed a motion to exclude evidence related to Detrie's Fitbit device, which the circuit court denied. 3 5 No. searched the Department]." phone data initially seized 2019AP1404-CR.rgb by [the Police Specifically, Burch contended that the Sheriff's Office "blew past Mr. Burch's scope of consent, and likewise, obliterated any Fourth Amendment warrant exceptions." The circuit court denied Burch's suppression motion, and the State introduced at trial the evidence obtained from the smartphone. The jury convicted Burch of first-degree intentional homicide. Burch appealed the circuit court's decision to admit the evidence procured by the Sheriff's Office from its search of his smartphone data. Amendment The court of appeals certified Burch's Fourth challenge to this court, and we accepted certification. II ¶45 The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. "The first clause outlaws promiscuous search and seizure, even as the second clarifies precisely what will be required for a particularized warrant to be valid." Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1193 (2016); State v. Pinder, 2018 WI 106, ¶¶48-51, 384 Wis. 2d 416, 919 N.W.2d 568. As understood at the time the Fourth "[t]he Amendment was ratified, government could not violate the right against search and seizure of one's person, house, papers, or effects absent either a felony arrest or a 6 No. 2019AP1404-CR.rgb warrant meeting the requirements detailed in the second clause." Donohue, supra, at 1193. ¶46 held, As "the the United ultimate 'reasonableness.'" (2006). of States Supreme touchstone of Court the has Fourth repeatedly Amendment is Brigham City v. Stuart, 547 U.S. 398, 403 "[W]hether an individual has a reasonable expectation privacy in avoiding the method of search and a reasonable expectation of privacy in the place searched are the questions that drive a court's reasonableness of the search." and seizures reasonable." State conducted v. of the State v. Brereton, 2013 WI 17, ¶32, 345 Wis. 2d 563, 826 N.W.2d 369. searches examination without Randall, Wis. 2d 744, 930 N.W.2d 223. "The general rule is that 2019 a WI warrant 80, are not ¶10, 387 However, there are a number of exceptions to the warrant requirement. See Riley, 573 U.S. at 382 ("In the absence of a warrant, a search is reasonable only if it falls requirement."). that an within specific exception to the warrant "One of the exceptions to the warrant rule is individual's constitutional a consent 'reasonableness' to search requirement." satisfies Randall, the 387 Wis. 2d 744, ¶10; see also Birchfield v. North Dakota, 136 S. Ct. 2160, 2185 (2016) ("It is well established that a search is reasonable when the subject consents[.]"). "If a search is premised on an individual's consent, it must cease immediately upon revocation of that consent," and an individual "may of course delimit as she chooses the scope of the search to which 7 No. she consents." Randall, 387 Wis. 2d 744, 2019AP1404-CR.rgb ¶10 (internal alterations and citations omitted). ¶47 Just a few years ago, the United States Supreme Court addressed the phenomenon: Fourth Amendment's application to a modern 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. Court clarified that "[its] Specifically, the Riley 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."4 U.S. at 401. Riley, 573 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." Id. at 393, 395. "The possible intrusion on privacy is not physically limited in the same way [as other objects] when it comes to cell phones." Id. at 394. "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 Although Riley involved the search-incident-to-arrest exception to the Fourth Amendment warrant requirement, the principles it espouses apply more broadly. See Riley v. California, 573 U.S. 373, 386 (2014) ("[O]fficers must generally secure a warrant before conducting such a search [of a cell phone]."); see also People v. Hughes, 958 N.W.2d 98, 108 (Mich. 2020) ("In Riley v. California, the Supreme Court of the United States held that officers must generally obtain a warrant before conducting a search of cell-phone data."). 4 8 No. information" could allow law enforcement 2019AP1404-CR.rgb to "reconstruct someone's specific movements down to the minute." Id. at 395- 96. ¶48 its The United States Supreme Court fully understood that decision "[would] have an enforcement to combat crime." impact on the Id. at 401. ability of law After all, "[c]ell phones have become important tools in facilitating coordination and communication" for individuals committing crimes and "can provide valuable criminals." Id. incriminating information about But "[p]rivacy comes at a cost." dangerous Id. 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. ¶49 A warrant requirement for searches of smartphone data comports with the original meaning of the Fourth Amendment. The Framers, "after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment." In United States v. Di Re, 332 U.S. 581, 595 (1948). particular, generation's "the response Fourth to the Amendment reviled was 'general the founding warrants' and 'writs of assistance' of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was 9 No. 2019AP1404-CR.rgb in fact one of the driving forces behind the Revolution itself." Riley, 573 U.S. at 403. "Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—— the concern about giving police officers unbridled discretion to rummage at will among a person's private effects." Gant, 556 U.S. 332, 345 (2009). For the Arizona v. Framers, it was absolutely necessary to ensure "the government not be allowed free rein to wrongdoing." ¶50 search for potential of criminal Donohue, supra, at 1194. The Framers designed the Fourth Amendment to protect the people from government overreach. essence evidence of Amendment constitutional applies to liberty "all Described as the "very and invasions security," on the the part Fourth of the government and its employes of the sanctity of a man's home and the privacies of life." Boyd, 116 U.S. at 630. "It is not the breaking of [one's] doors, and the rummaging of his drawers, that constitutes the . . . offense; but it is the invasion of his infeasible right of personal security, personal liberty, and private property[.]" Id. With this understanding in mind, "[t]he Supreme Court has . . . confirmed that the basic purpose of the Fourth Amendment of individuals security 'is to safeguard against the arbitrary privacy and invasions by governmental officials'"——that is, "to secure 'the privacies of life' against 'arbitrary power.'" Matthew DeVoy Jones, Cell Phones are Orwell's Telescreen: The Need for Fourth Amendment Protection in Real-Time Cell Phone 10 Location Information, 67 No. 2019AP1404-CR.rgb Clev. St. L. Rev. 523, 533 (2019) (quoting Carpenter, 138 S. Ct. at 2213-14). ¶51 The Fourth Amendment specifically recognizes the right of people to be secure in their "persons, houses, papers, and effects." U.S. Const. amend. IV; see United States v. Jones, 565 U.S. 400, 406 (2012) ("[F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas ('persons, house, papers, and effects') it enumerates."). Much modern analysis of the Fourth Amendment has centered upon the primacy of protecting "houses." See Payton v. New York, 445 U.S. 573, 589 (1980) ("The Fourth Amendment protects settings. the individual's privacy in a variety of In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home[.]"). smartphones implicate However, as the Riley Court explained, privacy interests even those associated with the home. typically expose to the digital form many sensitive compelling than "A cell phone search would government exhaustive search of a house: more far more than the most A phone not only contains in records previously found in the home; it also contains a broad array of private information never found in a home in any form[.]" Riley, 573 U.S. at 396- 97. ¶52 just Given the nature of its contents, a smartphone is not another modern personal "privacies of item; it life"——an is area a device that that receives holds acute many and particularized protection from government interference under the 11 No. Fourth Amendment. 2019AP1404-CR.rgb See Boyd, 116 U.S. at 630. searches of smartphones personal security, invade personal "the indefeasible liberty, which Americans hold "sacred." Id. Governmental and private right of property," Permitting law enforcement to rummage through the data residing in smartphones without a warrant evidence would of prohibits. "allow[] criminal free rein wrongdoing," to search which the for potential Fourth Amendment With respect to smartphone data, as in the home, "all details are intimate details, because the entire area is held safe from prying government eyes." See Kyllo v. United States, 533 U.S. 27, 37 (2001). ¶53 The Fourth Amendment includes both "papers" and "effects" among the four enumerated categories protected from unreasonable searches. "papers" within Amendment. The contents of smartphones constitute the original understanding of the Fourth "Historically, private papers, including documents and pamphlets that challenged governmental power, served as a central point of contestation in the Founding era." Andrew Guthrie Ferguson, The "Smart" Fourth Amendment, 102 Cornell L. Rev. 547, 595-96 (2017). The Fourth Amendment's protection of "papers" importance "reflect[s] the expression, and communication." of Id. freedom of thought, According to Lord Camden in his seminal decision in Entick v. Carrington, "papers are often the dearest property a man can have." 19 How. St. Tr. 1029 (C.P. 1765). ¶54 The Framers' inclusion of "papers" within the protections of the Fourth Amendment was motivated in part by the 12 No. case of John Wilkes, "who was targeted for 2019AP1404-CR.rgb writing mocking articles about King George III" and had his papers seized by investigating omitted). officers. Ferguson, supra, at 596 (citation "The Wilkes controversy . . . directly influenced the [F]ramers of the Fourth Amendment. The English search and seizure cases received extensive publicity in England and in America, and the Wilkes case was the subject of as much notoriety and comment in the colonies as it was in Britain." Eric Schnapper, Unreasonable Searches and Seizures of Papers, 71 Va. L. Rev. 869, 912-13 (1985). "Wilkes' cause generated many supporters among American colonists, some of whom became key figures in the framing of the Constitution." Id. at 913. Based upon Wilkes' case, "[p]rotecting private papers . . . became a central rallying cry in the creation of constitutional liberty," receiving explicit Constitution. ¶55 form. have protection under the United States Ferguson, supra, at 596. Today, the people's "papers" largely exist in digital "E-mails, texts, and other social media communication replaced calendars, letter notes, writing." health Id. at information, 599. Additionally, photographs, restaurant and hotel reservations, airline flights, shopping and browsing histories, as well as banking transactions all reside in (or are accessible from) smartphones, forming a digital diary of one's life, accessible from a single source. Given the breadth and detail of this information, "individuals have expectations of privacy Framers' in their outrage digital over the papers." search 13 Id. of at Wilkes' 600. From papers to the the No. Court's concern regarding the search of 2019AP1404-CR.rgb David Riley's smartphone, the overarching aim "has always been the protection of ideas embodied in those papers"——not whether the papers are in physical or digital form. ¶56 as the Id. at 613. Some portion of the contents of smartphones, as well devices themselves, also constitute "effects," which "have historically been understood to mean personal property—— the objects we possess." Id. at 578 (citing Dictionarium Brittanicum (Nathan Baily ed., 1730) (defining "effects" as "the goods of a merchant, tradesman") and Noah Webster, First Edition of an American Dictionary of the English Language (1828) (defining "effects" as "goods; moveables; personal estate")). "The early property American from real understanding property," and distinguished "personal personal property meant physical belongings"——items which were "obviously prized by the Founders" and accordingly received Fourth Amendment protection. Id. Founding-era specifically because of history included the harms "demonstrates in the to privacy that constitutional and effects text dignity [not that were only] could be incurred in their inspection, but also because of the risk of mishandling or damage generally associated with interferences with personal property." of the Fourth Maureen E. Brady, The Lost "Effects" Amendment: Giving Personal Protection, 125 Yale L.J. 946, 987 (2016). Property Due Founding-era sources suggest the Framers understood "[p]ersonal property [to] give[] its owner a right to exclude others from possessing, using, and interfering with the effect"——and 14 most of all to "protect[] No. 2019AP1404-CR.rgb privacy interests with respect to the property." Id. at 993-94 (discussing founding-era sources, including William Blackstone's Commentaries and Lord Camden's judgment in Entick v. Carrington). ¶57 [United Although "'effects' has captured rather less of the States] "houses," when considerations Supreme the Court's Court loom has large." attention" than addressed the Laura Donohue, K. "papers" topic, and "property The Fourth Amendment in a Digital World, 71 N.Y.U. Ann. Surv. Am. L. 553, 679 (2017). For example, in United States v. Jones, the United States Supreme Court held that law enforcement's installation of a GPS device on an individual's vehicle to monitor the vehicle's movements constituted a "search" under the Fourth Amendment, deeming it "beyond dispute" that a vehicle is an "effect" within the meaning of the Fourth Amendment. 565 U.S. 400, 404 (2012). The Court emphasized the government's "physical intrusion" of the "effect" at issue. Id. at 411. The Court did not focus on the physical attachment of the GPS device to the effect but rather the device's capture of sensitive and private information, "relay[ing] more than 2,000 pages of data over [a] 4-week period." Id. at 403; see also Ferguson, supra, at 606 ("[In Jones] the real harm was exposing the revealing personal data about the effect (car)."). That is, in Jones the Fourth Amendment analysis turned on the "capturing of data trails" of the owner effect." and "invad[ing] the informational Ferguson, supra, at 606. security of the The Court's reasoning in Jones applies no less to smartphones and the data they hold, 15 No. supporting the characterization of 2019AP1404-CR.rgb smartphones as "effects" entitled to constitutional protection from unreasonable searches and seizures. III ¶58 Having application of smartphones and established the Fourth their a historical Amendment's data, it is basis warrant necessary for the requirement to address to the application of the consent exception to the warrant requirement within the context of the facts of Burch's case. It is well- established that "[o]ne of the exceptions to the warrant rule is that an individual's constitutional Wis. 2d 744, consent 'reasonableness' ¶10; see also to search satisfies requirement." Birchfield, 136 the Randall, S. Ct. at 387 2185. Burch gave consent for the Police Department to download and search his smartphone and its data as part of the investigation of the hit-and-run incident in June 2016. According to his testimony, Officer Bourdelais asked Burch if "[he] could see the text messages between him and [the woman]" on the night of the hit-and-run incident. could "take information Burch. his off Officer Bourdelais then asked Burch if he phone the to phone" this and then detective, bring it download right back the to Burch agreed to all requests in this exchange and signed a consent form saying he "voluntarily give[s] Det. Danielski, Officer Bourdelais, or any assisting search [his] . . . Samsung cellphone." Bourdelais "or any assisting personnel permission to Burch permitted Officer personnel" to download his smartphone's data and search for evidence of the hit-and-run 16 No. incident. Burch's consent encompassed the Police Department's investigation of a particular crime. this 2019AP1404-CR.rgb search. Schneckloth v. The Constitution permitted Bustamonte, 412 U.S. 218, 222 (1973) ("[A] search conducted pursuant to a valid consent is constitutionally permissible."). ¶59 the Two months later, a different law enforcement agency—— Sheriff's investigating beyond Office——searched an the entirely scope of Burch's separate Burch's smartphone crime. This consent. data while search went Officer Bourdelais questioned Burch in June 2016 regarding the hit-and-run incident only, and smartphone obtained data Burch's "[to] consent corroborate that to download whatever Burch's conversation [Burch] had with [the woman] . . . supported his claims that he never went over to her house" the night of the hit and run. The consent form did not include any language authorizing a second search by a separate law enforcement agency for a different crime. The Bourdelais, forensic examiner form authorized (Det. only Officer Danielski), and personnel to view the smartphone's contents. their the assisting Any search beyond the scope of Burch's consent would require a warrant. ¶60 The State argues that this court's decision in State v. Betterley, 191 Wis. 2d 406, 529 N.W.2d 216 (1995), allows law enforcement to take a "second look" at smartphone data that was previously searched. cell phone data. Jail seized search. a That case does not apply to searches of In Betterley, officers at the St. Croix County ring Id. at 414. from the defendant during an inventory Later that day, a New Richmond police 17 No. 2019AP1404-CR.rgb officer asked to see the ring, believing it was evidence that the defendant had committed insurance fraud. New Richmond police officer retained without obtaining a warrant. Id. the Id. at 415. ring as The evidence This court held that "the permissible extent of the second look [at evidence] is defined by what the police could have lawfully done without violating the defendant's reasonable expectations of privacy during the first search, even if they did not do it at that time." 418. Because the Id. at defendant had a diminished expectation in privacy in the ring after forfeiting it during the first search, the second look at the ring was permissible, so long as it was "no more intrusive" than the first search. ¶61 Id. Betterley does not apply to cell phone data retrieved pursuant to the owner's consent. Betterley involved an inventory search of an item, not the consent-to-search exception to the warrant requirement. Unlike searches conducted with consent, inventory searches are "administrative by nature, not an investigation motivated by a search for evidence." Weber, 163 Wis. 2d 116, importantly, physical 132, items 471 such N.W.2d 187 as rings different than searches of smartphone data. State v. (1991). are More qualitatively Examination of a ring reveals nothing more than the physically observable item itself, while smartphones contain——and conceal——the "privacies of life," glance. which For quantitative generally this and a are reason, viewable smartphones qualitative Riley, 573 U.S. at 393. not sense by "differ from others in other at a both a objects." "[I]t is no exaggeration to say that 18 No. 2019AP1404-CR.rgb many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives——from the mundane to the intimate. Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case." Id. at 395. Certainly, "the possible intrusion on privacy is not physically limited in the same way [as other objects] when it comes to cell phones." Id. at 394. Accordingly, Betterley does not inform the Fourth Amendment analysis governing searches of cell phone data. ¶62 however, Even if "a Fourth Amendment violation has occurred," it particularly resort." 786 "does not because mean the exclusionary "exclusion [of evidence] rule is applies," the last State v. Dearborn, 2010 WI 84, ¶35, 327 Wis. 2d 252, N.W.2d 97. "To trigger the exclusionary rule, police misconduct must be sufficiently deliberate that exclusion can meaningfully deter it, and that such deterrence is worth the price paid by the justice system." Id., ¶36 (quoted source omitted). there was sufficiently culpable For the reasons stated in the majority opinion, 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 suppression of agencies the require evidence a obtained warrant. during Accordingly, the Sheriff's Office's second search would be inappropriate and I respectfully concur. 19 No. 2019AP1404-CR.rgb * * * ¶63 "The great end, for which men entered into society, was to secure their property." Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765) (Lord Camden presiding). must be secured, or liberty cannot exist." "Property Discourses on Davila, in 6 The Works of John Adams 280 (C. Adams ed. 1851). "The Fourth Amendment imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976). Because smartphones contain the "privacies of life," law enforcement generally needs a warrant to search the data they hold unless an exception to the warrant requirement applies. 20 No. ¶64 REBECCA dissenting police in want FRANK DALLET, part). to Under search a J. the generally need a warrant. (concurring Fourth person's 2019AP1404-CR.rfd in Amendment, private part, when information, the they The Brown County Sheriff's Office searched George Steven Burch's private cell phone data without obtaining a warrant, assuming that Burch's consent for another agency to download his phone's data for a wholly separate investigation obviated its Fourth Amendment duty to do so. did not. It The Sheriff's Office's warrantless search of Burch's cell phone data violated the Fourth Amendment, and the evidence obtained from that unlawful search should be suppressed. majority opinion's constitutional contrary problems holding presented by The ignores the novel private cell phone information, is inconsistent with the Fourth Amendment's text, and undermines violations. the exclusionary remedy for Fourth Amendment I therefore respectfully dissent from that part of the majority opinion.1 I. ¶65 A Green Bay BACKGROUND Police Department (GBPD) officer interviewed Burch while investigating crimes involving the car Burch would borrow for work. Burch denied his involvement but acknowledged that he was text messaging a friend that night who lived near the scene. When the officer asked Burch if he and his lieutenant could see those text messages, Burch verbally consented. After the officer explained that it was easier to I join Parts I. and II.B. of the majority opinion because I agree that the circuit court permissibly admitted evidence regarding a Fitbit device. 1 1 No. download "the information" from the phone 2019AP1404-CR.rfd than to take screenshots, Burch verbally consented to allowing the officer to take his phone to a GBPD detective for that purpose.2 The officer then presented Burch with a standardized written consent form. The form contained the heading "City of Green Bay Police Department" and indicated that Burch "voluntarily" gave a named GBPD officer, a named GBPD detective, as well as any "assisting personnel," "permission Burch signed the form. only "text messages, to search" his "Samsung Cellphone." The officer testified that he requested phone calls, Facebook posts, and photographs taken any time after 11:00 p.m." the night of the accident; yet, to access that information, the GBPD downloaded the entire contents of Burch's phone. ¶66 Two months later, the Sheriff's Office was investigating a homicide that had occurred a few weeks before the crimes being investigated by the GBPD. It matched Burch's DNA to DNA collected from the victim's body, her socks, and a cord believed to be used in her murder. The Sheriff's Office At trial, the officer testified that by "the information," he meant any communications between Burch and his friend that would corroborate Burch's alibi: 2 Initially, when I had asked [Burch], hey, do you mind if we take a look at those text messages, I refer to them as text messages because he said he was texting [his friend] back and forth, but from my experience as a police officer I know people communicate phone calls, text messages, texting apps like WhatsApp, MINE, Facebook Messenger, things like that. So that's the information, I wanted information to corroborate that whatever conversation he had with [his friend] or communication he had supported his claims that he never went over to [the victim's] house or made arrangements to go over to her house. 2 No. also discovered that the GBPD had extraction from Burch's cell phone. files and seeing Burch's signed retained 2019AP1404-CR.rfd the full data After reviewing the GBPD's consent form, the Sheriff's Office searched that data without first obtaining a warrant. The search led the Sheriff's Office to Burch's internet search history and his Google email account. The internet history revealed that Burch had viewed online stories about the victim's disappearance 64 times. The email account allowed the Sheriff's Office to issue Google a subpoena for Burch's Google Dashboard records, which included his location data from the night of the murder. The location data placed Burch's cell phone near the victim's residence and the field where her body was discovered around the time of the victim's death. II. ¶67 first ANALYSIS The Fourth Amendment inquiry here is two-fold. consideration is whether the Sheriff's The Office's warrantless search of the GBPD's download of Burch's data was unreasonable. question If so, it violated the Fourth Amendment, and the becomes whether excluding the unlawfully obtained evidence would sufficiently deter the same police conduct in the future. These questions involve a mixed standard of review, under which we uphold the circuit court's findings of historical fact unless they are clearly erroneous, but we review de novo the application of constitutional principles to those facts. See State v. Blackman, 2017 WI 77, ¶25, 377 Wis. 2d 339, 898 N.W.2d 774. 3 No. A. 2019AP1404-CR.rfd The Sheriff's Office's Warrantless Search Was Unreasonable. ¶68 The Fourth Amendment to the United States Constitution prohibits the government from conducting "unreasonable" searches of a person, a person's home, or her "effects": The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . . The Amendment seeks to secure "the privacies of life" against such unreasonable searches by placing "obstacles in the way of a too permeating police surveillance." States, 585 U.S. ___, 138 See Carpenter v. United S. Ct. 2206, 2214 (2018). Police surveillance amounts to a "search," for purposes of the Fourth Amendment, when it collects information in which the person has a reasonable expectation of privacy. ¶69 the E.g., id. at 2213-14. To protect one's reasonable expectation of privacy, text of the Fourth Amendment communicates a "strong preference for searches conducted pursuant to a warrant." Illinois v. amnd. IV. Gates, 462 U.S. 213, 236 (1983); U.S. See Const. Indeed, a warrantless search is per se unreasonable, see Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973), and presumptively violates the Fourth Amendment, see State Tate, 2014 WI 89, ¶27, 357 Wis. 2d 172, 849 N.W.2d 798. v. That presumption is overcome only when the warrantless search falls under one of the "few delineated exceptions." specifically established and well- State v. Coffee, 2020 WI 53, ¶24, 391 Wis. 2d 831, 943 N.W.2d 845. ¶70 WI 76, Consent is one such exception. ¶55, 364 Wis. 2d 167, 868 4 State v. Hogan, 2015 N.W.2d 124. As with any No. 2019AP1404-CR.rfd exception to the warrant requirement, consent is "jealously and carefully drawn," and must be "confined in scope" and "strictly circumscribed." See Jones v. United States, 357 U.S. 493, 499 (1958); Terry v. Ohio, 392 U.S. 1, 25-26, 29 (1968). a particular search must therefore be Consent to "unequivocal and specific." State v. Reed, 2018 WI 109, ¶8, 384 Wis. 2d 469, 920 N.W.2d 56. Even absent express limits, the scope of consent is neither "boundless" nor "perpetual." Wis. 2d 13, 21-22, Rather, scope its 365 is See State v. Douglas, 123 N.W.2d 580 determined (1985) (lead objectively as opinion). "the typical reasonable person [would] have understood" it from "the exchange between the officer and the suspect." U.S. 248, 251 (1991). Florida v. Jimeno, 500 When the police rely on consent as their justification for not getting a warrant, the State carries the burden to demonstrate by clear and convincing evidence that the search remained within the scope of that consent. See Reed, 384 Wis. 2d 469, ¶58; Douglas, 123 Wis. 2d at 22 (explaining that a warrantless search exceeding the scope of consent is unreasonable). ¶71 The lawfulness of the Sheriff's therefore turns on two sub-questions: to specific information, privacy in GBPD did that personnel Burch information a such search (1) although he consented downloading maintain Office's his reasonable that the cell phone expectation Sheriff's of Office review of it was a Fourth Amendment search; and, if so, (2) did the Sheriff's Office act unreasonably by searching the GBPD's download of Burch's cell phone data without a warrant, in light of Burch's consent to the GBPD? 5 No. 1. 2019AP1404-CR.rfd Burch Maintained a Reasonable Expectation of Privacy in the GBPD's Download of His Cell Phone Data. ¶72 In the Fourth Amendment context, the United States Supreme Court has clearly expressed that cell phone data is in an evidence class of its own because it "implicate[s] privacy concerns far beyond those implicated by the search of" other physical belongings. (2014). with Riley v. California, 573 U.S. 373, 393 Cell phones are unique in that they are almost always us and information." they Id. store "vast 386. Thus, at quantities by of carrying personal cell phones, people carry with them "a digital record of nearly every aspect of their lives——from the mundane to the intimate." Id. at 395. That digital record may include a person's internet "search and browsing history" and "[h]istoric location information," see id. at 395-96, allowing someone with access to that information to "generate[] a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, see United professional, States (Sotomayor, J., religious, v. Jones, concurring). and 565 sexual associations," U.S. 400, Although 415 (2012) traditionally most private information was kept in one's home, advances in digital technology have shifted that paradigm such that searching a personal cell phone "would typically expose to the government far more than the most Riley, 573 U.S. at 396-97. exhaustive search of a house." Accordingly, people have a unique and heightened expectation of privacy in their cell phone data that demands commensurate Fourth Amendment protection. See id. at 386, 393; People v. Hughes, 958 N.W.2d 98, 112 (Mich. 2020) 6 No. 2019AP1404-CR.rfd ("Riley distinguished cell-phone data from other items . . . in terms of the privacy interests at stake."). ¶73 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 investigation. messages to verify his alibi See Jimeno, 500 U.S. at 251. for the GBPD's 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. Cf. Douglas, 123 Wis. 2d at 21-22. 7 No. ¶74 2019AP1404-CR.rfd Burch's consent was therefore limited to the GBPD for the GBPD's investigation.3 See Terry, 392 U.S. at 25-26, 29 (requiring courts to interpret warrant exceptions as "confined in scope" and "strictly circumscribed"). With respect to other agencies and their investigations, Burch maintained a reasonable expectation of privacy in the data downloaded by the GBPD but unrelated to its investigation, including his internet search history and Google email account. at 2217 (holding that, nature," a person privacy" in the because "maintains data even See Carpenter, 138 S. Ct. of cell a legitimate after phone data's "unique expectation consensually giving of it to another party for a limited purpose); Hughes, 958 N.W.2d at 111 (concluding that the lawful seizure and search of certain cell phone information reasonable does expectation information). not of "extinguish[] privacy in the that entirety" otherwise of that Consequently, the Sheriff's Office's subsequent review of Burch's data invaded Burch's reasonable expectation of privacy such that it was a search under the Fourth Amendment. 2. The Sheriff's Office Acted Unreasonably in Searching the GBPD's Download of Burch's Cell Phone Data. ¶75 The Sheriff's Office decided that no warrant was required for its search after determining that Burch's consent The circuit court's determination that Burch placed no parameters on the scope of his consent is suspect given that his conversation with the GBPD about his phone was strictly limited to his text messages. The categorical uniqueness of private cell phone data requires circuit courts to take seriously the admonition that exceptions to the warrant requirement like consent be interpreted as "confined in scope" and "strictly circumscribed." See Riley v. California, 573 U.S. 373, 382, 393 (2014); Terry v. Ohio, 392 U.S. 1, 25-26, 29 (1968). 3 8 No. to the GBPD extended to the Sheriff's Office. 2019AP1404-CR.rfd But as discussed above, Burch's "unequivocal and specific" consent extended only to certain members of the GBPD, and only so they could review his text messages Wis. 2d 469, ¶8. information on to confirm Burch his did phone his alibi. not See consent being to available Reed, all to 384 of the other law enforcement agencies for some later, unrelated investigation. And the Sheriff's Office did not independently get Burch's in Burch's consent to search his cell phone information. ¶76 Given those facts, no reasonable person 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. B. Evidence of Burch's Google Location Data and His Internet Search History Should Be Suppressed. ¶77 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 9 Office's unconstitutional No. search of downloaded ubiquity of cell cell phones phone and data, the 2019AP1404-CR.rfd especially increasing given the prevalence of evidence obtained in excluded from personal digital data in criminal investigations. ¶78 The violation ensures exclusionary rule——that of the Fourth Amendment be that the Fourth Amendment's right to be trial—— free from unreasonable searches remains one "of substance rather than mere tinsel." Hoyer v. State, 180 Wis. 407, 415, 193 N.W. 89 (1923). By excluding otherwise relevant evidence, "[t]he exclusionary rule generally serves to 'deter deliberate, reckless, or grossly negligent conduct, or systemic negligence.'" in some circumstances recurring Blackman, 377 Wis. 2d 339, ¶68 (quoting Herring v. United States, 555 U.S. 135, 150-51 (2009)). rule thus or incentivizes "the law enforcement The profession as a whole" to conduct itself "in accord with the Fourth Amendment." Gates, 462 U.S. at 261 n.15 (White, J., concurring in the judgment). ¶79 Given that critical function, the United States Supreme Court has permitted deviation from the exclusionary rule only when the deterrent value of excluding the evidence is "marginal" or "nonexistent" and outweighed by the social cost of doing so. See, e.g., U.S. 897, 913-17, 922 (1984). United States v. Leon, 468 Such is the case when there is no police misconduct to deter or when the police misconduct is "isolated," "nonrecurring," and "attenuated." Herring, unlawfully 555 U.S. obtained at 137, evidence 144. is For See id. at 922; example, inappropriate if excluding the police acted in objectively reasonable reliance on either a facially 10 No. 2019AP1404-CR.rfd valid warrant properly issued by a neutral, detached magistrate; an apparently constitutional precedent. See Krull, U.S. 480 States, 564 Leon, 340 U.S. 229, 468 statute; U.S. 897 (1987) 239-41 or a binding (warrants);4 (statutes); (2011) Illinois Davis (appellate appellate v. v. United precedents). Likewise, exclusion is inappropriate when an arresting officer acts in objectively reasonable reliance on either a judicial or police employees' infrequent clerical mistake. Evans, 514 U.S. 1, 14-16 (1995) (court See Arizona v. clerk made a recordkeeping error regarding outstanding arrest warrants only once "every three or four years"); Herring, 555 U.S. at 144-47 (police employees' clerical error in warrant database had never happened before). The common thread through each of these cases is that the fault lies with someone who is not directly engaged in the "competitive enterprise of ferreting out crime"; who has "no stake in the outcome of particular prosecutions." See Evans, 514 U.S. at 15. ¶80 Conversely, the exclusionary rule applies when evidence is unlawfully obtained due to an error made by law enforcement. See Leon, 468 U.S. at 923. For instance, evidence should be suppressed when law enforcement secures evidence based on a facially deficient warrant, or when a warrant is issued based on an officer knowingly or recklessly stating a falsehood in the warrant affidavit. See id. The same goes for when police exceed a valid warrant's authority when executing it. See id. As for the police relying on statutory authority, the See also Massachusetts v. Sheppard, 468 U.S. 981, 988-91 (1984). 4 11 No. exclusionary rule still applies when 2019AP1404-CR.rfd police officers misinterpret and "act outside the scope" of a statute and when a reasonable officer would have known either that the law in question is unconstitutional or that the conduct authorized by the statute violates other clearly established law. U.S. at 355, unlawfully 360 n.17. negligent police "recurring or systemic." ¶81 Indeed, the conduct rule when Krull, 480 applies the even conduct to is E.g., Herring, 555 U.S. at 144. 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, not some detached third party's. There was no statute or judicial precedent condoning a warrantless search of another agency's download of a person's private cell phone data. for itself, requirement incorrectly, did not apply Instead, the Sheriff's Office judged that to the Fourth Burch's Amendment's cell phone warrant 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. ¶82 See Evans, 514 U.S. at 15. Applying the rule is also justified because the record demonstrates information that are warrantless commonplace, searches and of therefore private likely cell to phone 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 12 No. so. 2019AP1404-CR.rfd This widespread neglect of the Fourth Amendment's warrant requirement is just the kind of "systemic exclusionary rule is designed to correct. at 144. negligence" the See Herring, 555 U.S. The exclusionary rule thus squarely applies here. ¶83 The State's counterarguments are unavailing. Its contention that the Sheriff's Office reasonably relied upon its own determination regarding the scope of Burch's consent misses the point. of an It is not up to the police to determine the contours exception to their own conduct. dissenting) constitutional rule requirement restricting See Leon, 468 U.S. at 959 (Brennan, J., (presciently exclusionary wrongfully a lamenting would extended "to not that stay exceptions "confined" situations in which but the to the instead police be have conducted a warrantless search solely on the basis of their own judgment"). circumstances warrant Moreover, that are exceptions——as because on is the the the margins case police of may the here——police law encounter regarding officers are required to "err on the side of constitutional behavior" and get a warrant.5 See United States v. Johnson, 457 U.S. 537, 561 The State erroneously argues that the Sheriff's Office's search is akin to law enforcement's ability to take a "second look" at physical evidence inventoried during a jail intake or that it already lawfully seized. See State v. Betterley, 191 Wis. 2d 406, 418, 529 N.W.2d 216 (1995); State v. Riedel, 2003 WI App 18, ¶16, 259 Wis. 2d 921, 656 N.W.2d 789. But as the United States Supreme Court explained in Riley, "cell phones, as a category, implicate privacy concerns far beyond those implicated" by physical objects. 573 U.S. at 393. And because a "search of the information on a cell phone bears little resemblance" to other types of searches, the rationales for other searches do not extend to cell phone information. See id. at 386. Therefore, the State's arguments fail. See People v. Hughes, 958 N.W.2d 98, 111-15 (Mich. 2020). 5 13 No. (1982); Blackman, 377 Wis. 2d 339, ¶53 2019AP1404-CR.rfd (warrantless searches executed outside any "clearly delineated" warrant exception are "per se unreasonable" and "unlawful"). erroneous determination Sheriff's Office is no that Burch's The Sheriff's Office's consent justification for extended failing to to the get a warrant. ¶84 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. See Herring, 555 U.S. at 144 (exclusion applies when unreasonable police conduct is "recurring" or "systemic"). The same goes for the majority's characterization of the Sheriff's Office's conduct as "by the book." Majority op., ¶22. If following "the book" leads to violations of the Fourth Amendment, then the exclusionary rule's deterrent value is at its peak. following such significant continued an unlawful societal adherence value to an Excluding evidence obtained by and by widespread both policy specifically unconstitutional practice provides deterring and more broadly incentivizing police agencies to adopt policies in line with the Fourth Amendment.6 See Wayne R. LaFave, 1 Search & Seizure § 1.3(i) (6th ed. 2020). This is especially true when The State counters that because the Sheriff's Office may have had access to Burch's Google email account and internet search history via a lawful, independent source, that evidence should not be excluded. See State v. Carroll, 2010 WI 8, ¶¶44-45, 322 Wis. 2d 299, 778 N.W.2d 1. But the State has forfeited that argument by failing to raise it below. See State v. Counihan, 2020 WI 12, ¶25, 390 Wis. 2d 172, 938 N.W.2d 530. 6 14 No. 2019AP1404-CR.rfd the Constitution already provides law enforcement with a simple solution for how to lawfully obtain cell phone data: warrant. C. get a See Riley, 573 U.S. at 403. The Majority Opinion Has No Support in Fourth Amendment Jurisprudence. ¶85 ignores The majority opinion offers a contrary analysis that the novel constitutional problems presented by cell phone data, is inconsistent with the Fourth Amendment's text, and undermines the exclusionary remedy. ¶86 The appreciation cell phone that law majority for opinion's the data and analysis fundamental more enforcement differences "traditional," might reveals share with a between non-digital other lack of digital evidence agencies. The Fourth Amendment treats cell phone data differently because it often contains nearly all the "privacies of [a person's] life," such that "any extension" of Fourth Amendment principles "to digital data has to rest on its own bottom." See Riley, 573 U.S. at 393, 403 (quoting another source); Carpenter, 138 S. Ct. at 2219 (explaining account for the that Fourth "seismic Amendment shifts in jurisprudence digital must technology"). Accordingly, it is a grave analytical error to "mechanically apply[]" to cell phone data Fourth Amendment rationales that were developed Carpenter, 138 without S. Ct. such at invasive 2219; see technologies in also 573 Riley, mind. U.S. at 400-01 (rejecting the argument that the police can search cell phone data under the same rationale that allows them to obtain "the same information from a pre-digital counterpart"). Or, as the United States Supreme Court put it, treating cell 15 No. 2019AP1404-CR.rfd phone data the same as its non-digital analogues "is like saying a ride on horseback is flight to the moon. point B, Riley, but 573 at indistinguishable from a Both are ways of getting from point A to little U.S. materially else justifies 393. The lumping majority them opinion, together." 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. ¶87 More troubling is Fourth Amendment's text. the majority's disregard for the It is bedrock Fourth Amendment law that search warrants are generally required and that a search without a warrant Ontario v. is Quon, Wis. 2d 339, per 560 ¶53. The se unlawful. U.S. 746, 760 majority's See, e.g., (2010); assertion City Blackman, that of 377 "there is nothing concerning under current Fourth Amendment doctrine with how the Sheriff's Office detectives conducted shockingly discards this well-settled principle. majority opinion fails to even mention the themselves" Indeed, 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 op., ¶23. not getting a warrant. Majority 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 16 No. is unconstitutional. exclusionary remedy Imposing for this Fourth hurdle Amendment 2019AP1404-CR.rfd undermines violations the and directly contrary to both our and the United States is Supreme Court's Fourth Amendment jurisprudence. ¶89 All of which makes inexcusable the majority opinion's refusal to Office's address search. the constitutionality Despite law enforcement's of the Sheriff'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 the exclusionary aggrieved rule applies, defendants——and future majority courts——of opinion the deprives 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. Result: gauzy constitutional guardrails as technological innovation outpaces legal adaptation. Zadeh v. Robinson, 928 F.3d 457, 479-80 (5th Cir. 2019) (Willet, J., concurring), cert. denied, 141 S. Ct. 110 (2020). 17 No. 2019AP1404-CR.rfd Together with its new prior-precedent requirement, the majority opinion's avoidance perpetuates a of cycle the of Fourth diminished Amendment police issues here accountability and courts' unwillingness to address it. ¶90 Given that the Fourth Amendment law specific to cell phone data is undeveloped, this court should be providing "clear guidance to Riley, 573 U.S. 692, law U.S. 705 at n.19 enforcement 398; see (1981) through also categorical Michigan (explaining that v. rules." Summers, clear 452 "workable" rules are necessary so that difficult Fourth Amendment questions are not resolved in an "ad hoc, case-by-case fashion individual police officers") (quoting another source)). law enforcement agency wishes to search a person's by If a private information, such as cell phone data, and the person did not consent to that agency's search, the agency must get a warrant. III. ¶91 CONCLUSION The Sheriff's Office should have obtained a warrant to search Burch's private cell phone data. evidence it suppressed. found as a result of Because it did not, the that search should be The majority's refusal to apply the exclusionary rule is incompatible with our Fourth Amendment jurisprudence and perverts the long-standing bedrock requirement obtain a warrant to search private information. that police I therefore respectfully dissent from that part of the majority opinion. ¶92 I am authorized to state that Justice JILL J. KAROFSKY joins this opinion and that Justice ANN WALSH BRADLEY joins this opinion except for footnote 1. 18 No. 19 2019AP1404-CR.rfd No. ¶93 ANN WALSH BRADLEY, J. (dissenting). 2019AP1404-CR.awb 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. ¶94 An average jury member would likely know what a Fitbit is and what it does. wearer's steps. Of course, as relevant here, it counts the But that isn't the question. In determining whether expert testimony is required, the relevant inquiry is how a Fitbit counts the wearer's steps and then ultimately, whether it does so with sufficient reliability. ¶95 How does microelectronic it work? triaxial A Fitbit accelerometer to device capture a uses 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. ¶96 Is it sufficiently reliable to be admitted as evidence in court? I don't know. But, I do know that the answer does not lie in its ubiquitous use. ¶97 I also insufficient determine, know foundation in essence, that in absent this that expert record a testimony for presumption the of there is majority to accuracy and reliability attends the underlying technology of a Fitbit. The error of such a presumption is made manifest by reference to an overarching disseminated Information analysis by (NCBI), the of 67 studies National under the Center auspices 1 on of Fitbit for the accuracy Biotechnology U.S. National No. Institutes of Health (NIH). 2019AP1404-CR.awb The researchers found that Fitbit devices were "likely to meet acceptable accuracy for step count approximately half the time." of Fitbit Devices: Lynne M. Feehan, et al., Accuracy Systematic Review and Narrative Syntheses of Quantitative Data, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6107736/ (2018). ¶98 In citing this study, I neither endorse nor disclaim its conclusions. It suggests, however, when a compilation of studies indicates acceptable time," that something may accuracy be is amiss met with only "half the the majority's presumption of accuracy and reliability. ¶99 Expert testimony is required when matters are presented that are "unusually complex." White v. Leeder, 149 Wis. 2d 948, 960, 440 N.W.2d 557 (1989). Movement measured by a "microelectronic triaxial accelerometer" and analyzed by proprietary algorithms certainly fits that bill. ¶100 In my view, the technology underlying a Fitbit is not within the ordinary experience of an average jury member. Fitbits and other wearable devices may be ubiquitous, but it does not follow from this premise that the technology underlying their use is not "unusually complex." ¶101 Expert testimony assists the trier of fact understand the evidence and to determine a fact in issue. to The accuracy of the number of steps recorded on Douglass Detrie's Fitbit is certainly a fact in issue. Thus, expert testimony should have been required to assist the jury in understanding the technology and assessing its reliability. 2 No. 2019AP1404-CR.awb ¶102 Invoking a deferential standard, it is not unusual for an appellate court evidentiary issue. to do only a cursory analysis of an But this is not the usual case and a more nuanced analysis is required. ¶103 This case presents a groundbreaking question. To my knowledge, this is the first appellate court decision in the country to admissible works. case conclude absent that expert Fitbit testimony step-counting explaining evidence how the is device The parties have not cited, and I have not found, any making provides a such slim a proclamation. reed upon which The to majority's support such analysis a novel determination. ¶104 Rather than allowing evaluation of the question, the majority cuts off the debate. circuit court's technology without to the be erroneous simple benefit It essentially rubber stamps the analysis enough of an to and be expert declares Fitbit's presented as evidence witness or further consideration of its reliability. ¶105 Although I join Justice Dallet's dissent, concluding that the search of Burch's cell phone at issue violated his Fourth Amendment rights and that the good faith exception to the warrant requirement does not apply, I do not join footnote 1 that concurs evidence. admitted with the majority's analysis of the Fitbit Because I conclude that the circuit court erroneously the Fitbit evidence without an expert witness to establish the reliability of the science underlying the Fitbit technology, I respectfully dissent. 3 No. 2019AP1404-CR.awb I ¶106 I briefly recount the facts that are relevant to the issue on which I write: ¶107 As the the admission of the Fitbit evidence. majority opinion sets forth, the initial suspect in the crime at issue here was Douglass Detrie, the victim's boyfriend. Majority op., ¶4. However, the investigation shifted after police learned that Detrie's Fitbit device had recorded only 12 steps during the time the homicide was committed. ¶108 The Burch was ultimately arrested and charged. State sought to present evidence Detrie's Fitbit, and Burch moved to exclude it. relevant here, Burch contended that the regarding Id., ¶11. State must As present expert testimony to establish the reliability of the science behind the Fitbit device. Id.1 ¶109 The circuit court granted Burch's motion in part and denied it in part. Specifically, the circuit court excluded Fitbit evidence related to sleep monitoring, but it allowed the admission of the step-counting data without the testimony of an expert regarding the science underlying the Fitbit technology. Id., ¶11 & n.3. ¶110 In the circuit court's estimation, a Fitbit is more akin to an electronic monitoring device (which does not require expert testimony, see State v. Kandutsch, 2011 WI 78, 336 Burch made several additional arguments, including an assertion that Fitbit's records were not properly authenticated, which he renews on appeal. Because I determine that expert testimony was necessary to admit the evidence in question, I do not reach Burch's arguments regarding authentication. 1 4 No. 2019AP1404-CR.awb Wis. 2d 478, 799 N.W.2d 865) than to a preliminary breath test (which requires expert testimony, see State v. Wis. 2d 616, 599 N.W.2d 897 (Ct. App. 1999)). Doerr, 229 Similarly, the circuit court distinguished Fitbit data from DNA, fingerprint analysis, blood alcohol content tests, tool mark evidence and accident reconstruction because "few people encounter those things in their everyday life." ¶111 Comparing a Fitbit to an electronic monitoring device, the circuit court stated that a Fitbit is "passively worn by a person," and the device collects data "based on that person's movements, which is then transmitted and recorded. There is no 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." Thus, in the circuit court's view "the step-counting feature of the Fitbit Flex, like the [electronic monitoring device], is not so unusually complex or esoteric that the jury will require the aid of expert testimony to interpret the information." ¶112 At trial, because it was not required to provide an expert to introduce the data from Detrie's Fitbit, the State relied upon the testimony of Tyler Behling, a computer forensic crime analyst with the Brown County Sheriff's Office. Although Behling claimed to have knowledge of how a Fitbit works "on a high level," he did not know the answer when asked how a Fitbit and a Bluetooth device send information from one to the other, how Fitbit stores its data, whether Fitbit data can be edited, 5 No. 2019AP1404-CR.awb whether the device would register steps while it is not being worn, or what a Fitbit's error rate is. ¶113 Despite the dearth of technical testimony regarding how a Fitbit actually works, the circuit court's determination. majority now affirms the It concludes that "[g]iven 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." Majority op., ¶31. II ¶114 It has long been the law that expert testimony is required when a matter involves "special knowledge or skill or experience on subjects which are not within the realm of the ordinary experience of mankind, learning, study and experience." Hosp., 45 Wis. 2d 147, 150, and which require special Cramer v. Theda Clark Mem'l 172 N.W.2d 427 (1969). "The requirement of expert testimony is an extraordinary one," and should be applied "only when issues are before the jury." ¶115 "In considering unusually complex or esoteric White, 149 Wis. 2d at 960. what constitutes the 'ordinary experience of mankind'——i.e. the average juror——courts have not tailored this standard to the lowest common denominator. Rather, courts attempt to evaluate, on a case-by-case basis, whether expert outside the testimony realm of is lay required because comprehension." Wis. 2d 478, ¶29. 6 the issue Kandutsch, is 336 No. 2019AP1404-CR.awb ¶116 The circuit court here determined that the technology underlying a Fitbit comprehension. is not outside the realm of lay 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." ¶117 But ubiquity. matter. the expert testimony standards do not rest on Instead, they rest on the complexity of the subject 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. ¶118 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." majority, the Feehan, average et juror al., would 7 supra. According understand, without to the expert No. testimony, not only what a "microelectronic accelerometer" is, but how it works. ¶119 If the State had 2019AP1404-CR.awb triaxial Really?2 presented an expert, that expert would have had to meet the requirements for expert testimony established by Pursuant to the the United States Supreme Court in Daubert.3 Daubert standard, as codified in Wis. Stat. § 907.02(1),4 the circuit court must act as a gatekeeper and make a threshold determination that the testimony order for it to be presented at trial. is reliable in State v. Dobbs, 2020 WI 64, ¶43, 392 Wis. 2d 505, 945 N.W.2d 609. By not requiring the State to present an expert, the circuit court and the majority allow the State to skirt this initial reliability determination. ¶120 There are various ways in which threshold reliability can be demonstrated. Series: See 7 Daniel D. Blinka, Wisconsin Practice Wisconsin Evidence § 702.402 (4th ed. 2020). There may Further, the intricacies of Fitbit's technology are "proprietary," setting up an additional roadblock to the jury's full knowledge and full understanding of how the device works. See State v. Loomis, 2016 WI 68, ¶66, 371 Wis. 2d 235, 881 N.W.2d 749 (explaining that "proprietary nature" has been invoked to prevent disclosure of certain information). 2 3 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). 4 Wisconsin Stat. § 907.02(1) provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. 8 No. be a statute indicating admissible. chemical See, tests that e.g., for certain Wis. tests Stat. 2019AP1404-CR.awb or methods § 885.235 intoxication). There is are (addressing no statute addressing Fitbit evidence. ¶121 We can also look to court precedent which has already determined certain principles to be reliable. v. Hanson, (discussing 85 Wis. 2d 233, the reliability 244, of the 270 See, e.g., State N.W.2d 212 underlying (1978) principles speed radar detection that employs the Doppler effect). reliability of Fitbit's step counting capability is a of The novel issue, so there is no precedent on point. ¶122 Stipulations appropriate when determination by a or judicial fact is "capable resort to sources reasonably be questioned." notice of may accurate whose also and be ready accuracy cannot Wis. Stat. § 902.01(2)(b). Again, these do not fit the present scenario——the reason we are here is because the parties do not agree and Burch reasonably questions the accuracy of Fitbit's step count. ¶123 Finally, if none of the above proves to be an acceptable avenue to demonstrate the accuracy and reliability of the scientific principles sufficient to be accorded a prima facie presumption, expert testimony is necessary to explain the underlying reliability. scientific principles and to demonstrate their Here, no expert was presented. ¶124 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. 9 No. Without fulfilling one of these avenues, 2019AP1404-CR.awb the threshold reliability determination cannot be made. ¶125 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. Feehan, et al., supra; Katherine E. Vinez, The Admissibility of Data Collected from Wearable Devices, 4 Stetson J. Advoc. & L. 1, 16 (2017). In a comprehensive aggregation of 67 different studies, researchers found that "[c]onsistent evidence indicated that Fitbit devices were likely to meet acceptable approximately half the time." accuracy for step Feehan, et al., supra. count Yet in the view of the majority and of the circuit court, an expert is not necessary count——the to establish the reliability Fitbit evidence can go before of the Detrie's jury step with no reliability of technical or scientific explanation. ¶126 Indeed, wearable devices questions despite Vinez, supra, at 16. better than the arise their about the widespread acceptance. See If reliability questions exist, where circuit court to present the case for and against such reliability? Instead of remanding to the circuit court the for evaluation of question, 10 the majority curtly No. declares Fitbit's technology to be simple 2019AP1404-CR.awb enough to be put before a jury without the benefit of an expert.5 ¶127 When new and popular devices emerge, courts should be wary of blindly accepting the data they produce thorough examination of the underlying technology. without a "Machines warrant no blind faith, and whatever trust they receive must be earned through the crucible of the rules of evidence." Sites, Machines Ascendant: Brian Robots and the Rules of Evidence, 3 Geo. L. Tech. Rev. 1, 1-2 (2018). examination will require an expert. In many cases, such an In my view, this is such a case. ¶128 Rather than break new ground as does the majority, I would proceed with caution. Basing the necessity of expert testimony on ubiquity rather than complexity sets a dangerous path. ¶129 For the foregoing reasons, I respectfully dissent. See Nicole Chauriye, Wearable Devices as Admissible Evidence: Technology is Killing our Opportunities to Lie, 24 Cath. U. J. L. & Tech. 495, 517 (2016) (arguing that "the trier of fact would greatly benefit from mandated expert testimony to explain the accuracy and details of the data recorded by the wearable technology"). 5 11 No. 1 2019AP1404-CR.awb

Primary Holding

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