brand logo

Call Today for a FREE Consultation

262-923-8761

24 HOUR EMERGENCY CONTACT

Wisconsin high court: Cops can search phone data they already have

On Behalf of | Jul 7, 2021 | Criminal Appeals

In 2016, George B. agreed to allow the Green Bay Police Department to review his phone for a hit-and-run investigation in which he was never charged. The consent form he signed didn’t specify exactly what the police would be allowed to download – and they downloaded everything.

Around the same time in Brown County, there had been a murder. Nicole VanderHeyden had been killed and her body had been left in a field.

DNA evidence taken from the victim’s sock pointed to George B. The Brown County Sheriff’s Office then learned that Green Bay had the contents of George’s cellphone. Brown County simply obtained that data from Green Bay without a warrant.

The cellphone data allegedly showed that George B. had been near the location of VanderHeyden’s body in the early morning hours of the day the body was discovered.

Also without a warrant, Brown County investigated the Fitbit device of VanderHeyden’s boyfriend. The Fitbit data appeared to rule him out as a suspect.

George B. was put on trial for VanderHeyden’s murder. At trial, he attempted to have the cellphone and Fitbit data stricken from evidence for two reasons. First, he argued, the lack of warrants made the seizure of the devices unconstitutional under the Fourth Amendment. Second, he said, in order for the data to be admissible, it would need to be authenticated by an expert witness, which it was not. A Brown County judge denied his motions and allowed in the evidence.

George B. was convicted of first-degree intentional homicide and was sentenced to live in prison. He appealed.

The Wisconsin Court of Appeals refused to decide the evidentiary issues, leaving them to the state’s highest court. Now, the Wisconsin Supreme Court has ruled 4-3 that the evidence should only have been excluded if there was deliberate police misconduct.

“No case from this court or the federal courts has suggested,” the majority wrote, “that accessing evidence previously obtained by a sister law enforcement agency is a new search triggering a renewed warrant requirement.”

In other words, since George B. consented to the original search, even if he didn’t fully understand what he was consenting to, it was not a violation for Brown County to access the data discovered by Green Bay.

As for the Fitbit, the majority argued that no expert testimony was needed considering the widespread use of wireless step-counting devices. Jurors were able to understand the meaning of the information presented.

The minority of the court wrote opinions suggesting that law enforcement would be wise to get warrants in such situations in the future.

Getting a warrant is easy. It’s often electronic and takes a few minutes. Why are officers so reluctant to get one?

Archives

FindLaw Network

“I just want to say thank you for the outstanding work you have done for him and let you know how much we appreciate the time and attention you gave to his case. We are obviously overjoyed by today’s dismissal!” (Child pornography case dismissed after motion to suppress was granted)”

“After having had time to exhale, we thank each one of you and all the others who contributed to the exemplary Supreme Court presentation. We are proud of your efforts on our behalf and, equally important, on behalf of the many present and future defendants statewide.” (Client’s comment after Supreme Court oral argument)

“Thank you. Thank you. I am so pleased to hear that we won. It doesn’t seem that it was even a close call. I appreciate your efforts.” (Oconto County defendant after Buting, Williams & Stilling got his prison sentence overturned in the court of appeals) ”

“Your time and advice was appreciated more than words can express at a time when we really needed someone to guide us.” (Client)

“The outcome was amazing, one unavailable even under identical circumstances in probably 98 percent of federal courtrooms around the country. Separate and apart from the outcome, though, I am supremely impressed by your efforts on your client’s behalf. Your comments in support of the requested sentence were perfect in tone and, having now reviewed the extensive sentencing memorandum you filed, your work in that regard was exemplary as well. Your client was certainly fortunate to have you as his attorney.” (Local federal court attorney present at a sentencing)

“I can’t thank you enough, not only for all of the tireless work that you and your staff put into my case, but for telling me what I needed to hear, at a time when I absolutely had to hear it. I consider myself blessed for everything turning out the way it did, especially since I blindly picked you out of a phone book! You helped me, my family and friends in many more ways than the money ever could.” (Child pornography client)

“I think you will find that in any circles where Kathy’s name is raised, people will always respond positively and identify her as an extremely hardworking, knowledgeable and ethical lawyer who is timely and effective with any endeavor she takes on. These circles would include colleagues, friends, prosecutors, judges, professors and others who have crossed paths with Kathy. They would also include the many lawyers like me who have referred numerous cases to Kathy, invariably with positive feedback from the clients regarding her knowledge of their case, empathy, professionalism and fair-mindedness in addressing their concerns.” (Fellow attorney)

“Thank you for giving [our son] back to us. Wonderful work!” (Family of client accused of armed robbery after charges were dismissed)

“Yes, His perfect time and perfect place, you were a part of this plan. I almost didn’t hire you, but I took a step of faith trusting Him and look what happened? Praise God. Our Lord put you in your vocation for a reason, continue to help those He brings your way. May He bless you in ALL you do!” (Client who was wrongfully convicted of sexual assault in a northwestern Wisconsin county. He was released from prison after attorneys got his conviction reversed.)

“I really cannot thank you enough for your past help. You really know your stuff. It is actually funny when I think about my other past attorney’s knowledge and then when I talk with you. It’s like night and day. You’re like a walking book of knowledge with a purpose-driven life. Thanks.” (Brown County client of attorney Buting)

“A year later and I still believe your defense is the single best example of lawyering I have ever seen.” (Television reporter commenting on attorney Buting’s defense of Steven Avery)

“You have a certain brilliance that makes me sure that when you talk, it is good information and I am in good hands. You tell it to me like it is even when the things you say are not always the things that I would like to hear. You keep it REAL!!!” (Brown County client)

“Thank you, thank you, thank you! I feel like this was one of the biggest blessings that happened in my life. I put this along with my children being born healthy and when I survived that horrific shooting. I appreciate everything you have done for me. I couldn’t ask for better lawyers. I want to say thank you to everybody at your firm. I owe you more than the fee you so rightfully deserve. … You gave me back hope. Thank you, man! Out of my 36 years … I have never seen such kindness before. I don’t know what I did to deserve this; I’m very thankful nonetheless. Thank you for giving me hope again. Thank you for your generosity. There are still some really good people around.” (Federal criminal appeal client)

“There is no other attorney I’ve ever even heard of I’d rather have as chief counsel and leader of my defense/appeals than Jerome Buting. You’re the best. Period.” (Dane County client)

“Your advice and counsel were greatly appreciated. We appreciate you taking the time on your Sunday and evenings to help us. We are SO happy about the results! Thanks again.” (Waukesha County client)

“Thank you again … for everything. Five and one-half years of commitment, so many ups and downs and an outcome like that. You did a GREAT job.” (Waukesha County felony drug offense client)