State v. Burch, No. 2019AP1404-CR

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtBRIAN HAGEDORN, J.
Citation2021 WI 68
PartiesState of Wisconsin, Plaintiff-Respondent, v. George Steven Burch, Defendant-Appellant.
Decision Date29 June 2021
Docket NumberNo. 2019AP1404-CR

2021 WI 68

State of Wisconsin, Plaintiff-Respondent,
v.
George Steven Burch, Defendant-Appellant.

No. 2019AP1404-CR

STATE OF WISCONSIN IN SUPREME COURT

ORAL ARGUMENT: April 12, 2021
June 29, 2021


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.

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An amicus curiae brief was filed on behalf of Legal Action of Wisconsin, Inc. by Rebecca M. Donaldson, Milwaukee.

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NOTICE

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

(L.C. No. 2016CF1309)

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 from a judgment of the Circuit Court for Brown County. Affirmed.

¶1 BRIAN HAGEDORN, J. George Steven Burch appeals a judgment of conviction for first-degree intentional homicide on the grounds that two pre-trial evidentiary motions were incorrectly denied.

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¶2 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 Regarding the second pre-trial evidentiary motion, Burch asks us to reverse 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. This evidence, Burch maintains, should have been accompanied by expert testimony and was insufficiently authenticated. 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. BACKGROUND

¶4 On May 20, 2016, Nicole VanderHeyden went to a bar with her boyfriend, Douglass Detrie. The two became separated

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and, in the course of a subsequent phone call and text messages, got into an argument. Detrie returned alone to their shared home. 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 outside the house of VanderHeyden's neighbor. 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 Green Bay Police Department (the "Police Department") undertook an unrelated investigation into three incidents involving the same vehicle—a stolen vehicle report, a vehicle fire, and a hit-and-run. George Burch was a suspect in this investigation, and Police Department Officer Robert Bourdelais interviewed him on June 8, 2016. Burch 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

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Bourdelais then explained that he preferred 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 the phone to be downloaded, Burch signed a consent form. The form read: "I George Stephen Burch . . . voluntarily give Det. Danielski, Officer Bourdelais or any assisting personnel permission to search my . . . Samsung cellphone." 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 extraction to the Police Department's long-term storage. 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. The file included Burch's

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signed consent form and a copy of the data the Police Department extracted from Burch's phone during the search. It also contained a narrative written by Officer Bourdelais 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 detectives reviewed the data downloaded from Burch's phone. They noted that Burch's internet history included 64 viewings of news stories about VanderHeyden's death. And they also discovered Burch had an email address associated with a Google account. In light of this discovery, the Sheriff's Office detectives procured a search warrant to obtain the "Google Dashboard" information from Google corresponding to Burch's email address. The data Google provided contained location information that placed Burch's phone at a bar VanderHeyden visited the night of her death, a location near VanderHeyden's residence, the place where VanderHeyden's body was found, and the on-ramp where VanderHeyden's discarded clothing was discovered.

¶9 Burch was arrested and charged with VanderHeyden's death. He filed two pre-trial evidentiary motions relevant to this appeal.

¶10 In one motion, Burch sought to suppress the data obtained from his cell phone for two reasons: (1) the Police Department's extraction of the data exceeded the scope of

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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. The circuit court2 denied Burch's motion. It concluded that the conversation between Burch and Officer Bourdelais did not limit the scope of Burch's consent, and that "the sharing of such information, without first obtaining a warrant, is a common and long-understood practice between related departments."

¶11 Burch also moved to exclude evidence related to Detrie's Fitbit device. 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. According to Burch, he met VanderHeyden at a bar, and the two left together. After parking near VanderHeyden's house, they became intimate. 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

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VanderHeyden's body into his vehicle, drive to a field, and carry VanderHeyden's body into the ditch. Only then did Burch escape by pushing Detrie, running back to his vehicle, and driving away. 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. DISCUSSION
A. Cell Phone Data

¶14 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...

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