WisBar News: State Appeals Court Majority Upholds Conviction of Former Walker Aide:

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  • November
    13
    2014

    State Appeals Court Majority Upholds Conviction of Former Walker Aide

    Joe Forward
    Legal Writer

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    Nov. 13, 2014 – The warrants ordering Google and Yahoo to produce the email records of an employee who worked for then-Milwaukee County Executive Scott Walker were valid and did not violate her Fourth Amendment rights, a state appeals court has ruled.

    Kelly Rindfleisch, who was hired as a policy advisor and later promoted to deputy chief of staff for Walker’s county executive office while he was campaigning for the Wisconsin gubernatorial election in 2010, became a target in John Doe proceedings to uncover illegal campaign activities by Walker aides, employees, and appointees.

    In 2010, the chief investigator in the Milwaukee County District Attorneys’ Office requested warrants for Rindfleisch’s personal email accounts after following a trail of emails that suggested illegal campaign activity by county employees, including Walker’s chief of staff, Tim Russell, and his constituent services coordinator, Darlene Wink.

    Investigators wanted access to emails during a 23-month period that were deleted from Russell’s account but were possibly still available in Rindfleisch’s personal email files. A warrant was also issued for Rindfleisch’s home and her computer was seized.

    Yahoo and Google complied with the warrants but redacted certain information deemed outside the scope of the warrants. In 2012, the state relied on those emails to charge Rindfleisch with four counts of misconduct in public office.

    “These electronic communications, along with other information in the complaint, indicate that Rindfleisch intentionally engaged in partisan political campaign activities during her Milwaukee County work time,” the appeals court noted.

    Rindfleisch filed a motion to suppress all evidence obtained as a result of the warrants that allowed release of her Google and Yahoo email account data.

    Rindfleisch argued that the warrants “failed to identify the objects to be seized with requisite particularity.” In other words, she said the warrants were “general warrants” that invaded her privacy rights under the Fourth Amendment and other provisions.

    The circuit court denied the motion and Rindfleisch subsequently pled guilty to one count of misconduct on public office. The other three counts were dismissed.

    In State v. Rindfleisch, 2013AP362-CR (Nov. 12, 2014), a three-judge panel for the District I Court of Appeals, by 2-1 majority, affirmed the circuit court, concluding that the warrants at issue passed constitutional muster and the evidence was properly admitted.

    “We have concluded that the State established … that the warrants in question were based on probable cause established by affidavit … and particularly described the place to be searched and items to be seized,” wrote Judge Joan Kessler for a 2-1 majority.

    The majority noted that both Google and Yahoo redacted information deemed outside the scope of the warrant and did not produce data beyond what was legally requested.

    Dissent

    Judge Ralph Adam Fine dissented. He said the warrants requested Rindfleisch’s digital files for the purpose of uncovering potential crimes committed by Tim Russell, the chief of staff for Walker when Walker served as county executive for Milwaukee County.

    As such, Judge Fine argued that the search warrants for Rindfleisch’s emails for a certain period did not indicate probable cause to believe Rindfleisch committed a crime or describe any place where evidence of her wrongdoing could be found:

    “The Fourth Amendment prohibits the government to legitimately go into a person’s voluminous files looking for evidence that someone else may have violated the law (here, Russell, the search warrants’ objective) and then root around those voluminous files to see if the subpoena’s subject (here Rindfleish) may have also violated the law.”

    Judge Fine stated that he would “grant Rindfleisch’s motion to suppress the data provided pursuant to the search warrants that concerned Rindfleisch and not Russell.”




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