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  • WisBar Court Review
    July 15, 2021

    Cell and Fitbit Data: Supreme Court Upholds Use of Evidence in Murder Trial

    Joe Forward

    The decision addresses the situation in which one law enforcement agency obtains cell phone data by consent from a suspect, and shares it with another law enforcement agency – without a warrant – that is investigating a different crime.
    Cell Phone Data 

    This article was updated on Aug. 4, 2021 at 4 p.m.

    ​​July 15, 2021 – A series of digital data discoveries implicated Steven Burch in a murder case. Recently, the Wisconsin Supreme Court rejected Burch’s claim that police obtained the digital data in violation of his Fourth Amendment rights.

    In State v. Burch, 2021 WI 68 (June 29, 2021), the supreme court (4-3) upheld the trial court’s decision to allow incriminating cell phone data and (6-1) evidence from a Fitbit device that the murder victim’s boyfriend was allegedly wearing the night of the murder.

    “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,” wrote Justice Brian Hagedorn.

    As to the Fitbit data, a 6-1 majority ruled that “the circuit court's decision to admit this evidence was not an erroneous exercise of discretion. A 4-3 majority upheld Burch’s conviction for first-degree intentional homicide, with a life sentence.

    The supreme court took the case on bypass certification from the Wisconsin Court of Appeals. Different justices agreed and disagreed with various points of law and its application, parsed out in concurrences and dissents that are noted below.

    2016 Murder

    One night in May of 2016, Nicole VanderHeyden and her boyfriend, Douglass Detrie went to a bar in Brown County and later argued in a phone call and text messages.

    Detrie returned to their home. VanderHeyden did not. Her body was discovered the next day in a nearby field. Her blood-stained clothing was discovered along a freeway ramp, and blood and hair evidence was discovered outside her neighbor’s house.

    The Brown County Sheriff’s Office, which was investigating the murder, shifted focus from Detrie as a suspect when they learned that the Fitbit he was wearing registered only 12 steps during the hours when she was murdered.

    As this investigation was unfolding, the Green Bay Police Department (GBPD) was investigating three unrelated incidents that occurred on the same night: a stolen vehicle, a hit and run, and a vehicle fire, all involving the same vehicle.

    George Burch was the main suspect in this vehicle-related investigation. Police interviewed Burch. His alibi was that he was at a bar that night. As proof, he agreed to let police see text messages he was exchanging with a woman at the bar.

    The Digital Data

    Burch agreed to let police see his text messages, and he signed a consent form that said he voluntarily consented to a police search of his phone. A forensic expert performed an extraction of not just text messages, but all the phone’s data.

    Two months later, the murder investigation uncovered DNA from VanderHeyden’s sock. The DNA matched to Burch. Detectives searched on records for prior police contacts with Burch, and learned that he was under investigation for the vehicle-related crimes.

    Joe Forward Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Brown County sheriff’s officers on the murder investigation obtained and reviewed the cell phone data that Burch agreed to provide to GBPD in the vehicle investigation.

    They discovered that Burch had viewed news stories about VenderHeyden’s death 64 times and had a Google email account. Based on this, detectives obtained search warrant to search Burch’s “Google Dashboard,” which included location data.

    “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,” Justice Hagedorn noted.

    Burch was charged with first-degree murder. He moved to suppress the data obtained from his cell phone, arguing the data extraction exceeded the scope of his consent to search text messages and the murder investigators unlawfully accessed the data.

    The circuit court ruled that Burch did not limit the scope of the cell phone search in conversations with police and the sharing of information between law enforcement agencies without obtaining a warrant “is a common and long-understood practice.”

    The circuit court also rejected Burch’s motion to suppress the step-counting data from Detrie’s Fitbit device. Burch had argued that it could not be admitted without an expert to establish the reliability of data and the state failed to authenticate the records.

    Burch’s Testimony

    At trial, Burch testified that he was with VanderHeyden at the bar the night of the murder, they left together and became intimate in his car near VanderHeyden’s house.

    That was the last thing he remembers, Burch testified, before waking up with Detrie holding him at gunpoint, and VanderHeyden dead. Burch said Detrie ordered him to put VanderHeyden’s body in his car and drive her to the field where she was later found.

    Burch said he escaped Detrie and drove away. Noticing some of VanderHeyden’s clothing in his car, he discarded them on the freeway ramp in a panic, he testified. The testimony did not sway the jury and Burch was convicted and sentenced to life in prison.

    Majority Opinion

    The supreme court reviewed whether the trial court properly denied Burch’s motion to suppress the data extracted from his cell phone, arguing police exceeded the scope of his consent, and police unlawfully retained and accessed the data without a warrant.

    “[R]egardless of whether the data was unlawfully obtained or accessed, we conclude suppression of the data is not warranted under the exclusionary rule,” wrote Justice Hagedorn, noting constitutional deficiencies don’t automatically result in exclusion.

    “[E]xclusion is warranted only where there is some present police misconduct, and where suppression will appreciably deter that type of misconduct in the future.”

    The majority opinion said no case from this court or the federal courts has ever decided that a warrant is required for a "second search," but did not directly address whether a warrant is required for a "second search." Instead, the majority concluded that a "good faith" exception applied because there is no precedent on whether a warrant is required for a second search.

    Justice Hagedorn wrote the majority opinion, joined by Chief Justice Annette Ziegler and Justices Roggensack and R. Bradley.

    “[N]o case from this court or the federal courts has suggested that accessing evidence previously obtained by a sister law enforcement agency is a new search triggering a renewed warrant requirement,” Justice Hagedorn wrote.

    “[T]he 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,” Hagedorn continued. “They had no reason to think they were engaging in illegal activity by reviewing interdepartmental files and evidence.”

    In a concurrence, Justice R. Bradley concluded that "a warrant should have been procured" for a second search, but agreed with the majority that a good faith exception applied because "neither this court nor the United States Supreme Court has decided this novel issue."

    Detrie’s Fitbit evidence was also admissible, a majority (6-1) explained, rejecting Burch’s claim that an expert was required to establish the data’s reliability and the state did not sufficiently authenticate the data.

    “Given 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,” Justice Hagedorn wrote.

    In addition, the circuit court met its obligation on authentication, the majority ruled. “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,” Hagedorn wrote.

    “Rather, once the circuit court concludes the factfinder could find that the records are what their proponent claims them to be, the credibility and weight ascribed to those records are questions left to the finder of fact.”

    Concurrences and Dissents

    Justice Rebecca Bradley joined the majority opinion in full but wrote a concurring opinion “to discuss the application of the Fourth Amendment to warrantless second searches of smartphones without consent,” noting a lack of controlling cases on that.

    “Neither this court nor the United States Supreme Court has declared that second searches of cell phone data by separate law enforcement agencies require a warrant," she wrote. However, as noted, she concluded that a "warrant should have been procured" for the second search, agreeing with the dissenters on that point.

    Without that precedent, however, should agreed that the good faith​ exception applied. ​​“Accordingly, suppression of the evidence obtained during the Sheriff's Office's second search would be inappropriate and I respectfully concur,” Justice R. Bradley wrote.

    Justice Rebecca Dallet concurred in part and dissented in part, joined by Justice Jill Karofsky and Justice Ann Walsh Bradley (in part).

    Justices Dallet and Karofsy agreed with the majority that the Fitbit evidence was properly admitted (A.W. Bradley did not agree on this point).

    But they concluded that the second search of Burch’s cell phone data by the homicide investigators, without a warrant, violated the Fourth Amendment.

    That is, they did not disagree with the majority’s conclusion that the initial data extraction from Burch’s cell phone was lawful, since he provided consent.

    But the three justices concluded that the second search – by homicide investigators from the Brown County Sheriff’s Office, which obtained the first search data from the Green Bay Police Department (GBPD) without a warrant – was unlawful.

    “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,” Justice Dallet wrote.

    “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.” They concluded the second search data should have been suppressed.

    “The Sheriff's Office's erroneous determination that Burch's consent extended to the Sheriff's Office is no justification for failing to get a warrant,” Justice Dallet wrote.

    Justice A.W. Bradley dissented. She joined Justices Dallet and Karofsky in concluding that the second search violated the Fourth Amendment.

    But she also dissented on the Fitbit evidence. She said the “ubiquitous use” of a Fitbit does not indicate “reliability sufficient to be admitted” without expert testimony.

    “I also know that absent expert testimony there is insufficient foundation in this record for the majority to determine, in essence, that a presumption of accuracy and reliability attends the underlying technology of a Fitbit,” she wrote.

    Justice A.W. Bradley said, to her knowledge, “this is the first appellate court decision in the country to conclude that Fitbit step-counting evidence is admissible absent expert testimony explaining how the device works.”






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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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