“In this case, the Sheriff’s Office detectives acted by the book.” The exclusionary rule would not be applied to police officers finding a prior download of data in a police database and using it to connect defendant to this homicide. State v. Burch, 2021 WI 68, 2021 Wisc. LEXIS 103 (June 29, 2021):
[*P2] 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.
[*P3] 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.
CHN: Wisconsin High Court OKs Second Search of Phone Data in Murder Case (“Though the majority found neither police misconduct nor procedural issues blocked cellphone or Fitbit data at trial, justices disagreed on the Fourth Amendment implications of the evidence.”)