COA does not resolve novel Fourth Amendment issue, holds that consent excuses years-long seizure of cell phone
State v. Ryan D. Zimmerman, 2023AP1888-CR, 11/25/25, District III (not recommended for publication); case activity
Although Zimmerman identifies a novel Fourth Amendment issue, COA ultimately uses Zimmerman’s consent to get around that issue and affirms.
In 2015, was charged with numerous alleged criminal offenses, including child enticement. (¶5). Zimmerman consented to a search of his phone. (Id.). Police found nothing of evidentiary value. (Id.). Zimmerman was ultimately sentenced to prison and then released on extended supervision in 2017. (Id.). Police never returned Zimmerman’s phone to him. (Id.).
In 2019, Zimmerman faced new sexual assault allegations. (¶6). After realizing that they still possessed his phone, police asked Zimmerman for consent to search the device. (Id.). Using newer, more sophisticated techniques, police were able to find child pornography on the phone. (Id.).
On appeal, Zimmerman’s primary issue concerns the renewal of his preserved suppression motion, which argued that the multi-year retention of his phone between 2015 and 2019 violated the Fourth Amendment’s reasonableness requirement and therefore tainted his 2019 consent to search the device. (¶22). He relies on two US Supreme Court authorities, Place and Jacobsen, for the proposition that a seizure justified at its exception can become unreasonable depending on the “manner of execution.” (¶24). In other words, that the continued retention of a lawfully seized item will at some point begin to infringe on the person’s “possessory interests” such that the “reasonableness” requirement central to the Fourth Amendment is violated.
There are no Wisconsin cases on point. However, there is favorable persuasive federal authority dealing with the continued retention of phones, specifically–Asinor v. District of Columbia, 111 F.4th 1249 (D.C. Cir. 2024)–and Zimmerman “heavily relies” on that authority in constructing his Fourth Amendment argument. (¶26). However, while COA “assumes without deciding” “that the Fourth Amendment requires that law enforcement’s continued retention of personal property be reasonable[,]” it ultimately finds resolution of this particularly novel Fourth Amendment issue unnecessary. (¶29). Here, COA finds “that law enforcement’s continued seizure of the cellphone was reasonable because Zimmerman never revoked his consent or attempted to regain possession of the device, despite having means to do so.” (Id.). Moreover, he voluntarily consented to the 2019 search. (¶33).
Hm. The resolution of this issue is somewhat interesting, specifically because it appears to flip the burden. Instead of the State having to justify the reasonableness of its conduct, Zimmerman is faulted for never affirmatively demanding return of his phone while incarcerated or while on ES. One can obviously think of many pragmatic reasons, as well as nonfrivolous obstacles, that might explain why Zimmerman never sought return of property. For example, the mechanism cited by COA, § 968.20(1) appears to have a 120-day deadline that would have already lapsed prior to Zimmerman’s release from prison. Would Zimmerman have understood he could still try to get the phone back? Would his attempt to regain possession of a cell phone while on what we are assuming is sex offense related ES have triggered problems with DOC? More broadly, perhaps civil libertarians could see this case as incentivizing the continued retention of cell phones–which store a tremendous repository of personal information–by police. Obviously, there’s lots of angles for a PFR here. We’ll be watching this one closely.
Remaining Issues
Zimmerman also presents a number of other issues, all of which are rejected by COA.
First, he argues his lawyer was ineffective for not seeking a mistrial after the prosecutor made an alleged “golden rule” argument during closing. (¶35). Here, the lawyer interrupted with an objection at the beginning of the prosecutor’s allegedly improper comments. (¶41). Under the circumstances, COA agrees with the State that it “was reasonable for defense counsel to have deemed his objection sufficient to address the State’s comment, as the objection prevented the State from making a golden rule argument.” (¶42).
Zimmerman also argues that certain statements were intended as comments on his right to silence and that trial counsel was deficient for not timely objecting to those utterances. (¶46). COA holds that the comments, in context, “were neither ‘manifestly intended to be’ nor ‘of such character that the jury would naturally and necessarily take’ the comments to be statements ‘on the failure of [Zimmerman] to testify.'” (¶51).
Finally, Zimmerman fails to persuade the court he was prejudiced by a typographical error on the verdict form. (¶55).