SCOW to review constitutional requirements for warrant to search smartphone
State v. Emil L. Melssen, 2024AP1942-CR, petition for review of a published decision of the court of appeals, granted 8/21/26; case activity
SCOW has granted the state’s petition to review a published COA decision (see our post here), which held, as a matter of first impression, that a “warrant must specify the particular items of evidence to be searched for and seized from the smartphone, and its authorization must be limited to the time period and information or other data for which probable cause has been properly established through the facts and circumstances set forth under oath in the warrant’s supporting affidavit.” (Cleaned up).
The State’s petition presents two issues for review:
1. Did the search warrant for Melssen’s cellphone violate the Fourth Amendment because it was insufficiently particular and overbroad?
2. Did the search warrant state probable cause of drug-related activity?
The State’s petition argues that the absence of published case law on the requirements of a smartphone search warrant application resulted in COA “reach[ing] out and decide[ing] an abandoned issue.” The State also claims that due to the lack of briefing on the relevant issue, COA overlooked State v. Rindfleisch, 2014 WI App 121, 359 Wis. 2d 147, 857 N.W.2d 456–an earlier COA decision in which the court concluded that more is not required when the evidence to be seized is electronic rather than physical.