On Point blog, page 2 of 2
SCOW: No “sufficiently deliberate and sufficiently culpable” police misconduct, so no exclusion of evidence
State v. George Steven Burch, 2021 WI 68, on certification from the court of appeals, affirming the judgment of conviction; case activity (including briefs)
We said in our post on the court of appeals’ certification that this case presented novel and important issues about searches of cell phones and their data. So we anticipated a decision addressing the parameters of police searches of digital devices. But the majority doesn’t address those issues or decide whether Burch’s Fourth Amendment rights were violated. Instead, the majority holds that, regardless of the lawfulness of the search of Burch’s cell phone data, “there was no police misconduct to trigger application of the exclusionary rule.” (¶26). The majority’s approach bodes ill for the future of Fourth Amendment litigation and the freedom the Fourth Amendment is intended to protect—as illustrated by this case, given that a majority of the justices (one concurring, three dissenting) concludes the search of Burch’s phone data violated the Fourth Amendment.
SCOW will address state’s subpoena to hospital for BAC records
State v. Daniel J. Van Linn, 2019AP1317, review granted 4/27/21; case activity (including briefs)
After Daniel Van Linn was arrested on suspicion of drunk driving, a sheriff’s deputy ordered his blood drawn for testing. This draw was illegal, and the circuit court excluded its fruit. After the suppression decision, the prosecutor applied for a subpoena to the hospital where Mr. Van Linn had been treated; the application included the results of the first, suppressed blood test. The court issued the subpoena and the hospital turned over evidence including the results of the blood alcohol test it had conducted. Was the state’s decision to seek this subpoena the fruit of its earlier, unlawful search, such that its results should have been suppressed?
Good-faith exception to exclusionary rule means evidence from unlawful use of GPS device can be admitted
State v. Scott E. Oberst, 2014 WI App 58; case activity
The good faith exception to the exclusionary rule applies to evidence obtained during a period when binding Wisconsin appellate precedent permitted the warrantless installation of a global positioning system (GPS) device. Thus, even though the installation of the GPS device on the defendant’s vehicle was unconstitutional under United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012), exclusion of the evidence obtained from the device is an inappropriate remedy.