On Point: A. Expectation of privacy

State v. Andreas W. Rauch Sharak, 2024AP469-CR, 1/16/25, District 4; case activity (including briefs)

Rauch Sharak’s appeal concerns whether Fourth Amendment safeguards are implicated when an electronic service provider (ESP) scans for and reviews digital files in an individual’s account that are flagged as child pornography; and when law enforcement subsequently opens and views any flagged files that the ESP sent to the National Center for Missing and Exploited Children (NCMEC).

State v. Michael Joseph Gasper, 2023AP2319, 10/30/24, District 2 (recommended for publication); case activity (including briefs)

The circuit court held that an officer’s warrantless inspection of a cyber tip digital video file provided to the officer and identified as child pornography by a private internet service provider constituted an unreasonable search in violation of the Fourth Amendment. The COA concludes that Gasper did not have a reasonable expectation of privacy in the video, which he uploaded to Snapchat in violation of the terms of service and reverses.

State v. Brooke K. Eder, 2021AP485, 2/28/23, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Officers got a warrant to arrest one Estes. The warrant permitted them to search Eder’s apartment for Estes; the affidavit gave various reasons to believe that Estes would be there. Estes was there, and they arrested him. After they arrested him, though, they searched the basement of the three-unit building. You can’t do that! “A search may not be continued after the objects identified in the search warrant have been located and seized.” State v. Starke, 81 Wis. 2d 399, 414, 260 N.W.2d 739 (1978). This unlawful search turned up contraband that led police to get a new warrant to search Eder’s apartment; Eder seeks to suppress the evidence found in this second search on the ground that it was the fruit of the basement search.

USA v. Jeremy D. Banks, Appeal No. 22-1312 (7th Cir. Feb. 13, 2023).

Banks, a convicted felon, posted a video on Snapchat showing himself barbequing on his front porch with a gun nearby. Officers saw the video and raced to his house without a warrant. They walked onto Banks’s porch, caught him by surprise, engaged in a tussle, and arrested him in his front room where they spotted a box of ammunition and found a semi-automatic pistol in his pocket. The 7th Circuit held that police needed a warrant to enter the porch and house. The evidence should have been suppressed.

State v. Kallie M. Gajewski, 2020AP7-CR, District 3, 8/2/22 (not recommended for publication); case activity (including briefs)

Police arrested Gajewski in the curtilage of her home without a warrant and exigent circumstances. While this makes the arrest unlawful, the evidence obtained from the arrest is not subject to suppression because police had probable cause to arrest her.

Orin Kerr at Volokh Conspiracy has posted an essay on a recent federal district court decision regarding the legality of so-called “geofence” warrants, which involve law enforcement getting access to Google’s cell phone location data and using the data to advance a criminal investigation. Google apparently imposes its own sort of “warrant” requirement, and the basic questions in the case, United States v. Chatrie, involve whether the request for the data is a Fourth Amendment search at all,

State v. Lamondo D. Turrubiates, 2020AP233, 11/23/21, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Police arrested Turrubiates and the state charged him with several counts having to do with an alleged assault on his girlfriend. During the arrest police took his phone. The state came to believe the phone might contain evidence of crimes by Turrubiates, and it moved the circuit court to compel him to provide his passcode, despite the fact that it had not yet obtained a warrant to search the phone. See Riley v. California, 573 U.S. 373, 401 (2014). The court ordered Turrbiates to provide the passcode and he refused; it then found him in contempt of court and ordered him jailed until he reveals the code (though it stayed this sanction pending appeal).

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.

State v. Christopher D. Wilson, 2020AP1014-CR, District 1, 5/11/21 (one-judge decision; ineligible for publication); PfR granted 11/17/21; case activity (including briefs)

Police lawfully entered Wilson’s backyard under the “knock and talk” exception to the Fourth Amendment warrant requirement.

State v. George Steven Burch, 2019AP404-CR, certification granted 11/18/20; case activity (including briefs)

Issues presented (from the certification):

Did police violate Burch’s Fourth Amendment rights by:

1. exceeding the scope of Burch’s consent to search his cell phone by downloading the phone’s entire contents, rather than only the text messages;
2. unlawfully retaining the entire cell phone download after it completed its initial investigation and closing the case without charging Burch; and
3. unlawfully conducting a second search of the cell phone download months after closing the initial investigation.