MADISON, WI (WTAQ-WLUK) – A state appeals court Tuesday did not rule on George Burch’s bid for a new trial for the murder of Nicole VanderHeyden, instead choosing to send the case directly to the Wisconsin Supreme Court.
Burch was sentenced to life without the chance of the parole. VanderHeyden, 31, a mother of three, was found beaten and strangled to death in a farm field, three miles from her Ledgeview home, on May 21, 2016.
Burch’s appeal focuses on the trial judge’s decision to allow evidence from his cell phone, arguing his Fourth Amendment rights were violated. There are several claims:
The GBPD exceeded the scope of his consent to search his cell phone by downloading the phone’s entire contents, rather than only the text messages;
The GBPD unlawfully retained the entire cell phone download after it completed its June 2016 investigation into the vehicle incidents;
The Brown County Sheriff’s Office had no lawful authority to conduct a second search of the cell phone download in August 2016…
“Because these issues raise novel questions regarding the application of Fourth Amendment jurisprudence to the vast array of digital information contained in modern cell phones, we certify this appeal to the Wisconsin Supreme Court,” the court wrote in its 29-page decision.
“As the United States Supreme Court has observed, modern cell phones carry vast amounts of data about their owners and therefore implicate heightened privacy concerns that do not necessarily apply to physical objects For these reasons, it is critical that courts, to the best of their ability, clearly delineate the extent to which law enforcement may search, retain, and reexamine the data contained on individuals’ cell phones. As set forth above, although some of our prior case law touches on these issues, it does not squarely address them. Furthermore, many of the potentially relevant cases discuss the application of Fourth Amendment principles to traditional, physical evidence, rather than the digital data at issue here. Given the importance of the issues raised in this appeal, the No. 2019AP1404-CR 28 lack of clear precedent regarding those issues, and the high likelihood that these issues will recur in future cases, we believe this is a case in which it would be appropriate for the supreme court, rather than the court of appeals, to render a decision,” the court ruled.
It is now up to the Wisconsin Supreme Court to decide if to take the case without a decision from the appeals court.
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