Supreme Court to Hear Burch Appeal

MADISON, WI (WTAQ-WLUK) – The Wisconsin Supreme Court has agreed to hear George Burch’s appeal of how his cell phone was searched during the investigation which led to his conviction in the murder of Nicole VanderHeyden.

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.

In a somewhat unusual move, the state appeals court did not hear the case. Instead, it asked for the appeal to go directly to the Supreme Court. Thursday, the high court announced it would do just that.

According to the court’s summary, six issues will be reviewed:

1. Would a reasonable person consider the scope of consent to search a cell phone to be limited by the person’s discussion with law enforcement, or would a reasonable person properly consider a subsequent discussion about police extracting “the information” from the cell phone as showing the person had consented to police searching the phone in its entirety?
2. May a reasonable person consider the broad scope of the consent form signed by Burch despite the officer’s initial request to review only the text messages on the phone?
3. After police downloaded information from the cell phone, what portion of Burch’s data could it lawfully retain?
4. If the police department was permitted to retain some or all of the downloaded material, how long could it do so?
5. Did the status of the original investigation that produced the download affect the ability of police to lawfully retain the downloaded material?
6. Did the police have any obligation to return the downloaded material to Burch, and if so, when?

No date has been set yet for arguments before the justices.

During the trial, prosecutors used data found on the phone that placed Burch at the bar where VanderHeyden was last seen, outside her Ledgeview home where she was murdered, and at the Bellevue field where her body was found.