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Wisconsin Supreme Court to hear arguments in George Burch appeal

Published: Apr. 12, 2021 at 9:41 AM CDT
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MADISON, Wis. (WBAY) - The Wisconsin Supreme Court will hear oral arguments Monday in the appeal filed by the man convicted of killing a Ledgeview woman.

A jury found George Burch guilty of 1st Degree Intentional Homicide in the 2016 murder of Nicole Vanderheyden. He was sentenced to life in prison without the possibility for parole.

For over an hour, via zoom, Wisconsin Supreme Court Justices listened closely to oral arguments.

Burch is appealing his conviction on claims his Fourth Amendment rights were violated by Brown County Sheriff’s Office investigators who extracted cell phone data originally seized by Green Bay Police in an unrelated hit-and-run case.

The Fourth Amendment Right protects people from unreasonable searches and seizures.

“In this case... it is very clear that consent was limited,” said Ana Babcock, George Burch’s defense. “It’s gonna take a lot more specificity to get from a narrow conversation about text messages to suddenly downloading every single bit of data, otherwise that is the classic bait and switch deception.”

Burch was never charged in the hit-and-run incident where he gave police consent to download his cell phone data.

“If a defendant is acquitted, what basis do they have to keep that information?” argued Babcock. She also argued about how often it could be shared if it was obtained during an unrelated incident.

“This court should make very clear... if police want a new search, they should have to get a new warrant,” said Babcock. “Buch testified to a lot of this stuff, but the problem is, is that illegal search when they went into that cell phone again, was the venomous tree which all of the fruits of conviction sprouted.”

The case made national headlines due to the use of Fitbit and Google data as evidence. It’s believed to be one of the first cases to get a conviction with this evidence. A tech analyst testified that Google data put George Burch at sites where Nicole Vanderheyden was killed and her body was dumped.

Prior to trial, Burch’s attorneys filed a motion saying their client’s constitutional rights were violated when Brown County investigators obtained cell phone data during the investigation. A Brown County Circuit Court judge denied that motion and allowed the evidence to be presented at trial.

In a brief filed by the state, prosecutors argue that Burch’s constitutional rights were not violated.

“Burch’s DNA was at the crime scene. The Brown County Sheriff’s Office learned that the Green Bay Police Department had previously extracted his cell phone’s contents with his consent in an unrelated investigation. The BCSO reviewed and extracted data and found additional evidence connecting Burch to the crime,” reads the state’s brief.

“This Court should conclude that because the GPBD extracted the data with Burch’s consent, the BCSO’s examination of it did not violate the Fourth Amendment.”

The state argues Burch should have limited consent given to police in relation to his cell phone data.

“A reasonable person should understand that when you give consent to download a cell phone, they get access to everything on there,” said Aaron O’Neil, representing the State of Wisconsin.

O’Neil also says this ruling could have lasting implications, as the defense used similar cell phone data to point the finger at someone else during trial

“In this case, one of those victim’s personal data was used by the defendant, the victim’s boyfriend accused of murder,” said O’Neil. “His was extracted with consent and the defendant used that in his defense. This rule that the defendant is proposing, is going to cut both ways, limiting evidence the defendant used to try to prove his innocence.”

Babcock said, “this is something that is going to reoccur and come up. Cell phone full extractions are common and kind of passed out like candy, so it’s important for the court to rule on it.”

“Finally, if this Court finds that the circuit court erred by admitting either the phone-data or Fitbit evidence, it should conclude that any error was harmless,” said O’Neil.

Burch’s attorney says consent was limited and the error was not harmless.

“The whole discussion revolved around looking at Burch’s text messages, and a reasonable person would conclude that Burch was consenting to a search of only those, not the entire contents of his phone,” writes attorney Ana Babcock.

She continues, “The State cannot show beyond a reasonable doubt that this evidence did not contribute to the verdict.”

The state asks

The Wisconsin Supreme Court decided to hear the appeal based on these issues:

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?

The District III Court of Appeals stated the case belonged before the state’s highest court so they could give guidance to lower courts on these issues.

“Given the importance of the issues raised in this appeal, the 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,” reads findings from the appeals court.

The court is now in deliberation with no word on when a ruling will be handed down. The state did ask for the case to be sent back to the circuit court judge who presided over the case for further proceedings.

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CASE BACKGROUND

Nicole Vanderheyden disappeared May 21, 2016, after a night out with friends at Green Bay bars. At some point, Nicole ended up in Burch’s vehicle. Google Dashboard data showed Burch traveling to Vanderheyden’s home and then to the area where her body was found.

A medical examiner testified that Vanderheyden was strangled and beaten to death. Nicole was described as “unrecognizable.” A forensic dentist was needed to positively identify her. A bloody cord was found in near her home. Prosecutors say that cord was used to strangle her.

Nicole suffered 241 injuries to her body.

Burch was arrested in September 2016 after testing showed his DNA was found on Nicole’s body.

Burch said he was being interviewed for another case, a possible hit-and-run, when he allowed a Green Bay Police officer to view his text messages and download data from his phone in order to prove he wasn’t involved in the hit-and-run. Burch was cleared in the hit-and-run investigation, but police kept the phone data and it ended up with the Brown County Sheriff’s Office during the investigation into the murder. A judge’s decision stated Burch signed a consent form giving the Green Bay officer or any “assisting personnel” permission to search his phone.

At trial, the prosecution said Burch raped and killed Vanderheyden after she rebuffed his advances.

Sgt. Richard Loppnow of the Brown County Sheriff’s Office testified about a Google account linked to George Burch’s cell phone. Loppnow says he sent a warrant to Google with Burch’s Gmail account. Google complied and provided Loppnow a spreadsheet showing Burch’s data.

Burch’s defense tried to point the finger at Nicole’s boyfriend, Douglass Detrie. They painted Detrie as a jealous boyfriend who went into a rage and killed Vanderheyden after finding her having consensual sex with Burch outside the Ledgeview home. Burch testified that Detrie forced him at gunpoint to drive to an area off Hoffman Road in Bellevue and leave Nicole’s body in a field there.

“It’s not this sexual fantasy that this man has. She struggled. She resisted. He punished her for it,” said District Attorney David Lasee during closing arguments.

SENTENCING

“Mr. Burch, this is a crime, that would, I believe, merit the death penalty, and for that you have to die in prison,” Judge John Zakowski said as he ordered the convicted killer to spend the rest of his life behind bars.

Burch’s defense asked for the judge to consider parole. His lawyers asked Burch be eligible to request parole after 25-30 years in prison. The defense argued rehabilitation could change Burch.

Judge Zakowski disagreed.

After impact statements, the judge addressed the court. He said the death of Nicole Vanderheyden “is the most brutal murder that has ever been committed by one person in the history of Brown County.”

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