Submitted on Briefs June 11, 2015.
APPEAL from a judgment of the circuit court for Waukesha County: KATHRYN W. FOSTER, Judge. Cir. Ct. No. 2013CF356.
On behalf of the defendant-appellant, the cause was submitted on the briefs of Craig S. Powell and Geoffrey R. Misfeldt of Kohler & Hart, SC, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sarah L. Burgundy, assistant attorney general, and Brad D. Schimel, attorney general.
Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.
[365 Wis.2d 214] NEUBAUER, C.J.
[¶1] Ryan Tentoni asserts a privacy interest in text messages sent by him and discovered through a warrantless search of Wayne Wilson's phone. Tentoni seeks suppression of the text messages and other subsequently obtained phone records as fruit of the government's illegal search of his text messages stored in Wilson's phone. Tentoni does not have an objectively
reasonable expectation of privacy as he relinquished any claim to privacy in the text messages delivered to Wilson's phone. We affirm.
[¶2] At the preliminary hearing, Delafield police officer Landon Nyren testified that on December 5, 2012, he responded to a call about a death and found the body of Wayne Wilson. Wilson had a small plastic object in his mouth, which turned out to be a fentanyl patch. The Waukesha County Medical Examiner testified that fentanyl was a substantial factor in Wilson's death and was the immediate cause of his death. On the autopsy report, the examiner listed acute fentanyl intoxication as the cause of death.
[¶3] Nyren testified that, while at Wilson's residence, he found Wilson's phone and retrieved text messages from it, including texts sent and received the [365 Wis.2d 215] day before Wilson's death. There were messages between Wilson and Tentoni discussing Tentoni obtaining fentanyl patches for Wilson. After Wilson sent Tentoni a message indicating the some patches " are like duds to me" and that he did not " feel a thing," there was a text from Tentoni to Wilson suggesting that Wilson suck on a patch. A subsequent message from Tentoni to Wilson described how to fold the patch, and Nyren testified that the folding method described in the text was consistent with the position of the patch on Wilson's body when he was found.
[¶4] Tentoni's counsel represented to the court, at the hearing on his motion to suppress, that, relying on the information contained in the text messages on Wilson's phone from Tentoni, Nyren obtained a warrant for Tentoni's phone records relating to the number he used to text Wilson, including 350 text messages between Tentoni and Wilson in the month of November ...