Judge to allow cellphone evidence at Burch trial

George Burch in Brown County court, December 8, 2017. (WLUK)

GREEN BAY (WLUK) – Just before George Burch's final pre-trial hearing, Judge John Zakowski issued written notice that investigators properly obtained information from Burch's cellphone.

Burch is accused of killing Nicole VanderHeyden in May 2016.

Jury selection for the trial begins on Friday. The trial is scheduled to last two weeks.

Prosecutors have said the cellphone information is important because it helped investigators retrieve geolocation records that put Burch at the Broadway bar where VanderHeyden was last seen alive. The records show Burch then traveled to VanderHeyden's Ledgeview home, where investigators believe she was murdered and then three miles to a Bellevue field, where her beaten body was discovered.

A few weeks after VanderHeyden's murder, Green Bay Police initially downloaded information from Burch's cellphone during an unrelated hit-and-run case. Months later, Brown County Sheriff's officials collected the data from Green Bay Police after finding Burch's DNA was on VanderHeyden's body, clothes, and other murder evidence.

Defense attorneys argued Brown County should have obtained a search warrant to receive the data.

Zakowski noted in his ruling that no limitations or parameters were set when Burch provided written consent to search his phone.

"Before viewing the data, Detective Loppnow specifically noted the existence of the consent form signed by Burch for the data extraction of his phone and reviewed said form. The form said "I, George Stephen Burch... voluntarily give... Officer Bourdelais or any assisting personnel permission to search my Samsung Cellphone," with no limitations or parameters listed on it... Given the contents of the consent form, it was reasonable for an officer in Detective Loppnow's position to proceed as he did," Judge Zakowski wrote.

In court on Thursday, both sides worked with Zakowski on final details ahead of the trial, including whether witnesses can be questioned about what Burch said ahead of his arrest.

Months after his arrest, Burch claimed VanderHeyden's boyfriend, Douglass Detrie, discovered Burch with VanderHeyden, killed her, and forced Burch at gunpoint to dispose of the body.

“Why didn't he call the cops?” said Zakowski. “Why didn't he tell police what happened if this terrible thing took place?”

In an earlier ruling, Zakowski had ruled Burch must testify before the state can question law enforcement about whether Burch ever came to them with his scenario of what happened. Zakowski ruled on Thursday that non-police witnesses can be asked those type of questions right away.

Zakowski also said in court that the defense has 130 people on its witness list for the trial. The state has 79 people on its list. Zakowski says some names are listed on both lists.

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