State v. Emil L. Melssen

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 20, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP1942-CR Cir. Ct. No. 2021CF29

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

EMIL L. MELSSEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Lafayette County:
R. ALAN BATES, Judge. Pretrial order vacated and cause remanded with
instructions.

Before Graham, P.J., Blanchard, and Kloppenburg, JJ.

¶1 GRAHAM, P.J. Emil Melssen appeals a judgment of conviction,
following a jury trial, for possession of methamphetamine with intent to deliver,
maintaining a drug trafficking place, and possession of drug paraphernalia. On
No. 2024AP1942-CR

appeal, he argues that the evidence was insufficient to sustain his convictions on
the first two counts, and he challenges the circuit court’s pretrial order that denied
his motion to suppress evidence obtained in the execution of two search warrants.
The first warrant authorized a search of the contents of Melssen’s smartphone, and
evidence found in that search provided the basis for the second warrant, which
authorized a search of Melssen’s residence. Melssen asked the circuit court to
suppress evidence obtained in these searches because, he argued, the warrant to
search his smartphone was overly broad and not supported by probable cause.1

¶2 We conclude that there was sufficient evidence presented at trial to
sustain Melssen’s convictions, but that the circuit court erred with respect to the
pretrial order denying the motion to suppress.

¶3 More specifically, we conclude that the warrant to search Melssen’s
smartphone—which authorized officers to search virtually all of the messages,
images, search terms, passwords, correspondence, credit card bills, telephone bills,
digital artifacts, and incoming and outgoing telephone numbers and call details
stored on the smartphone—violated the Fourth Amendment because it was
overbroad and not carefully tailored to its justifications. The warrant application
did not establish probable cause that Melssen was involved in the trafficking or
distribution of controlled substances. At most, it established probable cause that
Melssen had committed a battery on a specific date, and also established probable
cause that evidence related to the battery would be found in a limited search of the
call logs and communications on the smartphone over a limited period of time.

1
The warrants were issued by the Honorable Duane S. Jorgenson, who also issued the
order denying Melssen’s motion to suppress. The Honorable R. Alan Bates presided over the
trial and the sentencing phase of this case.

2
No. 2024AP1942-CR

The warrant application did not establish probable cause for the broad search of
the smartphone’s contents that the warrant authorized.

¶4 Although we conclude that the warrant permitted an unconstitutional
search of the smartphone, we do not determine whether any of the evidence found
in the searches of Melssen’s smartphone and residence should be suppressed or
whether Melssen is entitled to a new trial. The exclusionary rule provides a basis
for suppressing evidence obtained in violation of the Fourth Amendment, but that
rule is not absolute, and the State argues that certain exceptions apply on these
facts. Here, the circuit court denied the motion to suppress without allowing the
parties to present evidence, and the existing record does not allow us to determine
the potential applicability of any exception to the exclusionary rule. Therefore, we
vacate the order denying the motion to suppress, and we remand to the circuit
court for further proceedings. On remand, the circuit court should address whether
any or all of the evidence found on Melssen’s smartphone must be suppressed as a
result of the Fourth Amendment violation; whether the evidence obtained in the
search of Melssen’s residence must be suppressed as a result of the court’s
determinations about the evidence found in the search of his smartphone; and
whether Melssen is entitled to a new trial.

BACKGROUND

¶5 The drug and paraphernalia charges that are the subject of this
appeal arose from a police investigation into a physical altercation that took place
in Lafayette County on May 25, 2021. The altercation was between Melssen and
“Y.Z.,” and it occurred outside of a residence occupied by Y.Z.’s girlfriend,

3
No. 2024AP1942-CR

“A.B.”2 The investigation led to the charges in this case, and it also led to
Melssen’s conviction for substantial battery and disorderly conduct in a separate
case, Lafayette County Case No. 2021CF26 (the “battery case”).3

¶6 On the afternoon of May 25, 2021, A.B. called the police to report
that Y.Z. had stabbed Melssen. In the ensuing investigation, officers collected
physical evidence, interviewed A.B., Melssen, and Y.Z., and transported Melssen
and Y.Z. to a hospital for medical care. It appears that the officers initially
considered Y.Z. to be the subject of their investigation, but their focus shifted to
Melssen after they came to believe that he was more likely the aggressor and had
committed a battery. As discussed in greater detail below, officers used the
information they obtained in their investigation into the battery to secure a warrant
to search the contents of Melssen’s smartphone.

¶7 When officers interviewed Melssen and A.B., both said that Y.Z.
stabbed Melssen. Officers also obtained information that Melssen and A.B. had
been communicating by phone in the hours before and after the altercation.
Specifically, Melssen told police that he used his smartphone to call A.B. earlier
that day and A.B. told him that Y.Z. physically assaulted her the night before; and
A.B. told police that Melssen had sent her multiple text messages from the
ambulance after the altercation.

2
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2023-24), we refer to Y.Z.
and A.B. using initials that do not conform to their actual names. All references to the Wisconsin
Statutes are to the 2023-24 version.
3
Melssen also appealed his conviction in the battery case, see State v. Melssen, Appeal
No. 2024AP1941-CR. We initially consolidated the appeals of these two cases on our own
motion, but after reviewing the briefing, we have determined that the appeals are best suited for
separate dispositions. Therefore, we have unconsolidated the appeals for purposes of disposition,
and we are issuing a separate opinion that resolves Appeal No. 2024AP1941-CR.

4
No. 2024AP1942-CR

¶8 After officers apprehended Y.Z., he gave a different account of the
altercation. Specifically, Y.Z. told police that Melssen confronted and attacked
him while he sat in his truck, and that Y.Z. jabbed Melssen in the arm with a
pocketknife in an attempt to scare him off. During this interview, Y.Z. also
suggested that Melssen and A.B. regularly communicated by smartphone and had
some kind of involvement with controlled substances. Specifically, Y.Z. told
police that Melssen and A.B. “communicate via text messages and phone calls”
and “are constantly communicating about drugs and refer to drugs as ‘groceries.’”

¶9 In the course of their investigation, officers seized a smartphone that
belonged to Melssen and a smartphone that belonged to A.B. Detective Paul
Klang then applied for a warrant to search the contents of Melssen’s smartphone,
which was identified as an “Apple iPhone with a black and gray protective case.”
As part of the warrant application, Klang swore to an affidavit that purportedly
established probable cause that evidence related to “battery, domestic abuse
incidents, and/or narcotic activity” would be found on the smartphone. The
affidavit included detailed factual averments about the police investigation into the
altercation between Melssen and Y.Z. By contrast, there were limited averments
that could support a finding that anything of evidentiary value would be located on
Melssen’s smartphone.

¶10 A warrant-issuing judge analyzes probable cause based on the
factual averments in the affidavits supporting a warrant application. State v.
Ward, 2000 WI 3, ¶23, 231 Wis. 2d 723, 604 N.W.2d 517 (citation omitted); see
also State v. Romero, 2009 WI 32, ¶3, 317 Wis. 2d 12, 765 N.W.2d 756 (probable
cause is based on the totality of the circumstances presented to the warrant-issuing
judge). We therefore reproduce Klang’s averments here, omitting details only if
they are wholly irrelevant to the probable cause determination:

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No. 2024AP1942-CR

1.) Your affiant has been employed [by] the
Lafayette County Sheriff’s Office … since June, 2006.
Your affiant’s knowledge of the following information is
based upon your affiant’s investigative activities, your
affiant’s conversations and ongoing investigative efforts
with Detective Sergeant Jerrett Cook regarding a stabbing
investigation, … and other sworn law enforcement
personnel with the Lafayette County Sheriff’s Office.

2.) On Tuesday, May 25, 2021, at approximately
14:12 hours, [the] Dispatch Center received a 911 call of a
stabbing at [A.B.’s address]. The 911 caller was identified
as [A.B.] [A.B.] reported [that Melssen] was the stabbing
victim and [Y.Z.] was reported as the offender. [A.B.]
further stated another witness to the incident was [her
friend]. It was reported [that] the offender, [Y.Z.], had fled
the scene north bound on Bennett Road.

3.) [A]t approximately 14:27 hours, Deputy
B. Gudgeon located [Y.Z.] [by a highway]. … Deputy
Gudgeon took [Y.Z.] into custody without incident. [Y.Z.]
had what appeared to be substantial injuries to his face.
[Y.Z.] was transported to [a hospital] without incident for
medical clearance. [Y.Z.] stated [that Melssen] had struck
his vehicle and face with a baseball bat, so [Y.Z.] stabbed
[Melssen] to stop [Melssen] from striking him.

4.) [A]t approximately 14:35 hours, [an ambulance]
took [Melssen] to [a hospital] for his injuries. I followed
the ambulance to the hospital. We arrived at [the hospital]
at approximately 14:56 hours. I stood by in the emergency
room while Doctors tended [to Melssen’s] injuries.
[Melssen] received an approximate 2 centimeters by
1 centimeter puncture wound to the left bicep. [Melssen]
received stitches and was released from [the hospital] at
approximately 15:50 hours.

5.) After [Melssen] was discharged from the
hospital, I interviewed [him] in the parking lot …. I asked
[Melssen] to tell me what had occurred today. [Melssen]
stated [that] he called [A.B.] to see if she wanted to go to
Dubuque with him. [A.B.] said yes and told [Melssen that]
last night [Y.Z.] had struck her and pushed her against a
wall. At approximately 14:10 hours, [Melssen] arrived at
[A.B.’s] residence …. [Melssen] parked behind [Y.Z.’s]
vehicle. [Melssen] exited his vehicle and [Y.Z.] “quickly”
got into the driver’s seat of his vehicle. [Melssen] walked
up to [Y.Z.’s] driver’s side window and asked what’s going
on. [Y.Z.] swung his right hand out the window and
stabbed [Melssen] in the arm. [Melssen] described the

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No. 2024AP1942-CR

knife …. [Melssen] stated [that] he punched [Y.Z.] in the
head 2 times in “self-defense.” [Y.Z.] reversed his vehicle
and struck [Melssen’s] vehicle before he sped off.

6.) I followed up [with Melssen] and asked if he
used any other weapons against [Y.Z.], like a tire iron, or
baseball bat, or something else. [Melssen] denied using
any weapons. [Melssen] again stated [that] he only
punched [Y.Z.] 2 times. I asked [Melssen] if he was hostile
towards [Y.Z.], because of what [A.B.] had told him;
[Melssen] again denied provoking the altercation.

7.) After speaking with [Melssen], I telephoned
Detective Sergeant Cook who was at the crime scene. I
briefed [Cook] with [Melssen’s] statements. [Cook]
advised [that] the crime scene does not match [Melssen’s]
statements. [Cook] advised [that Y.Z.’s] initial version of
events appeared more accurate. [Y.Z.] stated [that] he was
trying to leave, when [Melssen] pulled up blocking his
vehicle. [Y.Z.] grabbed a knife from his dash and put it in
his lap. [Melssen] walked up to [Y.Z.’s] vehicle, grabbed
[Y.Z.] by the shirt and punched [him] in his left eye area.
[Y.Z.] grabbed the knife and “jabbed” it towards [Melssen].
[Melssen] backed up and yelled to [A.B.’s friend] for a bat.
[A.B.’s friend] threw [Melssen] a bat and [Melssen] swung
the bat against [Y.Z.’s] vehicle breaking the side mirror off.
[Y.Z.] then fled the scene. A pipe was found near where
the vehicle was parked.

8.) I arrested [Melssen] for battery and transported
him to the Lafayette County Jail without incident. On
[Melssen’s] person at the time of arrest was an Apple
iPhone and wallet containing $1,000 dollars.

9.) It should be noted during the time [Melssen]
was in the ambulance and [at the hospital], he was
repeatedly sending text messages to someone.

10.) I later learned from Detective Sergeant Cook,
[A.B.] had reported [that Melssen] was sending her
numerous text messages from the ambulance.

11.) [Y.Z.] had also reported [that A.B.] and
[Melssen] constantly communicate via text messages and
phone calls; [Y.Z.] further stated [that they] are constantly
communicating about drugs and refer to drugs as
“groceries.”

12.) I know from prior law enforcement
investigations, [that A.B.] is a drug user and [A.B.] has

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No. 2024AP1942-CR

been a resident at [her address] during sales of
methamphetamine from the said address.

13.) Information obtained as a result of this and
subsequent search warrants and/or subpoenas may reveal
valuable information to establish a timeline for
investigating officers to establish an accurate record of
events.

Klang also averred that Melssen had confirmed that he owned the smartphone that
was collected from him.4

¶11 The circuit court issued a search warrant authorizing police to search
for certain items that might be “located and concealed” on Melssen’s phone. The
warrant described the items on the smartphone that officers were permitted to
search for using the following language:

 Images or visual depictions in connection to battery,
domestic abuse incidents, and/or narcotic activity

 Keywords, search terms, and other data indicating
or tending to establish the searching for, receipt of,
or possession of files containing information related
to battery, domestic abuse incidents, and/or narcotic
activity

 Digital contents related to the sharing of internet
access over wireless networks …

 Manuals or other documents … which describe
operation of items seized

 Items containing or displaying passwords, access
codes, usernames, or other identifiers necessary to

4
The affidavit contained additional factual averments by Klang, but none that provided
any additional support for a probable cause determination. Instead, the additional averments
addressed Klang’s understandings about how smartphones work—that they can be encrypted, that
a user’s passcode or fingerprint might be required to unlock a smartphone, and that Melssen’s
passcode or fingerprint might be required to unlock his device. Klang further averred that a
“complete forensic examination” of the smartphone might allow for the recovery of deleted files.

8
No. 2024AP1942-CR

examine or operate items, software, or information
seized

 Correspondence or other documents … pertaining
to the possession, receipt, origin, or distribution of
images involving battery, domestic abuse incidents,
and/or narcotic activity

 Items that would tend to establish ownership or use
of cellular telephones and … service accounts
accessed to facilitate battery, domestic abuse
incidents, and/or narcotic activity, to include credit
card bills, telephone bills, correspondence, and
other identification documents

 Digital artifacts of an evidentiary nature related to
the aforementioned items which things may
constitute evidence of a crime

 SMS/MMS[5] text, picture, video or audio messages

 Incoming and outgoing telephone numbers and/or
call details

¶12 When police executed the warrant and searched Melssen’s
smartphone, they found incriminating text messages between Melssen and two
individuals who were identified on the smartphone as “Becky” and “Bill’s
Girlfriend.” The contents of the messages could support the reasonable inference
that Melssen was involved in the distribution of controlled substances.

¶13 Police then applied for and obtained a second warrant to search the
premises where Melssen resided. Klang again submitted an affidavit in support of
the warrant. As grounds for probable cause, the affidavit relied primarily on the

5
As we understand it, SMS stands for “short message service” and MMS stands for
“multimedia messaging service,” and both allow a person to send and receive messages from a
smartphone.

9
No. 2024AP1942-CR

text messages with “Becky” and “Bill’s Girlfriend” that police found in the search
of Melssen’s smartphone.6

¶14 When officers executed the warrant for Melssen’s residence, they
recovered methamphetamine, drug paraphernalia, and other items consistent with
drug distribution. Specifically, inside the home, officers found approximately one
gram of methamphetamine, several glass pipes, a digital scale with white residue
on it, clear pill capsules, a note about how to “convert a quarter pound into
grams,” more than ten firearms, and approximately two thousand dollars in cash.
Additionally, officers found nearly twelve grams of methamphetamine in a locked
vehicle that was parked on the property.

¶15 The State charged Melssen with possession with intent to deliver
methamphetamine in an amount over ten grams; maintaining a drug trafficking
place; and possession of drug paraphernalia. Prior to trial, Melssen moved to
suppress the evidence obtained in the two searches.

¶16 In challenging the search of his smartphone, Melssen argued that the
warrant application did not establish probable cause to believe that his smartphone
contained evidence related to the battery of Y.Z., “domestic abuse incidents,” or
any “narcotic activity.” According to Melssen, the only facts that could support an
inference that his smartphone contained evidence of battery or domestic abuse

6
As additional support for the warrant to search Melssen’s residence, the affidavit also
included a statement that Melssen made during police questioning in which he admitted that there
was a device for smoking methamphetamine inside his residence. The circuit court determined
that this statement must be suppressed and excised it from the search warrant application because,
the court concluded, it was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 444
(1966). As we discuss below, infra, ¶¶60-61, the State does not challenge this determination on
appeal; therefore, this determination stands.

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No. 2024AP1942-CR

were Melssen’s admission that he called A.B. on the day of the altercation and
A.B. told him that Y.Z. had assaulted her; observations by police that Melssen was
texting someone from the ambulance and the hospital; and A.B.’s statement that
Melssen texted her from the ambulance. Regarding “narcotic activity,” Melssen
argued that the averments in the affidavit were even thinner. Specifically, Melssen
point out that the only relevant facts were Klang’s averment that he knew A.B. to
be a drug user and that drug sales had taken place at her residence, and Y.Z.’s
assertion that Melssen and A.B. communicated about drugs. Melssen argued that
this “scant factual evidence” did not justify the search that police conducted,
which amounted to a “general search” of his “entire phone.”

¶17 In challenging the search of his residence, Melssen argued that the
evidence obtained from that search must be suppressed as “fruit of the poisonous
tree” because the warrant authorizing the search relied almost entirely on the
evidence obtained from the unconstitutional search of his smartphone.

¶18 In its response, the State argued that the warrant application
established probable cause for the search of Melssen’s smartphone. The State’s
argument focused almost exclusively on the battery that had occurred, and on the
averment that Melssen sent text messages to A.B. following the altercation with
Y.Z. Specifically, the State argued, messages on the smartphone would “likely
contain information about why [the battery] occurred or who was involved, hence
[the] request for the contents of those messages and/or phone calls.”

¶19 Regarding the averments about “narcotic activity,” the State made
no attempt to argue that Klang’s affidavit established probable cause that Melssen
was a drug dealer or that evidence of drug trafficking would be found on his
smartphone. The State merely argued that “common sense would cause a person

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No. 2024AP1942-CR

to infer that this incident may be drug related” based on the information in the
affidavit about A.B.’s drug use.

¶20 The circuit court denied Melssen’s motion. Regarding the search of
his smartphone, the court confined its review to the “four corners” of the warrant
application and determined that the application provided “sufficient probable
cause” for the warrant. The court also rejected the argument that the search
authorized by the warrant was “too broad,” appearing to opine that it would have
been impractical to authorize a more limited search because investigators have to
“walk through an entire cell phone … to find what it is that [they]’re looking for.”
And the court declined to suppress the evidence obtained from the residence
because, it determined, the smartphone evidence that supported the application for
a warrant to search the residence had been lawfully obtained.

¶21 A jury trial on the drug charges was held in June 2024. The State’s
case rested in large part on the evidence recovered in the searches of Melssen’s
smartphone and residence. Officers testified about text messages that were
recovered from Melssen’s smartphone, and about the methamphetamine, drug
paraphernalia, and other items that were found in the search of Melssen’s
residence and in the locked vehicle that was parked on the property.

¶22 Melssen’s primary defense at trial was that he used
methamphetamine, but that he was not involved in distribution or trafficking. In
support, Melssen pointed out that the majority of the methamphetamine that was
found on his property was recovered from the locked vehicle, which, an officer
testified, was “registered to a person out of Ohio.” Melssen argued that this
vehicle and the methamphetamine inside it belonged to a friend of his, and that the
State failed to prove that he had access to the vehicle.

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No. 2024AP1942-CR

¶23 The jury found Melssen guilty on all counts. Melssen appeals.

DISCUSSION

¶24 As mentioned, Melssen argues that the trial evidence was
insufficient to sustain his convictions for possession of methamphetamine with
intent to deliver and maintaining a drug trafficking place.7 He also argues that the
evidence found in the searches of his smartphone and residence should have been
suppressed. We address Melssen’s arguments in that order.

I. Sufficiency of the Evidence

¶25 Whether the evidence presented to the factfinder was sufficient to
sustain a guilty verdict presents a legal question that we review de novo. State v.
Smith, 2012 WI 91, ¶24, 342 Wis. 2d 710, 817 N.W.2d 410. We reverse the
conviction only if the evidence was “so lacking in probative value and force that
no trier of fact, acting reasonably could have found guilt beyond a reasonable
doubt.” State v. Poellinger, 153 Wis. 2d 493, 507, 451 N.W.2d 752 (1990).
When conducting a review of the sufficiency of the evidence, “we consider all of
the evidence that was submitted at trial,” including any evidence that may have
been “erroneously admitted.” See State v. LaCount, 2008 WI 59, ¶25, 310
Wis. 2d 85, 750 N.W.2d 780.

¶26 To convict Melssen of the disputed charges, the State had to prove
that he intended to deliver methamphetamine to others, and that he knowingly
maintained a place that was used for delivering controlled substances. See WIS

7
Melssen does not challenge the sufficiency of the evidence to support the paraphernalia
charge.

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No. 2024AP1942-CR

JI—CRIMINAL 6035 (possession with intent to deliver requires that “[t]he
defendant intended to deliver” the controlled substance, which means to “transfer
or attempt to transfer [drugs] from one person to another”); WIS JI—
CRIMINAL 6037B (maintaining a drug trafficking place requires that the place that
the defendant maintained was used for “manufacture,” “keeping,” or “delivering”
a controlled substance).8

¶27 Melssen’s argument that the evidence was insufficient largely
echoes his defense at trial—that the State failed to prove that he possessed
methamphetamine in a sufficient quantity to prove that he intended to deliver
methamphetamine to others or that he knowingly maintained a place that was used
for delivering controlled substances. Melssen points out that the majority of the
methamphetamine that police recovered from his property was found in a locked
vehicle that was registered to an unidentified person from Ohio and that, Melssen
asserted, belonged to his friend. Melssen argues that “[n]o evidence was shown
that would have allowed a reasonable jury to believe [Melssen] even knew about,
let alone possessed,” the methamphetamine in the vehicle.

¶28 We disagree with Melssen’s assessment of the evidence. Contrary to
Melssen’s argument, it is not fatal to the State’s theory if the vehicle in which
methamphetamine was found did not belong to Melssen. The jury was instructed

8
In full, the standard jury instructions for the charges provide as follows. For possession
of a controlled substance with intent to deliver, the State must prove that: the defendant possessed
a substance; the substance is a controlled substance whose possession is prohibited by law; the
defendant knew or believed that the substance was a controlled substance; and the defendant
intended to deliver the controlled substance. See WIS JI—CRIMINAL 6035. For maintaining a
drug trafficking place, the State must prove that: the defendant kept or maintained a structure or
place; the place was used for manufacturing, keeping, or delivering a controlled substance; and
the defendant kept or maintained the place knowingly. See WIS JI—CRIMINAL 6037B.

14
No. 2024AP1942-CR

that it could find that Melssen possessed methamphetamine if it was “in an area
over which [Melssen] ha[d] control” and he “intend[ed] to exercise control over
the item.” See WIS JI—CRIMINAL 920. The jury was also instructed that
ownership “is not required” for possession, and that “[p]ossession may be shared.”
See WIS JI—CRIMINAL 920.

¶29 Melssen’s attorney argued that the methamphetamine inside the
vehicle belonged to Melssen’s friend, but the jury was not required to credit that
argument. Here, police found ample evidence related to distribution in Melssen’s
residence, including “a digital scale with white residue on it,” notes about how to
“convert a quarter pound into grams,” more than ten firearms, and thousands of
dollars in cash. And regardless of the legal ownership of the vehicle found on
Melssen’s property, the jury could reasonably infer that he exercised control over
the vehicle and at least shared possession of the methamphetamine found inside it.
Both inferences were reasonable, especially given that the State presented
evidence that Melssen and the friend who purportedly owned the vehicle were
sharing drugs, and at least some evidence that they were selling drugs together.
See Poellinger, 153 Wis. 2d 493, 507 (“an appellate court must accept and follow
the inference drawn by the trier of fact unless the evidence on which that inference
is based is incredible as a matter of law”).

¶30 Accordingly, contrary to Melssen’s argument, there was sufficient
evidence to sustain the convictions for possession of methamphetamine with intent
to deliver and maintaining a drug trafficking place.

II. The Search Warrants

¶31 Melssen also argues that the search warrants for his smartphone and
residence did not comply with the Fourth Amendment, such that the evidence

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No. 2024AP1942-CR

found in these searches should have been suppressed. We begin by summarizing
the legal principles that are pertinent to the Fourth Amendment issues here and
then apply those principles to the warrants in Melssen’s case.

A. Legal Principles

¶32 The Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures shall not be violated[.]” It further provides that “no warrants shall
issue, but upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.” U.S.
CONST. amend. IV; see also WIS. CONST. art. I, § 11 (containing a similarly
worded state constitutional guarantee). This latter provision, referred to as the
“Warrant Clause,” sets forth two related requirements—probable cause and
particularity—that are both relevant to this appeal. These dual mandates are
meant to address “the central concern underlying the Fourth Amendment”—that
the government should not have “unbridled discretion to rummage at will among a
person’s private effects.” See Arizona v. Gant, 556 U.S. 332, 345 (2009).

¶33 To satisfy the probable cause requirement, a warrant-issuing
magistrate must be apprised of sufficient facts to support the belief that “there is a
fair probability that contraband or evidence of a crime will be found in a particular
place.” Ward, 231 Wis. 2d 723, ¶23 (citing Illinois v. Gates, 462 U.S. 213, 238
(1983)). “[P]robable cause to believe that a person has committed a crime does
not automatically give the police probable cause to search [a particular place]”;
there instead must be a “nexus” between the criminal activity and the place to be
searched and items to be seized. See State v. Higginbotham, 162 Wis. 2d 978,
995, 471 N.W.2d 24 (1991) (citation omitted). Whether a warrant is supported by

16
No. 2024AP1942-CR

probable cause is a “practical, commonsense decision” that is made by examining
the “totality of the circumstances” described in the warrant application. State v.
Jones, 2002 WI App 196, ¶10, 257 Wis. 2d 319, 651 N.W.2d 305 (citations
omitted).

¶34 Turning to the particularity requirement, this requirement is closely
tied to probable cause. Specifically, a warrant must “particularly” describe the
place to be searched and the items to be seized, see U.S. CONST. amend. IV; WIS.
CONST. art. I, § 11, and must be limited to only those “specific areas and things for
which there is probable cause to search.” See Maryland v. Garrison, 480 U.S. 79,
84 (1987). By establishing “the scope of the authorized search,” Kentucky v.
King, 563 U.S. 452, 459 (2011), the particularity requirement “ensures that the
search will be carefully tailored to its justifications, and will not take on the
character of the wide-ranging exploratory searches the Framers intended to
prohibit,” Garrison, 480 U.S. at 84.

B. The Smartphone Warrant

¶35 Having outlined the relevant legal principles, we consider the
warrant to search Melssen’s smartphone, and specifically, whether it was
supported by probable cause and particularity.

¶36 There are no United States Supreme Court cases, and no published
Wisconsin cases, that have addressed what the dual mandates of the Warrant
Clause require of an application for a warrant to search the contents of a
smartphone. In the absence of binding authority, the circuit court appeared to
conclude that, if there is probable cause to believe that evidence of a crime will be
found on a smartphone, the particularity requirement is satisfied by identifying the
specific smartphone that will be searched and the specific crime that the defendant

17
No. 2024AP1942-CR

is suspected of committing. As applied here, the court appeared to conclude that
the averments about “battery, domestic abuse, and narcotic activity” established
probable cause for an essentially unrestricted search of the smartphone’s contents.
For reasons we now explain, we conclude that the Fourth Amendment requires a
greater degree of particularity.

¶37 The United States Supreme Court addressed government searches of
smartphones in Riley v. California, 573 U.S. 373 (2014). Although Riley does not
specifically address the application of the Fourth Amendment’s probable cause
and particularity requirements, the case provides helpful guidance on the privacy
interests implicated by smartphones. There, officers conducted a warrantless
search of a suspect’s smartphone, and the Court determined that generally
speaking, such searches must be authorized by a warrant. Id. at 403.

¶38 In reaching this decision, the Riley Court relied on some of the
special characteristics that distinguish smartphones from other places and items
that may be the subject of a government search. See id. at 393-97. The Court
observed that smartphones are, in effect, “minicomputers that also happen to have
the capacity to be used as a telephone.” Id. at 393. And, as the Court explained,
due to their “immense storage capacity,” portability, and pervasive use, a modern
smartphone can provide “a digital record of nearly every aspect” of a person’s life
“from the mundane to the intimate.” Id. at 395; see also Burns v. United States,
235 A.3d 758, 773 (D.C. 2020) (citing Riley, 573 U.S. at 393-94, 396, for the
proposition that smartphones often contain “emails, text messages, notes,
photographs, videos, internet browsing histories, calendars, personal contacts,
[and] phone logs,” “all ‘dating back to the purchase of the phone, or even earlier,’”
and that mobile “apps” can store “detailed information about all aspects of a
person’s life,” from “political and religious affiliations, banking and other

18
No. 2024AP1942-CR

financial matters, addiction treatments, dating and romantic interests, pregnancy
milestones, hobbies, and ‘buying or selling just about anything’”).9

¶39 The concern about indiscriminate searches of residences by
government actors is at the core of the Fourth Amendment, and the Riley Court
observed that smartphones contain personal and sensitive information far beyond
what would be found in a residence “in any form.” Riley, 573 U.S. at 396-97
(observing that a smartphone “not only contains in digital form many sensitive
records previously found in the home; it also contains a broad array of private
information never found in a home in any form—unless the smartphone is [in the
home]”). In the same vein, the District of Columbia Court of Appeals has
observed that “the collection of so much varied and sensitive information on a
single device, carried almost everywhere by its owner, facilitates in an
unprecedented way the reconstruction of the sum of an individual’s private life
and conveys far more about a person than could previously be found in the search
of a physical space.” Burns, 235 A.3d at 773 (citation modified) (citing Riley,
573 U.S. at 394).

9
Notably, courts across the country have reasoned that, due to the quantity and variety of
information that computers can store, the particularity requirement must be carefully applied
when analyzing governmental searches of computers. See, e.g., United States v. Otero, 563 F.3d
1127, 1132-33 (10th Cir. 2009) (“The modern development of the personal computer and its
ability to store and intermingle a huge array of one’s personal papers in a single place increases
law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and
accordingly makes the particularity requirement that much more important.”); United States v.
Galpin, 720 F.3d 436, 446-48 (2d. Cir. 2013) (“Where, as here, the property to be searched is a
computer hard drive, the particularity requirement assumes even greater importance[,] … [t]he
potential for privacy violations occasioned by an unbridled, exploratory search of a hard drive is
enormous[.]”); State v. Mansor, 421 P.3d 323, 337-43 (Or. 2018) (“[t]he data contained on a
personal computer is qualitatively and quantitatively different from the sort of information that
could be found in other single objects” and “[t]he unique characteristics of computers … have
implications for the application of the particularity requirement”); United States v. Wecht, 619 F.
Supp. 2d 213, 242-45 (W.D. Pa. 2009); State v. Castagnola, 46 N.E.3d 638, 655-59 (Ohio 2015).

19
No. 2024AP1942-CR

¶40 Given the above-described capacities of smartphones and their
ubiquitous use in managing and recording many aspects of modern life, it is easy
to imagine how an unlimited search of a person’s smartphone would reveal private
details of the person’s life that are wholly unrelated to any criminal investigation
that justified the search. For example, an unlimited search might reveal sensitive
information about medical conditions and appointments (both for the smartphone
owner and the owner’s family members). It might reveal confidential
communications with legal and other professionals. It might reveal the owner’s
private writings regarding political, religious, or moral beliefs. And it might
reveal statements of passion or contrition that were intended for a loved one, or
statements of self-reflection that the author may not have intended any other
person to read.

¶41 For all of these reasons, we do not agree with the circuit court’s
conclusion that, to the extent there is probable cause that evidence of a crime will
be found on a smartphone, this necessarily means that there is probable cause for
an essentially unrestricted search of the smartphone’s contents. Given the storage
capacities and the routine and frequent uses of smartphones, adoption of that
conclusion would amount to a judicial greenlight for precisely the kind of invasive
governmental conduct that the Fourth Amendment was designed to prevent. See
Garrison, 480 U.S. at 84; State v. Noll, 116 Wis. 2d 443, 450-51, 343 N.W.2d 391
(1984).

¶42 Under the circumstances, we join several other state and federal
jurisdictions in emphasizing that, like other warrants, a warrant to search a

20
No. 2024AP1942-CR

smartphone must be “carefully tailored to its justifications.”10 See Garrison, 480
U.S. at 84 (addressing warrants in other contexts). It is not sufficient for the
warrant application to establish that there is probable cause to believe that there is
a fair probability that the smartphone contains some evidence of a crime. See
Burns, 235 A.3d at 773. “Just as probable cause to believe that a stolen
lawnmower may be found in a garage” does not entitle police to search an
“upstairs bedroom,” Garrison, 480 U.S. at 84-85, probable cause to believe that a
certain kind of evidence (such as text messages and other digital communications)
will be found on the smartphone does not necessarily justify searching other types
of data on the smartphone (such as internet browsing history or digital documents
of other types).

¶43 Instead, to comply with the Warrant Clause’s requirements, “the
warrant must specify the particular items of evidence to be searched for and seized
from the [smart]phone,” and its authorization must be “limited to the time period
and information or other data for which probable cause has been properly
established through the facts and circumstances set forth under oath in the
warrant’s supporting affidavit.” Burns, 235 A.3d at 773; see also Mansor, 421
P.3d at 326 (noting that the Warrant Clause requires similar limitations when
applied to warrants for a “computer or other digital device”); Custodian of
Records v. State (In Re Doe), 2004 WI 65, ¶¶50-51, 272 Wis. 2d 208, 680
N.W.2d 792 (an “overly broad” subpoena violated the Fourth Amendment because

10
See, e.g., Burns v. United States, 235 A.3d 758, 773-75 (D.C. 2020); United States v.
Winn, 79 F. Supp. 3d 904, 919 (S.D. Ill. 2015); Buckham v. State, 185 A.3d 1, 15, 18-19 (Del.
2018); State v. Henderson, 289 Neb. 271, 854 N.W.2d 616, 631-34 (2014); People v. Thompson,
178 A.D.3d 457, 457-459 (N.Y. App. Div. 2019); Commonwealth v. Broom, 52 N.E.3d 81,
88-90 (Mass. 2016); Richardson v. State, 282 A.3d 98, 105, 113-124 (Md. 2022); People v.
Coke, 461 P.3d 508, 516-17 (Colo. 2020).

21
No. 2024AP1942-CR

it sought “all of the data from the computer system of an entire branch of the state
government,” without specifying the “topics” or the “types of documents” sought
and without limiting the search to a relevant time period). In some circumstances,
the factual averments in a warrant application might establish a sufficient nexus
between the likely contents of a smartphone and the commission of a crime such
that a fairly broad search of the smartphone’s contents would be justified, but in
other cases, the averments will provide probable cause for a much more limited
search.

¶44 We now apply these principles to the warrant to search Melssen’s
smartphone. As mentioned, the question is whether the facts in the warrant
application established “a fair probability that contraband or evidence of a crime
[would] be found” on the smartphone. Ward, 231 Wis. 2d 723, ¶22. Here, the
majority of the averments in the warrant application were about the battery of Y.Z.

¶45 Klang’s affidavit provided the following facts that are relevant to an
analysis of the likelihood that evidence related to the battery would be found on
Melssen’s smartphone: Melssen and A.B. talked by phone the morning of May 25,
2021, and Melssen learned that Y.Z. had assaulted A.B.; Melssen physically
confronted Y.Z. later that day; Melssen was “repeatedly sending text messages to
someone” from the ambulance and hospital shortly after the altercation and A.B.
received “numerous” text messages from Melssen during this time period; and
Melssen and A.B. both indicated that Y.Z. was the aggressor but police had
determined that Y.Z.’s account that Melssen attacked him was more credible.

¶46 Based on these averments, a warrant-issuing judge could reasonably
determine that there was a fair probability that evidence related to the May 25
battery would be found on Melssen’s smartphone. See Ward, 231 Wis. 2d 723,

22
No. 2024AP1942-CR

¶21 (we defer to the warrant-issuing judge’s determination “unless the defendant
establishes that the facts are clearly insufficient to support a probable cause
finding”). Although Klang’s affidavit did not make any explicit connection
between any likely contents of Melssen’s smartphone and the battery, a warrant-
issuing judge is permitted to make the “usual inferences reasonable persons would
draw from the facts presented.” Bast v. State, 87 Wis. 2d 689, 693, 275 N.W.2d
682 (1979).

¶47 Here, the judge could have reasonably inferred that the battery was
motivated by the information that Melssen learned in his phone call with A.B. that
morning, and that there was a fair probability that evidence relevant to the
motivation, timing, and events of the battery would be found in certain call logs
and communications on Melssen’s smartphone.11 More specifically, the judge
could reasonably infer that there was a fair probability that the call logs from
May 25 would provide evidence related to the timing of the battery. The judge
could also reasonably infer that there was a fair probability that any digital
communications between Melssen and A.B. on the day of the battery would reveal
evidence related to Melssen’s confrontation of Y.Z. at A.B.’s residence. For
example, any messages after the phone call might reveal a plan to confront Y.Z. at
A.B.’s residence, and Melssen’s “numerous” text messages to A.B. shortly after
the battery might reveal statements by Melssen about what had just happened, or
discussion about what Melssen might have suggested that A.B. should tell the
police about the incident. Additionally, given the nature of Melssen’s altercation

11
By “call log,” we mean to refer to a list of incoming and outgoing telephone calls,
including the telephone numbers and call duration, that is stored on the smartphone and is
generated in applications that allow users to place and receive calls over cell phone towers or
wireless connections.

23
No. 2024AP1942-CR

with Y.Z. and the averment that he was repeatedly texting from the ambulance and
hospital, the judge could reasonably infer that Melssen’s communications with
persons other than A.B. would likely relate to the confrontation that had just
occurred. We therefore conclude that under the totality of the circumstances, the
affidavit established probable cause to believe that evidence of the battery would
be located on the smartphone.

¶48 This does not end our inquiry. As discussed above, the Fourth
Amendment also requires that a warrant be “tailored to its justifications.”
Garrison, 480 U.S. at 84. Here, as discussed, there was probable cause to believe
that evidence related to the battery would be found in the call log from May 25,
2021, in the direct communications on the smartphone between Melssen and A.B.
from that same date, and in any other communications on the smartphone during
the time period immediately following the altercation in which Melssen was
repeatedly texting from the ambulance and the hospital. However, the affidavit
did not reasonably suggest that evidence related to battery would be found in any
other data stored in Melssen’s smartphone. There were not, for example, any
averments raising the reasonable inference that Melssen took any pictures or
videos or conducted any internet searching to plan his encounter with Y.Z. or that
were otherwise related to the altercation that occurred. Nor were there any
averments that would raise a reasonable inference about any call logs,
communications, or other documents or data from any other date.

¶49 Yet, the warrant authorized police to conduct a much broader search
of Melssen’s smartphone. It authorized police to search all of Melssen’s call logs
(“incoming and outgoing telephone numbers and/or call details”) without any
limitation on date. It also authorized police to search all of Melssen’s messages
(“SMS/MMS text, picture, video or audio messages”) without any limitation with

24
No. 2024AP1942-CR

respect to the date or the identity of the sender and recipient. And, beyond the call
logs and messages, the warrant also authorized officers to search for, among other
things, “[i]mages or visual depictions in connection with battery,” “[k]eywords,
search terms, and other data indicating or tending to establish the … possession of
files containing information related to battery,” “[i]tems containing or displaying
passwords, access codes, usernames,” “[c]orrespondence or other documents …
exhibiting an interest in battery,” and “[i]tems [including credit card bills and
telephone bills] that would tend to establish ownership or use of cellular
telephones and … service accounts.” Accordingly, at least with respect to the
authorization to search for evidence related to battery, the warrant is overbroad
because it is not carefully tailored to its justifications.12

¶50 The State points out that battery was not the sole ground identified in
the warrant for searching Melssen’s smartphone. It argues that there was probable
cause for a broader search of the smartphone because there was a fair probability
that it would contain evidence of a drug-related crime, and that the circuit court
denied the motion to suppress in part based on information about “narcotic
activity.” Yet, for reasons we now explain, we conclude that the warrant
application’s averments about “narcotic activity” do not provide the probable
cause and particularity needed to comply with the Fourth Amendment.

12
The warrant was also overbroad if its justification was to locate evidence related to, in
the words of the warrant, “domestic abuse incidents,” rather than evidence related to Melssen’s
battery of Y.Z. There was only one averment in the warrant application that related to an
allegation of domestic abuse: Melssen’s statement that, during a phone call on the morning of
May 25, 2021, A.B. told him that Y.Z. had assaulted her the night before. Perhaps the warrant-
issuing magistrate could have inferred that the May 25, 2021 communications between Melssen
and A.B. might contain additional information about that particular incident, but nothing more.

25
No. 2024AP1942-CR

¶51 First, the averments in the warrant application about “narcotic
activity” were exceptionally vague and exceedingly slim. Here, there were only
two averments in Klang’s affidavit that had anything to do with drugs. There was
Y.Z.’s uncorroborated statement that A.B. and Melssen are “constantly
communicating about drugs and refer to drugs as ‘groceries.’”13 And there was
Klang’s averment that he was aware that A.B. was a “drug user” and that “sales of
methamphetamine” had taken place at A.B.’s residence. Even drawing all
reasonable inferences in favor of the warrant-issuing judge’s determination, we
conclude that these facts are “clearly insufficient” to establish probable cause that
evidence of a drug-related crime would be found on Melssen’s smartphone.
Ward, 231 Wis. 2d 723, ¶21.

¶52 To further illustrate, the only averment in the affidavit that attempted
to provide a nexus between the likely contents of the smartphone and a potential
drug crime was the vague statement that A.B. and Melssen “communicate about
drugs and refer to them as ‘groceries.’” But it would not have been a crime for
Melssen to merely communicate with A.B. about drugs, even if A.B. was a known
drug user. See generally WIS. STAT. ch. 961 (providing that possession,
distribution, and manufacture of controlled substances is illegal). At most, the use
of the term “groceries” vaguely suggests that Melssen and A.B. might have
attempted to purchase drugs from some unspecified person at some unspecified
time, but there is nothing in the warrant application that reasonably suggests

13
See State v. Kolk, 2006 WI App 261, ¶13, 298 Wis. 2d 99, 726 N.W.2d 337 (when the
probable cause assessment is based on information from a civilian’s report, the value of the
information will depend in part on “the extent to which [the report] can be verified by
independent police investigation” (citation omitted)).

26
No. 2024AP1942-CR

anything more. That is, there is nothing in the warrant application that reasonably
suggests that Melssen was selling drugs to A.B. or any other person.

¶53 The State accurately points out that the warrant-issuing judge was
not required to assume an innocent explanation for Melssen’s communications
with A.B. But the problem here is not that the judge was presented with a set of
facts that establish probable cause but that could also have an innocent
explanation. The problem is that the information about “narcotic activity” was of
insufficient quality and quantity to ring the probable cause bell in the first
instance. See Ward, 231 Wis. 2d 723, ¶¶26-28 (a warrant-issuing judge’s
conclusion must be based on a reasonable view of the totality of the facts before
it). Accordingly, the averments in Klang’s affidavit did not establish probable
cause to search Melssen’s phone for evidence of “narcotic activity.”14

¶54 Second, even if the vague averments about “narcotic activity” were
marginally adequate to establish probable cause that evidence of drug possession
would be found on the smartphone, the averments would not broaden the search
all that much beyond what is reasonably justified by the averments about battery,
as we have discussed above. As stated, the warrant application did not establish

14
We observe that, in describing its conclusion about Melssen’s “narcotic activity”
during the proceedings on the motion to suppress, the circuit court mentioned a number of
allegations that were not contained in the warrant application. The court appears to have learned
about these additional allegations in the course of the two criminal proceedings against Melssen.
Specifically, the court stated that “the evidence gleaned was that [A.B.] and … Melssen had
engaged in a sexual relationship,” that A.B. had been using that relationship “to acquire drugs
from Melssen,” and that Y.Z.’s statements about Melssen’s and A.B.’s use of drugs were credible
because Y.Z. admitted his own use of illegal drugs. As stated, this information was not included
in the warrant application, and we do not consider these additional allegations in our analysis.
See, e.g., State v. Green, 2022 WI 41, ¶2, 402 Wis. 2d 44, 975 N.W.2d 198 (whether a warrant
was supported by probable cause is limited to the “record that was before the warrant-issuing
judge” (citation omitted)).

27
No. 2024AP1942-CR

probable cause to believe that Melssen was distributing drugs, and there were no
averments about drug-related communications between anyone other than Melssen
and A.B. Under the circumstances, a narrowly tailored warrant might authorize
the search of the communications between Melssen and A.B. over a slightly longer
timeframe than a warrant that was based exclusively on the averments about
battery. But, given the limited averments about communications between Melssen
and A.B., there would be no justification to search for Melssen’s communications
with anyone other than A.B.

¶55 For all these reasons, we conclude that the warrant to search
Melssen’s smartphone authorized a far more extensive search than was allowed by
the Warrant Clause’s dual mandates of probable cause and particularity. Although
the warrant application and supporting affidavit established probable cause for a
limited search of Melssen’s call log and communications over a limited period of
time on the date of the battery, it did not establish probable cause to search for any
other items or information on Melssen’s smartphone. We therefore conclude that
Melssen’s Fourth Amendment rights were violated by the search.

¶56 We now turn to remedy. As noted, the primary evidence that was
obtained in the smartphone search were Melssen’s incriminating text messages
with “Becky” and “Bill’s Girlfriend.” These text messages suggested that Melssen
was distributing illegal drugs. Police used this evidence as the main basis to
obtain the warrant to search Melssen’s residence, and the prosecution introduced
the text messages as evidence in the trial.

¶57 “Suppression is the usual remedy for a Fourth Amendment
violation.” See State v. Ferguson, 2009 WI 50, ¶21, 317 Wis. 2d 586, 767
N.W.2d 187. However, there are several exceptions to the application of the

28
No. 2024AP1942-CR

exclusionary rule, and “[t]he fact that a Fourth Amendment violation occurred …
does not necessarily mean that the exclusionary rule applies.” Herring v. United
States, 555 U.S. 135, 140 (2009).

¶58 Here, the State argues that the “good-faith” exception to the
exclusionary rule applies. See United States v. Leon, 468 U.S. 897, 922 (1984)
(addressing the good-faith exception in the context of an invalidated search
warrant); State v. Eason, 2001 WI 98, ¶¶64-72, 245 Wis. 2d 206, 629 N.W.2d 625
(same). Additionally, the State argues, the text messages with “Becky” and “Bill’s
Girlfriend” might not be subject to the exclusionary rule if the messages were in
the officers’ “plain view” as they executed the valid portions of the search warrant.
See State v. Oswald, 2000 WI App 3, ¶¶41-44, 232 Wis. 2d 103, 606 N.W.2d 238
(1999) (addressing circumstances in which, during the execution of a valid
warrant, officers were permitted to seize items outside of the scope of that warrant
under the plain view doctrine).

¶59 Although we have concluded that the warrant to search the
smartphone was overly broad in violation of the Fourth Amendment, we do not
resolve the potentially fact-intensive issues surrounding the determination of
whether the text messages found in the resulting search must be suppressed. The
State has preserved its arguments about the plain view doctrine and the good faith
exception, but it did not have an opportunity to meaningfully develop a factual
record on these doctrines during the circuit court proceedings.15 Because the

15
During the circuit court proceedings on the motion to suppress, the State argued that
the plain view doctrine and the good faith exception to the exclusionary rule applied, and the
State asked for “a hearing to determine the applicability of the good-faith exception” “[i]n the
event the court finds in favor of the defendant” with respect to a Fourth Amendment violation.
Then, as noted, at the outset of the hearing, the court denied the motion without taking evidence
(continued)

29
No. 2024AP1942-CR

existing record does not allow us to determine whether either of these doctrines
applies, a remand is appropriate to allow the circuit court to address these
doctrines and any related issues. See State v. Anker, 2014 WI App 107, ¶¶26-27,
357 Wis. 2d 565, 855 N.W.2d 483 (remanding to the circuit court to determine
whether the exclusionary rule applied when the circuit court had not taken
evidence or made factual findings on the issue).

C. The Residence Warrant

¶60 Before concluding, we briefly address the warrant to search
Melssen’s residence. As mentioned, Klang submitted a second affidavit in support
of the issuance of a warrant to search the residence, and that affidavit relied in
large part on the incriminating messages uncovered from the search of Melssen’s
smartphone. According to Melssen, that makes the evidence obtained in the
search of his residence “fruit of the poisonous tree” that must be suppressed. See
State v. Roberson, 2006 WI 80, ¶32, 292 Wis. 2d 280, 717 N.W.2d 111
(“evidence must be suppressed as fruit of the poisonous tree” if such evidence is
obtained from other illegally obtained evidence).

¶61 The State argues that we can determine that the warrant to search the
residence was supported by probable cause, even if the text messages that were
found on Melssen’s smartphone are excised from the warrant application. In
support, the State points to a portion of Klang’s affidavit in which Klang
summarizes a statement that Melssen made to police. In that statement, Melssen
admitted that there was a “[m]ethamphetamine bong” inside of his residence. The

based on its review of the four corners of the application for the smartphone warrant and its
determination that the warrant did not violate the Fourth Amendment.

30
No. 2024AP1942-CR

State argues that Melssen’s statement, by itself, provided probable cause for the
issuance of a warrant to search the residence.

¶62 We need not consider this argument by the State. As discussed
above, supra note 6, the circuit court determined that this statement must be
excised from the warrant application because it was obtained in violation of the
Fifth Amendment. See State v. Jackson, 2016 WI 56, ¶¶76-77, 369 Wis. 2d 673,
882 N.W.2d 422 (endorsing the conclusion that “tainted statements” that were
obtained in violation of the Fifth Amendment should be excised from a search
warrant application). The State does not develop an argument challenging this
determination on appeal, and we take the State’s failure to do so as an
acknowledgment that the circuit court did not err.

¶63 Once Melssen’s statement about the “methamphetamine bong” is
excised from the warrant application for the residence, the primary averments
supporting probable cause to search the residence were the text messages
recovered from Melssen’s smartphone.16 Because we do not determine whether
these text messages should be suppressed, we also do not determine whether they
could be used as probable cause to support the residence warrant. On remand, the
circuit court should address how its conclusion on the smartphone evidence affects
the validity of the warrant for the residence and any other related issue.

16
The only other averments in the affidavit for the second warrant were conclusory
averments about Klang’s knowledge of prior drug-related investigations into Melssen’s activities.
Specifically, Klang averred, “I know from prior law enforcement investigations, [Melssen] was
reportedly selling methamphetamine and/or other illegal drugs from his residence[,]” and “[i]n
checking our in-house records, I located multiple contacts involving [Melssen] within the prior
year.” A finding of probable cause cannot be based only “on the affiant’s suspicions and
conclusions.” Bast v. State, 87 Wis. 2d 689, 693, 275 N.W.2d 682 (1979). The State does not
argue that these averments by Klang would have been sufficient on their own to satisfy the
probable cause requirement, and we discern no room for such an argument.

31
No. 2024AP1942-CR

CONCLUSION

¶64 In sum, we conclude that the State presented sufficient evidence to
sustain Melssen’s convictions. However, with respect to Melssen’s motion to
suppress evidence obtained in the search of his smartphone and residence, we
conclude that the warrant to search Melssen’s smartphone violated the Fourth
Amendment because it was overbroad and not carefully tailored to its
justifications. We vacate the order denying the motion to suppress, and we
remand to the circuit court for further proceedings. On remand, the circuit court
should address whether any or all evidence found on Melssen’s smartphone must
be suppressed as a result of the Fourth Amendment violation; whether the
evidence obtained in the search of Melssen’s residence must be suppressed as a
result of the court’s determinations about the evidence found in the search of his
smartphone; and whether Melssen is entitled to a new trial.

By the Court.—Pretrial order vacated and cause remanded with
instructions.

Recommended for publication in the official reports.

32