Bowers gets appeals court win

Appeals court says search warrant was needed to access Dropbox account

A former Taylor County sheriff’s deputy who is facing felony misconduct in office charges for the improper release of case information to producers of a truecrime style television program in 2017 got a major court win last week.

In a decision which could help define electronic property rights when it comes to criminal investigations, the state appeals court ruled on December 29 that investigators should have gotten a search warrant before accessing the private Dropbox account of Detective Sergeant Steven Bowers.

Bowers used his Taylor County email address to create the account. In court testimony, Bowers was alleged to have saved case files for unsolved cases to the account and shared them with producers of a television show. At the time, the sheriff’s department had been working with the producers for an episode regarding a different case.

See COURT on page 4 When then sheriff Bruce Daniels learned of the release of information, Bowers was placed on paid administrative leave pending an investigation. The county ultimately pursued administrative punishment and in 2017 personnel committee members approved punishment for administrative infractions of the county policies with a reduction in rank and suspension.

In the meantime, the Wisconsin Attorney General’s office, under then attorney general Brad Schimmel, filed felony misconduct charges against Bowers for the improper release of the information. Bowers had remained on paid administrative leave for over five years through last summer when he formally retired from the department.

A major part of the state’s case is the information from the Dropbox account. The county, during its investigation, had directed information technology personnel to reset the password to access the account without first getting a warrant for it. The county, and state, have argued that because it was set up using the county-issued email and accessed using county hardware they had the right to access it without needing a warrant.

Bowers, and his attorney, noted that Bowers paid for the private Dropbox Account for personal file storage. Deputies were routinely allowed to use their county issued emails for private use. Bowers argued that he enjoyed a reasonable expectation of privacy when it came to the Dropbox account and that the county and state violated his constitutional rights in accessing the file store account without first getting a warrant.

Bowers filed a motion to suppress evidence on the basis that law enforcement conducted a warrantless search of his account in violation of the Fourth Amendment. The circuit court ultimately granted Bowers’ motion, and the State filed a motion for reconsideration of that decision, which the court denied. On appeal, the State argues that Bowers had no reasonable expectation of privacy in his Account, and, in the alternative, if a search occurred, the warrantless search was justified by probable cause and exigent circumstances.

In the state appeals court decision filed last week, the judges agreed with Bowers stating: “[W]e conclude that Bowers had a reasonable expectation of privacy in the contents of his Account. Although it was established using Bowers’ county e-mail address, Bowers paid to create the private Account, the Account was password protected and accessible through Bowers’ private devices, and the Account was not stored on county property. In addition, although Bowers’ Account was held by Dropbox, an independent entity, Bowers did not grant a third party access to his password or the Account when sharing the case files. Thus, law enforcement engaged in a search of Bowers’ Account within the meaning of the Fourth Amendment. Further, while law enforcement had probable cause to search the Account for evidence of Bowers’ alleged misconduct in office, we conclude that no exigent circumstances justified a warrantless search of the Account.”

The state court decision aligns with a decision in a federal lawsuit Bowers had filed against the county, Daniels and the head of the information technology department. In that case, the federal district judge James Peterson had ruled last April that although the county had violated Bowers rights, they were shielded by “qualified immunity.” In that decision, Peterson stated: “Defendants violated Bowers’ fourth amendment rights by failing to get a warrant before searching his Dropbox account. But the law didn’t clearly establish that defendants needed a warrant under the circumstance of the case, and the dependencies search of the account was otherwise reasonable. So defendants are entitled to qualified immunity.”

What this means for the case against Bowers going forward, is unclear. In the time since the issue was sent to the appeals court for a ruling, Bowers’ attorney has since become a judge and assistant attorney general Annie Jay who was prosecuting the case has left the Department of Justice and is now an assistant district attorney in Dane Court.

Bowers noted that if the state continued with the case they would have to essentially start over with new attorneys.

“The prudent thing to do would be cut their losses and dismiss the case and quit wasting resources, this has been going on for almost 6 years now,” Bowers said.