One device recorded twelve steps. Another left location records near several places in a murder investigation. The two belonged to different men and answered different questions. The steps helped investigators test a theory about Nicole VanderHeyden’s boyfriend. The phone and a DNA sample helped lead investigators to George Burch. Years later Wisconsin’s highest court examined whether jurors had properly heard evidence from both devices. Its decision turned on where the records came from and what each record was offered to show. [1]
Case brief
Brown County and Green Bay, Wisconsin · 2016
- Recorded outcome
- George Burch convicted of first-degree intentional homicide in 2018 and sentenced to life without release eligibility. Affirmed June 29, 2021.
Key moments
People in this case
- Nicole “Nikki” VanderHeyden
Murder victim
Photo at source · Family obituary · Herald Times Reporter
Michael Barera · Image source · CC BY-SA 4.0
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A night out, then a search for answers
Nicole went out with her boyfriend, Douglass Detrie, on May 20, 2016. The two became separated and argued by phone and text. Detrie went home alone, according to the account in the Wisconsin Supreme Court opinion. The following day Nicole was found dead near a field in Brown County. Some of her clothing was found near a freeway entrance, and investigators identified blood and hair outside a neighbor’s home. These finds gave detectives several places to examine. They did not at first know whether they marked the actions of one person. [1]
Detrie was an early suspect. An argument and evidence near the couple’s home gave police questions to ask about the hours when Nicole went missing. A relationship and an argument did not establish his participation. The investigating officers had to look for observations that could be checked against the time and physical activity the suspected conduct would have required. One source was a device worn on his wrist. [1]
According to the opinion, Detrie’s Fitbit logged only twelve steps during the hours in question. Investigators treated that reading as one reason to shift attention away from him. It was an indirect measure. A device reports activity associated with the person wearing it, and the evidentiary value depends partly on establishing that the device was being worn. The reading did not identify the person who killed Nicole. It gave the state something to compare with a claim that Detrie had engaged in sustained physical activity away from home. [1]
A separate inquiry creates a phone record
Green Bay police were investigating three events involving a vehicle, including a hit-and-run, a reported theft and a fire. In June an officer interviewed Burch in that inquiry. Burch denied involvement and said he had been at a bar and texting a woman. The officer asked about seeing the texts, then asked for permission to have information downloaded so police could examine it. Burch signed a written consent form. A forensic examiner performed a full extraction and saved it to police storage. [1]
That sequence raised two questions that would matter later. The first was what Burch had understood he was authorizing. A conversation about specific texts is narrower than a forensic download of all the data a tool can retrieve. The written form was broader than the initial question about messages. The second question concerned what could happen to the data once it was stored. Investigators on the homicide case had not obtained the phone themselves. They would use records acquired by a separate department for a separate purpose. [1]
The difference between returning the device and returning control of the information also matters. The physical phone could go back to its owner while a copy remained in police possession. A later search could therefore be conducted without asking for the handset again. At trial and on appeal, the parties disagreed about the legal significance of that distinction, and about whether evidence obtained through the copy had to be excluded. [1]
Mcgike · Image source · CC BY-SA 3.0
The sock points investigators to Burch
Homicide detectives matched DNA from Nicole’s sock to Burch. They searched local law-enforcement records for prior contact with him and found the vehicle investigation. The file contained the consent form, a narrative and the copied phone data. That chronology is important. The homicide investigators had a biological reason to look for information about Burch before opening the file. The data did not produce the name out of a general search of everyone who owned a phone. [1]
The detectives found an email address associated with a Google account and saw repeated visits to coverage of Nicole’s death. They obtained a warrant to seek Google Dashboard data. The information Google supplied put the phone at or near locations relevant to the case, including a bar, the area near Nicole’s residence, the area where she was found and the freeway entrance near discarded clothing. The warrant for Google’s records came after the review of material already in police storage. The legality of the later warrant did not by itself answer every question about how the earlier copy was obtained or used. [1]
A location record follows a device within the limits of the data source. It does not show an encounter or identify who touched an object. The records were significant because police could compare them with discoveries made independently of the phone. The sock, the field and the clothing gave investigators something more specific to test than the proposition that Burch had been somewhere in the same county. [1]
What Burch told jurors
Burch testified that he met Nicole at a bar and that they left together. He denied killing her. His account attributed the killing to Detrie and described moving Nicole’s body under threat. The state disputed that account, and the case did not result in a judgment against Detrie. Burch’s testimony acknowledged presence and movement that would otherwise have had to be inferred from the records. The dispute for the jury was how those movements happened and who was responsible for the killing. [1]
The defense also disputed how the Fitbit evidence could be used. It argued that the court should require expert evidence about how the device produced step counts and that the records were not adequately authenticated. The judge admitted the step-count evidence and excluded sleep-monitoring evidence. A tracker’s ability to count movement was a narrower issue than its ability to determine whether a person was asleep. The ruling gave jurors access to a limited part of the device’s output. [1]
The state could show where the records came from and offer evidence about use of the device. The defense remained able to ask whether a tracker might miss steps or be removed. A low count could weigh against a particular version of events without establishing that its wearer never moved. The jurors also heard the physical and location evidence against Burch. The Fitbit was one part of a dispute over competing accounts. [1]
Warren LeMay from Covington, KY, United States · Image source · CC BY-SA 2.0
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A split ruling on the phone
The jury found Burch guilty of first-degree intentional homicide in 2018. He received life imprisonment without release eligibility, according to the sentencing report. The case reached the Wisconsin Supreme Court after certification by the Court of Appeals. In June 2021, the court affirmed. Its opinions show different views about what should happen when police use a full download acquired in a separate investigation. [1] [2] [3]
The majority’s phone analysis addressed exclusion. It concluded that even assuming a constitutional defect, the conduct in this record did not warrant the remedy of excluding the evidence. It did not need to give a definitive ruling on the constitutionality of every stage of extraction and reuse. One separate opinion took a different view of the constitutional and suppression questions while joining the result on other grounds. Another dissented from the judgment. That division explains why it would be inaccurate to read the case as broad permission for police to copy any phone they examine. [1]
The court also held that the trial judge acted within the court’s discretion by admitting the step-count records in this case. The judges considered the type of information offered, foundation for the record and the arguments about expertise. The result permits a reader to understand what the jury heard without treating a wearable device as a witness that saw Nicole’s final hours. [1]
There was also a confrontation issue. The step counts were generated by the device during its normal use. They were not statements created by a witness describing the homicide for police. That distinction mattered to the court’s treatment of whether the defendant had a right to confront the maker of the record. The ability to challenge what a machine measures and the constitutional right to question a person who supplied testimonial evidence are separate matters. [1]
The separate opinions also treated the two law-enforcement agencies differently. An officer who receives a file containing a signed form and a description of consent may see a record that appears usable. An officer making the original request knows the words used to ask for access. That difference in what each agency knew informed the debate over deterrence and exclusion. It is one reason the decision is best read as a case about an actual extraction and later use, with different judges reaching the result by different routes. [1]
The timeline follows the physical discoveries, the separate phone download, the DNA association and the warrant in that order. Nicole’s killing was solved through information from different places and people. Giving all of that credit to a fitness tracker would obscure the actual work of comparing physical material, locations, witness accounts and the limits of each device. [1]
Look closer · 9 visuals
Inside the evidence.
Open a visual to explore what it contributed to the case—and the limits of what it shows. Photographs, historical reproductions and original illustrations are individually labeled. Open the notes for each image’s source, credit, and limitations; setting photographs do not depict crime scenes.
Where police found evidence
Original editorial illustration — not an actual evidence photograph or exhibit.
Read the evidence notes
Separate discoveries supplied several locations to test.
They do not create a continuous route.
The sock changes the inquiry
Original editorial illustration — not an actual evidence photograph or exhibit.
Read the evidence notes
The match gave homicide detectives a reason to look for Burch.
The sample alone does not reconstruct what he did.
One phone, two investigations
Original editorial illustration — not an actual evidence photograph or exhibit.
Read the evidence notes
The original extraction and reuse came from different investigations.
The court resolved suppression without validating every step.
A warrant for cloud data
Original editorial illustration — not an actual evidence photograph or exhibit.
Read the evidence notes
The Google records followed the review of the phone copy.
They associate a device with places.
What twelve steps could show
Original editorial illustration — not an actual evidence photograph or exhibit.
Read the evidence notes
The count helped detectives shift attention away from Detrie.
The device did not identify the perpetrator.
What jurors were allowed to see
Original editorial illustration — not an actual evidence photograph or exhibit.
Read the evidence notes
The court addressed the foundation for step counts.
The opinion does not validate every wearable measurement.
Green Bay and the Fox River in 2024
Setting photograph for geographic context.
Read the evidence notes
Green Bay and the Fox River in 2024. The image does not depict the crime or an evidence exhibit.
The image does not depict the crime or an evidence exhibit. The source and reuse terms are linked below.
Michael Barera · Image source · CC BY-SA 4.0
Brown County Courthouse in Green Bay
Setting photograph for geographic context.
Read the evidence notes
Brown County Courthouse in Green Bay. The image does not depict the crime or an evidence exhibit.
The image does not depict the crime or an evidence exhibit. The source and reuse terms are linked below.
Mcgike · Image source · CC BY-SA 3.0
Wisconsin State Capitol in Madison
Setting photograph for geographic context.
Read the evidence notes
Wisconsin State Capitol in Madison. The image does not depict the crime or an evidence exhibit.
The image does not depict the crime or an evidence exhibit. The source and reuse terms are linked below.
Warren LeMay from Covington, KY, United States · Image source · CC BY-SA 2.0
★ Key evidence used in a conviction · ✓ Exclusion or reversal · ◇ Disputed evidence · ⊘ Excluded at retrial · ◆ Identity / investigative finding, not a conviction. A symbol does not mean one item proved the whole case.
Follow the locations
Put the story on the map.
Follow the dated entries, then select an event to find its regional setting. Shared-location pins open a group of events. Evidence symbols identify important findings and their limitations.
Open the map in its own window ↗Sources & further reading
- State v. Burch · Wisconsin Supreme Court, majority and separate opinionsInvestigation, phone and Fitbit evidence, majority and separate opinions.
- WBAY · George Burch sentencingSentence and Brown County proceedings.
- Wisconsin Court of Appeals · certificationQuestions certified for review.
Editorial review: 2026-11-09 · 1524 words