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BENCH BLOG: Homicide by text message

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler Law Firm. She can be reached at [email protected]

In a case of reckless homicide by text messages, a defendant sought to suppress evidence of the messages themselves. The trial court denied his motion and the Court of Appeals affirmed.

Text messages and death

Wayne Wilson died in his home in Delafield. The police officer who found his body saw a small plastic object in his mouth, which turned out to be a patch of fentanyl, a potent opiate. From an autopsy, the medical examiner concluded that fentanyl intoxication was the cause of the death.

While at Wilson’s home, the police officer found Wilson’s phone and retrieved text messages from it. Among those sent and received a day before Wilson’s death were some from Ryan Tentoni. The messages discussed Tentoni’s obtaining fentanyl patches for Wilson.

Wilson complained to Tentoni that some of the patches were “like duds to me” and that he did not “feel a thing.” Tentoni then texted Wilson suggesting he suck on the patch. Another text from Tentoni instructed Wilson in how to fold the patch, and the police officer testified that the folding method described was consistent with the position that the patch was found to be in on Wilson’s body.

Motion to suppress

On Wilson’s phone, the police officer discovered 350 text messages that had been sent between Tentoni and Wilson in the five weeks before Wilson’s death. The officer was therefore able to obtain a search warrant for Tentoni’s phone records.

Tentoni moved to suppress the content of the text messages. After a hearing, Waukesha County Circuit Judge Kathryn Foster denied the motion, ruling that Tentoni had failed to show that he had a reasonable expectation of privacy for information that he had texted to Wilson.

Thereafter, Wilson pleaded guilty to an amended charge of second-degree reckless homicide and was sentenced. He then appealed the denial of his suppression motion.

Court of Appeals opinion

The Court of Appeals decision was written by Chief Judge Lisa Neubauer. She explained that in order for a defendant to succeed on a Fourth Amendment suppression motion, he or she had to show a reasonable expectation of privacy.

There are two prongs to this showing. A defendant must show: (1) there was an actual, subjective expectation of privacy for the item seized, and; (2) that society recognizes the defendant’s expectation of privacy as being reasonable.

Examining the totality of circumstances, the court determined that Tentoni “did not have an objectively reasonable expectation of privacy in text messages contained in Wilson’s phone.”

First, Tentoni didn’t have a property interest in Wilson’s phone. Second, because Tentoni had no control over Wilson’s phone, he had no right to exclude anyone else from seeing the text messages that he had sent to Wilson and that were stored on Wilson’s phone. And third, Tentoni never told Wilson to keep the messages private, or did anything else to ensure his text messages to Wilson would remain private.

The court founded its analysis on the case of State v. Trecroci, a 2001 appellate-court case which lists considerations relevant to the determination of whether a person has a reasonable, recognizable expectation of privacy. The subject matter in that case, however, was the expectation of privacy in a place, not for a text message on a phone.

So the court bolstered its analysis by engaging in an out-of-jurisdiction search of both federal and state case law. The court found that “it is widely accepted that the sender of a letter has no privacy interest in the contents of that letter once it reaches the recipient.” Further, the “same analysis has been applied to emails and texts.”

Control is key

According to a Rhode Island case that is consonant with Wisconsin cases on expectation of privacy, the crucial element is control. “When the recipient receives the message, the sender relinquishes control over what becomes of that message on the recipient’s phone.”

Here, Tentoni had no control over what Wilson did with the messages once he received them. This is similar to a sender’s lack of control over a piece of mail or an email once it reaches the recipient – it can be deleted, shared, saved, destroyed or disclosed to others.

“This lack of control over what is done with the text message and lack of any right to exclude others from reading it are key in the determination that Tentoni did not have an objectively reasonable expectation of privacy in the text messages stored in Wilson’s phone.”


We live in times when digital communications are commonplace for persons of all ages. Thus, this decision on the absence of privacy in digital communications has application to all sectors of the law.

This is a case of first impression in Wisconsin. The Court of Appeals was therefore wise to boost its Wisconsin analysis with case law from other jurisdictions.

On another note, it is at once remarkable and delightful that Judge Neubauer can write a landmark opinion in 12 paragraphs comprising just 2,300 words. The District 2 Court of Appeals has a proud history of succinct opinions, and its readers are grateful that judges like Neubauer can capture what is essential using a minimum of verbiage.

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