Walker Aide’s Rights Not Violated by Email Search

MILWAUKEE (CN) - A onetime aide to Gov. Scott Walker did not have her rights violated by investigators who inspected her email correspondence as part of the ongoing investigation.

Kelly Rindfleisch, who served as Walker's deputy chief of staff during his term as Milwaukee County executive, was properly convicted on one count of misconduct in public office, a divided Wisconsin Court of Appeals' First District ruled.

The panel majority held a state circuit court properly denied Rindfleisch's motion to suppress evidence obtained through search warrants issued to Yahoo and Google in October 2010 seeking her email correspondence from 2009 onward.

"Rindfleisch has failed to present any evidence at any time during these proceedings that tends to suggest that her Fourth Amendment rights were violated by the seizure authorized in these warrants," wrote Judge Joan F. Kessler for the majority.

The warrants were part of the larger John Doe probe, an ongoing investigation into Scott Walker's initial run for governor and whether county employees used taxpayer resources in his campaign.

According to the opinion, Rindfleisch was hired as a policy advisor to the county executive before being promoted, at which point she received a private laptop and wireless connection from her supervisor, Tim Russell.

"Rindfleisch also had two personal email accounts," the opinion states. "Information found in the emails subject to the warrants showed that both of Rindfleisch's personal email accounts were used for political purposes during County work hours."

Rindfleisch was first implicated for possible misconduct during a search of Russell's computer, according to the opinion. During that search investigators found emails sent to the private addresses discussing "political matters," Kessler wrote.

The investigators then issued search warrants to Yahoo and Google for the emails.

"These electronic communications, along with other information in the complaint, indicate that Rindfleisch intentionally engaged in partisan political campaign activities during her Milwaukee County work time," the opinion states.

Rindfleisch's attorney unsuccessfully argued for suppression, saying that allowing investigators to "sift through [her] personal, private communications" violated her Fourth Amendment rights.

Rindfleisch pleaded guilty to one count of misconduct in public office, after which the state dismissed three other counts that had been lodged against her.

On appeal, Rindfleisch argued the requests to the internet service providers were "general warrants," rendering them unconstitutional.

But the warrants pass a constitutional specificity test, Kessler wrote, and nothing was seized in "flagrant disregard" of their limitations.

Further, the ISPs complied with the warrants in full and redacted email data that did not pertain to the charges listed.

"Rindfleisch has not produced a shred of evidence to dispute those representations, has rejected the opportunity before this court to identify specific documents that she claimed were beyond the scope of the warrant, and has relied instead on rhetorical salvos attacking the entire scope of the warrants," Kessler wrote.

In his dissent, Judge Ralph Adam Fine argued the warrants did not meet the standard of specificity required to make them constitutional.

"Rindfleisch's lawyer told us at oral argument that of the approximately 16,000 documents received from the Rindfleisch email accounts pursuant to the search warrants 'there were probably' fewer 'than 500 pieces of paper that had Kelly Rindfleisch's political involvement in them,'" Fine wrote. "The State thus hardly 'inadvertently' stumbled on the ream of pages that led to Rindfleisch's charges."

Further, Fine states, the reason for the search was not concern that Rindfleisch herself had committed a crime.

"The Fourth Amendment prohibits the government to legitimately go into a person's voluminous files looking for evidence that someone else may have violated the law (here, Russell, the search warrants' object), and then root around those voluminous files to see if the subpoenas' subject (here Rindfleisch) may have also violated the law," the dissent states.

Rindfleisch's attorney, Franklyn Gimbel, said he agrees with Fine's dissent "100 percent," and thinks the majority justices overlooked the constitutional issue of general warrants as they apply to electronic communication.

Gimbel said he plans to apply for review by the Wisconsin Supreme Court, and he's optimistic it will take the case.

"I think it would be hard for them not to take it, just because of the split decision," Gimbel said, adding, "I'm very hopeful that the Supreme Court will not try to duck this case because it's got such significant political overtones, because the constitutional issue is really one that's a bright letter one."

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