¶ 59. (concurring). I agree with the majority that the circuit court did not err in admitting expert testimony and that there was sufficient evidence presented to support LaCount's fraud conviction. I also agree with the majority that the circuit court did not err by allowing into evidence the results of the search of GP&L's office and that LaCount's right to a jury trial was not violated. I write separately, however, because I disagree with the majority's discussion regarding the seizure of documents outside the scope of the search warrant.
*121¶ 60. The majority correctly states that it is LaCount's burden to show that his Fourth Amendment rights were violated by a search. State v. Whitrock, 161 Wis. 2d 960, 972, 468 N.W.2d 696 (1991); Rakas v. Illinois, 439 U.S. 128, 131 n.1 (1978). LaCount has the burden of establishing that he had a reasonable expectation of privacy by a preponderance of evidence. State v. Orta, 2003 WI App 93, ¶ 11, 264 Wis. 2d 765, 663 N.W.2d 358. As the majority notes, LaCount has utterly failed to establish that any particular piece of evidence was seized from his personal office as opposed to being seized from another place in GP&L's offices. He has therefore failed to establish that he had a reasonable expectation of privacy in any record.
¶ 61. Case closed.
¶ 62. Rather than ending its inquiry with the determination that LaCount has failed to meet his burden, the majority makes several unnecessary and problematic determinations:
¶ 63. First, the majority's determination that the general premises warrant authorized the officers to take files that were not included in the search warrant is based on the claim that the furnishings of his office were "plausible receptacles of the objects of the search." Majority op., ¶ 39. It relies on State v. Andrews, 201 Wis. 2d 383, 389, 549 N.W.2d 210 (1996). However, the issue in Andrews was whether the belongings of a visitor could be searched during the execution of a general premises warrant, not whether a personal office could be searched, and files not specified by the warrant could be seized, pursuant to a general premises warrant. Id. at 388.
¶ 64. The rule employed in Andrews was that where a warrant authorizes a premises search, it allows for the search of "closets, chests, drawers, and contain*122ers" within the premises. Id. at 390 (quoting United States v. Ross, 456 U.S. 798, 820-21 (1982)). That rule tells us nothing about whether documents seized are beyond the scope of the warrant.
¶ 65. Second, the majority determines that the search warrant allowed for the seizure of all of GP&L's business records because there was probable cause to believe that there was a "pervasive scheme to defraud." It relies on State v. DeSmidt, in which this court determined that the breadth of a search warrant explicitly authorizing the seizure of all business records was supported by probable cause. 155 Wis. 2d 119, 129, 454 N.W.2d 780 (1990). DeSmidt, however, is inapplicable, as it concerned whether a search warrant was itself too broad. The issue in this case is whether records seized go beyond the scope of the warrant, which is altogether distinct from DeSmidt.
¶ 66. Additionally, the majority's assertion that there was probable cause to believe that there was a pervasive scheme to defraud is unsupported. Typically an argument for the existence of probable cause describes particular facts underwriting a determination of probable cause. The majority adduces nothing in this regard. What is the factual basis for the probable cause determination that there was a pervasive scheme to defraud? The majority does not tell us.
¶ 67. Third, the majority concludes that even if there was a violation of LaCount's Fourth Amendment rights, the circuit court's failure to suppress evidence is harmless. It explains that "there was sufficient testimony at trial that supports the conclusion that the discovery of information related to both of the disputed charges would have occurred... notwithstanding the results of the search" and that Wills's and Mirr's testimony supports the conviction. Majority op., ¶ 45.
*123¶ 68. A determination of harmless error requires an examination of facts surrounding the discovery of information and the evidence presented to the jury. Without such an examination it is unclear whether the information regarding the disputed charges would have been discovered. In other words, what information acquired within the bounds of the Fourth Amendment would have led to the discovery of the information? Absent an examination of the facts, I cannot agree that a failure to suppress is harmless.
¶ 69. For the reasons set forth, I cannot join these unnecessary and problematic determinations regarding the seizure of documents outside the scope of the search warrant. Accordingly, I respectfully concur.
¶ 70. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON and Justice LOUIS B. BUTLER, JR. join this concurrence.