2.Renewed Search-Suppression Motion Hearing

MR. FALLON: Good morning. Thank you, I will be responding for the State. Naturally, we have a different view of the evidence adduced to this point in the trial. And quite frankly, would offer the opinion at the outset that the arguments made during the July and August hearing, in particular the August argument on the 10th, followed up with the brief, has not necessarily been substantiated, but I would say overwhelmingly supported, and the reasonableness of the searches engaged has been demonstrated to a degree that should remove not only a reasonable doubt but any doubt.

I begin with this point, I have heard nothing in the record so far that establishes the defendant's right of standing to challenge the search of anything on that 40 acre parcel, outside of his trailer or garage, that includes the burn barrel and the burn pit.

Case law clearly says that although items such as the burn pit and its location may well be within the curtilage, which is a somewhat arcane term from the common law which has relatively fallen out of use in Fourth Amendment analysis these days, but it still has some benefit for purposes of claiming an argument.

The law is quite clear that while something may be within what had traditionally been perceived as a curtilage, does not automatically establish that one has standing to object to a search of that particular item. So nothing in the record has changed that.

Secondly, there's been no evidence whatsoever that there was any joint venture or agency relationship established between the volunteer searchers and law enforcement. It was their entry into the property that commenced the investigation.

Third, it's quite clear, and there's been no evidence to the contrary, in fact, even more evidence now, that there was consent for the original entry by the searchers as well.

Fourth, the theory upon which the State proceeded at the time of the motion, and continues until this very day, is that this was one continuous search. There was no violation of the one warrant, one search principle originally argued, and continued to be argued today.

In that context, a warrant was in fact obtained, as counsel notes, at approximately 3:10, Saturday, November 5th. They returned to the property at 3:25 to commence execution of the warrant. And as counsel has conceded under the Court's questioning, there were two original entries in the concept of a sweep, actually just looking for a person or a body of Teresa Halbach, and/or any other civilian or family member who ought not to be present, should be located. So that was the dual purpose of those searches. I think that's conceded.

And as the Court notes, there was an execution of the -- The commencement of the execution of the full search at 7:30 that evening. But before we get into the details, let us not lose sight of several critical facts omitted from counsel's argument.

And this is where the testimony at the trial does nothing but enhance, not detract, from the findings the Court made in August, and the arguments the State made then and in its written submission thereafter. The area to be searched was a 40 acre crime scene. It had 3800 to 4,000 cars. I believe the testimony is there was 11 to 15 buildings. Included in that number were four residences.

We heard from one witness in this case, admittedly through lengthy cross-examination by the defense, which only highlighted the testimony of Special Agent Fassbender back in August and again during this trial, that there was an awful lot going on, not only within the 40 acre parcel, but within the surrounding areas, most notably the two or three gravel pits owned by the Radandts.

As Mr. Ertl explained, they had a number of sites to investigate, both on the property -- the 40 acre site and other, including this potential burial site, other areas in the gravel pits, and the surrounding, which admittedly took resources away from the attempted search, or from the ongoing search at the property. So those facts must be kept clearly in perspective.

Again, there's a safety issue, there was a weather issue that delayed the onset of the search. There were limited number of officers that first day. More and more officers arrived to assist in executing the search warrant signed by Judge Fox.

So it's within that backdrop that we now begin to clearly scrutinize and examine both the evidence introduced then, during this trial, and the arguments of counsel. As reflected by the testimony of the officers and those who supported him -- and when I say the officers, I'm talking specifically of Special Agent Fassbender, who was coordinating, along with Investigator Wiegert, this investigation. It's quite clear that there were a number of teams, in a number of places, being searched simultaneously.

This wasn't just four guys who were going from one place to the next. There were several search teams involving the Crime Lab, involving Manitowoc Police Department, involving some members of the Manitowoc Sheriff's Office, the Calumet County Sheriff's Office, the Department of Justice, Division of Criminal Investigation.

As indicating, the search started out in a funneling effort, a sweep looking for persons and bodies on the property, and then slowly funneled down into more specific evidentiary searches, in support of a missing person/criminal investigation. And I will elaborate on that in a moment.

But I did want to make this particular point first, again, as a legal backdrop to the factual backdrop just provided. Article 1, Section 11 of the Wisconsin Constitution, has been and continues until this very day, to be interpreted the same way as any attack or as any interpretation of the Fourth Amendment to the United States Constitution. And our case law has consistently held that.

And while I compliment counsel on his argument of raising a State Constitutional basis or challenge, for now, the law in terms of interpreting, applying, and assessing that challenge, the analysis is the same under the Fourth Amendment to the United States Constitution and under Article 1, Section 11, of the Wisconsin Constitution.

As such, the touchtone for the Court's analysis is reasonableness. So within those two, that factual backdrop and the legal backdrop, we examine the searches.

Now, counsel seeks to suppress a number of items, conveniently not designating those items. But let's look at the evidence that was taken during that first search. First search is conceded, so there's nothing that was taken out of her (sic) home on Saturday night, which is subject to the suppression motion in the first place. So in effect, with respect to the home, the only items of evidentiary -- that jump in my head right now, based on the testimony, are the weapons seized on Sunday, and the key, and a few other miscellaneous items on Tuesday.

Now, in examining the searches on those particular days, what do we have. We have a specific description, those weapons were observed on Saturday night during the search, they were looking for other biological trace evidence to show the existence, or non-existence, of Teresa Halbach within that residence, anything that would show or connect her to the particular case.

The weapons were observed. They were seized the next day, hey, go get those weapons, after all, we do have an individual with a felony record. They are in constructive possession, that's evidence of a crime, take that. So they were sent back in, as part. They were observed there, but they had other duties that night. It was 7:30. There was a torrential rainfall going on. And they were looking, at that time, for evidence of a missing person/criminal investigation. In other words, her missing person could very well be the result of a crime.

And while we're on that point, let's make this abundantly clear, nowhere is it said, and counsel cites no case, because there is no case for the proposition that on the one hand we have a missing person, and then you draw a line in the sand and say, oh, well, you crossed the line, now you are in a crime.

Probable cause is defined as something that would excite an honest belief in the minds of an officer that perhaps a crime or criminal activity is afoot. That's the basis to get a probable cause determination.

Now, it's quite clear that many missing person cases may very well fall into that category. Missing person concepts and probable cause for a crime overlap, frequently overlap. And there is a large difference between probable cause in a missing person case and proof beyond a reasonable doubt that the missing person is missing because of a crime. So let's not confuse the concepts. They overlap. They are clear. Sometimes they have two operating different spheres entirely, but frequently they overlap. And in the analysis of the searches underway here, there was nothing that was unreasonable in the steps taken by Investigators Wiegert and Fassbender in directing the searches here.

With respect to the garage, the first entry to the garage was on Sunday. So I'm still waiting for the argument as to why anything that was taken, including the shell casings and the other material on the search of the garage on Sunday morning, is subject to the search, subject to suppression.

It's their first enter, other than the sweep that occurred the day before looking to see if there is the person or the body of Teresa Halbach, or the person or a body of somebody else who shouldn't be there.

Now, let's further examine, again, returning briefly to the burn pit and the burn barrel argument. I can think of no other act that is quite so clearly supportive of the concept of abandoned property than the act of throwing something in a fire and burning it.

The burn barrel is clearly -- anything in that barrel is subject to search by any person driving up and down that driveway. That's clearly evidence of property discarded, unwanted, and thrown away.

The quintessential act of abandonment is burning it, consuming it, chopping it up, what have you. The same can be said for the burn pit as well. Anything in there is abandoned property. It is burned. It's evidence of the owner or the possessor, the constructive possessor of that property has shown his intent to discard it and not care about it. It burned.

With respect, again, to the searches of this particular property, I would also point out that the original warrant signed by Judge Fox on Saturday, November 5th, was renewed on Wednesday, the 9th, I believe, as the evidence in the motion hearing was, some time late that afternoon, memory strikes me, about 4:00.

And the warrant was reused for the follow-up entries on Thursday, Friday, and Saturday, most notably by Mr. Austin of the State Patrol, Agent Fassbender, and one or two others as they were doing their final go through the premises, and Mr. Austin was taking his copious measurements that we have heard quite a bit about. So, clearly, there's nothing to undermine the inevitable discovery argument that the State made as a fall or drop back position.

Finally, there's one argument that we didn't make earlier that we could make now since the motion is renewed, and that is, I think you also have a good faith belief, as exhibited by the officers, in reliance on a warrant that was issued by Judge Fox, that probable cause was established and then the warrant was reissued. And I would submit to the Court that they had no obligation to reissue that warrant, but just as a safety precaution, they went back to the judge, renewed the warrant, with additional information that had been discovered during those days.

And that takes me, by the way, to another analysis on the reasonableness component, is that each day, each hour, additional information became available to the officers that justified continuous operations here that say, well, we have got to go back in. Let's look at that. We just got this call from the Crime Lab, we have got presumptive positive for blood here in the SUV, better go back and look for that. Better go back in there and luminol Mr. Avery's trailer and Charles Avery's trailer, and the other places, to see if there is any blood evidence there.

Each hour passed, more information became, probable cause was not only enhanced, it was increased, justifying continued searches and continued investigation by law enforcement officers, further support of the one warrant and one continuous search, which was under way.

Now, with respect to this Franks argument, again, I find that rather disingenuous. Again, nothing has been shown here to show a false or material statement that was false that was introduced or established by virtue of the testimony, that hadn't already previously been discussed.

The only argument is the concept of while the missing crime and missing person and a missing -- missing person and a criminal investigation analysis. And I think we have already discussed how they overlap. But there's nothing that has been introduced, to this point in the trial, that suggests that there was any material or false statement or any reckless disregard for the truth by the affiants of that warrant or the information provided them, that being Detective Remiker and Investigator Wiegert.

Again, I'm still waiting for the standing to be established by the defense as to how they are going to search or complain about searching the SUV of Teresa Halbach. Again, there is no basis upon which the defense can challenge the search, the seizure of that SUV, or any of the evidence obtained therein.

Next, again, returning to the burn area and the interesting analysis for the dog argument. While one may be trained to handle a bloodhound, one may be trained to handle a human remains detection dog, commonly referred to as a cadaver dog, doesn't mean that one is established and trained to handle all kinds of situations. And we all know, from our common sense, that there are many people who are good with animals, some are very professional, some do it for a living, many of us are casual pet owners, some are not.

Well, regardless of that, there are animals out there who have such character and demeanor that it doesn't really matter much, for the professional. And the fact that one may be well trained to handle a bloodhound, or human scent detection, or human remains detection, is of no consequence and of no meaning here, doesn't help us at all.

Finally, I think it's very important to note that the -- that the evidentiary significance, as it were, to this burn pit area, wasn't determined at all until Tuesday afternoon. There was no need to remove or do anything with the dog. In fact, we credit Deputy Kucharski for exercising common sense in not shooting the dog when they wanted to search it. They waited. They finally did have somebody remove the dog when the evidentiary significance of the burn pit became clear.

The fact that Bobby Dassey was allowed to return to get his puppy is an entirely different concept than the junkyard dog in the back of the yard, who lives outside, and a fully grown adult animal and a puppy, in terms of their care, and responsibility, and their needs, etcetera. That's an argument without any merit whatsoever. I don't even need to go further.

So, again, what is it that they are asking to suppress. The guns were seized, as I said, on Sunday. There was the shell casings and some blood spatter on the first search of the garage. Where's the challenge to the significance of that? How is that in violation of the warrant? It was their first entry. Again, there's not much at issue. And what is at issue, there is no basis whatsoever, in fact or law, to suppress that evidence. So we would ask the Court to affirm its previous ruling. Thank you.