1.Renewed Challenge to November 5 Warrant Searches
35 lines(Reconvened at 9:07; jurors not present.)
THE COURT: At this time the Court calls the State of Wisconsin vs. Steven Avery, Case No. 05 CF 381. We're here this morning for a continuation of the trial in this matter outside the presence of the jury at this time. Will the parties state their appearances for the record, please?
MR. KRATZ: The State appears by Calumet County District Attorney Ken Kratz, Assistant Attorney General Tom Fallon. I should tell the Court that, uh, Mr. Gahn, uh, has been, uh, delayed for a few minutes but will be joining us during these proceedings, Judge.
MR. STRANG: Good morning. Uh, Steven Avery in person, Jerome Buting, Dean Strang on his behalf.
THE COURT: All right. We're here, uh, this morning to take up, uh, some outstanding motions, uh, that were raised during the course of the trial thus far, and, uh, also hear what the Court anticipates will be a -- a new motion or motions from the defense.
One of the items yesterday that was left unresolved was, um, somewhat of an inventory of the exhibits, uh, to make sure that, uh, exhibits that have been marked but not yet received, uh, may -- that one party or the other may request that they be received and to verify, I guess, that the exhibits that have been marked and not received were done so intentionally.
I'm going to ask the parties to address that item with the clerk, uh, after I hear argument on the motions, since I want some time to, um, um, consider the arguments that are made on the motions, and I think that will give the parties more than adequate time to, uh, uh, check with the clerk on the status of any exhibits that haven't been resolved.
Um, we can go back on the record before the jury is brought in this afternoon to address any items with respect to exhibits, uh, that require attention.
Uh, looking at the inventory of motions that have been made but not yet finally addressed, uh, one of them -- and it wasn't really a motion, there was an objection made back on February 27, uh, to an offer by the defense concerning, uh, telephone records regarding the accessing of voice mails. That matter was -- I -- I reserved ruling, uh, on that matter.
Finally, uh, pending receipt of additional evidence from the, um, phone company representative that we heard yesterday, um, Mr. Buting, I believe you were acting on behalf of counsel at the time. Are you satisfied the evidence that was permitted in yesterday addresses that matter sufficiently?
MR. BUTING: Uh, in the sense that, uh, the evidence I wanted to get in, came in, yes. Uh, I'm -- I'm not commenting that it satisfied me from an evidentiary reconciliation type of perspective, but certainly the in -- the information that, uh, I think, actually, the -- the witness that was present from Cingular on that February 27 date wasn't as knowledgeable about the records, and, actually, gave us some incorrect information about what those, um, uh, open versus unopened meant. And I think this witness cleared that up and, uh, provided some other helpful information. So, uh, I'm satisfied that -- that we, uh -- we -- we got what we wanted.
THE COURT: All right. I was not looking for a stipulation as to the significance of any of the testimony but, rather, whether the evidentiary, uh, issue had been resolved, and I take it that it has been?
MR. BUTING: Yes.
THE COURT: Uh, one other, uh, matter that I wanted to address this morning was a, uh, motion, uh, from Mr. Strang back on February 23 renewing the defense challenge to the, uh -- what has been referred to in, um, earlier portions of these proceedings, as multiple entries under the November 5 search warrant.
Uh, I note that after the Court heard argument from both parties on that date, um, I indicated that I would not hear further from the parties on the issue at that time, but because there may be additional evidence yet to be introduced, I would give the parties an opportunity to argue the matter, um, further.
Um, to refresh everyone's memory, the Court's understanding of the argument made by the defense at that time was that it came in, uh, three parts. Um, first of all, a challenge to the sequential nature of the searches of the defendant's trailer, garage, and surrounding property.
Uh, second, a renewed argument, um, under a Franks theory that the, uh, representations of the State in the affidavit for the November 5 warrant, uh, did not have a factual basis.
And, third, there was a challenge which the Court would consider to be more in the nature of a new challenge rather than a refinement of the old one, which related to the, uh, State's alleged failure to search the burn area in a timely manner, uh, to summarize it as the Court understands it.
Uh, but with that background and my understanding, uh, Mr. Strang, I'll hear from you first.
MR. STRANG: Thank you. At the time the, um, reply I intended to make to, uh, Counsel's argument would have focused on, um, the issue of abandonment, of, um, property that Counsel argued as to items in the backyard or, um, in what we've called the burn area. And as I -- as I understood Mr. Fallon's argument, um, it was that, um, Steven Avery had no further privacy interest in anything that was found in the, uh -- in the burn area, uh, and, therefore, there just was not a Fourth Amendment interest at stake.
Um, irrespective of how close the, um, area was to the house or its -- or the -- the private areas of the property, I think the analogy Counsel drew was to garbage that's set out on the curb for disposal, uh, or in -- in a trash bin, that sort of thing, the idea, that, uh, burning, um, is -- is an act of disposal, or abandonment, or relinquishment than he took a privacy interest in the -- in the items.
Uh, Counsel did argue that, uh, um, uh, curtilage no longer is a dispositive concept, uh, at least as the Wisconsin courts apply the Fourth Amendment, and, uh, Article I, Section I of the Wisconsin Constitution. And to an extent, Counsel's right. It -- it's clear that courts are getting away from arcane terms like curtilage or, um, a mechanical assessment of, um, you know, where a treeline is or where a picket fence may be, um, so up to -- up to a point I agree with Counsel on -- on his assessment of the development of case law.
But it remains true that, um, areas of a -- of a person's home and accompanied property that he seeks to preserve for private use or the intimate activities of life, uh, remain within the scope of the Fourth Amendment, and, uh, carried it to its ex -- extreme, and I don't know that in the end Mr. Fallon would carry it this far, but carried to its logical end, his argument that curtilage doesn't matter, and that burning is an act of destruction that relinquishes all privacy rights for purposes of Fourth Amendment, would mean that, uh, I have no privacy interest in my fireplace in my living room. Which, of course, just can't be.
And, here, I acknowledge that we're not talking about a fireplace inside someone's living room or home, we're talking about an area outside of the immediate home. But what -- what we have here is an area that is behind the garage, not, uh, easily viewed from anyplace that, uh, an uninvited visitor, or sales person, newspaper delivery boy, or somebody -- post--- postal carrier would likely be. Um, it's behind the home.
And on the State's own theory here, um, you know, if we accept the State's argument, the theory of prosecution, then it is that Mr. Avery burned bone -- bone, burned the body, and the personal items of Teresa Halbach in that area. We dispute that entirely, but -- but let's work with the State's theory, uh, and that he did so, not as an act of abandonment, but as an act of concealment, uh, or -- or intention not to be discovered, uh, on the crime that the State contends he -- he committed.
Moreover, the State has educed evidence that the doghouse and the dog, which associates with Mr. Avery, were positioned in such a way as to keep people away from the burn area. Um, indeed, uh, when it suits the agents of the State, they've argued here, that they couldn't go. They were kept away from the burn area by, uh, the dog, um, and the -- the -- the range of its leash, the location of its doghouse.
So it -- it really is, I think, inconsistent here for the State to argue that Mr. Avery did not show a subjective interest in the privacy of the area behind his garage. Um, he did, and that subjective interest in privacy is, uh, the first important aspect of standing or the right to assert a Fourth Amendment claim.
And the other, then, is whether that subjective assertion of a privacy interest is one that society, at large, objectively, uh, views as reasonable or recognizes, and I think here, uh, it -- it's -- it's really beyond serious debate that for an area 20 feet, or 40 feet, or whatever it is behind your house, immediately behind your garage, uh, in an area that looks like a construction site to be situated in an area in which the grass is mowed, it's a backyard that's tended as the -- the evidence showed here. We -- you know, the photographs. I think, some of the testimony referred to the grass being short and mowed. Uh, it's really beyond serious argument, but that's sort of a -- an immediate backyard area, um, is something in which the public, our culture, doesn't recognize, a right to privacy. Um, people do private things in the backyard. It's a -- it's a different area of the backyard, but there's a swimming pool, for instance, in the backyard here as the Court has seen. There's a back deck off the house. As I say, the -- the area is mowed and tended as a lawn.
Farther out in that yard, um, than, um -- than the burn area, there -- there are cars to the south. They're, you know, lined up or parked, um, not as if they belong to this -- the business or the salvage property, uh, business, but as if they are associated with the yard of -- of, uh, the red trailer which -- which clearly is Steven Avery's building.
So, um, this is his pet. He keeps the pet in this area, quite apart from whether it was intended to exclude others. You keep your pet in an area that you expect to be private, and, um, don't expect others to be walking through or disturbing your pet, at least where the pet is leashed, uh, and housed as it was here.
So, um, I don't think that, uh, the State can succeed at the threshold question here saying that there was not, um, both a subjective and objective reasonable privacy interest in this area immediately behind Steven Avery's detached garage in his backyard and, you know, just several yards, uh, uh, away from his trailer.
So, um, that -- that at the time is when I recall, um, wanting to add, um, by way of reply, and I don't think there's much more I can do to freshen my original arguments with the evidence that we've heard since I've made them.
THE COURT: All right. Let me ask a question with --
MR. STRANG: Sure.
THE COURT: -- respect to the burn pit area. I understand the, um -- the -- the challenges made to the searches of the trailer and the garage, um, the -- there was a concession that the initial brief sweep searches would not have been the searches that count, but that the lengthier searches shortly thereafter of the garage and the trailer should have been the end of it.
The, uh -- in reviewing my notes and -- and the argument with respect to the search of the burn pit area, uh, the focus seemed to be on the fact that, uh, well, the -- the State could have searched it earlier, uh, the State could have, uh, neutralized the dog that was guarding the burn pit area, and searched it earlier, but I'm not -- I guess it's not immediately apparent to me what the significance of the timing of the search of the burn pit area is, assuming it was done within the time within which the State could effectuate the warrant.
Uh, in other words, if it was done later, uh, so what? Is -- is there -- I -- I didn't -- I didn't detect in the argument a claim that there were -- there was somehow an improper multiple search of the burn pit area. So I want to make sure I'm not missing your argument there.
MR. STRANG: Well, um, it -- it -- it's a very good question, and I -- and I'm -- I'm pausing only because I'm trying to remember, um, when the first search warrant expired, or -- or would have expired on its own terms. I think it was either the 9th or the 10th.
There's at least a second search warrant obtained on the 9th, as I recall. Um --
MR. FALLON: I can help out. It would have ex -- If the warrant was obtained on --
MR. STRANG: The 5th.
MR. FALLON: -- Saturday, the 5th, at 3:25 p.m., then, technically, according to statutory interpretation, its arguable expiration would have been Thursday, the 10th, at 3:25, if I count correctly.
MR. STRANG: Yeah, I -- that -- that sounds -- that sounds right to me as a matter of statutory expiration. Um, I think the first search of the burn area is the 8th. Um, off the top of my head, I'm not sure we had any testimony about anything happening on the 9th in the burn area. We certainly do on the 10th.
Um, and so the 8th would have been in the -- within the statutory time, um, but, you know, the statute isn't the begin -- isn't -- isn't the end of it. Um, what -- what we've done here, if -- if the search of the Avery -- of the Steven Avery part of this property reasonably should have ended with the first thorough searches on the evening of the 5th, or the garage, I guess, at the latest, the morning of the 6th, then holding the entire property and excluding it from him unreasonably impinged on his possessory interest.
And the Fourth Amendment protects the privacy interest and also the possessory interest that -- that we have, and there's really no justification, once you complete the search of the house and the garage, for not also completing the search of the private areas associated with those -- those two buildings. And from the 6th on, you're unreasonably depriving this man of his possessory interest in -- in his home, in the place he lives.
Um, and, um, you know, I -- I don't rely as much on the privacy interest in that yard as to a first search, but, again, if the first search isn't timely, isn't reasonably timely, and he's being excluded from his possessory interest in his home, um, and its, you know -- and it -- and its useful property, the private areas surrounding the home, then you do trigger the reasonableness requirement of the Fourth Amendment as well, um, by the passage of time.
So I think the -- the search on the 8th is -- is already beyond a reasonable time as a matter of his possessory interest, and certainly the work on the 10th, and the 11th, and whatever is done after in the, uh, burn area, itself, um, is outside the statutory limits of that warrant and, um -- and -- and all the more unreasonable just by virtue of further passage of time, um, in which he's denied his possessory interest.
And then, also, the privacy interest is triggered, again, as you have serial searches at the convenience of law enforcement people rather than recognizing this isn't their property, it's someone else's property. They are the unwelcome visitors. They are the intruders from the standpoint of the Fourth Amendment, not the other way around.
And, um, so you -- you have the privacy interest escalating and being affected unreasonably as time passes after the 6th. That's not terribly articulate, but it did -- I did, at least, answer the question.
THE COURT: All right. So the -- as -- as I understand it, it's not a -- so much a parallel argument to the garage and the house and that there were improper multiple searches made of the burn area, but, rather, once the house and the garage searches were completed, there was adequate time to also search the burn area had the State wished, and because they didn't, therefore, it should be suppressed?
MR. STRANG: Yes. And the backup argument, then, is that anything after the first search on the 8th also triggers the serial search concern, and -- and really the 10th -- um, because the searching on the 10th, as I -- I may be wrong about Mr. Pevytoe's testimony. I -- I know he arrives in the afternoon on the 9th, and I guess I don't remember right now, but I can look at my notes. Um --
THE COURT: Well, let me address that, though. The --
MR. STRANG: Sure.
THE COURT: I thought that the State's argument that the searches of the house and the garage were completed earlier was premised on statements from the officers who participated that they had found everything that they wanted after what the defense characterized as the search. The difference with the burn area is, it's my understanding that the initial items found on the 8th immediately triggered a desire to search it further because it looked like burn fragments, and then later people who knew more about it came in. Maybe I'm missing --
MR. STRANG: No --
THE COURT: -- something.
MR. STRANG: -- I -- I think that's right. And there -- there -- there was initial searching on the 8th as I recall. Um, and then I'm trying to remember when -- I was just trying to remember when the search on the 10th starts, and if -- if Mr. Pevytoe or Mr. Ertl gave us a time of day. I didn't note it in my notes. I apologize. Um, but -- but, as I say, by the 10th, you're in the serial searching and you're also, at some point, bumping up on the -- the statutory expiration of the warrant.
So that -- that would be the -- the second or alternate argument that -- that we're making in that respect.
THE COURT: Okay. Mis -- Mr. Fallon?
MR. FALLON: Thank you, Judge. The hallmark of any interpretation or application of the Fourth Amendment under current standards is reasonableness. And reasonableness is determined by the totality of the circumstances under which an exercise of judgment occurs. And, in effect, that's what we have here, an exercise of judgment based on an assessment of facts.
The testimony educed during the course of the trial does nothing to undermine the original Court's ruling on the motion to suppress and the lengthy briefing that occurred in relation thereto.
In fact, I would argue to the Court that the testimony, uh, elicited during the course of the trial does nothing but further support, further augment, and demonstrate the reasonableness of the law enforcement efforts involved in this case. Uh, and not to -- unnecessarily redundant, but I think it certainly bears in mind that we're looking at a piece of property of approximately 40 acres in size, with, as I recall, 15 buildings in total, 4 residences, and somewhere between 3,800 and 4,000 junked cars.
It is within that context that law enforcement obtained and executed a search warrant on Saturday, November 5. As -- as I indicated, I believe the warrant -- uh, they returned to the property with the warrant at about 3:25 p.m. on Saturday, began execution thereof short -- shortly thereafter.
Again, I focus the Court's attention on the fact that there were searches on Saturday, two sweeps and one initial search on Saturday evening, which are apparently not at issue.
The first search of the garage on Satur -- on Sunday morning is not at issue. And as a result, we're looking at sub -- subsequent searches to each of those locations.
Again, the premise upon which the Court's original decision was made remains firm and is still a valid premise, it's still a valid justification for denying the motion to suppress, and that is, there was one warrant and one continuous ongoing search of various locations.
The defendant's argument has legs. It holds water if, and only if, one looks at it in one microscopics point in time and one location in time.
As the testimony of Agents Fassbender, uh, and Investigator John Ertl from the Crime Lab, uh, even Mr. Wiegert yesterday, and numerous other officers, including, interestingly enough, Special Agent Pevytoe, yesterday, indicates that he was, um, bouncing around on a -- various sites on both Friday and Saturday, uh, touching base with colleagues on other locations both in the salvage yard and beyond the salvage yard. So you have one continuing search.
I find Counsel's argument most interesting with respect to the burn pit, that that's somehow not to be considered part of the search or that somehow law enforcement should have, uh, worked in the pit, as it were, sooner than they did.
Um, let me digress here momentarily to make one observation with respect to, uh, the privacy interest or this whole curtilage argument and just make one observation. Just because someone evinces a motive to conceal, and just because they take acts in furtherance of their concealment, and just because they exercise dominion or control over a particular item, doesn't necessarily, under all sets and circumstances, uh, establish a privacy interest in the area which society is necessarily, uh, expected to honor and accept, as reasonable, under all the circumstances.
And, again, I come back to that point. There is nothing that refutes the argument that that burning, whether it's in a burn barrel on the side of the road containing cell phone parts, or a burn pit in the back of -- uh, from which remains of a person are obtained, there's nothing there that, um, disputes the fact that the concealment, uh, also, in this case, goes hand in hand with the a -- a -- abandonment -- uh, the abandonment of whatever is in those items.
But, again, that's a digression, because the Court need not reach that argument, although I think it's supportive of the State's position. What you have here is a continuing execution of a search warrant. Day by day methodical process engaged in by law enforcement based on -- upon arra -- available resources, based upon information which was coming in, literally, by the hour, making an assessment as to its importance, the need for the, um, dispatchment of resources to address discoveries and the whatnot. And in this particular case, uh, as indicated, um, search of the burn pit was not exactly the highest priority, nor was its evidentiary significance apparent on Saturday or Sunday. And -- and we have numerous bits of testimony from Agents Fassbender and Mr. Ertl, and the, uh, uh -- the handlers of the human remains stuff.
But, again, returning to the question of the pit in -- inferentially, I see nothing in their argument that makes any sense whatsoever about why the search of the pit is somehow invalid because it occurs on the 8th, because it occurs at that time upon the discovery of -- of what looks like a piece of human bone in the grass near the pit, which then draws the attention of law enforcement officers and they begin to work that information.
And, next, I would point out that, um, a second warrant, and I'm not even convinced that it was required, but, clearly, in a precautionary safety mode effort, the officers did apply and renew the original search warrant on Wednesday afternoon, and that search warrant, as noted in previous proceedings, was executed on Thursday.
Interestingly enough, um, Special Agent Pevytoe had already begun working the pit. As I recall his testimony quite clearly yesterday in response to my question, he began Thursday afternoon, shortly after the noon hour, after working all morning here in Calumet County sifting debris which is a -- was obtained from that very same burn pit, mind you, uh, here at the Sheriff's Office on Thursday morning.
He returned to the scene at that time with the needed equipment and personnel to begin processing this scene in greater detail. And by the scene I mean the burn pit. So that processing began, uh, on Thursday afternoon and went late into the night as we heard Agent Pevytoe describe.
So, clearly, we have a continuing search, uh, based upon an evaluation of what has occurred. What do we know so far? Uh, we had, as Special Agent Sturdivant said with respect to the pit, those bone fragments. I made the call. I made the decision. I wanted to know if those were human remains. I wanted to know if there was reason to look at this pit more closely. I wanted to know if they were Teresa Halbach's remains. We packaged up as many as of we thought were bones, sent them to the Crime Lab. They made their way to Ms. -- to Dr. Bennett.
I believe we heard some testimony on, uh, who in -- initially was able to make a determination on Wednesday that there were some human remains. And then, of course, we heard testimony from Dr. Eisenberg that she began her involvement on Thursday, the 10th. And, interestingly enough, as we've heard from Agent Pevytoe, there was discussion between, uh, herself and Agent Pevytoe about the status of the affairs at that time.
So, clearly, law enforcement's efforts here, I premise all that, or put that all out there, as evidence of the reasonableness of the efforts undertaken by the officers to search what they searched, when they searched it, and why they did it, and the manner in which they did it, because all those factors go back, again, to the reasonableness of the manner of which the searches were carried out.
And I think it's -- it's quite apparent here, more important, to note that there's not just one, but there were two search warrants here authorizing the -- the efforts of law enforcement here. And, again, any evaluation of reasonableness must take into, um -- into, uh -- lost my train of thought -- must take into account all of the facts, all of the circumstances of what was being searched, not just the 40 acres.
Uh, there were searches of all of the surrounding gravel pits areas. There were, uh, uh, the Radandt fre -- uh, gravel pit area, there was the markings, uh -- the exhibit number escapes me at the moment -- that, uh, Counsel displayed even as late as yesterday in his examination of Agent Pevytoe. There were multiple sites. Uh, we had the, uh -- the -- the Maribel park incident that pulled resources away.
So they were attempting to respond to what they thought was the most important, most needed information to be, uh, assessed and addressed, and proceeded in accordance therewith.
So without repeating, uh, the arguments any further than were made both in the briefs, in which I note that abandonment was argued in the briefs, as well as inevitable discovery premised upon the additional warrant, all of this has already been set forth in written argument and the subject of the Court's previous decision. So, in effect, we see nothing in the evidence educed at trial which should cause the Court to rethink that decision, and we ask the Court not to, and continue to rule the evidence admissible for proper jury consideration. Thank you.
THE COURT: Anything else, Mr. Strang, on that motion?
MR. STRANG: No. I -- I -- I think a great deal has been said and I -- I'd probably be repeating myself.
THE COURT: Very well. Uh, there's another -- There is another, um, outstanding, uh, motion, uh, regarding the, uh, renewal by the defense of its, uh, fair forensic testing, uh, motion. I know that, uh, originally I believe Mr. Buting argued it for the defense and Mr. Gahn wanted a chance to respond.
MR. FALLON: Uh, he did. Uh, as, uh, indicated by, uh, Mr. Kratz, Mr., uh, Gahn had some transportation issues. We expect his arrival about 10:30, if that would be all right, if we could defer that one until a little bit later?
THE COURT: Very well. That's, um, what I have as far as the inventory of -- of outstanding prior motions. Uh, the Court understands that the defense has a motion, or some motions, uh, to raise, uh, following the close of the State's case. Uh --
MR. STRANG: Yes.
THE COURT: Who -- who wishes to be heard on that?