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Search Warrant: Execution Reasonableness – Inevitable Discovery; Evidence: Denny (Third-Party Liability); Juror: Removal, During Deliberations – Substitution of Alternate, After Deliberations Commence

State v. Steven A. Avery, 2011 WI App 124 (recommended for publication); for Avery: Martha K. Askins, Suzanne L. Hagopian, SPD, Madison Appellate; case activity

Search Warrant – Execution – Reasonableness 

Warrant-based search of Avery’s property was a reasonable continuation of the original search 3 days earlier.

General statement:

¶18      Generally, searches are subject to the “one warrant, one search” rule.  See 2 Wayne R. LaFave, Search and Seizure, § 4.10(d) at 767 (2004).  That said, a search conducted pursuant to a lawful warrant may last as long, and be as thorough, as reasonably necessary to fully execute the warrant.  See United States v. Keszthelyi, 308 F.3d 557, 571 (6th Cir. 2002).  Thus, courts have recognized an exception to the “one warrant, one search” rule where a subsequent entry and search are a reasonable continuation of the earlier one.  See id. at 568.  The reasonable continuation rule has two requirements:  (1) the subsequent entry must be a continuation of the earlier search and (2) the decision to conduct a second entry to continue the search must be reasonable under the circumstances.  LaFave, § 4.10(d) at 768 (citing Keszthelyi, 308 F.3d at 569).

State v. Sveum, 2010 WI 92, ¶67, 328 Wis. 2d 369, 787 N.W.2d 317 also cited, for proposition that where “complex, ongoing nature of” crime requires proof of “course of conduct,” search for evidence of that crime can’t be completed in single day, therefore new warrant needn’t be obtained for each successive day of searching, ¶¶19-20.

Application to facts:

  • Continuation of earlier search. The search was of numerous buildings, a salvage yard holding up to 3800 junked cars, and up to 800 hundred acres of surrounding property including ponds and lakes. “[T]he number and type of items identified in the search warrant necessitated an extensive and exhaustive search,” coupled with lateness of the hour and adverse weather conditions the day the warrant was issued, meant that the search couldn’t have been completed that day and that the search 3 days later “was a continuation of the ongoing search,” ¶25, citing United States v. Squillacote, 221 F.3d 542, 557 (4th Cir. 2000) (itself cited with approval by Sveum).
  • Reasonableness of subsequent entry. The later entry, following the original one, “was not only reasonable but necessary, particularly given the evolving information and the accumulation of evidence during the ongoing search. Probable cause had not dissipated during the course of the earlier searches, but rather continued to mount as additional evidence was identified,” ¶26.

Inevitable Discovery 

A new warrant was obtained November 9, four days after the first warrant and 1 day after seizure of evidence Avery seeks to suppress. Although, as just seen, the court of appeals upholds that seizure under the 1st warrant, it alternatively upholds seizure under the inevitable discovery doctrine, ¶29, citing State v. Schwegler, 170 Wis. 2d 487, 500, 490 N.W.2d 292 (Ct. App. 1992). State v. Pickens, 2010 WI App 5, 323 Wis. 2d 226, 779 N.W.2d 1, distinguished:

¶34      Here, on November 8, the search was believed to be ongoing under a valid search warrant issued on November 5.  During the course of that search, the evidence against Avery was mounting and all leads were pointing toward his involvement.  This accumulating evidence had been documented over the course of the search, had been used in obtaining other warrants, and was then used in the supporting affidavit for the November 9 warrant application.  The State concedes that the record is unclear as to whether the State was preparing the supporting affidavit at the time of the November 8 search.  However, Fassbender confirmed that during the course of executing the initial November 5 warrant, he became cognizant that the search was extending over several days and, in recognition of that, the police “obtained another search warrant for the whole scene.”

¶35      We are satisfied under the circumstances that the evidence in the record is sufficient to demonstrate that the police were actively pursuing a warrant for the continued search of Avery’s trailer at the time of the November 8 search.  See id., ¶¶49-50.  They anticipated the need for a warrant extension, accumulated evidence in support of that application, documented the factual basis and, one day after the November 8 search at issue, submitted the documented evidence in a supporting affidavit.  Thus, even applying the court’s reasoning in Pickens, the third requirement is met.

Denny (Third-Party Liability) Evidence 

The trial court properly excluded evidence Avery sought to admit, showing that a number of people had an opportunity to commit the crime, State v. Denny, 120 Wis. 2d 614, 623-24, 357 N.W.2d 12 (Ct. App. 1984); State v. Scheidell, 227 Wis. 2d 285, 296, 595 N.W.2d 661 (1999) (test: defendant must show “legitimate tendency” third person could have committed the crime, namely “motive and opportunity … and … some evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances”).

¶45      Here, Avery identified “each customer or family friend and each member of his extended family present on the Avery salvage yard” during the hours in question as “possible third-party perpetrators of one or more of the charged crimes.”  Avery acknowledges on appeal that he did not seek to prove that “any of the possible alternative perpetrators had an identifiable motive to kill Teresa Halbach.”  However, without evidence of motive, Avery’s proffered third-party liability evidence fails the legitimate tendency test in Denny.  The parties identified by Avery may have had the opportunity to commit the crime; however, Avery was unable to demonstrate that any of the named individuals had a motive to commit the alleged offenses against Halbach.

State v. Richardson, 210 Wis. 2d 694, 563 N.W.2d 899 (1997) (legitimate tendency test inapplicable to claim victim lying in order to frame defendant), distinguished: “The introduction of third-party liability evidence and frame-up evidence are two separate issues, and Avery was permitted to introduce evidence that he had been framed by the police,” ¶46. Scheidell, as well; legitimate tendency test inapplicable to similar-acts evidence intended to show unknown party committed crime: “Here, Avery’s proffered defense evidence did not involve unknown parties committing allegedly similar crimes.  Rather, it involved the introduction of known third-party liability evidence of the precise type contemplated by Denny.  We conclude that the trial court properly applied the legitimate tendency test under Denny,” ¶47.

Juror – Removal, During Deliberations 

Removal of a juror during deliberations, substituting in an alternate juror, satisfied the test of State v. Lehman, 108 Wis. 2d 291, 321 N.W.2d 212 (1982). The juror told the judge that his stepdaughter’s traffic accident was exacerbating the juror’s pre-existing marital problems, leaving him distraught; Avery eventually stipulated that the juror be replaced with the alternate. The court now rejects the argument that the trial judge’s ex parte contact with the juror requires relief – if the interaction did violate Avery’s constitutional right to be present, the error was harmless, ¶¶57-58, citing United States v. Doherty, 867 F.2d 47, 72 (1st Cir. 1989). In addition, “the trial court conducted the sort of careful inquiry and reasonable effort to avoid discharge contemplated by Lehman,” and thus properly exercised discretion, ¶61.

Juror – Substitution of Alternate, After Deliberations Commence

As to the presence of the alternate juror, who replaced the excused juror: the former’s presence violated the statutory mandate of § 972.10(7) that any juror not chosen to participate in deliberations must be discharged. However, “§ 972.10(7) does not address the dispositive issue in this case, whether a court may substitute an alternate juror for a deliberating juror with the consent of the parties under the procedure set forth in Lehman.  As the trial court noted, there is a distinction between discharging a juror under § 972.10(7) and calling a juror back as a substitute at some point in the future with the parties’ consent,” ¶63. Although “there is … no express authorization by statute or rule for the substitution of an alternate juror for a regular juror after jury deliberations have begun, … there is Avery’s consent to the substitution, and that consent satisfies the procedural requirements of Lehman,” ¶65. Conclusion deemed consistent with United States v. Josefik, 753 F.2d 585 (7th Cir. 1985) (notwithstanding that federal policy forbids practice of recalling alternate after discharge from jury service, defendant’s consent to such recall waived any objection). United States v. Curbelo, 343 F.3d 273 (4th Cir. 2003), and United States v. Essex, 734 F.2d 832 (D.C. Cir. 1984) (verdict returned by fewer than 12 jurors, without defendant’s consent, structural error), distinguished: “Avery received exactly what he was entitled to and consented to—a verdict returned by twelve jurors who were instructed to commence deliberations together and who are presumed to have done so,” ¶73.

The court also rejects an ineffective-assistance argument; counsel’s advice to Avery was reasonable: “counsel correctly understood the law under both Wis. Stat. 972.10(7) and Lehman.  Insofar as counsel advised Avery to forego a mistrial, this is the sort of strategic advice one would expect a defendant to receive from counsel, and we will not second guess such advice on appeal if it is rationally based on the facts and law.    Defense counsel advised that Avery not move for mistrial because the case would go to trial again and, for financial reasons, neither defense counsel would be able to represent him. Counsel testified that, all things considered, their case had gone in as well as they could have hoped, and it was in Avery’s best interest for that jury to continue to deliberate on the evidence presented,” ¶72.

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