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06/25/91 STATE WISCONSIN v. JOHN R. WEBER

June 25, 1991

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT-PETITIONER,
v.
JOHN R. WEBER, DEFENDANT-APPELLANT-CROSS PETITIONER



Reversing Day, J. William A. Bablitch, J. Concurring. Shirley S. Abrahamson, J. Dissenting.

The opinion of the court was delivered by: Day

This is a review of an unpublished court of appeals decision which reversed a judgment of conviction of the defendant by the circuit court for Price county, the Honorable Gary L. Carlson, presiding. The defendant, John R. Weber, was charged with eighteen counts of criminal activity arising out of two criminal episodes: one involving his wife, Emily Weber, which took place on September 3 and 4, 1988, and the other involving his sister-in-law, Carla Lenz, which took place on November 12 and 13, 1986. The criminal activity included the murder of Carla and the attempted murder of Emily, and the sexual assault, kidnapping, and false imprisonment of both of them. While the police were searching the defendant's car and taking inventory of its contents, they played an unmarked audio cassette tape which was resting in the car's tape player. The tape contained a full confession by Weber, revealing the acts of torture and brutality he committed against Carla before killing her, two years earlier. The tape was subsequently admitted into evidence at the defendant's trial over the objections of his counsel.

The issues on review are, first, whether the playing of the unmarked audio cassette tape, found in the defendant's car, violated his constitutional right to be free from unreasonable search and seizure; second, if there was an unreasonable search and seizure, should this court adopt the good faith exception to the exclusionary rule or adopt a balancing test for the exclusionary rule's application; third, did the court of appeals violate the defendant's constitutional right to appeal his convictions when it concluded that the counts involving Emily Weber were not subject to appeal; and fourth, did the preclusion of appellate review of the counts concerning Emily Weber render the defendant's guilty plea unknowing and involuntary because it was premised on the right to such review.

We conclude that the playing of the unmarked audio cassette tape was not an unreasonable search under the fourth amendment. Because of our holding on the first issue, we do not reach the second issue. The basic issue of withdrawal of his guilty plea to the counts concerning Emily, involved in the third and fourth issues, we decide against the defendant.

The facts of this case are largely undisputed. On September 3, 1988, at about 5:30 p.m., the defendant induced his wife, Emily, to take a ride with him, representing that he had a "surprise" for her. After a short drive, the defendant stopped the car at his parents' vacant farm property. He asked Emily to turn her head and look out the window, which she did. The defendant then held a knife to her throat and proceeded to commit a variety of offenses against Emily, including taping her eyes and mouth shut, taping her hands so they were bound behind her back, beating her with his fists and a metal shovel, cutting her breast and legs with a knife, burning her with a lighted cigar on the body and in her vagina, and repeatedly sexually assaulting her with a wheelbarrow handle. Emily lapsed into unconsciousness. At dawn, on the morning of September 4, the defendant drove Emily home. The defendant fabricated a story which he ordered Emily to tell if she was questioned about her injuries. The defendant then attempted to wash Emily in the bathtub and tend to her injuries. When he realized that she needed medical attention, he called Emily's mother who took her to the Flambeau Medical Center where she was put in intensive care. She was in the hospital sixteen days.

At about 9:30 on the evening of September 4, the defendant stopped at the police department on his way home from the hospital to give the police the details of the assault as he claimed Emily had described it to him. He told the police that three strangers had attacked Emily. On September 5, at about 11:45 a.m., Phillips Chief of Police, Craig Moore, went to the hospital to interview Emily. She told him the same lie the defendant had fabricated. Chief Moore interviewed Emily again on that same day, at about 12:45 p.m. This time she told him it was her husband who had attacked her, and she described the assault in detail, giving a description of the defendant's car, the wooded area where he took her, and the clothing she had been wearing on the night of the attack. The defendant, who was also at the hospital at this time, was placed under arrest. The keys to his unlocked car were confiscated, and the car was moved by a wrecker service to the Price County Sheriff's Department.

At about 10:30 p.m., September 5, the search warrants for the defendant's car and house were obtained, listing various items of clothing worn by Emily during the assault and the knife with which she was threatened. A police officer and Chief Moore, accompanied by a deputy sheriff and two other officers, one serving as a photographer, began to search the defendant's car. Because it was such a mess, filled with so much debris, efficiency warranted emptying the car and logging each item as it was removed.

Chief Moore testified:

t approximately 11 o'clock in the evening the search warrant was served on that automobile. I had my assistant chief Dennis Dosch do the actual search, in other words to go through the vehicle in search for the items on the search warrant. I then as he found an item I would then document it in preparation for the return to the Court.

When we first began that search warrant, we noticed that the car had a lot of items in it.

It was, there was a lot of junk laying around and we decided that at that time to then go through that car inch by inch and to remove all the items that were in the car and log and document all the items that were in that car.

Of course searching continually for the items listed on the search warrant.

(Transcript of Proceedings, March 14, 1989, p. 118.)

The car was emptied, beginning with the front seat of the driver's side, floorboard to ceiling, followed by the front seat of the passenger's side. Two hours into the inventory of the car, an officer came across an unmarked audio cassette tape resting in the tape player. By this time, the knife and some, but not all of the items of clothing had been recovered. The tape was not sufficiently inserted in the player to cause it to play when the ignition key was turned. Chief Moore turned the ignition key to the accessory position and pushed the tape in the player, activating it. He immediately recognized the voice of the defendant, addressing his wife, detailing a series of brutal and vile acts of torture he claimed to have committed against Carla Lenz, Emily's sister. Carla had disappeared from the area two years earlier. *fn1

Prior to playing the tape found in the cassette player, the officers observed and inventoried another tape, which was listed on the warrant return as ".38 Special Flashback Tape, Neil Young Harvest Daken 'Under Lock and Key.'" At this same time, seven other tapes were observed on the floorboards of the front passenger side seat and set aside. These seven tapes, along with the remainder of the items later found in the car, were inventoried on the warrant return, packaged, and removed from the floor of the Sheriff's Department garage at approximately 1:00 the next morning.

Chief Moore listened to the entire ninety-minute tape, including the graphic recitation of the acts of brutality and mayhem the defendant performed on Carla prior to her murder. This description of the attack on Carla was in the form of a statement to Emily.

The defendant described how he got his sister-in-law, Carla Lenz, to go for a ride with him on a cold November day ostensibly to talk about his marital problems. He parked the car in a secluded area. Shortly thereafter he shoved a .25 caliber pistol in her mouth -- forced her to disrobe, put duct tape over her mouth, tied her wrists together, burned her nipples with a lighted cigarette -- slapped her breasts and head with a board. He then pulled her out of the car, hit her several times with a plank, forced her to perform fellation and oral-anal contact on him. He then forced a wheelbarrow handle into her vagina, another handle into her rectum and stuck fifty pins into her breast and nipple. He then used a hypodermic needle to inject lighter fluid into her breast after which she became unconscious and he "stepped on her throat till she died." Two days before he had dug a grave to bury her in. He drove around with her body in the trunk of his car for five days and then buried her. He then described similar acts he planned to do to his wife.

After listening to the tape, Chief Moore had the defendant removed from his jail cell for interrogation. When the defendant denied having any involvement in the death of Carla Lenz, Chief Moore told the defendant he heard the tape he had made. The defendant then drew the officer a map which showed where the body of Carla Lenz was buried. The remains which were located, as depicted on the map, were identified as those of Carla Lenz.

During the interview with Emily Weber on September 5, 1988, she did not mention the cassette tape. But in a subsequent interview, on September 7, after the tape had been discovered, she mentioned the tape to Chief Moore. He described the conversation at trial:

I asked her if she had ever listened to the tape that was in the cassette player of the car. She stated that she had not. She observed a tape in the tape player, and at one time while driving into the woods area she had pushed that tape in. She stated that John had mentioned the tape, a tape, to her off and on, and she thought it had something to do with this surprise. So, she was going to find out what the surprise was and pushed the tape player in, and with that John responded with shutting the tape player off and telling her that she could not listen to it at this time.

(Transcript of Proceedings, December 19, 1988, p. 72.)

The defendant had not told Emily what was on the tape, nor did he play it for her.

During this same interview with Chief Moore, Emily Weber revealed that while the defendant was hitting her over the head with a shovel, he told her, "I am going to kill you like I did Carla." He also said that Emily was going to be a "tough one to kill."

On October 10, 1988, a preliminary hearing was held on a series of eighteen charges against the defendant with respect to Emily Weber and Carla Lenz. At its Conclusion, the defendant was bound over for trial.

On November 14, 1988, the defendant filed a "motion to quash search warrant," in which he sought the suppression of all physical evidence seized during the search of his car. Specifically, the defendant requested the suppression of the tape discovered in the cassette player of the car.

On February 16, 1989, the circuit court orally denied the defendant's motion to suppress. The Judge was of the opinion that the search and seizure of the tape was justified under the plain view doctrine or under the inventory exception to the warrant requirement.

The case proceeded to trial on March 6 through March 18, 1989. The audio cassette tape, with certain "prejudicial portions" omitted, was played for the jury at the guilt phase of the trial. (The original unedited tape was played to the jury at the insanity phase of the trial, which is not subject to this review.)

With regard to the victim Carla Lenz, the defendant pled guilty to charges of first-degree murder and kidnapping, and was found guilty by the jury of seven counts of first-degree sexual assault, one count of false imprisonment, and one count of mayhem with use of a dangerous weapon.

He pled guilty to a charge of attempted murder, kidnapping, false imprisonment, battery, and three counts of first-degree sexual assault with respect to the other victim in this case, Emily Weber. The circuit court entered judgment, convicting the defendant of all eighteen counts in the information and sentencing him to a total of life plus 164 years and nine months.

The defendant appealed all eighteen counts of his conviction, requesting the court of appeals to grant him a new arraignment on the nine counts to which he pled guilty and a new trial on the remaining nine counts on which he was found guilty by the jury. The sole issue on appeal was the constitutionality of "searching" or playing the audio cassette tape.

The majority of the court of appeals concluded that because the playing of the tape by the police officer was without probable cause, the "plain view" doctrine could not be used to justify a search of the tape's contents. In addition, because the tape was "completely unrelated to the objects sought" in the crimes against Emily, and because the police had no basis for believing the tape disclosed evidence of any other crime, the playing of the tape could not be justified. Unable to "discover any authority that would permit the lawful search of the tape's contents," the court reversed the defendant's conviction on the charges relating to Carla Lenz. The court stated that the defendant's convictions against Emily Weber, to which he was sentenced to sixty-three years confinement, was not subject to the appeal.

Judge Cane, in a Concurring opinion, voiced his concern with the application of the exclusionary rule to the circumstances of this case. In this case, the exclusionary rule had little, if any, deterrent effect against police misconduct. The officer's "misconduct" was an innocent act of playing a tape cassette found at the scene of the crime. Judge Cane proposed a balancing test which considers the nature and degree of the police intrusion, balancing the need to search or seize against the invasion which the search or seizure entails. But unfortunately, he noted, it is not the province of the court of appeals to create such a test, and the evidence must therefore be excluded.

We granted the State's petition for review of the decision of the court of appeals, which suppressed the tape. We also granted the cross-petition of the defendant which we address at the outset.

The defendant cross-petitioned for review of the court of appeals' decision which ruled that the issue of his conviction following a plea of guilty to the counts involving the attempted murder of Emily, "are not subject to this appeal." The defendant's theory is that such guilty plea was only entered because the motion to suppress the tape was denied, and that the defendant believed he had a right to appeal convictions on the charges concerning Emily and requested withdrawal of his guilty plea if the appeals court ordered suppression of the tape.

The State argued "harmless error" before this court because of the overwhelming evidence against the defendant on the charges against Emily even if this court upheld the suppression of the tape. We do not reach that issue.

Because we hold that the tape was properly entered into evidence, there is no basis to permit the defendant to withdraw his guilty plea to the charges involving Emily. The defendant's request to allow him to withdraw his guilty plea is therefore denied.

Unreasonable searches and seizures are governed by Art. I, sec. 11 of the Wisconsin Constitution. It provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

To prevent confusion caused by differing standards, "this court has consistently and routinely conformed the law of search and seizure under the state constitution to that developed by the United States Supreme Court under the fourth amendment." State v. Fry, 131 Wis. 2d 153, 172, 388 N.W.2d 565, cert. denied 479 U.S. 989 (1986). We choose to do so in this case. The Fourth Amendment to the United States Constitution, which is substantially similar to Art. I, sec. 11 of the Wisconsin Constitution, provides:

The right of the people to be secure in their persons, houses, papers, and effects, *fn2 against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The fourth amendment is applicable to the states through the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The defendant contends that the "search" *fn3 of the audio cassette tape -- the playing of the tape -- was unconstitutional. "earches conducted outside the judicial process, without prior approval by Judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions (footnotes omitted)." Katz v. United States, 389 U.S. 347, 357 (1967). There is no dispute of the fact that the tape was not an item listed in the search warrant. The "search" or playing of the tape, therefore, was conducted outside the judicial process. In order to uphold the search as reasonable, it must fit into one of the exceptions to the search warrant. "Some of the exceptions are consent to search, search incident to arrest, a probable cause search, an exigent circumstance search, a police inventory search, and an automobile exception to warrantless search." Thompson v. State, 83 Wis. 2d 134, 139, 265 N.W.2d 467 (1978).

The record is clear that the defendant did not consent to the playing of the tape. The tape was not "searched" incident to the defendant's arrest, since the search was not a "contemporaneous" incident of the arrest. New York v. Belton, 453 U.S. 454, 460 (1981), reh'g. denied, 453 U.S. 950 (1980). See also, sec. 968.11, Stats. 1989-90 (search must be within arrestee's immediate presence). The record does not reveal that there was probable cause to "search" or play the tape. The playing of the tape cannot be justified because of exigent circumstances either, because the playing of the tape was not undertaken in an exigent or emergency situation, i.e. a situation where a person is in distress or in need of assistance. State v. Prober, 98 Wis. 2d 345, 360-361, 297 N.W.2d 1 (1980).

I.

Since the playing of the tape took place when the police were inventorying the contents of the car, we next consider the inventory exception to the warrant requirement. Although an inventory search is a "search" within the meaning of the fourth amendment, State v. McDougal, 68 Wis. 2d 399, 406, 228 N.W.2d 671 (1975), it is also a well-defined exception to the warrant requirement. Illinois v. Lafayette, 462 U.S. 640, 643 (1983). The United States ...


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