15 F.3d 691 (7th Cir. 1994), 93-1191, Weber v. Murphy

Docket Nº:93-1191.
Citation:15 F.3d 691
Party Name:John R. WEBER, Petitioner-Appellant, v. James P. MURPHY, Respondent-Appellee.
Case Date:February 02, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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15 F.3d 691 (7th Cir. 1994)

John R. WEBER, Petitioner-Appellant,


James P. MURPHY, Respondent-Appellee.

No. 93-1191.

United States Court of Appeals, Seventh Circuit

February 2, 1994

Argued Sept. 29, 1993.

Charles B. Vetzner (argued), Office of the State Public Defender, Madison, WI, for petitioner-appellant.

David J. Becker, Asst. Atty. Gen. (argued), Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for respondent-appellee.

Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

The petitioner, John Weber, induced his wife, Emily Weber, to take a ride with him in the Wisconsin countryside, telling her that he had a "surprise" for her. 1 After a short

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drive, the petitioner stopped the car at his parent's vacant farm property. He told Emily to look out the window, which she did. He then held a knife to her throat, taped her eyes and mouth shut, taped her hands behind her back, beat her with his fists and a metal shovel, cut her breast and legs with a knife, burned her with a lighted cigar on the body and in her vagina, and repeatedly sexually assaulted her with a wheelbarrow handle. Emily lapsed into unconsciousness. Early the next morning, the petitioner drove Emily home. He ordered her to tell a fabricated story if she was questioned about her injuries. He then attempted to wash Emily in the bathtub and to treat her injuries. He soon realized that Emily needed medical attention, so he called Emily's mother who took her to a hospital, where she was admitted to the intensive care unit.

The next evening, the petitioner stopped at the Phillips, Wisconsin police department to give the police the details of the assault that he claimed Emily had described to him. He told them that three strangers had attacked her. The following day, Phillips Police Chief Craig Moore went to the hospital to interview Emily. She also told him that she had been attacked by three strangers. Chief Moore interviewed Emily again later the same day. This time, she told him that it was her husband who had attacked her and described the assault in detail including a description of his car, the wooded area where she was taken, and the clothing that she wore on the night of the attack. The petitioner, who was at the hospital during Emily's statement, was placed under arrest. The keys to his unlocked car were confiscated, and the car was moved by wrecker service to the Price County Sheriff's Department.

The police then obtained warrants authorizing a search of petitioner's car and house. The warrants listed various items of clothing and the knife used to threaten her. Because the car was a mess and filled with so much debris, the police decided to remove all items found and to inventory them on a separate log sheet. 2 The car was emptied beginning with the front seat of the driver's side, followed by the front seat of the passenger's side. At some point in time during this process, an officer came across an unmarked audio cassette tape located in the car's tape player. The officer alerted Chief Moore, who turned the ignition key to the accessory position, and pushed the cassette tape into the player causing it to begin playing. He immediately recognized the petitioner's voice, addressing Emily and describing a series of brutal and hideous acts of torture he claimed to have committed against Carla Lenz, Emily's sister. Carla had disappeared from the area two years earlier.

Chief Moore listened to the entire tape and subsequently had the petitioner removed from his jail cell for interrogation. When Moore questioned him concerning Carla's death, he denied any involvement. However, after Moore informed the petitioner that he had listened to the cassette tape, the petitioner drew Moore a map which showed where the body of Carla Lenz was buried. By following the map, the police were able to locate Carla's remains.

Procedural History

The petitioner was charged with a variety of counts relating to both Emily and Carla including attempted murder as to Emily and the murder of Carla. Prior to trial, the petitioner filed a "motion to quash search warrant," and sought to suppress all physical evidence seized as a result of the search of his car. Specifically, the petitioner requested suppression of the cassette tape. Following a hearing, the state trial judge orally denied the motion and refused to suppress the cassette and its audio contents, finding that the tape was properly played during the execution of the search warrant under the plain view doctrine 3 and the inventory search 4 exception to the warrant requirement. The trial court judge also indicated that the cassette tape could not properly be

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admitted into evidence under the inevitable discovery doctrine. 5

The petitioner pled guilty to some counts relating to his wife and some counts relating to his sister-in-law. He went to trial on the remaining counts. At the guilt phase of the trial, the state introduced an edited version of the cassette tape into evidence. 6 The petitioner was found guilty on all counts submitted for trial. Based on the convictions on all eighteen counts charged, the trial court sentenced the petitioner to life plus 164 years and nine months imprisonment.

The petitioner directly appealed his convictions to the Wisconsin Court of Appeals, requesting that he be granted a new trial on the nine counts to which he pled guilty and on the nine counts on which he was found guilty by the jury. The sole issue raised in his initial appeal was the constitutional validity of the playing of the cassette tape during the execution of the search warrant.

Before the Wisconsin Court of Appeals, the petitioner argued extensively that the audio tape was not admissible into evidence because the so-called "plain view" doctrine did not authorize the police to play the cassette tape incident to the search. The petitioner also...

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