State v. Weber
| Decision Date | 03 July 1990 |
| Docket Number | No. 90-0181-CR,90-0181-CR |
| Citation | 157 Wis.2d 505,460 N.W.2d 447 |
| Court | Wisconsin Court of Appeals |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. John R. WEBER, Defendant-Appellant. |
Appeal from a judgment of the circuit court for Price county: Gary L. Carlson, Judge.
Circuit Court, Price County
REVERSED IN PART AND REMANDED.
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
John Weber appeals a judgment of conviction for the first-degree murder of Carla Lenz and ten other counts relating to the kidnapping, false imprisonment, sexual assault and torture that preceded her murder. Weber contends that the trial court erred by failing to suppress the contents of an audio tape cassette, which was improperly seized by the police during a search of Weber's vehicle. At trial, Weber was also convicted of one count of attempted murder, three counts of sexual assault, one count of false imprisonment and one count of kidnapping relating to conduct directed toward his wife, Emily Weber, arising from a separate incident. These convictions, for which Weber was sentenced to sixty-three years' confinement, are not subject to this appeal. Because we are forced to conclude that the search of the audio cassette was unlawful, requiring the cassette's contents and all evidence related to this unlawful search to be suppressed, we reverse that portion of the conviction relating to offenses against Lenz.
There is little disagreement about the facts giving rise to this appeal. Weber induced Emily Weber, his wife, to take a ride in an automobile by representing he had a surprise for her. Weber then proceeded to commit a variety of offenses against her, including taping her eyes, mouth and hands, beating her with his fists and with a metal shovel, cutting her with a knife, burning her with a lighted cigar and repeatedly sexually assaulting her with a wheelbarrow handle. Following this incident, Emily went to the Flambeau Medical Clinic for medical assistance and reported the incident to the police. Weber was arrested, and his car was seized and transported to the Price County Sheriff's Department. A search warrant for Weber's car and house were obtained, listing various items of clothing worn by Emily Weber during the time she was assaulted and the knife Weber displayed and with which she was threatened.
When the officers began the search of the vehicle, they concluded that because there was so much debris in the car they would empty the car, logging each item as it was removed from the vehicle. The search did disclose various items of wearing apparel and the knife, which were identified in the search warrant.
After a three-hour search, the police noticed an audio tape cassette resting in the tape player but not sufficiently inserted to have caused the tape to play when the key was inserted in the ignition. The tape was in a black plastic case containing the manufacturer's label, but no other identifying information. An officer engaged in the search of the vehicle then turned the car key to the accessory position so as to activate the tape player and pushed the tape into play position. The officer immediately recognized Weber's voice on the tape, detailing a series of brutal acts of torture he claimed to have committed against Lenz, Emily's sister, who had disappeared from the area about two years earlier. The officer listened to the entire ninety-minute tape, including a detailed recitation of the horrible acts of brutality and mayhem Weber performed on Lenz prior to her murder. The officer then confronted Weber with the contents of the tape, whereupon Weber drew a map showing where Lenz's body had been buried. Lenz's remains were located as depicted on the map.
Emily had not mentioned this unmarked cassette tape to police officers before they listened to it, and her testimony indicates that she was unaware of its contents. Weber did not tell her what was on the tape, nor did he play it for her. Further, there was no information obtained from any other source to cause the officer to reasonably believe that the tape was connected with any criminal act.
The trial court denied Weber's motion to suppress the tape and all evidence flowing from its discovery on the grounds that the officer's playing of the tape was a permitted "plain view" search and further that the discovery of the tape's contents was a result of a valid inventory search.
The sole issue presented to this court is whether the police's discovery of the cassette tape's contents was a violation of Weber's fourth amendment right under the United States Constitution to protection against unlawful searches. The state properly concedes that the grounds upon which the trial court denied Weber's motions were erroneous. 1 While the discovery of the plastic cassette was the result of a plain view of the interior of the vehicle to which the officer had gained lawful entry as a result of the search warrant, this doctrine does not authorize search of the contents of the audio tape. Because the playing of the tape was without probable cause, the doctrine of plain view cannot be used to justify a search of the tape's contents. As the Supreme Court said in Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971):
Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.
Professor LaFave calls this doctrine the "immediately apparent requirement." 2 The police are not entitled to seize an object that is in plain view unless it is immediately apparent that there is a connection between the object viewed and a crime.
The state also concedes that the tape's contents could not be examined as a result of a valid inventory search. There are a variety of reasons why such a theory fails, including the fact that it was not necessary to play the tape to conduct a complete inventory of the car's contents. The most persuasive and determinative reason, however, is that the police never asserted that the tape was played pursuant to standardized department procedures governing inventory searches. See State v. Weide, No. 89-0331-CR, slip op. at 13-14 (Wis. June 6, 1990); State v. Axelson, 149 Wis.2d 339, 347, 441 N.W.2d 259, 262 (Ct.App.1989).
The state does, however, advance a basis upon which it claims the search was justified. Even if a trial court's reasoning is erroneous, the reviewing court may still affirm it if the result is correct. Micro-Managers, Inc. v. Gregory, 147 Wis.2d 500, 517, 434 N.W.2d 97, 104 (Ct.App.1988). The state contends that under the doctrine of United States v. Ross, 456 U.S. 798 (1982), a warrantless search of a closed container found in an automobile to which the police had lawfully gained access is constitutionally permissible.
The state argues that an automobile is subject to a thorough and complete search without probable cause and without limitation, except as set forth in Ross. Unfortunately, the limitation created by Ross requires that the police have probable cause to believe that any item searched could contain evidence relating to a crime. Id. at 823-24. A probable cause search of the contents of an automobile has been upheld, for example, where three packages searched were wrapped in dark green plastic and sealed with tape, and "[b]ased on their prior experience, the officers knew that smuggled marihuana is commonly packaged in this manner." United States v. Johns, 469 U.S. 478, 481 (1985).
The crime involved in this case, however, was the sexual assault of Emily. The police were looking for articles of clothing and a knife, none of which could realistically be viewed as contained within the audio cassette. Because the cassette was completely unrelated to the objects sought as evidence in the investigation of the crime against Emily, and because the police had no basis for believing the cassette disclosed evidence of any other crime, the state's reliance on Ross is misplaced.
The state does not advance, nor can this court discover, any authority that would permit the lawful search of the tape's contents. The tape is clearly entitled to constitutional protection. See Walter v. United States, 447 U.S. 649, 654 (1980) (); and Stanley v. Georgia, 394 U.S. 557, 571-72 (1969) (Stewart, J., concurring); see also, United States v. Hunt, 366 F.Supp. 172, 181 (N.D.Tex.1973) (...
To continue reading
Request your trial