Weber v. Murphy
| Decision Date | 02 February 1994 |
| Docket Number | No. 93-1191,93-1191 |
| Citation | 15 F.3d 691 |
| Parties | John R. WEBER, Petitioner-Appellant, v. James P. MURPHY, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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.
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 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.
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 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 claimed that the audio contents of the cassette tape were inadmissible because the playing of the tape incident to the search was not authorized by application of the inventory search exception to the warrant requirement. The State of Wisconsin responded by conceding that the petitioner had "raised serious questions about whether the plain view doctrine or the inventory search rationale [could] ... legitimately be invoked to justify the playing of the tape." However, the state argued that the tape was played as a "legitimate part of a probable cause search" of the petitioner's car.
In an unpublished opinion, the Wisconsin Court of Appeals noted that the state had conceded that the rationale used by the trial court to uphold playing of the cassette tape during the search were not valid. However, in addition, the court also specifically stated why neither the "plain view" doctrine, nor the inventory search exception, constituted a legitimate basis for playing the cassette tape during the search. Moreover, the state appeals court found that the police lacked probable cause to believe the cassette itself contained evidence of the crime and thus it could not legally be played as part of a probable cause search of an automobile. The state appeals court reversed the petitioner's convictions on the charges relating to Carla. The petitioner's convictions with respect to Emily were determined by the appellate court not to be a part of the case before it on appeal.
The state sought review of the court of appeals decision in the Wisconsin Supreme Court. That court held that the cassette tape was properly admitted into evidence against the petitioner based on: (1) the inventory search exception to the warrant requirement, (2) the inevitable discovery doctrine, (3) its belief that the petitioner lacked a legitimate expectation of privacy 7 in the cassette tape. State v. Weber, 471 N.W.2d at 193-199. Consequently, the Wisconsin Supreme Court reversed the intermediate state appeals court and reinstated the trial court's judgment of conviction on all eighteen counts.
The petitioner then filed this petition for writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254, in federal district court. The district court determined that it could not reach the merits of the petitioner's claim because under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), federal courts may only entertain Fourth Amendment challenges on habeas corpus review if the petitioner has not been afforded a full and fair opportunity to litigate his claim in state court. In so ruling, it held that the petitioner was not denied such an opportunity in his state proceedings even though the Wisconsin Supreme Court upheld the playing of the cassette tape during the execution of the search warrant on grounds not discussed by either party in their supreme court briefs or at oral argument.
The only issue presented for our review is whether the petitioner was afforded an opportunity for full and fair litigation of his Fourth Amendment claim in the state court proceedings. If so, we must deny his petition under the doctrine announced in Stone v. Powell. In that case, the Supreme Court held that where the state has provided such an opportunity, "a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494, 96 S.Ct. at 3052. This decision was based on the Court's belief that the incremental benefits associated with applying the exclusionary rule on collateral review was outweighed by its costs. Id. at 493, 96 S.Ct. at 3052.
The Supreme Court did not define the phrase "opportunity for full and fair litigation"; however, we have held that the petitioner has been provided that opportunity when: (1) he has "clearly informed the state court of the factual basis for that claim and has argued that those facts constitute a violation of ... [his] fourth amendment rights and (2) the state court has carefully and thoroughly analyzed the...
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