Last week’s post discussed how the initial investigation into Aaron Hernandez presents a compelling opportunity for students to learn the Fourth Amendment’s plain view doctrine. This week, we explore just a slice of the investigation that led to the arrest of Steven Avery—widely known from the true-crime documentary series, Making a Murderer.
In summer 1985, Steven Avery was twenty-two years old and a resident of Manitowoc, Wisconsin. Avery worked at his family’s salvage yard, Avery Salvage, which his family had operated since 1965. On July 29, 1985, a fellow Manitowoc resident named Penny Ann Beernsten was jogging along Lake Michigan when she was brutally attacked and raped. During the investigation that followed, Beernsten described her attacker as a white male, approximately 5′6′′, stocky, with brown eyes and long sandy hair, and dressed in a black leather jacket. Manitowoc County Deputy Sheriff Judy Dvorak overhead Beernsten’s description and commented, “[that] sounds like Steven Avery.”
Avery was ultimately arrested, charged, and convicted for the forcible rape of Penny Beernsten. He was sentenced to serve thirty-two years in prison. After eighteen years of that sentence, DNA testing revealed evidence that both exonerated Avery from the rape charge and implicated a man named Gregory Allen, a suspect in similar rape investigations at the time of Avery’s arrest. Avery was released from prison on September 11, 2003. Thirteen months later, he filed a lawsuit for 36 million dollars in damages as compensation for his wrongful imprisonment.
A primer on search warrants
Warrants come in one of two forms—arrest or search. An arrest warrant is a judicially authorized document that permits law enforcement to arrest a criminal suspect. A search warrant, by contrast, is a judicially authorized document that permits law enforcement to enter and search a premises and, if authorized, seize particular property. The two warrants might be issued separately or together. If the two warrants are issued together, each must be supported by separate probable cause.
Whereas the arrest warrant focuses exclusively on seizing and detaining people, a search warrant can authorize a diverse range of police investigative activities. For example, a search warrant might permit officers to search a home for evidence of a crime, illegally possessed items, materials intended for use in a crime, and/or a person to be arrested. The warrant itself should identify any person or property to be seized and, in general, be executed during daylight hours. The warrant must thereafter be returned within a pre-determined timeframe designated by the magistrate. The warrant return should include an inventory of any tangible or electronic property seized during the warrant’s execution.
From a constitutional perspective, a valid warrant—either arrest or search—contains four basic requirements: (1) it must be supported by probable cause; (2) include an oath, affirmation, or sworn testimony that sets forth the underlying facts and circumstances giving rise to probable cause; (3) describe the person (arrest warrant) or property to be seized (search warrant) with particularity; and (4) issued by a neutral and detached magistrate.
If a search warrant lacks one or more of its constitutional requirements, the warrant is defective, and any evidence seized pursuant to a defective warrant is subject to suppression. Accordingly, a defendant often challenges a warrant’s validity by arguing that the warrant is facially invalid. That argument is simple: The warrant lacks some basic constitutional requirement. For example, a defendant may argue that the warrant is not supported by probable cause or fails to satisfy the particularity requirement. The great advantage of those arguments, at least in the search context, is that a facially invalid search warrant does not receive Leon deference (discussed in this post).
Investigating the disappearance of Teresa Halbach
On October 31, 2005, during the height of Avery’s lawsuit against the county and police department, a twenty-five-year-old free-lance photographer named Teresa Halbach went missing. Investigating officer quickly learned that, just before her disappearance, Halbach went to the Avery Salvage to photograph a van located on the property, which Avery hoped to sell in Auto Trader magazine. According to the prosecution, Avery was the last person to see Halbach alive. As officers began to focus the investigation on Steven Avery, they obtained a warrant to search the Avery Salvage—a roughly forty-acre property that included multiple structures and roughly 4,000 vehicles.
On November 3, 2005, Sergeant Andrew Colborn called dispatch to ask about the license plate (number SWH582) of a 1999 Toyota RAV4. Dispatch confirmed that the car belonged to Teresa Halbach. Strangely, Halbach’s car had not yet been found. The next day, Manitowoc County detective James Lenk received a request from Mark Weigert, one of the lead investigators in Halbach’s disappearance, to re-interview Steven Avery at his home (Sergeant Colborn previously questioned Avery). Upon his arrival, Lenk obtained consent from Avery to search Avery’s trailer home. Lenk and Dave Remiker, a fellow Manitowoc County detective, searched Avery’s trailer for approximately five minutes. The two found nothing of interest.
On the morning of November 5, as the search for Teresa Halbach intensified, members of the Manitowoc community met at an old farmhouse to form organized search teams. Among those present were Pamela Sturm—Halbach’s second cousin—and Sturm’s daughter, Nikole. After receiving instruction and a camera, Pamela and Nikole set out to look for Halbach at, among other places, Avery Salvage. They received permission to search the forty-acre property from Earl Avery, Steven’s brother, and discovered Teresa’s RAV4 just forty minutes later. By 3:00 pm that afternoon, investigators had obtained a two-page search warrant signed by Judge Jerome Fox, the first page of which provides as follows:
Relying on that warrant, the search of Avery’s trailer and detached garage began on November 5, and varied searches and investigative efforts continued through November 9. Of particular note, Avery’s trailer contained just two bedrooms, a bathroom, living room, dining room, and kitchen. In total, the single-floor trailer was roughly 700 square feet.
Based on the November 5 warrant, officers searched Avery’s trailer eight times and searched his garage four times. The most important search, of course, was the eighth search of Avery’s trailer—ninth if you count the initial consent search—during which Lenk found a key to Halbach’s RAV4. The key would later be introduced against Avery at his trial for murdering Halbach. Avery was ultimately convicted and sentenced to life in prison without parole on March 18, 2007.
How does the November 5 search warrant of the Avery property benefit students in the classroom?
The November 5 search warrant raises numerous issues. This post considers how the November 5 warrant aids student understanding of two basic, but often confusing, principles underlying search warrants: (1) the particularity requirement, and (2) the scope limits of executing a search warrant.
Particularity
At the outset of the Avery discussion, I remind students that the Fourth Amendment’s plain language, as well as Supreme Court precedent, make clear that a search warrant must state with particularity the place to be searched and the things to be seized. The Supreme Court has further commented that the particularity requirement “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.”
Against that backdrop of historic precedent, I first direct students to the third paragraph of the November 5 warrant. Specifically, I guide students to the following portion of the third paragraph: “On the property, there are numerous outbuildings and vehicles, those that are operational and also junked and scrapped vehicles, associated with the salvage yard business.” The warrant goes on to list six categories of evidence, but does not connect any one category to a particular building or junked car. With that in mind, I ask students whether that satisfies the Fourth Amendment’s particularity requirement.
To facilitate answering that question, I offer the following straightforward hypothetical. Imagine there are two vehicles parked in a suspect’s driveway. Assume that, of those two vehicles, police suspect that just one contains evidence of a crime. In applying for a search warrant, then, police describe the suspected vehicle with particularity to comply with the Fourth Amendment. But in doings so, police could not simply apply for a general warrant to search both vehicles located on the suspect’s driveway. From that hypothetical, I ask a simple follow-up: Why would the Avery salvage yard be treated differently?
That introductory discussion permits the class to dive deeper into three concerning aspects of the November 5 warrant. First, the warrant lists certain items to be searched for without connecting those items to either of the two trailers or any one of the roughly four thousand vehicles on the Avery property. Second, it fails to mention any other of the 13 total buildings on the Avery Salvage property, which raises the question of whether those undescribed places fall in or out of the warrant’s scope. Lastly, the affidavit leaves for debate how much of the described property was connected to Halbach—particularly since officers found noting during the consent search on November 4 (which the affidavit in support of the November 5 warrant fails to mention).
We then focus on the first two paragraphs of the warrant—i.e., the paragraphs that describe the two trailers that respectively belonged to Avery and his sister, Barbara Jada. I ask whether specifically listing those two properties excludes the other 13 buildings on the Avery property from the scope of the November 5 warrant. Or, in the alternative, does paragraph three—broadly describing the Avery compound—act as catch-all that also permits searching those other buildings and vehicles?
As for my take, the November 5 warrant—as written—cannot act as a catch all that permits searching any building or vehicle on the Avery property. Choosing just two trailers in the warrant to request to search is particularly problematic given that the property was 40 acres in size and contained a total of thirteen buildings and roughly four thousand vehicles. If officers had a reason to search one of those buildings or vehicles, they presumably would have requested to do so in the search warrant—but no such request was made. Further, the officers could have later applied for a follow-up warrant to extend their search to a particular building or vehicle, yet chose not to. Thus, to me, the November 5 warrant does not authorize a full search of the Avery salvage yard.
The Scope of Executing a Search Warrant
I next focus the class on what limitations officers have when executing search warrants. Specifically, and of particular interest considering the Avery facts, I ask students the following: how many times may police enter a residence based on the issuance of just one warrant? The question seems exceptionally relevant to Avery given that officers searched his trailer eight times before finding the key to Halbach’s RAV4. If a warrant permits just one entry, then surely that key is inadmissible. On the other hand, if a warrant permits multiple entries, then the key is admissible. That raises the question, though, of just how many entries are permissible on the authority of a singular search warrant.
The Supreme Court has never answered that question. But consider United States v. Keszthelyi wherein officers arrested Keszthelyi and searched his home pursuant to a search warrant on October 8, 1999. Relying on that same warrant, officers again searched Keszthelyi’s home the following day, October 9. Keszthelyi argued that the October 9 search was impermissible under the auspices of the initial warrant because officers needed a new warrant founded on separate probable cause.
In concluding that the October 9 search required a new search warrant, the Keszthelyi court discussed and applied what lower courts call the “reasonable continuation” rule. According to that rule, a single search warrant may authorize more than one entry into the premises identified in a warrant when the following two requirements are met: (1) the subsequent entry must be a continuation of the original search, and not a new and separate search; and (2) the decision to conduct a second entry to continue the search must be reasonable under the totality of the circumstances. With respect to the first requirement, the Keszthelyi court noted that the inquiry turns on whether all available evidence was collected during the original search and whether officers were there long enough to be thorough and fully execute the warrant. As for the second requirement—the reasonableness element—the court wrote that the question is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure.”
Applying the Keszthelyi test to Avery, I ask students whether the November 5 warrant authorized officers to search Avery’s trailer eight times. To my mind, there is no way that the eighth entry into Avery’s trailer—when the RAV4 key was found—constitutes a “reasonable continuation” of the first search that took place days (and seven searches) earlier. In my experience, students see that for themselves after reading Keszthelyi.
Looking ahead
I’ll be back next week with thoughts on teaching the automobile exception through a pair of traffic stops that brought down TF Mafia.
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