2010AP411-CR State v. Avery

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Search and Seizure
Continuing search

Where a warrant covered many acres and numerous buildings, a search occurring six days after issuance of the warrant was part of a continuous search for which a second warrant was not required.

“In addition to Avery’s trailer, investigators were dealing with the search of the salvage yard and the approximately 3600 to 3800 junked cars and numerous buildings on the property. On Sunday, November 6, search teams ‘were accounting for the vehicles, the trunks of vehicles, underneath the vehicles, and the insides of the vehicles; the car crusher, the crushed vehicles … the buildings and even maybe starting some of the surrounding areas.’ That surrounding area consisted of six- to eight-hundred acres of property to be searched, including ponds and lakes. The investigators were also conducting off-site interviews and following up on various leads both on and off the Avery property.”

“Fassbender testified that because of these other investigative activities, a team was not sent back to Avery’s trailer until Tuesday, November 8, to ‘hopefully do a final, thorough search of that trailer.’ At that time, the property was still under the control of law enforcement and the case was still developing. Fassbender confirmed that the evidentiary significance of items observed in the buildings changed during the course of the week. Searches leading up to the November 8 search had uncovered .22 caliber shell casings in Avery’s garage and the presence of blood or potential presence of blood in Avery’s trailer. In addition, information gathered during interviews indicated that Avery’s initial story was inconsistent with later stories and other individuals were contradicting his statements.” Click here to subscribe to Wisconsin Law Journal today

“Based on our review of the circumstances existing at the time of the November 8 search, we are satisfied that it was a continuation of the ongoing search which commenced on Saturday, November 5. As in Squillacote, the number and type of items identified in the search warrant necessitated an extensive and exhaustive search. See Squillacote, 221 F.3d at 557. The lateness of the hour, the weather conditions, and the extensive and intensive nature of the search make it apparent that the search of Avery’s trailer could not have been completed on November 5. See id. Further, the continuous presence of law enforcement at the Avery salvage yard and their continuous control over Avery’s trailer from the time of the first search to the time of the sixth search belies any argument that the search of Avery’s trailer was fully executed at an earlier time.”

Affirmed.

Recommended for publication in the official reports.

2010AP411-CR State v. Avery

Dist. II, Manitowoc County, Willis, J., Neubauer, J.

Attorneys: For Appellant: Askins, Martha K., Madison; Hagopian, Suzanne L., Madison; For Respondent: Fallon, Thomas J., Madison; Gahn, Norman A., Milwaukee; Kassel, Jeffrey J., Madison; Froehlich, Jeffrey S., Chilton; Dietz, Jerilyn, Chilton

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