“At one point we found a key…. It was on the floor when we found it.”

—Deputy Daniel Kucharski

“And the first time [the slippers] were moved, nobody saw the key?”

—Avery's preliminary hearing counsel

“The key wasn't there the first time they were moved.”

—Deputy Daniel Kucharski

About two years after Steven Avery was released from prison, a young photographer named Teresa Halbach was reported missing. And just as they had done twenty years earlier in the Penny Beerntsen case, the Manitowoc Sheriff's Department made Avery their sole suspect. But this time, unlike the earlier Beerntsen investigation, the sheriffs eventually produced some actual physical evidence. This evidence, the state claimed, proved that Avery kidnapped Halbach, murdered her, and incinerated her body just a stone's throw from his bedroom window.

At the time Halbach went missing, Avery was suing the Manitowoc Sheriff's Department for millions of dollars for his previous, wrongful conviction. And because of the sheriff's obvious conflict of interest, the Halbach investigation was being conducted by other law enforcement agencies. No one from the Manitowoc Sheriff's Department was supposed to be involved in the investigation, let alone actively searching Avery's property. Yet, it was the Manitowoc sheriff deputies who claim to have found the physical evidence that linked Avery to the crime.

Given these highly unusual and suspicious circumstances, wouldn't Avery be able to invoke his constitutional right of privacy to protect him from another wrongful conviction?

THE FOURTH AMENDMENT

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects….”1 Further, the US Supreme Court held that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”²

In Making a Murderer, the officers from the Manitowoc Sheriff's Department entered Avery's home and searched it. In fact, they did so multiple times. On their sixth entry and search, they allegedly found the key to Teresa Halbach's vehicle—the key they claimed was sitting on his bedroom floor in plain sight, yet somehow was overlooked during their first five searches. The key was a critical piece of evidence for the state, as it helped link Avery to Halbach.

The documentary made a compelling case that the key had not been overlooked during the earlier searches; rather, it may have been planted there on the sixth search by the Manitowoc Sheriff's Department—the agency that was supposedly barred from any meaningful participation in the investigation. The defense argument, essentially, was this: had the key really been sitting on the floor, it would have been discovered during one of the first five searches where officers were literally on their hands and knees for hours, combing the room for even the smallest pieces of evidence.

This trial defense may sound persuasive but, as defense attorney Dean Strang said, blaming the cops for planting evidence is the defense lawyer's last resort, not his first choice—particularly in a government-loving community like Manitowoc, Wisconsin. Therefore, before trial, the defense team asked the judge to suppress, or exclude, the key so that the jury would never see it or hear about it.3 One of their arguments was that law enforcement violated Avery's Fourth Amendment rights by entering and searching his home a sixth time.

The judge denied the motion, the state used the key at trial, and, as Strang had feared, the jury ultimately believed the government—or at least believed that the government was framing a guilty man. After Avery was convicted, he appealed the trial judge's ruling and argued, again, that law enforcement violated his Fourth Amendment rights.⁴ Therefore, Avery claimed, he should get a new trial where the state would have to prove his guilt without using this (literally and figuratively) key piece of evidence.

THE NATURE OF THE FOURTH AMENDMENT

Despite the Supreme Court's lofty language about the noble purpose of the Fourth Amendment and the sanctity of the home, judges do not like the constitutional right of privacy. And they are not alone in this view. Most people outside of the legal profession view the Fourth Amendment as a mere “technicality” that protects only the guilty.

To illustrate this, a comparison to another constitutional right, the Sixth Amendment right of confrontation, will be helpful. Assume that a defendant is charged with burglarizing a victim's home. At trial, the state calls a witness who claims to have seen the defendant commit the crime. In such a case, the defendant has the Sixth Amendment right “to be confronted with the witnesses against him,” which, for our purposes, means the defendant's lawyer is allowed to cross-examine the witness.⁵ The topics for cross-examination might include the witness's ability to see the events in question, the witness's ability to accurately remember what he now claims to have seen, and, perhaps most significantly, the witness's bias, motive, and prejudice against the defendant.

In this burglary example, if the trial judge were to prevent the defense lawyer from cross-examining the witness and the defendant was convicted, the appellate court would probably agree that the defendant's Sixth Amendment right of confrontation was violated.6 The reason: if the defense lawyer is not permitted to test the credibility of the accuser through cross-examination, then we have no way of knowing whether the defendant is actually guilty.

The Fourth Amendment right of privacy, however, is very different from the Sixth Amendment right of confrontation. In a Fourth Amendment challenge, it is the rare case that a defendant says the physical evidence he is trying to suppress was planted. (And even in those rare cases, few people will believe him.) Rather, when a defendant moves to suppress evidence, his guilt has already been established. Therefore, if a judge were to grant the defendant's motion and suppress the evidence, a guilty person will evade the government's reach, thereby escaping his (presumably) just punishment.⁷

This makes the Fourth Amendment very unpopular with judges. To paraphrase prosecutor Ken Kratz's closing argument in Avery's trial, the popular view is that constitutional rights are only for the innocent—or at least those who might be innocent. The Fourth Amendment, on the other hand, only benefits the guilty. In fact, if the defendant was innocent, there would be no evidence to suppress, and there would be no Fourth Amendment issue to begin with.

This is the unfortunate, anti-privacy backdrop against which Avery's Fourth Amendment challenge—and the Fourth Amendment challenges of defendants across the country—must be viewed.

THE REASONABLENESS CLAUSE

When the police obtain a warrant to search a suspect's home, the suspect-turned-defendant can later challenge that search by arguing that the warrant was improperly issued by the judge. An egregious example of improperly issued warrants is the Georgia judge who was caught pre-signing a stack of warrants for law enforcement officers to use as they saw fit.⁸ Such disdain for our privacy rights, quite obviously, defeats the purpose of the Fourth Amendment's warrant requirement: to ensure independent review by a (hopefully) neutral and detached magistrate.

Avery's appellate lawyers, however, did not challenge the court's issuance of the warrant. Rather, they challenged the way that law enforcement carried out, or “executed,” the warrant. In so doing, they relied on “the reasonableness clause” of the Fourth Amendment, which “requires that warrants be reasonably executed” by the government agents who search the defendant's home.9

Perhaps the most dreaded word for any criminal defense lawyer is the word “reasonable,” along with all of its variations such as “reasonably” and “reasonableness.” When the defense lawyer sees this word as part of a legal test or standard, he knows his client's ship is sunk. The word reasonable is so vague and flexible that, when placed in even the most inept judicial hands, any law enforcement action can be justified after the fact. But fortunately for Avery's appellate lawyers, in the Fourth Amendment context there are two surprisingly specific sub-rules that define what is reasonable. These sub-rules, in turn, should constrain judicial abuse of our privacy rights—at least in theory.

First, in order to be reasonable, “searches are subject to the ‘one warrant, one search’ rule.”¹⁰ And for good reason, because if the police could get a warrant and then search and search again, as often as they wished, the “warrant could become a means of tyrannical oppression in the hands of an unscrupulous officer to the disturbance or destruction of the peaceful enjoyment of the home….”¹¹ Therefore, when the police get a warrant to search a suspect's home, the reasonableness clause demands that they conduct their search, and then get out and stay out.

And there is a second sub-rule to help define what is reasonable: when searching, the police may only seize items authorized by the warrant.¹² For example, a very common search warrant in Wisconsin is one that permits the police to enter and search a person's home for drug evidence—typically marijuana. (Citizens of Colorado and some other states probably cannot imagine such a search occurring at all, let alone with regularity.) When executing such a warrant, the police would probably violate the reasonableness clause if, during their search, they also seized the defendant's collection of philosophy books. (Surprisingly, however, taking the defendant's phone, computer, money, and personal documents might very well be permitted depending on the language of the warrant—but that is a matter for another book.)

Given these two specific sub-rules designed to constrain judicial abuse when deciding, after the fact, whether a search was reasonable, Avery's appellate lawyers appeared to be on solid ground. In fact, we don't even have to go beyond the first sub-rule. The judge's legal analysis, for Avery's case, should have gone as follows. Issue: did law enforcement officers violate the Fourth Amendment when they searched Avery's trailer a sixth time and allegedly found Halbach's car key? Rule: “One warrant, one search.” Analysis: six is more than one. Conclusion: suppress the evidence.

But such an analysis would be too simple, too clear, and would not serve the government's interests. Therefore, the courts have created an exception to the sub-rule.

THE RETURN OF “REASONABLE”

Unfortunately for Avery, “courts have recognized an exception to the ‘one warrant, one search’ rule where a subsequent entry and search are a reasonable continuation of the earlier one.”13 These reasonable continuation searches are permitted, and any evidence obtained in those searches can be used against the defendant at trial.

There is that word “reasonable” again, and it nearly always spells doom for the defendant. Recall that we began with the rule that police must execute a search warrant reasonably. Then we got a much-needed sub-rule that offered specificity and structure: “one warrant, one search.” But now the courts have developed an exception to the sub-rule that returns us to the much vaguer and more flexible reasonableness standard. In a sense, we've come full circle.

The question, then, under this exception, is whether law enforcement's sixth search of Avery's home was a reasonable continuation of the first search. To answer this question we need to dive into the facts (all of which were set forth in Avery's appellate brief and include citations to the original court transcripts).¹⁴

The court issued the warrant to search Avery's trailer on November 5. On this day, law enforcement conducted a quick search and left, and then went back to search more thoroughly. This second search was conducted by four officers who spent more than two hours combing through every inch of Avery's tiny 700-square-foot trailer. This search included Avery's bookcase, as well as the area between the bookcase and the bed. During this search they seized fifty items. They took everything they thought might have evidentiary value, and they believed they had completed their search. In the days that followed, law enforcement reentered Avery's trailer for various reasons a third, fourth, and fifth time. None of these first five searches produced any evidence that belonged to Halbach or that placed her in the trailer. Nor did they produce any evidence linking Avery to the crime.

On November 8, however, law enforcement officers went back into Avery's bedroom a sixth time and claimed to have found Halbach's car key on the floor in plain view. However, in order to make a jury believe that they didn't plant the key, they needed to explain how they could have overlooked the key in their first five searches—one of which was so thorough that the cops were on their hands and knees, literally combing the floor for microscopic evidence. Their explanation: the key was never there during the first five searches; rather, it fell out of the bookcase when Sergeant Andrew Colborn went back into the bedroom, for the sixth time, allegedly to seize Avery's pornography collection from his bookshelf.

Avery's appellate lawyers explained it this way: “[E]ven though ostensibly in the bedroom only to retrieve pornographic material from the bookcase, Sergeant Colborn…tipped the bookcase to the side and twisted it away from the wall.”15 Colborn even testified, “I will be the first to admit, I wasn't any too gentle, as we were, you know, getting exasperated. I handled it rather roughly, twisting it, shaking it, pulling it.”¹⁶ Then, Avery's appellate lawyers continued, “[a]fter jostling the bookcase, Colborn was ‘very surprised’ to see a car key lying on the floor between the bookcase and bed.”¹⁷

It's not clear why someone taking pornography off a bookcase would tip, twist, shake, and pull the bookcase on which the pornography lay. But again, the sheriffs needed to offer some explanation for how the key simply appeared on the floor out of thin air. The problem for the sheriffs, however, was that by generating this explanation to satisfy the jury at the upcoming jury trial, they were admitting to an illegal search. And if the search was illegal, the evidence should be suppressed, and the jury would never see or hear about the key.

More specifically, Colborn's explanation proves that the sixth search was not a “reasonable continuation” of the earlier searches, for two reasons. First, the earlier, four-officer, two-plus-hour search was completed and all the evidence they wanted to collect had been collected.18 And a warrant only allows for one search. The police had their one search, along with four reasonable continuations of that search, for a grand total of five searches. Their search was finished. There simply was nothing to be “continued” by the sixth search, and the sixth search was therefore illegal.

And second, recall the previous sub-rule that, when searching a suspect's home, law enforcement may only seize the items named in the warrant. And in this case, Colborn said that he went back into Avery's bedroom to take pornography from the bookcase. Then, in order to take the pornography, he tipped, twisted, shook, and pulled the bookcase, thus explaining the otherwise inexplicable key that appeared on the floor out of nowhere. The problem, of course, is that pornography was not listed in the warrant as an item that could be seized during the search.¹⁹ Nor should it have been; there is nothing illegal about adult pornography, it is incredibly common, and it in no way constitutes evidence of murder. In a nutshell, law enforcement officers went beyond the scope of the warrant, their execution of the warrant was not reasonable, and the evidence discovered as a result of the sixth search must be suppressed. The key, therefore, should never have been used at trial.

But despite this logical and seemingly inescapable conclusion, we know from watching the documentary that the key was used at trial. (Readers may remember Avery's defense lawyer Jerry Buting holding it during trial, suggesting that, had it actually dropped from the bookcase as the sheriffs claimed, someone would have heard it.) But why was the state allowed to use the key at trial if it was found during law enforcement's illegal search and seizure? The answer is that, despite the facts, the court simply found that law enforcement's execution of the warrant was “reasonable.”²⁰ And the court got very creative in finding ways to justify this predetermined conclusion.

For example, in their brief, Avery's appellate lawyers cited the testimony of an officer who searched Avery's room during the earlier, four-officer, two-plus-hour search. That officer testified that the search had been completed, and they had collected everything they intended to collect, days before Colborn reentered Avery's room to seize the pornography. But this government agent's testimony did not support the court's predetermined outcome. Therefore, the court simply dismissed it as “arguably ambiguous testimony” from a “mere foot soldier.”21

Similarly, even though Colborn testified under oath about his purpose in reentering Avery's bedroom the sixth time, the court decided to look for a different explanation. The court preferred the testimony of Colborn's supervisor who claimed that Colborn was “also there to conduct a final, thorough search of the trailer.”²² The court was not at all troubled that this account conflicted with Colborn's own testimony about why he was really there and what he was actually doing.

In sum, the appellate court handled the facts of Avery's case the same way Colborn handled the bookcase: it tipped, twisted, shook, and pulled until it got what it wanted. And just as Colborn's jostling of the bookcase magically produced a key piece of evidence against Avery, so too did the appellate court's rigorous jostling of the facts magically produce its desired result. The sixth search was a reasonable continuation of the first, second, third, fourth, and fifth searches of Avery's trailer. Therefore, the court concluded that the key was properly used at trial to convict Avery.

INEVITABLE DISCOVERY

Sensing, perhaps, that its legal analysis on reasonableness stretched credulity, the appellate court used a second exception to justify law enforcement's multiple searches of Avery's trailer. This second exception would also come in handy in the unlikely event that the Supreme Court of Wisconsin were to review the case—something it ultimately, and unsurprisingly, declined to do. The appellate court held that “the fruits of an illegal search nonetheless may be admitted if the tainted fruits inevitably would have been discovered by lawful means.”²³

This inevitable discovery doctrine says that, even when law enforcement violates the Fourth Amendment in collecting evidence, the evidence can still be used against the defendant as long as the cops would have found the evidence some other way. And there are more sub-rules to apply when deciding whether the evidence would have inevitably been discovered: first, before the illegal search—here, the November 8 entry to seize Avery's pornography—the government must have had other leads and was “actively pursuing some alternate line of investigation”; and second, there was “a reasonable probability that the evidence in question”—here, the car key—“would have been discovered” through the alternate line of investigation.24

To decide whether the car key would have been inevitably discovered through lawful means, we must, once again, dive into the facts. The state pointed to numerous other lines of investigation that law enforcement officers pursued, including searches of Avery's property outside of his trailer where they found physical evidence linking him to the crime. In fact, all of these lines of investigation pointed to Avery as the sole suspect. Therefore, the state argued, there was a reasonable probability that the cops would have found the key anyway.²⁵

Avery's appellate lawyers, however, pointed to other facts. Law enforcement had already searched Avery's room, including the bookcase, and no key was found.²⁶ That part of the search was completed. Had Colborn not illegally reentered the room to take Avery's pornography—again, an item not named in the search warrant and certainly not evidence of a crime—none of the other lines of investigation would have led the cops back inside the trailer, let alone to the bookcase. And there was certainly no line of investigation that would have caused them to jostle the bookcase by tipping, twisting, shaking, and pulling it.

Therefore, the defense argued, despite these other lines of investigation, “the leads did not make it inevitable that the police would look for and find the Toyota key hidden in a bookcase in Avery's bedroom.”²⁷ There simply was not a reasonable probability that the key would have inevitably been discovered; rather, it was only discovered because of Colborn's illegal entry and seizure of the pornography.

The court, however, was persuaded by the state. The court reasoned that law enforcement was conducting a search, outside of Avery's trailer, that produced physical evidence against Avery. It then held that “[a]rmed with evidence pointing to Avery's involvement, we are satisfied that the police would have continued the search of Avery's trailer until all areas had been inspected—including that area in between Avery's bed and bookshelf where the key to Halbach's vehicle was discovered.”28

The court's reasoning, however, misses the point. To begin, according to the cops the key was not just sitting “in between Avery's bed and bookshelf”; rather, it supposedly fell there during the jostling of the bookcase.²⁹ But that aside, the court ignores that the cops already searched Avery's trailer from top to bottom, including the four-officer, two-plus-hour search that included a search of the bookcase and a thorough search of the floor between the bed and the bookcase. So how could the court conclude that, given the evidence the cops were allegedly finding outside, they would have gone back inside to re-search Avery's trailer a seventh or eighth time? More to the point, how would the evidence they were finding outside the trailer lead to a reasonable probability that they would go back into the trailer's bedroom to jostle the bookcase?

Of course, the word “reasonable” has, once again, sunk Avery's ship. In hindsight, any court can simply decide it was reasonably probable that the illegally obtained evidence would have inevitably been discovered some other way. This exception, too, has swallowed the rule. “The doctrine of inevitable discovery [has become] an open door through which the fruits of all defective searches may be transformed into admissible evidence. The doctrine [has] become a vehicle abrogating the right of all citizens to be free from unreasonable searches and seizures.”³⁰

MUCH ADO ABOUT NOTHING?

The defense team's motion to suppress evidence, when viewed against the backdrop of the judiciary's disdain for the Fourth Amendment, seems like an exercise in futility. To begin with, from the judge's standpoint there is overwhelming evidence of Avery's guilt. Then, when Avery's defense team moves to suppress that evidence, the judge has numerous sub-rules, exceptions, and reasonableness tests at his disposal—all of which are designed to reach a predetermined outcome: the denial of Avery's motion to suppress and, therefore, the admission of the evidence at trial.

But even if a judge made an honest attempt to apply these intricate, hyper-technical rules in good faith, would it matter? What if the judge had found that the police had no business going back into Avery's bedroom a sixth time to take his pornography collection? What if the judge had found that, given all of the new leads being developed outside of Avery's home, the police would have followed those leads instead of nonsensically re-searching Avery's bedroom yet again? In either of these situations, would the judge really have suppressed the key and excluded it from Avery's trial?

Probably not. The reason is that, even when all of the sub-rules, exceptions, and reasonableness tests fail, the government still has one last bullet in the chamber: the Fourth Amendment right of privacy has been separated from its remedy. What this means is that, even when the defendant can clearly establish that the police violated the Fourth Amendment, this does not mean that he has a right to have the evidence excluded from trial under the so-called exclusionary rule. The US Supreme Court explains it this way:

The fact that a Fourth Amendment violation occurred…does not necessarily mean that the exclusionary rule applies. Indeed, exclusion has always been our last resort, not our first impulse, and our precedents establish important principles that constrain application of the exclusionary rule.

First, the exclusionary rule is not an individual right and applies only where it results in appreciable deterrence. We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation. Instead, we have focused on the efficacy of the rule in deterring Fourth Amendment violations in the future.

In addition, the benefits of deterrence must outweigh the costs. We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence. To the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against its substantial social costs.31

Now, imagine this rule in the context of the Manitowoc Sheriff's Department investigating the heinous and senseless murder of Teresa Halbach. Would the benefits of possible future deterrence—that is, deterring the police from illegally seizing a suspect's pornography collection in the future—justify the “substantial social costs” of suppressing relevant evidence—the car key—in a murder case? Of course it wouldn't.

Therefore, by separating the underlying right from its remedy, the US Supreme Court has formally incorporated the Wisconsin judiciary's dislike of the Fourth Amendment into the analysis; the guiltier the defendant appears to be and the more serious the crime with which he is charged, the more likely the judge will allow the evidence to be used at trial (despite the Fourth Amendment violation in obtaining it).

Of course, this separation of the underlying right from its remedy does two things. First, it reduces the Fourth Amendment's grand language to an empty catchphrase, and second, it actually creates a misnomer. That is, with evidence rarely being excluded because of the “substantial social costs” of doing so, the exclusionary rule, if it still exists, would more accurately be called the exclusionary exception.

But regardless of whether the court relied upon the reasonable continuation exception, the inevitable discovery exception, or the social cost exception to the poorly named exclusionary rule, the outcome was predetermined before the analysis began: the key was coming into evidence at Avery's trial.