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On Friday, Judge Patrick Taggart denied a motion to suppress evidence sought by attorneys for former rural LaValle residents Edward J. O'Brien, 32, now of Onalaska, and Rebecca K. O'Brien, 28, now of Sparta. The O'Briens face charges of possessing automatic rifles, illegal silencers, explosive materials and a running pot-growing operation after a search of their home last year.
Edward O'Brien had called the Sheriff's Department on June 12, 2007, saying he and Rebecca had had a verbal dispute over getting a divorce and she had left the home, according to court records. Because of concerns for her welfare, deputies responded and began searching for the missing woman.
In testimony during a hearing in April, Edward said he was searching an area behind his house and found Deputy Steve Pyfferoen on his property looking around with a flashlight. He said the deputy pressed him to allow a search of his home.
Edward told the court he said no. He claimed Pyfferoen threatened him with charges of obstructing an officer.
After another deputy arrived a few minutes later, Edward claimed Pyfferoen eventually took a threatening stance with his hand on his sidearm.
Then Pyfferoen went to the door, which was unlocked, drew his gun, pulled out his flashlight and went into the home.
The other deputy also drew his weapon and pointed it at the homeowner, Edward said.
Pyfferoen's testimony was consistent with his statements in an earlier preliminary hearing. He said he initially met Edward about a quarter-mile from the home and they began searching for Rebecca. He said Edward appeared nervous and tried to keep the officer away from the house on Bobolink Court.
After they had been searching ditches and wooded areas for more than an hour, Pyfferoen said he and the other deputy met Edward on the road near his property where he pressed Edward to let him search the home. He said he wanted to see if Rebecca had returned or if there were signs of foul play.
"I was concerned there was more that had taken place than he was letting on," he told the court. "I had to rule out there had been a disturbance."
Edward reluctantly gave them verbal permission to enter the home, Pyfferoen said.
Once in the home, Pyfferoen said he detected a strong odor of marijuana and arranged to get a search warrant.
While searching the home after getting the warrant, officers say they found a hydroponic marijuana growing-operation, including more than 60 live and dried plants; boxes and bags of pot; about 35 rifles, pistols and shotguns — some loaded — and two converted illegally to automatic fire; three firearm silencers made from plastic plumbing pipe; pipe casings with threaded ends and caps; black powder and Tannerite — an explosive powder used in pyrotechnic displays, records show.
In a 14-page written argument submitted to the court, Edward's attorney, Keith A. Belzer, and Rebecca's attorney, Cheryl M. Gill, both of La Crosse, say the officers' search of the O'Briens' home violated rights guaranteed in the U.S. and Wisconsin constitutions. They argue the decision whether to suppress the evidence should be based on who the court thinks is more credible, Edward or deputies at the scene.
Neither of the officers conducting the initial search for Rebecca could recall specifically what Edward said when they claim he gave them permission to enter the home, the attorneys argued. Also, Edward is aware of his rights not to have his home searched, so it is improbable he would agree to allow officers to enter when he had marijuana present, they wrote.
Assistant Sauk County District Attorney Kevin Calkins kept his arguments about the defense suppression motion to one page. He agreed the legitimacy of the search depends on the court's sense of the credibility of each party and left his arguments at that.
The court file and a copy of Taggart's ruling were not available to the public Friday because they were still being processed by the county clerk of courts office.
Belzer and Gill could not be reached for comment Friday. The O'Briens also were unavailable.
No dates have been set so far for new hearings or a jury trial for the O'Briens, according to court records.
