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Attorney rebuts probable cause in severed-head murder case

Daniel Evan Wacht, left, is accused of the murder of Kurt Douglas Johnson.

COOPERSTOWN, N.D. -- A judge said Thursday he will rule soon on whether police had probable cause to search the van and home of a Cooperstown man accused of killing a North Dakota State University researcher.

At stake is the bulk of the prosecution's physical evidence -- including the victim's severed head -- against Daniel Evan Wacht, 31, who faces life in prison without parole if convicted of murdering NDSU researcher Kurt Johnson. Wacht's jury trial is set to start April 16.

During a hearing in Griggs County District Court, Wacht's attorney argued that authorities didn't have probable cause to search Wacht's van on Jan. 5, 2010, the day after Johnson was reported missing.

Because evidence seized during that search led to two warranted searches of Wacht's home, defense attorney Steven Mottinger said evidence from all three searches should be suppressed.

During the last of the three searches, authorities found Johnson's severed head in Wacht's basement, buried in a crawl space with what appeared to be a bullet hole in the forehead, court documents state.

Authorities say Wacht also had blood stains in his house and a shell casing the same caliber and brand as the one that killed Johnson, whose body hasn't been found.

On Thursday, Judge Thomas E. Merrick took Mottinger's motion to suppress under advisement after hearing from him, State's Attorney Marina Spahr and three witnesses.

One of the witnesses was Johnson's relative, Ronald Berge, who reported him missing on Jan. 4.

Berge testified that, contrary to what Griggs County Sheriff Robert Hook wrote in his affidavit when applying for the search warrant for the van, Berge never actually spoke to Wacht and never told the sheriff that Wacht said he had taken Johnson to his house after they left the Oasis Bar on New Year's Eve. Berge said that information was relayed to him by bar patrons.

Wacht claims Johnson wouldn't tell him where he lived so he dropped him off outside The Fishbowl bar, but no one saw him do it.

Hook said he wasn't trying to mislead the judge who approved the warrant when he mischaracterized Berge's statements in the affidavit.

"It was a communication mistake between us," Hook said.

Arnie Rummel, a special agent with the state Bureau of Criminal Investigation, said the purpose of the first warrant was to search for evidence of Johnson's kidnapping, based on information that he had been in Wacht's van and was "extremely intoxicated" to the point that he probably couldn't have walked away from the van on his own.

"How do we get from somebody getting a ride home when they're intoxicated to a kidnapping?" Mottinger asked. "That's a long stretch, isn't it?"

Rummel replied that he doesn't believe "a missing person with no explanation" is that long of a stretch.

Authorities obtained the search warrant for the van at 12:25 a.m. on Jan. 5 but didn't search it right away. At about 6 a.m. that day, when Wacht arrived to work at Sheyenne Tooling in his van, authorities arrested him on a warrant out of California for a parole violation.

Wacht, who police say is known by the nickname "machine gun head" for a tattoo of a gun on the right side of his head, was carrying a stolen 9 mm pistol when he was arrested.

The van was sealed with evidence tape and towed to a body shop to be searched. Inside, authorities found five empty .223-caliber shell casings in an envelope on the floor and a live .223 round in a cup holder on the dashboard, Rummel said.

When asked if he found anything in the van connected to Johnson, Rummel said he saw spots that he believed to be blood, though under questioning from Mottinger he acknowledged they could have been field-tested but weren't. Later forensic testing found one of the spots to be blood, he said.

Rummel said the basis for the second search warrant wasn't just the ammo found in the van, but also Wacht's statements to police that he believed he should be able to carry a gun despite being a convicted felon. Police believed he may have other guns in his home, and Rummel said he would have applied for the second warrant even if he hadn't found the shells and live round in the van.

Prosecutors declined to comment after Thursday's hearing. Mottinger, when asked if the case against Wacht could proceed without the evidence he's seeking to suppress, said, "I'm sure the state's very hopeful that the search warrants stand up."