CONFESSIONS
Updated 1/27/10

4th Amendment Issues -- Attenuation of Taint from Illegal Arrest:
See "Search & Seizure -- Attenuation -- Statements"

6th Amendment Issues
  • Offense "Closely Related" to Formal Charge
  • Test for Assertion of Counsel

Miranda Issues
  • Custody (incl. "pre-Miranda" silence)
     

  • Interrogation
     

  • Waiver/Assertion of Rights
    • Voluntariness
    • Non-Offense Specific
    • Prior Assertion of Counsel
    • Reinitiated Contact
    • Ambiguous Assertion
    • Inaccurate Advice Re: Timing of Appointment of Counsel
    • Scrupulously Honoring Rights
    • Deaf Suspect
    • Custodial, Pre-Warning Assertion of Rights
    • Noncustodial Assertion / Administration of Rights
    • Re-Administration of Rights
     
  • Exceptions:  
    • Booking  
    • Good-Faith
       
  • Derivative Evidence

Suppression Hearing Procedure
  • Burden of Proof
  • Prior Assertion of Counsel
  • Unsworn Police Reports

Voluntariness
  • (SOTP Statements: go here)
  • "Honesty Testing"
  • Derivative Evidence
  • Electronic Recording
    • Adults
    • Juveniles
  • Statement to P.O.
  • Right to Silence During Direct Appeal
  • "Edwards" Violation
  • Police Coercion/Deception
  • Private Citizen's Coercion
  • Refusal to Admit Offense (as Condition of Sex Offender Treatment): see here.

 

Particular Miscellaneous Issues
     
  • Statements Taken in Foreign Jurisdictions
     
  • Testimony in Response to Illegally Obtained Statements
     
  • Prolonged Detention
     
  • Post-Polygraph



6th Amendment Issues

Offense "Closely Related" to Formally Charged Offense
State v. Scott Leason Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142
For Badker: Timothy A. Provis
Issue: Whether the bail jumping offense was closely related to the homicide, within the meaning of the 6th amendment, so that the right to counsel attached under the latter as well as the former offense.
Holding/Analysis: The 6th amendment right to counsel attaches once a formal charge has been issued, and precludes waiver of counsel during police-initiated interrogation. This right also attaches to any charge "closely related" to the formally-issued one(s). ¶20-21. Badker was charged with bail jumping for violating a no-contact condition of bond. Were the bail jumping and homicide "closely related"? No: They were separated by a few hours and 30 miles, and required proof of different elements.
Note: A recent U.S. Supreme Court case casts doubt on this methodology, if not the result. Texas v. Cobb:
We see no constitutional difference between the meaning of the term "offense" in the contexts of double jeopardy and of the right to counsel. Accordingly, we hold that when the Sixth Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the Blockburger test.
In other words, the focus is now on the elemental and not factual relationship of the offenses.

Note related issue about whether dual sovereignty doctrine should be imported into this area, U.S. v. Krueger, 7th Cir No. 04-2539, 7/28/05 ("one might conclude that a defendant’s invocation of his right to counsel as to a charge brought by a state government will not be treated as the invocation of his right as to the federal charge, irrespective of the common factual basis for the two charges" -- but court then canvasses contrary authority, and leaves issue open). See also U.S. v. Mills, 412 F.3d 325 (2nd Cir 2005) (Cobb does not support "a dual sovereignty exception to its holding that when the Sixth Amendment 17 right to counsel attaches, it extends to offenses not yet charged that would be considered the 18 same offense under Blockburger"); contra, U.S. v. Coker, 1st Cir No. 04-2154, 12/28/05 (all double jeopardy jurisprudence, including dual sovereignty doctrine, incorporated into 6th amendment right to counsel analysis).

There may be an argument in any given case where they apply, statutory double jeopardy defenses, § 939.71 (non-drug cases) and § 961.45 (drug), that as exceptions to the dual sovereignty doctrine, extend the right to counsel.

Assertion of Right to Counsel – Interrogation – Post- Charge Representation Insufficient in and of Itself
State v. Brad E. Forbush, 2010 WI App 11
For Forbush: Craig A. Mastantuono, Rebecca M. Coffee
Issue/Holding: The mere fact that an attorney represents a defendant formally charged with a crime doesn’t bar the police from questioning the defendant; State v. Todd Dagnall, 2000 WI 82 (“Dagnall was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge,” ¶4), overruled by Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009).
Forbush was arrested out of state, extradited, and interrogated on his return though an attorney had been retained. (At least, the court is “assuming he was represented because we conclude that even a represented defendant can waive the right to an attorney,” ¶5 n. 2.) The trial court suppressed under Dagnall. As the court of appeals notes, Dagnall holds that “the Sixth Amendment protects defendants from police interrogation if the defendant is formally charged and is represented by an attorney on that charge,” ¶9. In other words, “ Wisconsin concluded the right [to counsel] is automatically invoked as soon as a defendant is represented,” ¶10. But Montejo later came to a different conclusion, that the defendant must actually invoke the right to counsel; therefore:
¶13    We agree with the State that when the Supreme Court overruled Jackson, it also effectively overruled Dagnall. Not only did Dagnall’s holding rely on the Jackson rule, but Montejo eschewed Dagnall’s central tenet: that the right to an attorney is automatically invoked as soon as a defendant is represented.  See Montejo, 129 S. Ct. 2079, 2085. Montejo overruled this interpretation of the Sixth Amendment. 
What about “New Federalism,” the authority to grant greater protection under the state constitution? No dice: State v. Paul L. Polak, 2002 WI App 120 held that “the scope, extent and interpretation of the right to assistance of counsel is identical under [both constitutions]”; and, “historically Wisconsin’s Constitution has not provided greater protection than the United States Constitution to a charged defendant’s right to an attorney,” ¶¶14-16.
¶17      Forbush’s suppression motion was based entirely on his claim that he could not waive the right to an attorney. However, in Montejo the Supreme Court held to the contrary: police may interrogate a defendant charged with a crime who waives the right to an attorney. We conclude this holding is the law not only under the United States Constitution, but under the Wisconsin Constitution as well.
Minor procedural point: should the court of appeals have itself abrogated Dagnall, or left it to the supreme court? As far as the 6th amendment aspect is concerned, the court certainly has that power, State v. Edward Terrell Jennings, 2002 WI 44, ¶3 (“when confronted with a direct conflict between a decision of this court and a later decision of the United States Supreme Court on a matter of federal law, the court of appeals may, but is not required to, certify the case to us pursuant to Wis. Stat § 809.61. If it does not, or if this court declines to accept certification, the Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of this court”). It might, though, have been better form to certify the issue, especially when the state constitutional aspect is considered.

True, there is language in prior holdings to the effect that the right to counsel is the same under both constitutions. But it isn’t quite that simple, given that Carpenter v. Dane County, 9 Wis. 274 (1859) predated Gideon v. Wainwright, 372 U.S. 335 (1963) by more than a century. You’d think that a right-to-counsel issue of first impression ought be offered to the supreme court.

But there is another, potentially large if fact-contingent sticking point to using this case as a vehicle to overrule Dagnall. The court blandly asserts that “Forbush’s suppression motion was based entirely on his claim that he could not waive the right to an attorney.” Maybe, at the trial level. But on appeal he added a subtle, distinct, and potentially decisive claim, namely: Montejo didn’t change the principle that in the 6th amendment context (unlike the 5th) an equivocal request for counsel can’t support waiver; and, “(s)ince Forbush made at least an equivocal request for counsel during the 25-minute discussion with the Detective prior to signing a waiver of Miranda rights, he invoked his right to counsel, requiring suppression of his subsequent statement.” Recall that Forbush prevailed in the trial court, therefore as a respondent on appeal he can raise most any rationale he wishes in support of the result, whether or not he raised it below. In the narrow sense of delimiting review, his suppression motion is irrelevant, and the court of appeals was flatly wrong to ignore his alternative rationale in support of suppression. As to the details of that argument, first the legal principle. Just last Term, after Montejo had been decided, the supreme court reaffirmed the distinction between equivocal assertions of counsel under the 5th and 6th amendments, State v. Jennifer L. Ward, 2009 WI 60, ¶43 n. 5 (“We note that, after a defendant has been formally charged, the Sixth Amendment right to counsel applies, and in contrast to the Fifth Amendment right to counsel, an equivocal request for counsel in a Sixth Amendment context is sufficient to invoke that right.”). The footnote goes on to favorably cite State v. James H. Hornung, 229 Wis.2d 469, 600 N.W.2d 264 (Ct. App. 1999), which itself held that an equivocal assertion suffices under the 6th A. Forbush’s claim of an equivocal assertion appears to be compelling, despite the court of appeals’ inexplicable disinterest in the issue. If Forbush’s alternative argument is correct, something that appears quite plausible, then it would represent the narrow ground for affirmance, without need to reach viability of Dagnall. Two points, then. First, at least in the specific matter of equivocal assertions, a distinction remains between 5th and 6th A rights to counsel, even if the court of appeals has turned a blind eye. Second, whether or not it was required, the court of appeals’ refusal to certify the appeal is curious.

Post-Charge Waiver of Counsel for Interrogation
State v. Christopher D. Anson, 2002 WI App 270 (subsequent history: appeal following remand, 2004 WI App 155, PFR granted, 12/15/04)
For Anson: Steven J. Watson
Issue/Holding:
¶19. From the above cited waiver cases, coupled with our supreme court's observation in Dagnall, we reach the following conclusion: At the onset of post-charge pretrial police interrogations, the accused must be made aware that the adversarial process has begun and that he or she can request the assistance of counsel at the onset of post-charge pretrial police interrogations. This can be accomplished by informing the accused that he or she has been formally charged with a crime, by reading to the accused the Miranda warnings, or by anything else that would inform the accused that the adversarial process has begun. ...

¶20. In direct contrast to the defendants in both Dagnall and the waiver cases, the police did not read Anson the Miranda warnings nor was Anson made aware that the State had filed charges and issued an arrest warrant. ...

¶21. The State should not be permitted to circumvent the Sixth Amendment protections by undertaking a pretrial post-charge interrogation of a defendant who had not been read Miranda warnings, had not been informed of the charges filed against him or did not have sufficient information to know that he had the right to have an attorney present. We hold that the State violated Anson's Sixth Amendment right to counsel when it undertook its interrogation, and accordingly, the trial court erred when it failed to suppress Anson's statements.

(Moreover, custody isn't required for 6th amendment purposes, ¶¶22-23.)
Test for assertion of counsel.
State v. James H. Hornung, 229 Wis.2d 469, 600 N.W.2d 264 Ct. App. 1999).
For Hornung: Steven P. Weiss, SPD, Madison Appellate.
Holding: Request for counsel under sixth amendment (i.e., interrogation following issuance of formal charge) need not be as express as under fifth amendment (pre-charge interrogation): "the strict requirements for 'unequivocally and unambiguously' asserting one's right to counsel under the Fifth Amendment are somewhat less stringent under the Sixth Amendment." The question in the 6th amendment context is whether a reasonable police officer would, under the circumstances, have understood the suspect's assertion to amount to a request for counsel (vs. the 5th amendment's "more stringent" requirement of an unambiguous and unequivocal assertion). The facts in this case support a 6th amendment assertion, following which all questioning regarding the charges should have ceased: post-charge suspect asked officer if he should have an attorney, and if he could call an attorney whom the officer knew to be a criminal defense attorney.
Go To Brief
State v. Todd Dagnall, 2000 WI 82, 236 Wis.2d 339, 612 N.W.2d 680, affirming published decision.
For Dagnall: John D. Lubarsky, SPD, Madison Appellate
Issue1: Whether Dagnall properly invoked his Sixth Amendment right to counsel, by retaining and consulting counsel after formal charges were issued, so as to bar police interrogation.
Holding:
¶4 We hold that Dagnall was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge. Because Dagnall was an accused person under the Sixth Amendment who had an attorney to represent him on the specific crime charged, and because the attorney had informed the police of his representation of Dagnall and admonished them not to question his client about that crime, any subsequent questioning about that crime was improper.

¶62 Dagnall did not have to "invoke" his Sixth Amendment right to counsel because he was formally charged with a crime, he was in custody for that crime, he had an attorney and had communicated with that attorney, the attorney had admonished the authorities not to question Dagnall about the crime, and Dagnall had alerted authorities to the attorney-client relationship when he made his "my lawyer" remark. There is no dispute that the police knew Dagnall was represented by counsel.

Issue2: Whether Dagnall validly waived his Sixth Amendment right to counsel by speaking with the police after receiving Miranda warnings.
Holding:
¶65 In Patterson, 487 U.S. at 298, the Supreme Court held that a waiver of Miranda rights adequately satisfies the requisites for a valid waiver under either the Fifth or Sixth Amendments. Nonetheless, once the accused has invoked the Sixth Amendment right to counsel or once the accused has counsel, officers are "completely barred from approaching the accused" for a waiver "unless [the defendant] called for them." Id. at 291. Unlike Dagnall, the Patterson defendant was not represented by counsel. Id. at 290-91, 298-99. The Patterson Court indicated that its extension of the Fifth Amendment's waiver requirements to the Sixth Amendment did not apply to represented defendants. Id. at 290 n.3, 296 n.9....
Go To COA Brief
Go To S Ct Brief

Miranda Issues


Custody

Pre-Miranda Silence
State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School
Issue/Holding:

¶46      We agree with Mayo's position, and the State's concession at oral argument, that the prosecutor's remarks on Mayo's pre-Miranda silence, and the testimony she elicited in that regard, during the State's opening statement and case-in-chief, violated Mayo's right to remain silent under the Fifth Amendment of the United States Constitution, and Article I, Section 8 of the Wisconsin Constitution. We have held that it is a "violation of the right to remain silent for the State to present testimony in its case-in-chief on the defendant's election to remain silent during a custodial investigation, after arrest." Brecht, 143 Wis. 2d at 310-11 (citation omitted). When a defendant testifies, "references by the State during cross examination, on redirect and in closing arguments to defendant's pre-Miranda silence do not violate the defendant's right to remain silent." Adams, 221 Wis. 2d at 8 (citation omitted). However, the prosecutor's references to Mayo's pre-Miranda silence in her opening statement and examination of the State's witnesses, prior to Mayo's testimony, were a violation of Mayo's constitutional right to remain silent.

Miranda - Custody – High School Student not in Custody Despite Detention, Frisk and Incriminatory Questioning
State v. Colin G. Schloegel, 2009 WI App 85
For Schloegel: Sarvan Singh
Issue/Holding: High school student Schloegel was not in custody for Miranda purposes, notwithstanding that he was frisked by police officer, compelled under school policy to consent to search of his car and asked, prior to formal arrest, incriminatory questions; analogy to State v. Dale Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998) deemed “compelling”:
¶10      The State agrees with two aspects of Schloegel’s argument. First, it concedes that Rudolph’s questioning of Schloegel in the parking lot was interrogation for Miranda purposes. Second, it acknowledges that Schloegel was not free to leave while Wilson conducted her investigation. Nonetheless, the State disputes that the level of restraint was “of the degree associated with a formal arrest.” See Goetz, 249 Wis. 2d 380, ¶11. Because Schloegel was not in custody, the argument goes, Miranda warnings were not yet required. The State emphasizes that Wilson was in control of the investigation up to and including the search of the vehicle. Although Thoenes and Rudolph were present at Wilson’s request, Schloegel’s summons to the school office and his cooperation in the subsequent search of his car were at Wilson’s direction. Rudolph’s role was described as “stand by,” in case things “got out of control.” Thoenes, a male, was present to conduct the frisk of Schloegel in the office because Wilson and Rudolph are female. Further, the State observes, the place and length of Schloegel’s detention were not consistent with being placed in custody. Rudolph estimated that no more than fifteen minutes passed between the time she met Schloegel in the school office and the discovery of the drugs in the car. She asked only a few questions after the drugs were found. The questions were asked in the school parking lot, not in a squad car or police station, which would be more intimidating. Schloegel was not cuffed, and Rudolph was known to Schloegel as the school liaison officer.

¶11      The State directs us to the circumstances in Gruen, 218 Wis. 2d at 598, where we concluded that Gruen was not in custody for Miranda purposes. There, Gruen was detained in a police van for about fifteen minutes, during which he was asked only a few questions. Id. Only two officers were present, and although Gruen was frisked, no guns were drawn. Id. We held that a reasonable person in Gruen’s position would not have considered himself to be in custody. Id.

¶12      The analogy is compelling. Here, the degree of restraint was even less than that seen in Gruen. Schloegel was not placed in a police vehicle when questioned and the investigation was being conducted primarily by Wilson. The circuit court phrased it well, stating that Schloegel, “if in custody at all, was in custody of the school and was not being detained by the police at that time.” We agree. Without custody, there is no Miranda violation. [2]

To some extent, this is an old story: if the only justification for seizing evidence is a search-incident rationale then, mirabile dictu!, the court stresses how of course the coercive atmosphere was tantamount to arrest. Net result is not merely inconsistent results over time, but an increasingly indecipherable border between stops and arrests. As Judge Posner astutely observed, in United States v. Burton, 441 F.3d 509, 511-512 (7th Cir. 2006): “Pigeonholing is no boon for defendants: it has put considerable pressure on the limits of the Terry doctrine. Both the permissible reasons for a stop and search and the permissible scope of the intrusion have expanded beyond their original contours, in order to permit reasonable police action when probable cause is arguably lacking.”

Start at the very beginning, the test for custody, which asks whether “a reasonable person in the suspect’s position would have understood the situation,” ¶7. OK, so start with the crucial fact that Schloegel was a high school student compelled to submit to authority on school property during school hours. Moreover, he was (according to his dob listed on CCAP) 17 at the time; a minor, in other words. Now consider the cast of characters: “School liaison officer, Mandy Rudolph, and Officer Thoenes of the Mequon police department were called to the office to assist in the matter. Assistant principals Matt Joynt and Carrie Wilson called Schloegel to the office,” ¶2. Though the court doesn’t mention Rudolph’s function beyond the bland “liaison” descriptor, she would have been, according to the Mequon school handbook, a “juvenile officer[] from the Mequon Police Department … assigned during part of the day to work in the high school.” A police officer, in other words. And the assistant principals? Those of you familiar with public schools will recognize the role of the AP as somewhat like that of ramrod (if you’re of a certain age, think, Rowdy Yates): someone responsible for order and discipline. Thus, Schloegel was in the company of no fewer than four officials, including two police officers, with all having some manner of coercive authority over him. He was frisked, his book bag and locker searched, required to give up his car key, grilled about contraband, and taken into the parking lot where the car was to be searched. Bit more than the usual “frisk” activity associated with a Terry stop, no? Don’t you think deeper analysis than facile analogy to Gruen is required?

Miranda - Custody
State v. Jeffrey L. Torkelson, 2007 WI App 272, PFR filed 11/30/07
For Torkelson: Timothy A. Provis
Issue/Holding: Custody, for purposes of Miranda, requires that the suspect’s freedom be restricted to a degree associated with formal arrest, and is as gauged by a multi-factor test articulated in State v. Zan Morgan, 2002 WI App 124, ¶¶13-14. None of those factors are present in this instance, where the suspect was never told he was under arrest and was questioned in a police lobby open to the public, while waiting for an ambulance (because he had taken a number of pills; but was never told he had to wait for the ambulance), ¶¶19-20. (Go here.)
¶21      Torkelson lists several factors he contends show he was in fact in custody. He first argues his decision to come to the police station in the first place was not voluntary because he came in response to an “ultimatum” from his wife Carrie. However, the fact that a decision was made while facing personal pressure, such as pressure from a family member, does not mean the decision was involuntary. Craker v. State, 66 Wis. 2d 222, 229, 223 N.W.2d 872 (1974). Nothing in Carrie’s demand would lead a reasonable person in Torkelson’s position to believe he was in the custody of the State while at the police station. [5]
 [5] Torkelson relies on Yarborough v. Alvarado, 541 U.S. 652 (2004). However, Yarborough involved a minor brought to the police station by his parents. Id. at 656. This made “the extent of [the minor’s] control over his presence unclear.” Id. at 665. Torkelson argues a marriage is similar because “one ignores the ultimatums of one’s wife at one’s peril.” However, a parent-child relationship is hierarchical, while a marriage involves two adults with equal authority relative to one another. Torkelson’s attempt to analogize Carrie’s “ultimatum” to demands by police is also unavailing, for the same reason.
Custody -- Juvenile Suspect
A.M. v. Butler, 7th Cir. No. 02-2882, 3/2/04
Issue/Holding1:
In determining whether a person is “in custody,” the question is whether, examining the totality of the circumstances, a reasonable person in the petitioner’s position would have felt “at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). In making this determination, “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442 (1984). The Court is clear that “the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323 (1994). See also, Maine v. Thibodeau, 475 U.S. 1144, 1146 (1986).

While giving lip service to the objective standard, stating that the trial court must “ascertain what a reasonable person, innocent of any crime, would perceive under similar circumstances,” the Illinois court shunned this objective test, substituting instead a focus on the subjective belief of Detective Cassidy. The court stressed that Cassidy believed Morgan was merely a witness and, for that reason, Miranda warnings were not required. That is not, however, the correct inquiry under Supreme Court precedent. …

Issue/Holding2:
Even without this error, the court’s evaluation of the totality of the circumstances, see, e.g., Thompson, 516 U.S. at 112, was objectively unreasonable. …

At the outset, we note that, in making the objective inquiry, Morgan’s age is an important factor. … Morgan was only 11 when he sat alone in the police interrogation room.

With Morgan’s age in mind, we turn to the circumstances of this case and note first that Morgan was not a seasoned juvenile delinquent. In fact, he had no prior experience with the criminal justice system when he was questioned for almost 2 hours in a closed interrogation room with no parent, guardian, lawyer, or anyone at his side. Since the police told his mother it was unnecessary for her to come to the station, he was at the mercy of the detectives to drive him home. Thus, he had no way of leaving the police station even if he felt he could leave. Nor was he ever told he was free to go or that he was not under arrest. Furthermore, compare this encounter with the police with his prior two, where he sat in a police car outside his own home and then at a desk in a public area of the police station, all while the police were “nice” to him. Finally, there are significant concerns regarding the mode of questioning. Morgan insisted that the detectives leaned closely in towards him when they spoke, promising him that both God and the police would forgive him for what he did, and assuring him that if he told the truth he could go home to his brother’s birthday party. Cassidy denied these activities but acknowledged that he was close enough to touch Morgan and that he repeatedly told Morgan that he was lying. All of these facts lead to the conclusion that a reasonable person in Morgan’s situation would have considered his freedom curtailed.…

Judge Easterbrook’s dissent points out that the Supreme Court has never held “that ‘custodial interrogation’ depends on the suspect’s age” (the Court must have enunciated a controlling principle before federal habeas relief may be entertained); and, indeed, a subsequently-decided case, Yarborough v. Michael Alvarado, 02-1684, 6/1/04 ("Our opinions applying the Miranda custody test have not mentioned the suspect’s age, much less mandated its consideration"), decision below: 316 F.3d 841 (9th Cir. 2003), makes the result in A.M. questionable .
Custody - already-incarcerated suspect.
State v. Tonnie D. Armstrong, 223 Wis.2d 331, 588 N.W.2d 606 (1999), reconsideration denied, 225 Wis.2d 121, 591 N.W.2d 604 (1999), on certification.
For Armstrong: Steven A. Koch and Seymour, Kremer, Nommensen, Morrissy & Koch.
Holding: Armstrong was in already jail when he was interrogated, without Miranda warnings, on an unrelated offense. He received the warnings only after he gave oral statements. He signed a written statement a couple of hours later. The supreme court holds the oral statements inadmissible. The prosecution has the burden of proving by preponderance of evidence "whether a custodial interrogation took place." "In custody," for purposes of Miranda, means deprived of freedom of action in any significant way. Thus, "a person who is incarcerated is per se in custody for purposes of Miranda." Armstrong, then, was in custody when the officers interviewed him at the jail. As to the separate "interrogation" - words or actions reasonably likely to elicit an incriminating response - requirement: The officers did not, at the outset, "interrogate" Armstrong, because they had no reason to know their questions were likely to elicit incriminating responses. This changed, however, once Armstrong admitted he was at the scene of the crime, and subsequent questioning amounted to "interrogation." And, since no Miranda warnings were administered until after the oral statements were given, they should have been suppressed.
Custody -- Detention During Execution of Search Warrant -- Effect of Handcuffing After Questioning
State v. Susan M. Goetz, 2001 WI App 294 For Goetz: Nila J. Robinson
Issue: Whether a person, detained during execution of a search warrant but not handcuffed until after questioning, was in custody for Miranda purposes.
Holding: A suspect detained during execution of a search warrant isn't in custody under Miranda. ¶12. In this case, Goetz was told she was neither under arrest nor would be arrested unless she interfered with the search. A reasonable person in this circumstance wouldn't have felt restrained to the degree associated with formal arrest (and, therefore, in custody under Miranda). ¶13. Although she was handcuffed after questioning terminated, the "retroactive" effect of this act is nil, "because a reasonable person's perception at the time of questioning cannot be affected by later police activity." ¶15.
(Note: The dissent would reject federal authorities "that hold that a person who is 'detained' during the execution of a search warrant is not in custody for purposes of Miranda," ¶22, in preference to a more expansive view of state constitutional protection, ¶25. The majority doesn't reject that view; indeed, the majority finds it "compelling," ¶18. However, Goetz hasn't made a state constitutional argument, and the majority therefore declines to reach the issue. Id.)
Custody -- Handcuffed in Squad
State v. Zan Morgan, 2002 WI App 124
For Morgan: Timothy A. Provis
Issue: Whether Morgan was in custody, for Miranda purposes, after being handcuffed and placed in the back of a squad car.
Holding:
Custody is determined under "the totality of the circumstances, including such factors as: the defendant's freedom to leave; the purpose, place, and length of the interrogation; and the degree of restraint." ¶12, citing State v. Gruen, 218 Wis. 2d 581, 594, 582 N.W.2d 728 (Ct. App. 1998). ("When considering the degree of restraint, we consider: whether the suspect is handcuffed, whether a weapon is drawn, whether a frisk is performed, the manner in which the suspect is restrained, whether the suspect is moved to another location, whether questioning took place in a police vehicle, and the number of officers involved.") Taking into account the idea that a Terry stop is not inconsistent with a triggering of Miranda rights, ¶16, Morgan was in custody for Miranda purposes:

¶17. Applying the factors we articulated in Gruen, we conclude that a reasonable person in Morgan's situation would have considered himself or herself in custody given the degree of restraint. The court found that the time between when he was handcuffed and when he was asked the question about the blunt was "very short" and, while there is no direct testimony on that time span, it is reasonable to infer from the record that the duration was not such as to weigh in favor of a conclusion of "in custody." However, we conclude that other factors would lead a reasonable person in Morgan's situation to believe he or she was in custody. Morgan was handcuffed; he was frisked; he was put handcuffed in a squad car with another suspect and then, upon the arrival of another squad car, the other suspect was put in that squad car so that Morgan was alone; and there were five officers on the scene at the time of questioning, including Smith. Although no gun was drawn on Morgan in the squad car, Officers Whyte and Smith had both drawn their guns on Morgan when he entered the apartment. The questioning of Morgan took place in a squad car, which, based on Officer Whyte's own testimony, Morgan could not leave. Only a single question is involved on this appeal, but the question directly asks about Morgan's connection to contraband found in the car Morgan was entering.

Note: The court alludes to, but doesn't attempt to resolve, the tension between the degree of force increasingly permissible for a Terry stop, and the triggering of Miranda rights. ¶13 n. 7. It doesn't follow, in other words, that just because Morgan was "in custody" for Miranda purposes that he would also be deemed under arrest for purposes of a fourth amendment challenge. See also ¶14, to effect that Morgan doesn't raise a fourth amendment challenge. And for a lengthy discussion of the factors determining when a Terry-type stop rises to the level of Miranda-triggering custody, see U.S. v. Newton, 2nd Cir. No. 02-1310, 5/26/04, stressing in particular the role of handcuffing:

Handcuffs are generally recognized as a hallmark of a formal arrest.... Thus, a reasonable person finding himself placed in handcuffs by the police would ordinarily conclude that his detention would not necessarily be temporary or brief and that his movements were now totally under the control of the police – in other words, that he was restrained to a degree normally associated with formal arrest and, therefore, in custody.

We do not overlook the fact that Newton was specifically advised that he was not being placed under arrest and that the restraints were being employed simply to ensure his own safety and that of the officers. But telling a suspect that he is not under arrest does not carry the same weight in determining custody when he is in handcuffs as it does when he is unrestrained....

Custody -- Terry-type Investigation
State v. Dale Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998)
For Gruen: Scott F. Anderson
Issue/Holding:
... (W)hether or not Gruen was being detained pursuant to a Terry stop, or had been arrested for Fourth Amendment purposes, is not the determinative consideration. The only important inquiry is whether, for Fifth amendment purposes, he was "in custody." To determine whether a person is in custody for Fifth amendment purposes:

...

An examination of the totality of the circumstances includes such relevant factors as the defendant's freedom to leave the scene; the purpose, place and length of the interrogation; and the degree of restraint. See State v. Leprich, 160 Wis.2d 472, 477, 465 N.W.2d 844, 846 (Ct. App. 1991); Swanson, 164 Wis.2d at 446-47, 475 N.W.2d at 152. In exploring the degree of restraint, courts have also considered as relevant factors: (1) whether the defendant was handcuffed; (2) whether a gun was drawn on the defendant; (3) whether a Terry frisk was performed; (4) the manner in which the defendant was restrained; (5) whether the defendant was moved to another location; (6) whether the questioning took place in a police vehicle; and (7) the number of police officers involved. The fact that a defendant was being temporarily detained pursuant to Terry v. Ohio, and §968.24, Stats., is obviously a relevant consideration, but is not by itself dispositive. See Pounds, 176 Wis.2d at 322, 500 N.W.2d at 377. After considering these factors, in the context of the totality of the circumstances, we conclude that Gruen was not in custody for the purposes of Miranda.

 


Interrogation


Functional Equivalent of Custodial "Interrogation"
State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate
Issue: Whether, following his in-custody invocation of right to counsel, Hambly’s subsequent statements that he didn’t know what was going on (eliciting the officer’s response that he’d sold cocaine to an informant) and wanted to talk to find out what his options were amounted to a initiation of contact authorizing interrogation within the Edwards rule.
Holding:
¶57      As in the Cunningham case, Rindt made a matter-of-fact communication of the evidence the police possessed. Rindt's comment was not as provocative as that at issue in Easley, in which the investigator not only spoke of evidence against the suspect but also warned the suspect that he could face the death penalty. Detective Rindt's comment may be favorably distinguished from the police conduct at issue in Innis, Easley, and Cunningham, because Rindt's comment was reasonably responsive to the defendant's own statement that he did not understand why he was under arrest.[60] Confronting a suspect with incriminating physical evidence, or verbally summarizing the State's case against the suspect, does not necessarily constitute the functional equivalent of express questioning. [61]

¶58      Although Meyer, the informant, was a childhood friend of the defendant, nothing in the record supports the suggestion that Rindt knew or should have known that his brief response would result in the defendant's further statements. An objective observer could not have concluded that Rindt's response to the defendant, who stated that he did not understand why he was under arrest, would likely elicit an incriminating response. Rindt merely stated that the defendant had sold drugs to an informant who had been cooperating with police during those transactions. We conclude that "[t]he compelling pressures of in-custody interrogation identified in Miranda as working 'to undermine the individual's will to resist and to compel him to speak' were not present in the circumstances of this case." [62]

¶66      For the reasons set forth, we conclude that Rindt's words and conduct did not constitute interrogation; Rindt did not engage in express questioning or the functional equivalent of express questioning after the defendant effectively invoked his Fifth Amendment Miranda right to counsel. Rindt's statement would not be viewed by an objective observer as the type of comment that would encourage the defendant to make some incriminating remark. A reasonably objective observer could not foresee that Rindt's conduct and words would elicit an incriminating response from the defendant.

The court distinguishes State v. Ondra Bond, 2000 WI App 118, affirmed by equally divided vote, 2001 WI 56 on relatively narrow grounds (¶62: “Bond is significantly different from the present case”):
¶61      The officer in Bond did not make "a matter-of-fact communication of the evidence" against Bond; he made a cryptic remark that made sense only to the person who committed the crime for which Bond was arrested. Consequently, Bond's comment understanding the officer's words was an expected response, and thus the officer's words were the functional equivalent of interrogation. One of the officers testified that the comment "was designed . . . to elicit a response from" Bond. [68] The Bond court of appeals concluded that the officer's remark was the equivalent of interrogation in the absence of a Miranda warning and that Bond's incriminating response had to be suppressed.
Note that the court not only did not overrule the court of appeals decision in Bond (which it certainly could have done) but instead all but explicitly ratified its holding by unreservedly relying on it.
Functional Equivalent of Interrogation
State v. Richard K. Fischer, 2003 WI App 5, PFR filed 1/15/03
For Fischer: Mark S. Rosen
Issue/Holding: Where "the entire exchange consisted of Fischer asking Vento about the evidence against him, and Vento merely responding to Fischer's questions, after which Fischer would implicate himself ... Vento's words and conduct in merely responding to Fischer's questions regarding the evidence against him in the two robberies are not interrogation under the Innis test." ¶¶33-36. (Nonetheless, Vento did engage in one instance of "express questioning," Fischer's answer to which is suppressible, but harmless, &apar;¶ 37-40.)
Compare, Caputo v. Nelson, 1st Cir No. 06-1117, 7/26/06 (confronting suspect with evidence against him not functional equivalent of interrogation; collecting cases).
Functional Equivalent of Interrogation
State v. Ondra Bond, 2000 WI App 118, 237 Wis. 2d 633, 614 NW2d 552, affirmed by equally divided vote, 2001 WI 56, 243 Wis. 2d 476, 627 N.W.2d 484.
For Bond: William Coleman; Janet Barnes; Ellen Henak, SPD, Milwaukee Appellate
Issue: Whether, following arrest but before administration of Miranda rights, an officer's response to the suspect's asking why he'd been arrested was the functional equivalent of interrogation and therefore in violation of Miranda.
Holding: The officer's provocative comment, which addressed a specific factual allegation about the crime, was the functional equivalent of interrogation and Bond's response was therefore suppressible.
Analysis: Bond was arrested for intimidation of a witness, based on a phone call during which the caller said he was "the man behind the man." Bond asked why he was being arrested, adding, "oh, you're the man" when told he'd find out in a few minutes. The officer then said, "no, I'm the man behind the man," to which Bond responded, "oh, that is what this is about." This all occurred before any rights were given or waived. Because it's clear that the officer wasn't interrogating Bond in any formal sense, the question becomes whether his comment was the functional equivalent of interrogation. The court of appeals spells out five relevant factors relevant to this question, all of which support functional interrogation under the facts. ¶¶15-20. Interrogation means, in addition to express questioning, any words or actions other than those normally attendant to arrest and custody that the officer should have known was reasonably likely to elicit an incriminating response. ¶¶16-17. Specific knowledge about the suspect may indicate that the officer should have known that his/her conduct would have the force of interrogation. ¶17. Though the test is objective, the officer's intent may be relevant; another officer testified that the comment seemed designed to elicit an incriminating response. ¶18. The comment was especially provocative. ¶19. The comment was made directly to Bond. ¶20.

 


Waiver/Assertion of Rights


Miranda – Waiver – Voluntariness – Police Deception – “Incommunicado” Detention, etc.
State v. Jennifer L. Ward, 2009 WI 60, affirming unpublished opinion
For Ward: T. Christopher Kelly
Issue/Holding: Taken individually and collectively, Ward’s 3 statements were voluntary, weighing personal characteristics against police conduct.

Personal characteristics, ¶23. Ward was: “relatively sophisticated and intelligent”; 35 years old; a high school graduate; prior conviction; the daughter of a police chief. Her “unprompted understanding of her rights” indicated lack of vulnerability to police questioning. Although she alleged back pain and seizures during questioning, the trial court found insufficient proof that her condition “made her particularly vulnerable.”

¶24      Therefore, Ward's physical and mental condition did not cause her to become vulnerable to police interrogation. As a result, none of Ward's personal characteristics favor concluding that her statements were made involuntarily.
Police conduct.

I. First statement, ¶¶26-28. Non-custodial, at hospital. An acknowledged “misrepresentation” by the police (relating to the accusatory content of a statement by Ward’s daughter) is relevant but by itself insufficient to establish voluntariness. Given that “the tone of the interview was conversational,” this statement was not involuntary.

II. Second statement, ¶¶29-45. Custodial, at police station.

  1. Failure to inform Ward that attorney was trying to see her, ¶¶34-37. Failure to inform Ward that an attorney was waiting outside the interrogation room to talk to her was not, under Moran v. Burbine, 475 U.S. 412 (1986), as adopted by State v. Hanson, 136 Wis. 2d 195, 213, 401 N.W.2d 771 (1987), relevant to voluntariness of Miranda waiver.
  2. Failure to respond to Ward’s inquiry about husband, ¶¶38-42. Suspect’s request to speak with family member triggers no constitutional rights, therefore doesn’t affect validity of waiver of rights. State v. Jerrell C.J., 2005 WI 105 distinguished and (apparently) limited to interrogation of juveniles.
  3. Equivocal request for counsel, ¶¶43-45. Ward’s asking the interrogators what they thought she should do amounted to an equivocal request for counsel and as such didn’t require cessation of the interrogation.
¶44      However, in response to Ward's question, Schaepe did provide Ward with further information about her right to counsel, even though he was not required to do so. Schaepe stated, “Well see that's a decision that you make. I can't make those decisions for you.” This is a completely accurate statement of Ward's rights. As we stated in Hanson, “no one but the accused can make the decision to make a statement to the police or to ask for the assistance of counsel in making his decision.” Hanson, 136 Wis.  2d at 213. It was up to Ward, not Schaepe or Wood, to decide whether to call an attorney. Since Ward's statements were equivocal, Schaepe and Wood had no obligation to cease questioning or to ask Ward to clarify her statements. Accordingly, this conduct did not affect the validity of Ward's waiver of rights at the second interview.
It’s settled that under the 5th amendment, which is to say pre-charge, only an unequivocal request for counsel requires that interrogators pack up and leave. But in a post-charge setting (therefore under the 6th A), an equivocal request does the trick, something the majority itself recognizes, ¶43 n. 5. The dissent expresses great disquietude at the idea such differential regard of right to counsel is subject to “manipulation” of the timing of the charge, and the dissent advocates incorporating the 6th-A test into the 5th’s under the state constitution, ¶¶90-99. This round of an on-going New Federalism bout goes to the opposition, 4-3. More interesting and perhaps of greater consequence is the treatment given Montejo v. Louisiana, 556 U.S. ___ (2009). Non-treatment might be more apt, and that’s a good thing. That case, you’ll recall, overruled prior precedent that in the post-charge 6th A setting you don’t have to assert your right to counsel; after Montejo you do. Well, then, does this mean that, once made, a 6th-A assertion will now be given the same stinting analysis as the 5th? The dissent says Montejo simply doesn’t apply to the case at hand, ¶90 n. 8. Fine, but the majority actually goes farther and reaffirms the differential test Montejo notwithstanding, ¶43 n. 5 (“We note that, after a defendant has been formally charged, the Sixth Amendment right to counsel applies, and in contrast to the Fifth Amendment right to counsel, an equivocal request for counsel in a Sixth Amendment context is sufficient to invoke that right.”). The footnote goes on to favorably cite State v. James H. Hornung, 229 Wis.2d 469, 600 N.W.2d 264 Ct. App. 1999). If, then, in some future case the State argues that Montejo not only requires an assertion but an unequivocal one, then Ward would refute the point; it remains true that in the 6th A context an equivocal request is enough to invoke the right to counsel, per Hornung.

III. Third statement, ¶¶26-59. Custodial, at police station, after night in jail.

The 2nd interrogation ended at 5:20 p.m. and Ward was taken to jail. A detective informed her that she would not be allowed to call anyone till next day, but at 7:00 p.m. he instructed the jailer to inform her that she could call a lawyer if she wanted. The trial court found as a matter of fact that that “night” she “was reminded that she call an attorney.”

¶52      Based on these principles and the circuit court's findings, we conclude that Ward is correct in asserting that she was held in a constitutionally impermissible status during the hour and 40 minutes that she could not contact a lawyer, if she had asked to do so. However, preventing others from contacting Ward cannot have affected her waiver of rights or the voluntariness of her statements, because she was not aware that anyone was trying to contact her. Id. at 422. Furthermore, as soon as Ward was informed by the jailer that she could contact a lawyer, her constitutionally impaired status ceased and she was once again free to speak with a lawyer if she requested to do so. Id. at 433 n.4. And finally, this is not a case where Ward was held by the police for an extended period of time. She agreed to accompany the police to the station in the afternoon of the day that her nephew died; she was kept overnight; and she was charged the next day.

¶53      However, even though Ward was allowed to call a lawyer, she made no attempt to do so at any time. Even assuming that Ward would have attempted to contact an attorney between 5:20 p.m. and 7:00 p.m. on December 1, the remedy for her brief deprivation of the right to contact a lawyer would be suppression of any incriminating statements that she made during that time. …

The majority stresses, ¶59: “Furthermore, any effect that Ward's brief deprivation of the right to counsel the previous night may have had on the voluntariness of her subsequent statements is negated by her initiating the interview, her obvious willingness to talk and her clear waiver of rights.” Nor does it matter that she was inhibited from seeking advice from her husband as to whether she should seek representation, ¶58 (“Again, we emphasize that the decision whether to invoke the right to counsel is personal to the suspect, and cannot be made by anyone else. Hanson, 136 Wis. 2d at 213. The officers had no constitutional obligation to permit Ward to speak to her husband.”). Although the dissent certainly expresses a doctrinal difference of opinion, its discussion also shows that ultimately the majority’s conclusion is highly fact-bound. Thus, under the dissent’s construction of the record, the majority “understates by at least 23 hours the amount of time Ward was held incommunicado, [9] a key factor in the totality of the circumstances,” ¶72.

“Totality” analysis, ¶¶60-67. Short version: Zero plus zero plus zero = equals zero.

Worth noting: where Miranda is adhered to, a “colorable” claim of an involuntary statement will be “rare,” ¶61. And, “Police coercion is a necessary predicate to a finding that a confession is not voluntary,” ¶64. Here, there are but two instances of coercion: a deceptive recitation of Ward’s daughter’s statement, and a “brief deprivation of the right to counsel,” ¶64, and though relevant don’t establish coercion.

Assertion of Right to Counsel – Not Offense-Specific
State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue/Holding:  
¶25        If a suspect requests counsel at any time during the interview, he or she is not subject to further questioning until a lawyer has been made available or the suspect himself or herself reinitiates conversation. …

¶26      The Fifth Amendment/ Miranda right to counsel during custodial interrogations is not offense specific.  “Once a suspect invokes [this] right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present.”  Id. (emphasis in original); see also Dagnall, 236 Wis. 2d 339, ¶33. [8]  

The court notes that the 6th-A right to counsel is, by contrast, offense-specific; but that distinction isn’t implicated by the facts at hand.
Prior Assertion of Right to Counsel
State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue/Holding: "Under the above case law, it is clear that, if Cole did invoke his Fifth Amendment/Miranda right to counsel when he was arrested on the battery charge, then the statement he gave Officer Riley while still in custody is inadmissible even if Cole’s waiver of Miranda rights in that interview was otherwise valid," ¶28.
Is there an expiration date on a prior assertion of counsel? The court of appeals thought not; note, however, the pending Maryland v. Shatzer, USSC No. 08-680, cert granted 1/26/09, which raises this very question (albeit under extreme facts: the assertion was 3 years earlier in that case, while in Coles' it was about 2 months).
Reinitiating Communication with Police, Following Assertion of Right to Counsel
State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶77      Whether a suspect "initiates" communication or dialogue does not depend solely on the time elapsing between the invocation of the right to counsel and the suspect's beginning an exchange with law enforcement, although the lapse of time is a factor to consider.

¶82      … [T]he defendant's statement here that he did not understand why he was under arrest was clearly seeking information and constituted an initiation of communication with Rindt in the most ordinary sense of the word. The defendant's statement did not merely relate "to routine incidents of the custodial relationship." [93] The context of the defendant's statement supports the conclusion that the statement evinced a willingness and a desire for a generalized discussion about the investigation.

¶89      In contrast to McDougal, in the present case, after the defendant invoked his Fifth Amendment Miranda right to counsel, the detective did not make any provocative statements about the arrest or the crime. Rather, the defendant began an exchange with Rindt with a comment to which the detective made a straightforward response. Under the totality of the circumstances in the present case the defendant's comment evinced a willingness and a desire for a generalized discussion.

¶90      For the reasons set forth, we conclude that the defendant "initiated" further communication with Rindt.

On a distinct point: Can, for purposes of Edwards v. Arizona, a suspect initiate police contact through a 3rd party? Yes, according to Van Hook v. Anderson, 6th Cir No. 03-4207, 5/24/07.
Waiver
State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate
Issue/Holding:
¶93      The defendant summarizes his argument that he did not voluntarily, knowingly, and intelligently waive his right to counsel, stating that at the time of his arrest, he was hungry, alone in the back seat of a squad car, handcuffed, and young and limited in intelligence and sophistication.

¶94      This argument is not compelling on the facts of the present case. The defendant was an adult at the time of his arrest. While he casts himself as limited in intelligence and sophistication (and the circuit court acknowledged the defendant's apparent limited intelligence and understanding), the defendant does not claim to be incompetent to exercise or waive his legal rights. Although Detectives Rindt and Clausing did arrest the defendant before he had a chance to eat his breakfast, the defendant does not seem to claim that hunger had somehow deprived him of the ability to make decisions knowingly and intelligently. The defendant was undoubtedly uncomfortable and scared. Most people arrested on suspicion of delivering cocaine would probably be uncomfortable and scared.

Miranda – Waiver – Ambiguous Assertion of Right to Counsel
State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell
Issue/Holding: Defendant’s request to call parents so they could call attorney for him was an insufficiently unequivocal assertion of his right to counsel:
¶36      We agree with the trial court’s conclusion that even if we assume that the defendant made requests to call his parents so that they could call an attorney for him, prior to when he was questioned, his vague statements were insufficient to invoke Berggren’s right to counsel. See State v. Ernst, 2005 WI 107, ¶10, 283 Wis. 2d 300, 699 N.W.2d 92 (noting that even though our review is de novo, we benefit from trial court’s analysis). The trial court specifically concluded:
The evidence clearly demonstrates that Todd Berggren wanted to talk to the detective. If he truly did not want to make a statement without an attorney present, he would not have signed the waiver form and agreed to make a statement on multiple occasions. Berggren, as a police officer himself, knew what he had to do to invoke his right to an[] attorney. In fact, he did precisely this at the end of the 5th interview segment.
We conclude, as the trial court did, that any statements prior to that time were not unequivocal requests for counsel, particularly when they were immediately followed by Berggren signing another waiver of rights form and agreeing to talk. As such, there would have been no constitutional barrier to the admission of Berggren’s statements.
Miranda – Waiver – Ambiguous Assertion
State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn
Issue/Holding:
¶35   The circuit court relied on statements Markwardt made one hour and eleven minutes into the interview for its ruling that she had properly asserted her right to remain silent. Her exact words were: “Then put me in jail. Just get me out of here. I don’t want to sit here anymore, alright. I’ve been through enough today.” The circuit court cited no case law to support its conclusion that Markwardt’s comments were an unequivocal invocation of her right to remain silent. In fact, because the parties’ circuit court briefs failed to set forth the controlling law, it is questionable whether the circuit court took into account the rule of Ross, which established that an invocation of the right to remain silent must be unequivocal and unambiguous to be effective.

¶36   Under the rule established in Ross, a suspect’s claimed unequivocal invocation of the right to remain silent must be patent. See Ross, 203 Wis. 2d at 75-79. The Ross rule allows no room for an assertion that permits even the possibility of reasonable competing inferences: there is no invocation of the right to remain silent if any reasonable competing inference can be drawn. See id. Accordingly, an assertion that permits reasonable competing inferences demonstrates that a suspect did not sufficiently invoke the right to remain silent. See id. We therefore reverse the circuit court because Markwardt’s comments permit reasonable competing inferences. … Markwardt did not unequivocally invoke her right to remain silent and Clark was therefore not required to stop the interview. See id.

The court expressly contrasts State v. Goetsch, 186 Wis. 2d 1, 519 N.W.2d 634 (Ct. App. 1994) as an example of expressly invoked rights, ¶28 n. 8 (“I don’t want to talk about this anymore. I’ve told you, I’ve told you everything I can tell you”). Embellishment found in ¶¶23-28, though the passage quoted above is an apt, efficient summary.
Ambiguous Assertion of Rights -- Silence
State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding1: Hassel’s custodial statement, “I don’t know if I should talk to you” was ambiguous and therefore triggered no duty to terminate the interrogation, ¶¶16-19.
The court of appeals purported to follow Davis v. United States, 512 U.S. 452 (1994), which holds that the police have no duty to clarify an ambiguous assertion of rights made after clearly waiving them. The court simply did not acknowledge this crucial matter of timing (Hassel made his ambiguous assertion before he ever waived any rights, which makes the distinction pertinent to his case). The majority of lower courts to rule on the issue have concluded that "the 'unambiguous or unequivocal request' rule of Davis is limited to the post-waiver scenario," U.S. v. Rodriguez, 9th Cir No. 07-10217, 3/10/08, fn. 6. Given that the court of appeals simply did not acknowledge let alone resolve this dispute, the issue should remain viable. However, the split among lower courts makes the issue quite cert-worthy.
Issue/Holding2: A precustodial, prearrest assertion of right to silence has no constitutional significance, and therefore doesn't bar questioning, ¶¶13-15; and, because such an assertion does not amount to a “prior invocation [of rights] with which the police should have been concerned,” it gives no meaning to an ambiguous assertion of rights during subequent custodial interrogation. ¶¶16-21. (In dicta, the court goes on to say that the police nonetheless scrupulously honored his rights, ¶20 n. 2.)
Ambiguous Assertion of Rights -- Counsel
State v. Richard K. Fischer, 2003 WI App 5, PFR filed 1/15/03
For Fischer: Mark S. Rosen
Issue/Holding:
¶19. Applying Davis and Jennings here, we conclude that Fischer's statement to detectives that if the officers read him his rights he would not answer any questions and would request an attorney is sufficiently ambiguous or equivocal such that a reasonable officer in light of the circumstances would have understood only that Fischer might be invoking the right to counsel. See Jennings, 2002 WI 44 at ¶36. Fischer's request was conditional, as it depended upon something that had not yet happened but might happen in the future. His Miranda rights had not yet been read to him and thus he was not yet requesting counsel. A conditional and futuristic request for counsel is a statement that a reasonable officer in light of the circumstances would have understood only that Fischer might be invoking the right to counsel, see Jennings, 2002 WI 44 at ¶36, and thus is not a clear and unequivocal request for counsel.
That is, a suspect already in custody who says he'll invoke his right to counsel once his rights are read hasn't unequivocally invoked that right. Compare, People v. Gonzales, Cal SCt No. S100042, 1/24/05 (Gonzales' statement that he wanted lawyer if he was going to be charged held to be, on its face, "conditional" and therefore ambiguous, equivocal request).
Ambiguous Assertion of Rights -- Counsel
State v. Edward Terrell Jennings, 2002 WI 44, on certification
For Jennings: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether the police may continue to interrogate a suspect who has ambiguously asserted rights, -- in this instance, "I think maybe I need to talk to a lawyer."
Holding:
¶36. Applying Davis, we conclude that Jennings' statement to Detective Kreitzmann, "I think maybe I need to talk to a lawyer," was substantially equivalent to Davis's statement, "Maybe I should talk to a lawyer." As such, it was "ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel." Davis, 512 U.S. at 459. Therefore, Jennings' statement was insufficient to invoke his right to counsel under the Fifth and Fourteenth Amendments, and the officers were not required to cease questioning him. Nor were they required to clarify his statement. Accordingly, there is no federal constitutional impediment to the admission of Jennings' statement to Detective Anderson.
Davis v. United States, 512 U.S. 452 (1994) held to overrule Wentela v. State, 95 Wis. 2d 283, 290 N.W.2d 313 (1980) and State v. Walkowiak, 183 Wis. 2d 478, 486-87, 515 N.W.2d 863 (1994); court declines to impose a more stringent state constitutional requirement. ¶¶37-42. But, as the dissent points out, ¶¶51-53, Davis is dicta on the issue of whether the police must attempt to clarify -- as opposed to simply ceasing interrogation -- an ambiguous assertion of rights; thus, thought must be given to raising this issue for purposes of federal review, taking into account the straitened nature of such review.

However, there is authority for the idea that "maybe I should talk to an attorney by the name of ..." is an unambiguous assertion of the right to counsel, Abela v. Martin, 6th Cir. No. 00-2430, 8/27/04 (court stressing that naming the specific attorney and handing the officer the attorney's business card critically distinguished Davis). Also see U.S. v. Lee, 7th Cir No. 03-4140, 6/28/05 (court strongly suggests, though doesn't actually decide, that "Can I have a lawyer?" is invocation of right to counsel).

Note, however, large split of authority as to whether "the 'unambiguous or unequivocal request' rule of Davis is limited to the post-waiver scenario," U.S. v. Rodriguez, 9th Cir No. 07-10217, 3/10/08, fn. 6.

Waiver/Assertion of Rights – Anticipatory (Pre-Custodial) Assertion of Right to Counsel
State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis
Issue: Whether pre-custodial assertion (during standoff with police) of right to counsel barred interrogation following subsequent arrest.
Holding:
¶13      Hassel is dispositive here. … Observing that Miranda safeguards apply only to custodial interrogations and that Hassel did not argue he was in custody when he invoked his right to silence, we concluded Hassel “was not entitled to invoke Miranda” during the pre-custodial interview with police. Id., ¶¶9-10.

¶14      Applying the general rule in Hassel to this case, we conclude Kramer’s pre-custody invocation of his right to counsel was not an invocation of his right to counsel under Miranda and therefore his ensuing post-Mirandized inculpatory statements made while undergoing custodial interrogation need not be suppressed. As in Hassel, Kramer does not dispute the State’s assertion that he was not in custody when he asked the police to get him a lawyer. Arguments not refuted are generally deemed admitted. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis.  2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979). Moreover, Kramer does not suggest, and we cannot think of, any reason not to apply Hassel here. Instead, Kramer asserts, relying on Smith v. Illinois, 469 U.S. 91 (1984), that he could have anticipatorily invoked his right to counsel at anytime during the “process.” Kramer’s reliance on Smith is misplaced, as that case does not address the non-custodial anticipatory invocation of a Miranda right.

¶15      Our holding here, however, is not meant to suggest that there are no exceptions to the general rule that a defendant may not anticipatorily invoke Miranda. For example, there might be situations where a request for counsel at the conclusion of a standoff situation is so intertwined with imminent interrogation that the invocation should be honored. That did not occur here.

Was Kramer in custody during the standoff? After all, he had just killed a deputy, was surrounded by 100 officers, and he was not going to walk away no matter what. If custody requires no more than that a reasonable person would see his or her liberty as significantly restricted then maybe an argument could be made that Kramer was in custody. But Miranda requires something a bit more—custody tantamount to formal arrest, and because Kramer hadn’t actually submitted to the authority of the police then no, he couldn’t really be said to be in custody. Not that it matters to any legal analysis, but why didn’t they go ahead and get him a lawyer? For an interesting variation on this theme, see In re Pautler, 47 P.3d 1175 (Colo. 2002) (during standoff with suspect, prosecutor misrepresented himself as public defender and induced suspect to surrender; the prosecutor, who was found to have violated the ethical proscription against dishonesty, told the disciplinary board that “he believed any defense lawyer would advise Neal not to talk with law enforcement [and] also testified that he did not trust anyone at the PD’s office”—on second thought, maybe the local authorities had their reasons for thinking no good would come of acceding to Kramer’s request; much better to risk grave injury than to risk not getting a confession.
Inaccurate Advice, from Counsel
State v. Xavier J. Rockette, 2005 WI App 205
For Rockette: Timothy A. Provis
Issue/Holding:
¶24     We conclude that Rockette did not waive his Miranda rights. Rockette does not argue that Chausee did anything to coerce his confession. Indeed, the purpose of Rockette’s cooperation at the interview, which his own counsel set up, was to increase his chances of securing some leniency from the State. Thus, his statements were voluntary. Despite the fact that the statements were voluntary, however, we cannot say that an intelligent waiver occurred. First, Rockette never personally indicated that he wished to waive his rights. Counsel could not do that for him by simply arranging a meeting with the police. See Hanson, 136 Wis. 2d at 213. Moreover, we cannot say that any purported waiver was knowing and intelligent. Rockette’s statements were clearly admissible for impeachment purposes, see Schultz, 152 Wis. 2d at 417-18, yet, by telling Rockette that whatever he said could not be used against him, his attorney led him to believe that his statement could not be admitted in court at all. Rockette obviously did not know and understand the potential consequences of making a voluntary confession to the police because his counsel gave him erroneous information.
Note, as a matter of potentially interesting contrast, Charles E. Sweeney, Jr. v. Carter, 361 F.3d 327 (7th Cir 2004) to the effect that even a "woefully inadequate performance" by counsel in advising the client to waive Miranda rights in the pre-charging context isn't cognizable on federal habeas review (because of the absence of clear Supreme Court precedent on the issue). But that case did not, unlike this one, involve the failure to administer Miranda rights.
Inaccurate Advice Re: Timing of Appointment of Counsel
State v. Frederick G. Jackson, 229 Wis. 2d 328, 600 N.W.2d 39 (Ct. App. 1999), affirmed on habeas review, Frederick G. Jackson v. Frank, 02-1979, 11/6/03 (see summary here).
For Jackson: Allan D. Krezminski.
Issue/Holding: During custodial interrogation, Jackson asked for an attorney, and the detective gave erroneous advice, namely that Jackson could have an attorney once charges "were established" (erroneous, of course, because Jackson had a right to pre-charging consultation). Holding that "rigid, verbatim adherence to ideal Miranda warnings is not required," the court rejects suppression of the ensuing statement, in effect because the error had no impact: the detective (erroneously) told Jackson he'd get an attorney later, but Jackson didn't want to wait.
The dissent emphasizes SPD authority to provide representation on an emergency basis, during custodial pre-charge interrogation, as support for the idea that Jackson didn't validly waive counsel. The 7th Circuit, on habeas review, agrees that as a matter of state law, Jackson was indeed entitled to counsel "right now," but because Miranda itself doesn't impose such a requirement as a matter of federal law, Jackson's ensuing waiver of rights was nonetheless valid.

On different aspect of timing: note deep split among federal circuits on whether warning must explicitly advise of right to counsel during interrogation, or whether advising of right to counsle prior to questioning coveys message that counsel may remain throughout, cataloged in Bridgers v. Dretke, 5th Cir No. 05-70020, 12/2/05.
Go to District Court Habeas Brief
Go to 7th Circuit Habeas Brief

Scrupulously Honoring Right to Silence
State v. Scott Leason Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.w.2d 142
For Badker: Timothy A. Provis
Issue: Whether Badker's in-custody assertion of his right to silence was scrupulously honored so as to allow re-interrogation.
Holding/Analysis: Badker was arrested for sexually assaulting his girlfriend. He was released on bail, conditioned on not having contact with her. He killed her and, while he remained at large, a complaint was issued charging him with bail jumping (but not the homicide). When arrested, he informed the officers that his attorney on the pending sexual assault charges had told him not to talk to the police. The interrogation ceased and he was turned over to booking; the booking officer apparently couldn't leave well enough alone, asking: "So, you don't want to talk, huh?" Badker allowed he wasn't sure and another interrogation commenced, but Badker again said he didn't want to talk, and it stopped. Badker began groaning, an officer asked if he was alright, and he said he was sick and that he couldn't help it. Asked what kind of help he wanted, Badker said he wanted to talk to the investigators. Jackpot. The officers then re-read his rights and he confessed. Re-interrogation following assertion of right to silence isn't strictly prohibited. The issue is whether this right was scrupulously honored. And that is indeed the issue Badker raises. But could he have argued that he'd asserted his right to counsel? (After all, he was clearly saying, "I'm not talking to you on advice of counsel," which could only mean, "I want to deal with the police only through counsel.") It makes a difference, because an assertion of counsel, unlike of silence, bars all subsequent police-initiated contact. Edwards v. Arizona, 451 U.S. 477 (1981). Nonetheless, such an argument wasn't made, so the court has an easy time of it. The booking officer's question wasn't interrogation, the court says, because it wasn't reasonably likely to elicit an incriminating answer. ¶14. This is just a bit too concrete; it was an attempt to "clarify" an express assertion of rights, and therefore an attempt to secure an involuntary waiver. Still, it might be hard to quibble with the idea that asking a groaning prisoner if he needs help isn't interrogation, and that the prisoner's essentially volunteered response that he wants to talk to investigators isn't constitutionally problematic.
Waiver, Deaf Suspect
State v. George W. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48
For Hindsley: James B. Connell
Issue: Whether a deaf suspect, fluent in ASL but with limited proficiency in English, validly waived his Miranda rights, when those rights were explained to him in English-based ("transliteration") signing.
Holding: When the suspect is advised of Miranda rights in a language other than English (including sign language for a deaf suspect such as Hindsley), the state must produce evidence that the language was one the suspect "was proficient enough to understand the concepts that are involved in Miranda warnings." ¶¶31-34, citing State v. Santiago, 206 Wis. 2d 3, 556 N.W.2d 687 (1996). The trial court's findings that Hindsley used ASL and did not understand the particular form of signing (English-based) used to convey the warnings; and that he therefore did not understand the warnings are not clearly erroneous.
Custodial Assertion of Rights - Assertion of Right to Counsel (Edwards Rule), made pre-Miranda warnings
State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate
Issue: Whether a suspect’s in-custody invocation of right to counsel before administration of Miranda warnings triggers the Edwards bar on interrogation absent the suspect’s reinitiating communication with the police.
Holding:
¶23      The State argues that in the present case when the defendant asked for an attorney he was not subject to custodial interrogation. The State concludes that the defendant was in custody but was not being interrogated, that the defendant's request for an attorney was thus anticipatory, and that the defendant did not effectively invoke his Fifth Amendment Miranda right to counsel.

¶24      … We are persuaded by the case law that the State's position is incorrect and do not adopt the State's position. …

¶29      Under LaGrone and other cases a suspect may effectively invoke his or her Fifth Amendment Miranda right to counsel by requesting counsel when a reasonable person in the suspect's position would believe that interrogation is imminent. These cases impose a temporal limit on a request for counsel as well as the requirement that the request for counsel must relate to assistance of counsel during interrogation.

¶30      Another possible standard for Miranda and Edwards purposes is that a suspect may effectively invoke his or her Fifth Amendment Miranda right to counsel by requesting counsel any time the suspect is in custody, even before Miranda warnings or the onset of questioning. [28] State v. Collins, 122 Wis. 2d 320, 363 N.W.2d 229 (Ct. App. 1984), may be read as adopting such a standard. [29]

¶43      Because the defendant was in custody and had a reasonable belief that interrogation was imminent or impending, his request for counsel was an effective invocation of his Fifth Amendment Miranda right to counsel under both the "anytime in custody" standard and the "imminent or impending interrogation" temporal standard.

¶44      The present case illustrates "the type of coercive atmosphere that generates the need for application of the Edwards rule."[43] After the defendant effectively invoked his Fifth Amendment Miranda right to counsel, police interrogation, unless initiated by the defendant, would violate Edwards v. Arizona, 451 U.S. 477 (1981).

The court splits 3-3 on whether an in-custody, pre-Miranda warning defendant is entitled to benefit of the Edwards rule whenever making a request for counsel (as opposed to only when interrogation is impending or imminent, ¶¶101-02. Resolution of that question isn’t necessary on these facts, because either way Hambly met the test. Note, though, the court’s construction of Collins as holding that no “temporal standard” applies. As a result you can argue that, unless and until further clarification is forthcoming from the supreme court, Collins controls this issue.
Noncustodial Administration of Rights: Obviates Need for Custodial Re-Administration
State v. Marchand Grady, 2009 WI 47, affirming summary order
For Grady: Carl W. Chessir
Issue: Whether administration of Miranda rights in a noncustodial setting obviated the need for re-administration of rights when the interview became custodial about 2 and one-half hours later.
Holding:
¶15      Grady advances a creative, but not heretofore unheard of argument. He asks us to adopt a bright-line rule requiring the administration of Miranda warnings after a person is placed in official custody, and asks us to declare any and all Miranda warnings prior to custody ipso facto ineffective.[4] We are unpersuaded that a bright-line rule is necessary or even desirable, and reiterate that the proper approach for determining whether a suspect has effectively received his Miranda warnings is a totality of the circumstances test. Grady did receive the requisite Miranda warnings at the beginning of his noncustodial interrogation, and in light of the facts of this case, we do not believe the police were required to readminister those warnings once his interrogation became custodial two-and-one-half hours later.
In other words, just because Miranda warnings are required after, but not before, the person is placed in custody doesn’t mean that precustodial warnings can’t suffice, at least “under certain circumstances,” ¶19 . And just what are those “circumstances”? Apparently, they are determined case-by-case, which is to say, they are really uncertain, ¶¶20-21 (enumerating the “multiple factors” courts have considered, and adopting them as “helpful but not individually or collectively determinative or exhaustive”). Long and short of it: “We prefer a flexible approach that examines all relevant facts in an effort to determine whether a suspect was sufficiently aware of his or her constitutional rights,” ¶21. Grady’s statement was admissible under this test, given lack of coercive police conduct, lack of indication of any mental impairment, and the short span of time between warnings and onset of custody, ¶¶26-31.
Noncustodial Assertion of Rights
State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: Hassel’s noncustodial statement, “I can’t talk to you,” did not amount to a Miranda-protected assertion of rights, largely because such rights can’t be invoked “anticipatorily,” ¶¶8-15. (State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982) distinguished as a rule of evidence safeguarding against substantive use at trial of prearrest silence.)
Miranda – Waiver – Re-Administration of Rights Unnecessary
State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell
Issue/Holding: Where Miranda rights were properly given at the outset of the “first segment” of interrogation, re-administration of rights wasn’t necessary for “second segment,” several hours later, ¶¶24-28.
Waiver – Re-Administration of Rights: Unnecessary Where Proper Waiver 21 Hours Earlier
State v. Yediael Yokrawn Backstrom, 2006 WI App 114
For Backstrom: Timothy A. Provis
Issue: Whether re-administration of Miranda warnings was necessary where the suspect had previously waived those rights following a “full and proper recitation twenty-one hours earlier.”
Holding:
¶11      Based on the record presented, we conclude that the trial court did not err in failing to suppress Backstrom’s statement. The trial court’s findings, which are supported by the testimony from the Miranda-Goodchild hearing, are not clearly erroneous. The record demonstrates that Backstrom was properly advised of his Miranda rights during his conversation with Andritsos on July 13th and that he agreed to waive those rights. [6] He then was reminded of those rights the next morning when he was brought into Carroll’s office. Backstrom himself admitted during his trial testimony that he remembered Carroll asking him if he recalled Andritsos advising him of the Miranda warnings, and that he said he did in fact recall being read his rights.

¶12      Given this factual backdrop, we now review pertinent case law of this state. In Grennier, … the court held that when Miranda rights are properly administered, it is not necessary to re-administer the Miranda warnings at a subsequent interrogation if it is undisputed that the defendant understood his rights. Grennier, 70 Wis. 2d at 213 (citing Blaszke). “It would be strange indeed for this court to hold that, where within the space of a few hours a defendant has been properly advised of his rights, a subsequent confession would be vitiated by an admonition that was somewhat less than technically perfect.” Id.

¶14      In applying the Grennier rule of law to this case, we conclude, under the totality of the circumstances, that it was not necessary for Carroll to formally re-advise Backstrom of his Miranda rights. It is undisputed that Backstrom had been advised of his rights the day before, and he clearly indicated to Carroll in her office that he remembered those rights and understood those rights. Under these circumstances, we conclude that Backstrom’s constitutional rights were not violated and therefore the statement he made to Carroll was admissible.


 [6]   Backstrom’s waiver during the initial interview is significant. If he had declined to speak with Andritsos, we would need to review different case law. See State v. Turner , 136 Wis. 2d 333, 343-44, 401 N.W.2d 827 (1987).
Backstrom relied on State v. DeWeese, 582 S.E.2d 786 (W. Va. 2003), which, given the court’s rejection needn’t be discussed in any detail except to say it noted the “lack of consensus regarding when renewed Miranda warnings must be given” and cataloged decisions on both sides of the divide—worth keeping in mind that this might amount to a cert-worthy split.

 


Exceptions


Booking Questions
State v. Joseph K. Bryant, 2001 WI App 41, 241 Wis. 2d 554, 624 N.W.2d 865.
For Bryant: Suzanne L. Hagopian, SPD, Madison Appellate.
Issue: Whether the "routine booking question" exception to Miranda permitted questions about biographical data.
Holding: Miranda warnings need not precede routine questions that merely gather background biographical data in the booking process. ¶14. "To qualify for the application of the exception, the questions must be asked by an agency ordinarily involved in booking suspects, must be asked during a true booking and must be asked shortly after the suspect has been taken into custody." ¶15. Moreover, there is no blanket exception: the test is whether, "in light of all the circumstances, the police should have known that a question was reasonably likely to elicit an incriminating response." ¶17. Here, the charge was possession of a controlled substance, within 1000 feet of a school zone; Bryant argues that the booking questions about his residence were intended to elicit incriminating responses that he lived in the residence where the drugs were found, showing dominion and control. Emphasizing that the questions were asked by the agency responsible for booking (rather than, for example, by an officer at the scene of the arrest), and that the police already had sufficient evidence connecting Bryant to the residence, the court applies the booking exception to uphold admissibility. ¶¶23-25.
Go To Brief
Good-Faith Exception
State v. George W. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48
For Hindsley: James B. Connell
Issue: Whether a good-faith exception to Miranda should be recognized.
Holding: The court of appeals doesn't have authority to articulate a good-faith exception to Miranda: "(It) is not the proper role of this court to create an exception to, or modify, binding precedent of the Wisconsin Supreme Court or the United States Supreme Court." ¶36.

 


Derivative Evidence


Physical Evidence Derived from (Intentional) Miranda Violation
State v. Matthew J. Knapp (I), 2003 WI 121, on certification ; vacated and remanded for further consideration in light of United States v. Patane, 542 U. S. ____ (2004), Wisconsin v. Knapp, No. 03-590; Knapp I reaffirmed on remand, State v. Matthew J. Knapp (II), 2005 WI 127
For Knapp: Robert G. LeBell
Issue: Whether physical evidence derived from a statement taken in violation of Miranda is suppressible.
Holding:
¶73. Here, it is undisputed that Roets intentionally violated Knapp's Miranda rights in order to procure derivative/physical evidence. … If we do not suppress physical evidence in situations of intentional violations of Miranda, we, in essence, undermine the deterrent effect upon which such a decision was based. …

¶79. We accept much of the reasoning in Faulkingham and in Patane, and as such, hold that Dickerson requires us to overrule Yang where the violation of Miranda was intentional. We hold that the policy considerations related to deterrent effect and judicial integrity, which are the underpinnings of the exclusionary rule, support the suppression of physical evidence in situations where there was an intentional Miranda violation. We do not have to, and do not, decide whether a negligent Miranda violation would result in the same holding.

As indicated above, this holding was vacated by the Supreme Court, but reaffirmed on remand, State v. Matthew J. Knapp (II), 2005 WI 127, emphasis supplied:
¶2 We conclude that the fruit of the poisonous tree doctrine applies under the circumstances of this case under Article I, Section 8 of the Wisconsin Constitution. Where physical evidence is obtained as the direct result of an intentional Miranda violation, we conclude that our constitution requires that the evidence must be suppressed. Therefore, we reverse the circuit court's order. [3]
[3] Our decision rests on bona fide separate, adequate, and independent state grounds. See Michigan v. Long, 463 U.S. 1032, 1040 (1983).
Further, we reinstate all portions of our decision in State v. Knapp, 2003 WI 121, 265 Wis. 2d 278, 666 N.W. 2d 881, not implicated by the Supreme Court's order vacating our decision in light of United States v. Patane, 542 U.S. ___, 124 S. Ct. 2620 (2004).
Stress “intentional”: the State conceded that the physical evidence sought suppressed was derived from an intentional violation of Miranda, 20; the principal purpose of the exclusionary rule is, the court says, deterrence of police misconduct, ¶22; and, the court takes pains to say it “will not tolerate the police deliberately ignoring Miranda’s rule as a means of obtaining inculpatory physical evidence,” ¶72. The decision certainly contains some high-flown rhetoric, but its actual reach is, on the face of it, limited to instances where you can show an intentional end-run around Miranda – anything less than that, and the value of deterrence, see ¶74, would probably be outweighed by the value of undeniably reliable evidence. See also ¶75 (“the conduct at issue here is particularly repugnant and requires deterrence”). And, the alternative suppression rationale of preserving judicial integrity, ¶¶79-81, is equally heightened in the context of an intentional violation.

The following background, written before the remand opinion, will remain posted, but has been overtaken by that opinion.

The court of appeals had held that physical evidence was never suppressible as a result of a Miranda violation. State v. Yang, 2000 WI App 63, 233 Wis. 2d 545, 608 N.W.2d 703. Knapp overruled that holding, at least where the violation is intentional, as it indisputably was in Knapp’s instance. Yang had assumed that Miranda wasn’t a constitutional rule, but Dickerson v. United States, 530 U.S. 428 (2000) held otherwise, thus requiring a derivative-evidence analysis after all. Or at least to some extent. And then along came Patane, and Knapp is now thrown into doubt. The lower court, United States v. Patane, 304 F.3d 1013 (10th Cir. 2002), relied on prominently by Knapp, held "that a rule limiting Wong Sun suppression of the physical fruits of a Miranda violation to situations where the police demonstrably acted in intentional bad faith would fail to vindicate the exclusionary rule's deterrent purpose". The Supreme Court reversed that holding; though the Court's reasoning was fractured, the result is clear enough: mere failure to give Miranda warnings doesn’t support suppression of derivative physical evidence (with a plurality of 3 saying that mere failure to give warnings isn’t a constitutional violation at all; and the decisive 2-vote concurrence saying that that question need not be reached, it’s enough that admission of nontestimonial physical fruits doesn’t risk violating a suspect’s rights against compelled self-incrimination).

Even before Patane was decided, some courts resisted the idea of treating physical evidence as derivative of a Miranda violation:

In summary, we join the Third and Fourth Circuits in their post-Dickerson interpretations of Elstad which mandate application of a voluntariness standard to determine the admissibility of evidence derived from a Miranda violation without discrimination in application of the rule to subsequent statements, witness testimony, or physical evidence. In doing so, we refuse to interpret Dickerson as having altered the exclusionary rule in a manner that would effectively permit the government to compel a defendant to testify against himself under Elstad and yet not permit the admission of derivative physical evidence. Such an outcome – greater protection against the use of physical evidence than testimony – would not be intuitively consistent with the fact that Miranda protects the Self-Incrimination Clause of the Fifth Amendment rather than a defendant's Fourth Amendment rights. Further, such a distinction would not be intuitively consistent with the government's inability to compel testimony, but ability to compel the disclosure of non-testimonial evidence. See Pennsylvania v. Muniz, 496 U.S. 582, 590 (1990) ("both federal and state courts have usually held that [the Fifth Amendment's Self Incrimination Clause] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.") (quoting Schmerber v. California, 384 U.S. 757, 764 (1966)).
U.S. v. Villalba-Alvarado, 8th Cir No 02-3101, 10/10/03. And for a post-Patane treatment, see State v. Goodman, NC App No. COA03-541, 8/17/04:
In Patane, a three-judge plurality held that the "fruit of the poisonous tree" doctrine does not apply to failures to give Miranda warnings. Id. at __, 159 L. Ed. 2d at 680, 124 S. Ct. at 2631. Although May, like this case, did not involve a failure to give Miranda warnings, but rather addressed post-warning violations, the reasoning of Justices Kennedy and O'Connor, concurring in the judgment, suggests that May is consistent with Patane. Justice Kennedy stressed that Dickerson did not undermine the Court's prior precedents and specifically pointed to cases involving post-warning Miranda violations, including Oregon v. Elstad, 470 U.S. 298, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985) and Michigan v. Tucker, 417 U.S. 433, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974) -- the primary authority upon which May relied. In addition, the plurality and the concurrence both embraced a weighing analysis identical with that of May. As Justice Kennedy stated, "In light of the important probative value of reliable physical evidence, it is doubtful that exclusion can be justified by a deterrence rationale sensitive to both law enforcement interests and a suspect's rights during an in- custody interrogation." Patane, 159 L. Ed. 2d at680, 124 S. Ct. at 2631.
Can it ever matter, then, that the police intentionally violate Miranda? Yes, when the derivative evidence is a statement, something ordinarily not subject to suppression as tainted by a (non-intentional) Miranda violation: Missouri v. Seibert, USSC No. 02-1371, 6/28/04. Note that Seibert is a split opinion with no clear majority; but when the various positions are cobbled together:
What emerges from the split opinions in Seibert is this: at least as to deliberate two-step interrogations in which Miranda warnings are intentionally withheld until after the suspect confesses, the central voluntariness inquiry of Elstad has been replaced by a presumptive rule of exclusion, subject to a multifactor test .... Where the initial violation of Miranda was not part of a deliberate strategy to undermine the warnings, Elstad appears to have survived Seibert.
U.S. v. Stewart, 7th Cir. No. 03-2377, 11/9/04. See also U.S. v. Briones, 8th Cir No 04-1927, 11/30/04:
Because Justice Kennedy relied on grounds narrower than those of the plurality, his opinion is of special significance. See Romano v. Oklahoma, 512 U.S. 1, 9 (1994); Marks v. United States, 430 U.S. 188, 193 (1977). For Justice Kennedy the key question is whether the police conduct was deliberately devised to obtain incriminating statements by circumventing Miranda. Seibert, 124 S. Ct. at 2616. In his view the principles of Oregon v. Elstad, 470 U.S. 298 (1985), control when the police have not deliberately used separate interrogations to elicit incriminating statements through belated Miranda warnings. Under Elstad, statements made after a knowing and voluntary waiver of Miranda rights are admissible unless there were earlier unwarned statements resulting from coercion or a calculated effort to undermine the suspect's free will. Id. at 309. If a deliberate strategy was used to avoid Miranda requirements, Elstad does not apply and postwarning statements related to the substance of what was said earlier are inadmissible in the absence of curative measures. Seibert, 124 S. Ct. at 2616.
And, U.S. v. Mashburn, 4th Cir No. 03-4932, 4/25/05 ("Justice Kennedy’s opinion therefore represents the holding of the Seibert Court: The admissibility of postwarning statements is governed by Elstad unless the deliberate 'question-first' strategy is employed"); U.S. v. Williams, 9th Cir No. 04-50182, 1/30/06 (also contains elaborate discussion on proof of deliberateness, including near-presumption that withholding Miranda warning is motivated by "the interrogator's desire to weaken the warning's effectiveness").

(Burden of proof re Seibert violation: "the prosecution must prove, by a preponderance of the evidence, that the officer's failure to provide warnings at the outset of questioning was not part of a deliberate attempt to circumvent Miranda," U.S. v. Ollie, 8th Cir No. 05-25-3, 3/31/06.)

What about a Miranda violation in the 6th amendment context? The issue came up in Fellers v. United States, 540 U.S. 519, 524-25 (2004): "We have not had occasion to decide whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards. We therefore remand to the Court of Appeals to address this issue in the first instance." On remand, the court of appeals held "that the exclusionary rule is inapplicable in Fellers’s case because, as with the Fifth Amendment in Elstad, the use of the exclusionary rule in this case would serve neither deterrence nor any other goal of the Sixth Amendment," U.S. v. Fellers , 8th Cir No 01-2045, 2/15/05. However, for authority for the idea that evidence from a statement taken in violation of the 6th amendment right to effective assistance of counsel is suupressible, see People v. Frazier, MI App 256986, 3/7/06.

UPDATE: Discussion of state constitutional remedy, State v. Peterson, 2007 VT 24. See also State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255 (citing Knapp: "We thus join the other states that have already determined after Patane that their state constitutions’ protections against self-incrimination extend to physical evidence seized as a result of pre- Miranda statements.").

Physical Evidence Derived from Miranda Violations
State v. Yen Yang, 2000 WI App 63, 233 Wis. 2d 545, 608 N.W.2d 703
For Yang: David J. Matyas.
Issue: Whether physical evidence derived from a Miranda violation is suppressible.
Holding: "If the statement taken in violation of Miranda was voluntary, the fruit of the poisonous tree doctrine does not apply. Because Yang's statements leading the police to physical evidence were voluntary, that evidence is admissible." ¶3
Analysis: Yang seeks suppression of physical evidence (a gun) that the police found due to his Miranda-violated statement. No Wisconsin case has previously decided whether derivative physical evidence may be suppressed as the fruit of a Miranda violation. ¶32 n. 9. The court rejects suppression: Miranda establishes merely prophylactic, not constitutional, rules; only a constitutional violation will support suppression of derivative evidence. "Accordingly, derivative physical evidence obtained as a result of an unwarned statement that was voluntary under the Fifth Amendment is not 'tainted fruit.'" ¶36. The outcome might remain the same, but the rationale would now have to be different, in light of the subsequent decision in Dickerson v. United States, 530 U.S. 428 (2000), which establishes that a Miranda violation is indeed a "constitutional decision."
(Note: The court also rebuffs Yang's attempt to argue a fourth amendment violation, on the ground that he didn't raise the issue below. ¶16. This result might be defensible if Yang's trial-level omission meant that the matter hadn't been fully litigated. But that isn't what the court says; instead it merely suggests that his omission didn't allow the trial court to "address his argument." If that is the sole basis for waiver, then the court is plainly wrong; because Yang is a respondent he falls within the established rule that he can raise on appeal any argument in support of the order being appealed, whether or not preserved below: "An appellate court may sustain a lower court's holding on a theory or on reasoning not presented to the lower court." State v. Holt, 128 Wis.2d 110, 125, 382 N.W.2d 679 (Ct. App. 1985).)
UPDATE: The supreme court has since expressly overruled Yang , at least to the extent that the violation of Miranda was intentional. State v. Matthew J. Knapp, 2003 WI 121, ¶2 ("We hold that Dickerson requires us to overrule the decision in State v. Yang, 2000 WI App. 63, 233 Wis. 2d 545, 608 N.W.2d 703, where, as here, the Miranda violation was intentional."), cert. pet. filed 10/20/03. The US Supreme Court will decide the question of a negligent violation, in United States v. Patane, 304 F.3d 1013 (10th Cir. 2002) ("we conclude that a rule limiting Wong Sun suppression of the physical fruits of a Miranda violation to situations where the police demonstrably acted in intentional bad faith would fail to vindicate the exclusionary rule's deterrent purpose"), cert. granted, 123 S.Ct. 1788 (2003). 
Statements Derived from Miranda Violations
State v. Yen Yang, 2000 WI App 63, 233 Wis. 2d 545, 608 N.W.2d 703
For Yang: David J. Matyas.
Issue: Whether a statement derived from another voluntary but Miranda-violated statement is suppressible.
Holding: The issue is controlled by State v. Armstrong, 223 Wis. 2d 331, 366-67, 588 N.W.2d 606 (1999), which mandates a two part test, ¶2:
A court must first examine the statement obtained in violation of Miranda: if it was voluntary, there was no constitutional violation and therefore no "tainted fruit." The second inquiry is whether the subsequent Mirandized statement was voluntarily given after a valid waiver of Miranda rights. We conclude that all of Yang's statements were voluntarily given. Because the subsequent statement was obtained after a valid waiver of Yang's Miranda rights, it is admissible.
Analysis: Yang attempts to distinguish Armstrong on the basis that Yang was a suspect when the police took the Miranda-violated statement. The court rejects the distinction, saying that Armstrong's "underlying rationale... was not concerned with whether Armstrong was a suspect," but simply "that, absent a constitutional violation in the first instance, there is no poisonous tree and consequently, no tainted fruit." ¶24.
Taint analysis.
State v. Tonnie D. Armstrong, 223 Wis.2d 331, 588 N.W.2d 606 (1999), reconsideration denied, 225 Wis.2d 121, 591 N.W.2d 604 (1999), on certification.
For Armstrong: Steven A. Koch and Seymour, Kremer, Nommensen, Morrissy & Koch.
Holding: Overruling State v. Ambrosia, 208 Wis. 2d 269, 276-78, 560 N.W.2d 555 (Ct. App. 1997), the supreme court holds that a Miranda violation does not support taint analysis. The fact that a Miranda-violated statement preceded a Miranda-warned statement doesn't in and of itself make the latter inadmissible. The question is simply whether the subsequent statement was voluntary; it was.

 


Presentence Report


Presentence report – Miranda-Related Safeguards
State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: Because the “presentence investigation was not part of the accusatory stage of a criminal proceeding”; and because the PSR “interview was routine and was not conducted while Jimmie’s jeopardy was still in doubt, Jimmie, “unlike the defendant in Estelle, was not entitled to Miranda warnings at his presentence interview,” ¶34. Nor was Jimmie entitled to presence of counsel, State v. Knapp, 111 Wis. 2d 380, 330 N.W.2d 242 (Ct. App. 1983), controlling, ¶35.
This discussion is dicta – the court already agreed, ¶¶21-22, that these challenged statements were indeed inadmissible, under State v. Crowell, 149 Wis. 2d 859, 440 N.W.2d 352 (1989); there simply was no need to discuss whether they might also be inadmissible under some other, distinct theory.


Suppression Hearing Procedure


Suppression Hearing Procedure – Burden of Proof, Generally
State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue/Holding: The State bears the burden of proof, by preponderance of evidence, of a valid waiver of Miranda rights, ¶27.  
¶35      As we have stated above, it is the State’s burden to prove by a preponderance of the evidence that the defendant validly waived his Miranda rights and that the statement was voluntary. See Jiles, 262 Wis. 2d 457, ¶26. The State accomplishes this by, first, producing evidence to establish a prima facie case.  See State v. Santiago, 206 Wis. 2d 3, 18-19, 556 N.W.2d 687 (1996). If the evidence does not establish a prima facie case, the State does not meet its burden of persuasion.  See id. at 26; see also Jiles, 262 Wis. 2d 457, ¶46 (defense counsel could have refrained from producing evidence because the State failed to meet its initial burden of production). In other words—at least in the only cases we have found on this point in the Miranda/waiver context—the State’s burden of proof consists of both the burden of the initial production of evidence for a prima facie case and the ultimate burden of persuasion. See State v. Armstrong, 223 Wis. 2d 331, 344 n.19, 588 N.W.2d 606 (1999) (citing Santiago, 206 Wis. 2d at 19).

¶36      If the State does establish a prima facie case of waiver and voluntariness, then, in the absence of countervailing evidence, the statement should be admitted. State v. Mitchell, 167 Wis. 2d 672, 696, 482 N.W.2d 364 (1992).

Suppression Hearing Procedure – Burden of Proof Re: Prior Assertion of Right to Counsel as Invalidating Subsequent Waiver
State v. Willie B. Cole, 2008 WI App 178
For Cole: Scott A. Szabrowicz
Issue/Holding:  
¶38      The parties have not provided, and we have not discovered, any case that addresses the burden of proof in a factual context similar to this—where the defendant asserts he previously invoked his right to counsel as a basis for invalidating a later waiver. [9] However, we are persuaded that placing the burden on the State to show a prior waiver of this right, where the defendant has timely raised the issue, is more consistent with the principles established in existing case law. …

¶39   We emphasize that, in order for the State to have the burden of proof—both the burden of going forward with a prima facie case and the burden of persuasion—that the accused previously waived his or her Fifth Amendment/ Miranda right to counsel, the defendant must timely put the State on notice that he or she is claiming he or she did not waive this right. See Santiago, 206 Wis. 2d at 20-21, 25-26 (State need not in every case present the foreign language Miranda warnings and their translation in order to make a prima facie case of a valid waiver; but it must do so when the defendant puts the State on timely notice—either in the motion to suppress or during the State’s initial presentation of evidence—that he or she is claiming the foreign language warnings were inadequate). Here, Cole’s motion to suppress put the State on timely notice that he was claiming his statement to Officer Riley was inadmissible because he had previously invoked his Fifth Amendment/ Miranda right to counsel when interviewed by Officer Gonzales on the battery charge.

¶40   Because we conclude the State had the burden of proof—both the burden of producing evidence to establish a prima facie case and the burden of persuasion—that Cole previously waived his Fifth Amendment/ Miranda right to counsel, we agree with Cole that the court erroneously placed the burden on him to prove he had invoked that right.  

Remedy for this misallocated burden of proof is remand for correct determination by the circuit court, ¶¶41-44. Note that the court assumes that, so long as the suspect remains in continuous custody, the Edwards rule remains in force, ¶¶26-28. Cole asserted his right to counsel about two months earlier, after arrest on a different offense, and hadn't been released; the court doesn't reject (indeed, doesn't really address) the question of whether the passage of time might vitiate Edwards. That assumption may very well turn out to be correct, but the cautious practitioner will at least want to be aware of, and keep an eye on, Maryland v. Shatzer, USSC No. 08-680, cert granted 1/26/09, which raises this very question.
Motion to Suppress Statement – State’s Burden of Proof, Unsworn Police Reports
State v. Joseph F. Jiles, 2003 WI 66, reversing unpublished decision of court of appeals
For Jiles: Mark S. Rosen
Issue/Holding:
¶35. We think it will be a rare case that the State is able to meet its burden of proof at a Miranda-Goodchild hearing by relying exclusively on an unsworn police report.

¶36. In this case, the State did not meet its burden of proof.

The court explicitly says that this is a “fact-specific matter,” ¶5, which might seem to limit its effect. The long and short of it is that the DA wasn’t ready to go forward with a suppression hearing, but the trial judge found on the basis of police reports that the state had nonetheless met its burden, which then shifted to Jiles. The rules of evidence don’t apply to suppression hearings, ¶29, citing § 901.04(1); it follows that live testimony from police officers is not always required, ¶31. Nonetheless, the court cautions, in the paragraphs quoted above, that exclusive reliance on unsworn documents, will rarely suffice – and that’s about as close to a general rule as you’ll find in this case. However, the court’s comments about the involvement of the trial judge will also be of generalized interest:
¶39. The Miranda-Goodchild hearing is an evidentiary hearing for the parties. It is not a soliloquy for the court. The court must not permit itself to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the assistant district attorney is reduced to a bystander. We hold that the procedure employed by the court in this hearing did not conform with the minimum requirements of § 971.31(3) for an "evidentiary hearing" and "did not afford a reliable determination of the voluntariness of the confession [to be] offered in evidence at trial." Jackson, 378 U.S. at 377.
That passage was subsequently cited for the idea that "opinions of our appellate courts are replete with precatory admonitions that trial judges must not function as partisans or advocates," State v. Johnnie Carprue, 2004 WI App 111, ¶44 (court declining, however, to find that judge in that case crossed the line). Jiles' conviction was plea-based; remedy for the tainted suppression hearing, the court holds without discussion, is plea-withdrawal and “a new and sufficient Miranda-Goodchild hearing,” ¶49.

Voluntariness

General
State v. Lucian Agnello II, 2004 WI App 2, (AG’s) PFR filed 1/8/04, on appeal after remand, 2003 WI 44; prior history: State v. Agnello I, 226 Wis.2d 164, 593 N.W.2d 427 (1999)
For Agnello: Jerome F. Buting, Pamela Moorshead
Issue/Holding:
¶10. Police coercion and a defendant's personal characteristics are interdependent concepts: the more vulnerable a person is because of his or her unique characteristics, the more easily he or she may be coerced by subtle means. State v. Xiong, 178 Wis. 2d 525, 534, 504 N.W.2d 428 (Ct. App. 1993). "`As interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the voluntariness calculus.'" Id. (citing Colorado v. Connelly, 479 U.S. 157, 164, (1986)). A confession's truth or falsity has no direct bearing on the determination of voluntariness. Agnello, 226 Wis. 2d at 177.

¶11. Agnello points to several factors that, he asserts, made his confession coerced: (1) being handcuffed to the ring in the interrogation room; (2) the deprivation of sleep; (3) psychological coercion concerning the discussion of his foster mother; and (4) the length of isolation and interrogation, including questioning by "relay teams" of detectives. Considering these factors as part of the totality of the circumstances and balancing Agnello's personal characteristics against the pressures imposed by the officers, we conclude his confession was voluntary.

(Taking these factors one at a time:
  • The court rejects the idea “that handcuffing in itself is coercive,” ¶13; moreover, Agnello was handcuffed during breaks and not during actual interrogation: standard procedure, the court says, “in order to prevent suicide attempts, escape, or property damage to the room.” ¶¶13-14.
  • Agnello never indicated that he wanted to sleep. ¶¶15-16.
  • References to Agnello’s foster mother – which caused him “to break down and sob” – didn’t “constitute[] excessive psychological pressure that coerced his confession. The references to Mary did not in any sense resemble the types of threats and inducements that courts have held to be coercive (such as threats to take away the suspect’s children or cutting off outside contact absent cooperation with the interrogation….” ¶18.
  • The length of detention before confession (either 9 ½ or 12 hours, depending on reference point, wasn’t impermissibly long, given that he waived his rights three separate times, was given breaks, and had prior police contacts. ¶¶19-20. Moreover, the police didn’t use “relay tactics” (where “different interrogators relieve each other in an effort to put unremitting pressure on a suspect”). ¶21.)
In sum:
¶22. We agree with the trial court's statement that "the most troubling thing here with respect to voluntariness is the lapse of time" between arrest and confession. However, considering this factor along with all the other circumstances, we are satisfied the confession was voluntary. We have already concluded that the physical restraint and psychological tactics used were not coercive, and the trial court found that Agnello was not deprived of sleep, food, or water during the interrogation sessions. The trial court also found that the detectives were not armed during the sessions, they did not make promises to Agnello in return for the confession, nor did they threaten him. In addition, the trial court found that Agnello had had multiple contacts with police as a juvenile, which is a factor that makes it less likely he would succumb involuntarily to police questioning. There is no evidence that Agnello was vulnerable because of any personal characteristic. Accordingly, we conclude the police did not coerce Agnello into giving an involuntary confession. The trial court therefore properly denied Agnello's motion to suppress his confession.)
General
State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997)
For Kiekhefer: Linda Hornik
Issue/Holding:
In determining whether a statement (confession) was voluntary, courts must independently examine the record and apply the totality of circumstances test. See Arizona v. Fulminante, 499 U.S. 279, 286-87 (1991). "In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possible vulnerable subjective state of the person who consents." Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973). Circumstances the court should consider are the consenting party's age, intelligence, education, experience and knowledge of the right to withhold consent, as well as evidence of inherently coercive tactics, either in the nature of police questioning or in the environment in which the questioning took place. See id. at 226-27. The following facts weigh against a determination of voluntariness: (1) the defendant was in custody; (2) the arresting officers overmastered the suspect; (3) Miranda warnings were not given prior to the search; (4) the defendant was not told he had a right to withhold his consent to be searched; or (5) the officers claimed they could obtain a search warrant. See United States v. Kim, 25 F.3d 1426, 1432 (9th Cir. 1994).

We conclude that Kiekhefer's statements and purported consent were not the product of a free and unconstrained choice. Although Kiekhefer's age, intelligence and education favor admission, these factors are far outweighed by the nature and environment of the police questioning.

First, the agents made a sobering show of force. Kiekhefer was immediately handcuffed and interrogated by four agents who had only minutes before entered his room both unannounced and uninvited. Despite being in custody, Kiekhefer was not provided Miranda warnings....

Equally important to the voluntariness analysis is the fact that Kiekhefer was not informed of his right to withhold consent to search, particularly after the agents had searched "the area that he was in." See Schneckloth, 412 U.S. at 248-49 (subject's knowledge of a right to refuse is a factor to be taken into account). The fact that Kiekhefer initially refused to consent to a search of his room also militates against a finding of voluntariness. See United States v. Pulvano, 629 F.2d 1151, 1157 (5th Cir. 1980) (prior refusal is a factor to be considered, but not determinative).

Finally, the agents postured about obtaining or seeking a search warrant if Kiekhefer would not consent to a search....

General
State v. Wilfred E. Tobias, 196 Wis. 2d 537, 538 N.W.2d 843 (Ct. App. 1995)
For Tobias: Barbara A. Cadwell
Issue/Holding: That suspect had learning disability, required medication to deal with visual hallucinations but was off his meds during the interrogation not enough to establish voluntariness.
Voluntariness – Post-Stress Test ("Honesty Testing") Statement
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding:
¶38      In the case at hand, we conclude, as did the circuit court, that the defendant's statement was voluntary. The record contains no evidence that would give rise to any concerns regarding his personal characteristics. Davis, at the time this occurred, was 43 years old. While the defendant's brief indicates that Davis only possesses a middle school level education, we must defer to the trial court's judgment that Davis was not at such an educational disadvantage to render his personal characteristics at issue.

¶39      We also do not find evidence that law enforcement used coercion or other forms of improper conduct in order to elicit Davis's incriminating statement. The duration of questioning was not lengthy, no physical or emotional pressures were used, and no inducements, threats, methods, or strategies were employed to ascertain an incriminating statement from the defendant.

¶40      Davis's participation was voluntary in every way: Davis agreed to talk and take the voice stress analysis when he was in his own home. Davis came to the police station on his own terms including when and how he intended to get there.

¶42      Merely because one is administered a voice stress analysis or polygraph test does not render a subsequent statement per se coercive. The proper inquiry is not only whether a test was taken, but rather, whether a subsequent statement was given at a distinct event and whether law enforcement used coercive means to obtain the statement. An important inquiry continues to be whether the test result was referred to in order to elicit an incriminating statement. See Johnson, 193 Wis.  2d at 389. Here, Davis did not make a statement to Detective Buenning, the tester. There is no question that the test was over. Davis had gone from one room to another room. In addition, the interviewer, Detective Swanson, never referenced the examination or its results during the time Davis gave his statement. No coercive measures were used to elicit the statement. Accordingly, Davis's statement was voluntary.

Involuntary Statement (Due to Immunity Grant) – Derivative Evidence: Experts’ Opinions
State v. Danny G. Harrell, 2008 WI App 37
For Harrell: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding: Expert opinion that Harrell is sexually violent was derived from his compelled, incriminatory statement and therefore also inadmissible, ¶¶14-35.
The court essentially tracks the discussion in Mark, which therefore won’t be repeated, and applies it to the particular facts. The court also reserves authority to remand for a “ Kastigar” hearing, ¶32 n. 11, but decides that’s unnecessary on this record.
Involuntary Statement (Due to Immunity Grant) – Derivative Evidence: Experts’ Opinions
State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding1:
¶28      In Kastigar, the … Court stated that, once a defendant demonstrates that he or she has testified under a grant of immunity for matters related to the prosecution, the government has the burden of showing “that [its] evidence is not tainted by establishing that [it] had an independent, legitimate source for the disputed evidence.” Id. at 460 (citations omitted). “This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Id.

¶30      Where the issue is whether a witness’s testimony was directly or indirectly derived from a defendant’s immunized statement, the inquiry is what the witness knew prior to the exposure to the immunized testimony and what information was gleaned from the exposure. See United States v. North , 920 F.2d 940, 944 (D.C. Cir 1990). The State might meet this burden, for example, by demonstrating through testimony that a witness exposed to the immunized testimony had set down his or her “story” before exposure. See id.

¶35      The State also relies on State v. Watson, 227 Wis. 2d 167, 595 N.W.2d 403 (1999), to argue that, because expert opinions are admissible at trial even if they are based on inadmissible evidence, the experts’ use here of Mark’s compelled statements to form their opinions is not a use that occurs at trial and, therefore, is not within the scope of Wis. Stat. § 980.05(1m). …

¶36      We do not agree that Watson supports the State’s position. Watson does not support an argument that expert opinions are admissible even if they are based on a compelled statement that is inadmissible under the Fifth Amendment. The inadmissibility in Watson was based on the evidentiary rules excluding hearsay; that case does not purport to, and could not, limit the scope of protection a person has under the Fifth Amendment.

Issue/Holding2: The opinions of the State’s experts were based on actuarial instruments, which were themselves based on Mark’s compelled statements, and the opinions were therefore derivative of those statements and inadmissible, ¶¶43-44.
Involuntary Statement – Derivative Evidence - Admissibility of Subsequent Statement
State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding1:
¶20      When an individual has given an involuntary statement, a subsequent statement is also considered involuntary unless it can be “separated from the circumstances surrounding” the earlier statement by a “break in the stream of events,” between the first statement to the second, “sufficient to insulate the statement from the effect of all that went before.” Clewis v. Texas, 386 U.S. 707, 710 (1967); see also Darwin v. Connecticut, 391 U.S. 346, 349 (1968); Beecher v. Alabama, 389 U.S. 35, 38 (1967). …

¶21      The State agrees with Mark that, in applying the principle of these cases, when the State seeks to use a statement made subsequent to an involuntary statement, it has the burden of demonstrating that the second statement is free from the coercive circumstances surrounding the first statement and was not directly produced by the existence of the earlier statement. [12] See Darwin, 391 U.S. at 351 (Harlan, J., concurring in part and dissenting in part) (citing Bayer, 331 U.S. at 540-41).

¶22      Factors that may be relevant in deciding whether there is a sufficient break in the stream of events from the first statement to the second include: the change in place of the interrogations, the time that passed between the statements, and the change in the identity of the interrogators. 3 William E. Ringel, Searches & Seizures, Arrests and Confessions § 25.12 (2d ed. 2007) (citing United States v. Marenghi, 109 F.3d 28, 33 (1st Cir. 1997); see also United States v. Lopez, 437 F.3d 1059, 1066-67 (10th Cir. 2006)). Additionally, the extent to which the coercion employed in obtaining the initial confession was severe enough to be likely to affect the defendant’s subsequent statements is to be considered. Id. (citing Lyons v. Oklahoma, 322 U.S. 596 (1944)).

Issue/Holding2:
¶25      We conclude the circuit court correctly decided the State did not meet its burden of showing that the oral statement was not compelled. Thirteen days earlier he had given the written statement on a form that warned him that he had to “account in a truthful and accurate manner for my whereabouts and activities, and that failure to do so is a violation for which I could be revoked,” and the court accepted the agent’s testimony that, although she could not remember this meeting with Mark, she would have explained this warning to him. When he gave the oral statement, it was to the same agent, he was still in jail under the agent’s authority, and he had been served with notice there were going to be revocation proceedings. The circumstances of his restraint had not changed and there is no basis for inferring that he did not think he was any longer obligated to give a true and accurate account in order to avoid a revocation on that ground. The State’s proffer of an independent motivation is based on a weak inference from the evidence that the circuit court was not asked to consider and that is insufficient to meet its burden. Accordingly, we conclude the oral statement, like the written statement, was compelled.
Voluntariness – Statement to Field Agent
State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding: Parolee’s statement made under grant of immunity (per State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977)), was compelled (therefore involuntary) and inadmissible at a ch. 980 trial governed by § 980.05(1m). ¶16.
As the court of appeals held in the first go-around, 2005 WI App 62, ¶14, Evans says that the statement of someone under supervision to his field agent is compelled to choose “between answers that will incriminate them in pending or subsequent criminal prosecutions and loss of their conditional liberty as a price for exercising their right to remain silent.” The compromise is that the person is granted immunity: he must then open up or else his silence will itself be a basis for revocation. And, keeping in mind that the 5th amendment bars compelled self-incrimination, the grant of immunity in other words resolves the self-incrimination part—without the prospect of being prosecuted for the answer, the person isn’t incriminating himself. And that is indeed what the trial court ruled on remand (¶16). One slight problem, though: because the statement was compelled it isn’t admissible at a criminal trial, and further because § 980.05(1m) grants (or, rather, granted) an SVP respondent the same constitutional protections as a criminal defendant, Mark’s written statement to his parole agent under grant of immunity was no more admissible than if he had been facing a criminal charge.

Note that § 980.05(1m) was repealed as of June 6, 2006, 2005 Wis Act 434, making the impact of this holding very limited, at least with respect to the rights attaching under this statute. That doesn’t mean that there’s no potential fall-out, though. Mark argued that as a mater of constitutional law involuntary statements may not be admitted into evidence against an SVP respondent, but the court declined to reach the argument, ¶12 n. 9. The supreme court has indeed held, in excluding involuntary statements from an administrative proceeding: “As a matter of law, the coerced, involuntary confessions here extracted may not, under the circumstances, be used for any purpose,” Oddsen v. Board of FPC, 108 Wis.2d 143, 163, 321 N.W.2d 161 (1982). To be sure, the tactics used to extract Oddsen’s statement were pretty aggravated, but at least it settles the principle that the ban on evidentiary use of coerced statements isn’t limited to criminal trials.

Statements to P.O.
State v. Charles W. Mark, 2005 WI App 62, affirmed, 2006 WI 78
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶14 … (I)f probationers are required to choose between answers that will incriminate them in pending or subsequent criminal prosecutions and loss of their conditional liberty as a price for exercising their right to remain silent, the statements are compelled. Minnesota v. Murphy, 465 U.S. 420, 435 (1984); State v. Evans, 77 Wis. 2d 225, 232-35, 252 N.W.2d 664 (1977). Such statements are inadmissible for any evidentiary use in criminal proceedings. State v. Thompson, 142 Wis. 2d 821, 833-34, 419 N.W.2d 564 (Ct. App. 1987).
See also U.S. v. Saechao, 9th Cir No. 04-30156, 8/12/05:
The issue on this appeal is whether a probationer who provides incriminating information to his probation officer in response to questions from that officer, and does so pursuant to a probation condition that requires him to “promptly and truthfully answer all reasonable inquiries” from the officer or face revocation of his probation, is “compelled” to give incriminating evidence within the meaning of the Fifth Amendment. Because we conclude that the state took the “impermissible step” of requiring the probationer “to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent,” Minnesota v. Murphy, 465 U.S. 420, 436 (1984), we hold that his admission of criminal conduct was compelled by a “classic penalty situation” and the evidence obtained by the probation officer may not be used against him in a criminal proceeding. We therefore affirm the district court’s order suppressing the fruits of the state’s unlawful conduct.
Electronic Recording -- Adults
State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis
Issue1: Whether failure to electronically record Kramer’s interrogations requires suppression.
Holding1: Although the supreme court exercised supervisory authority granted it under Wis. Const. Art. VII, § 7, to require recording of juvenile interrogations, State v. Jerrell C.J., 2005 WI 105, the grant of authority to court of appeals under Wis. Const. Art. VII, § 3, is not similarly worded and “Kramer fails to persuade us we have the authority to adopt the sort of sweeping new exclusionary rule he proposes,” ¶17.
The only address, then, for extending Jerrell C.J. to adult interrogations is the supreme court.
Issue2: Whether due process requires that adult interrogations be recorded.
Holding2:
¶18      Kramer next argues that the failure to record an interrogation of an adult is a violation of due process under both the United States and Wisconsin Constitutions. [7] Kramer’s due process argument relies on three cases: Jerrell, State v. Scales, [8] and Stephan v. State. [9] The first two, Jerrell and Scales, provide no support for Kramer’s due process argument. Rather, both cases are examples of a state’s highest court adopting a rule in its supervisory capacity, an issue we address above.

¶19      The other case Kramer relies on is the Alaska Supreme Court’s decision in Stephan. However, Kramer merely cites Stephan; he does not provide a due process analysis and he does not respond to the State’s detailed due process analysis. [10] Because Kramer’s argument is insufficiently developed, we do not address its merits.

Under § 972.115(2), which was enacted after Kramer’s interrogations and thus inapplicable to him, failure to record an interrogation on a felony entitles the defendant to a jury instruction that its absence may be considered in evaluating the interrogation and statement.
Electronic Recording -- Juveniles
State v. Jerrell C.J., 2005 WI 105, reversing 2004 WI App 9
For Terrell C.J.: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding:
¶58      … All custodial interrogation of juveniles in future cases shall be electronically recorded where feasible, and without exception when questioning occurs at a place of detention. Audiotaping is sufficient to satisfy our requirement; however, videotaping may provide an even more complete picture of what transpired during the interrogation. [15]
[15] For many law enforcement agencies in this state, this practice will be nothing new.  At oral argument, the Assistant Attorney General indicated that there are approximately 50 law enforcement agencies in the state that do taping of some type under some set of circumstances.
Simple as that … or is it? What does the court mean by, “future cases”? Is this decision purely prospective, or does it apply to cases currently pending, whether at trial on appeal? More importantly: it’s hard to see how the holding ought not be extended to adult suspects; certainly, all the policy arguments, ¶¶44-58, apply equally to adults. (But see State v. Thomas G. Kramer, 2006 WI App 133, summarized immediately above.)
Juveniles
State v. Jerrell C.J., 2005 WI 105, reversing 2004 WI App 9
For Terrell C.J.: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Juvenile Jerrell C.J.’s in-custody confession was involuntary under totality of the circumstances – Jerrell’s “personal characteristics” militate against voluntariness: age (14); school records (average to failing grades) and IQ 84 (low to average); prior experience with law enforcement (limited, but including arrests for minor offenses that, after he confessed, resulted in release without adjudication – possibly causing him to believe that admitting an offense would allow him simply to return home), ¶¶17-29; as does identifiable police coercion, which must be weighed along with those characteristics: rejection of Jerrell’s requests to talk to his parents (“strong evidence of coercive police conduct”); lengthy custody and interrogation (7.5 hours total); “psychological techniques,” namely continually challenging Jerrell’s version, “urging him to tell a different ‘truth,’” and using a raised voice that frightened him, ¶¶30-36. The court, though, refuses to adopt a per se rule requiring opportunity for an under-16 suspect to consult with an interested adult:
            ¶43      However, we decline to abandon the "totality of the circumstances" approach at this time in favor of Jerrell's per se rule regarding consultation with a parent or interested adult. Instead, we choose to reaffirm our warning in Theriault, 66 Wis. 2d at 48, that the failure "to call the parents for the purpose of depriving the juvenile of the opportunity to receive advice and counsel" will be considered "strong evidence that coercive tactics were used to elicit the incriminating statements." Here, the juvenile was arrested at home. However, we remind law enforcement officials that Wisconsin law requires an "immediate attempt" to notify the parent when a juvenile is taken into custody. Wis. Stat. § 938.19(2).
Of course, any “totality” analysis is necessarily fact-intensive – is standard- rather than rule-based. [Contrast, the rule promulgated later in the opinion that the police must record interrogations of detained juveniles.] But some larger principles may be extracted, principally that interrogations of juveniles must be viewed with “special caution,” ¶21. Along this line, the court cites at some length case and scholarly authority for the idea that juveniles are “uncommonly susceptible to police pressures,” and you’ll probably want to familiarize yourself with those cites. Note, too, reliance on IQ results – if none is available you might want to consider having one prepared. Finally, note that although the majority declines to reach the issue of whether Jerrell properly waived his Miranda rights, ¶2 n. 2, Justice Butler, concurring, would hold “that Jerrell invoked his privilege against self-incrimination under the Fifth Amendment when he asked the detective to call his parents during the interrogation,” ¶130.
Juveniles
A.M. v. Butler, 7th Cir. No. 02-2882, 3/2/04
Issue/Holding:
… In fact, the Supreme Court has consistently recognized that a confession or waiver of rights by a juvenile is not the same as a confession or waiver by an adult. A defendant’s age is an important factor in determining whether a confession is voluntary. …

Here, the circumstances weigh in favor of a determination that Morgan’s inculpatory statements were involuntary. When Morgan sat, alone, in the police interrogation room, he was not even old enough to be caddy on a golf course under Illinois law. And to repeat, he had no prior experience with the criminal justice system. Detective Cassidy continually challenged Morgan’s statement and accused him of lying, a technique which could easily lead a young boy to “confess” to anything. No friendly adult, moreover, was present during the questioning. When a youth officer was brought in, there is no evidence that he did anything to protect Morgan’s rights. As we made clear in Hardaway, “a state-provided youth officer who functions as nothing more than an observer will not be considered a friendly adult presence for purposes of the totality of the circumstances.” Hardaway, 302 F.3d at 765. Finally, after the first inculpatory statement was uttered, Morgan was given a standard version of his rights. Cf. Michael C., 442 U.S. at 726-27 (a 16-year-old juvenile voluntarily and knowingly waived his Fifth Amendment rights under an interrogation where he had considerable experience with the police and had his Miranda rights explained to him); United States v. Male Juvenile, 121 F.3d 34, 40 (2nd Cir. 1997) (confession voluntary after juvenile had rights explained to him by FBI agent). A comparison with Hardaway is relevant. There, “with the gravest misgivings,” we held that a state court’s decision that a confession by a 14-year-old with extensive prior history with the criminal justice system, including 19 arrests, was not involuntary was not unreasonable. Hardaway, 302 F.3d at 759. In contrast, here, Morgan was 3 years younger and inexperienced with the police. Considering these facts, we cannot say the state court’s decision was reasonable. The statements should have been suppressed. At the very least, the admissibility of his statements —on Miranda and voluntariness grounds—should have been vigorously challenged in pretrial motions by his counsel. Not to have done so compels the conclusion that counsel was ineffective.

The majority expresses explicit concern about the danger of an 11-year old giving an unreliable, coerced confession [e.g., fn. 6: “that danger is certainly a possibility when the person is an 11-year-old placed in an intimidating situation”]. Indeed, the majority intimates that an 11-year-old simply can’t “understand the inherently abstract concepts of the Miranda rights and what it means to waive them” [fn. 11, citing authorities with respect to “children’s susceptibility to adults’ suggestions during interrogations”]. But there is also an interesting subtext, appearing nowhere in the opinion, but as was widely reported in local news reports (no longer available non-commercially on-line), the confession was “taken by the same Chicago police detective who later claimed two boys confessed to killing Ryan Harris. … The boys were later exonerated by DNA tests ….” Harris' false confession was described in the following terms by a law review article (authored, perhaps not coincidentally by A.M.'s attorney): "Of all the proven false confessions involving very young children, perhaps the most notorious case" was Harris's. (The author added in a footnote that A.M.'s confession bore the same hallmarks of falseness.) Hard to believe this bakcground didn't weigh on the minds of the 7th Circuit panel.
Right to Silence During Pendency of Direct Appeal
State ex rel. Gary Tate v. Schwarz, 2002 WI 127, reversing 2001 WI App 131
For Tate: Jerome F. Buting, Pamela S. Moorshead, Buting & Williams
Issue/Holding: The Evans-Thompson rule -- "the state may compel a probationer to answer self-incriminating questions from his probation or parole agent, or suffer the consequence of revocation for refusing to do so, only 'if he is protected by a grant of immunity that renders the compelled testimony inadmissible against the [probationer] in a criminal prosecution'" -- applies during the pendency of a direct appeal, or the time during which a direct appeal could be taken. ¶¶20-22. (Meaning, of course, that there is an absolute right not to discuss the crime of conviction during this period of time, absent grant of immunity. However, the court holds open whether the same safeguards apply "regarding uncharged conduct" or "where the probationer pleaded guilty or no contest." ¶22 n. 10.)
(See State v. Evans, 77 Wis. 2d 225, 235, 252 N.W.2d 664 (1977), and State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987). For a like result, see State v. Kaquatosh, 600 N.W.2d 153 (Minn. App. 1999).) For a different result, where the problem arises outside the time for direct appeal, see State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995).)
"Edwards" violation - voluntariness.
State v. Jonathan L. Franklin, 228 Wis.2d 408, 596 N.W.2d 855 (Ct. App. 1999).
For Franklin: Archie E. Simonson.
Holding: Statement taken in violation of right to counsel rule, Edwards v. Arizona, 451 U.S. 477 (1981) is not, for that reason alone, involuntary and is therefore admissible for impeachment purposes.
The court doesn't mention it, but this decision resolves a question held open in State v. Billings, 110 Wis.2d 661, 665, 329 N.W.2d 192 (1983), "'Is a statement extracted in violation of an asserted right to counsel involuntary per se?'" Authority taking similar approach to statement obtained in violation of the 6th amendment right to effective assistance of counsel (i.e., inadmissible in case-in-chief, but admissible to impeach): People v. Frazier, MI App 256986, 3/7/06.
Police Deception/Promises - Informing of Potential Benefits of Cooperation not Improper
State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell
Issue/Holding:
¶29      Berggren also argues that his statements were induced by promises of probation and treatment. This amounts to an argument that his statements were not voluntarily given. He contends that the detective questioning him conveyed: “the belief that simple possession of child pornography photos would result in a probation disposition”; “the idea that if [Berggren] confessed he would get treatment and help and his confession would have a large impact on the district attorney’s position”; “if [Berggren] confessed the confession would have a lot to do with how he was received in the district attorney’s office[, however, i]f he persisted in a denial[,] the district attorney would not like to hear that version,” and it would affect how the district attorney viewed the case; and finally, if Berggren admitted his guilt, he would get help.

¶32      Here, the statements Berggren relies on to support his argument do not amount to coercion or improper police practices. We agree with the State that “there is no affirmative evidence in the record of [improper] police practices deliberately used to procure Berggren’s confession.” See Clappes, 136 Wis. 2d at 239. As Berggren should know after sixteen years as a police officer, it is not coercive conduct for an officer to invite a defendant’s cooperation by informing the defendant of potential benefits of cooperation or to offer a prediction as to what the prosecutor will do. The statements Berggren references do not constitute promises of leniency. Under the totality of the circumstances, we conclude that Berggren was properly advised of his rights under Miranda and he voluntarily gave his statements.

Hard to tell precisely what was said, but it is surely one thing to promise that if only you fess up the DA will smile on you and quite another to promise you’ll get “treatment and help.” If the latter was indeed expressly said, it probably shouldn’t have been waved off so dismissively. Not that the result necessarily would have been different, just that the question seems a lot closer.
Police Deception/Promises
State v. Matthew J. Knapp, 2003 WI 121, on certification
For Knapp: Robert G. LeBell
Issue: “¶95. In essence, this court is presented with the question of whether a custodial inculpatory statement, obtained without proper Miranda warnings, and extracted through the use of police deception, is an "involuntary" self-incriminatory statement and inadmissible at trial for any purpose.” (The police ruse involved inducing Knapp into talking by telling him that they were investigating constitutional violations committed by the department when they were in fact investigating Knapp’s involvement in a homicide.)
Holding: Given Knapp’s intelligence, awareness of his rights, the short duration of the questioning and the absence of any threats or promises, ¶¶104-05, his statement was voluntary. ¶¶108-09. Although the statement is inadmissible in the state’s case-in-chief because of a Miranda violation, because it is voluntary it may be used as impeachment. ¶111.
(Note: The court reaffirms that “evidence showing that a promise has been made by law enforcement officials does not, per se, require a finding that the induced statement was involuntary.” ¶109. Rather, a promise is considered along with other circumstances. Id. That said, a threat that the person will lose her children unless she "cooperates" is very likely to result in a finding of coercion -- see, e.g., Lynum v. Illinois, 372 U.S. 528 (1963); McCalvin v. Yukins, ED MI 02-73447, 1/3/05.)
Coercion – “Confrontational,” Loud Interrogation: Insufficient
State v. Heather A. Markwardt, 2007 WI App 242, PFR filed 11/29/07
For Markwardt: Richard Hahn
Issue/Holding: Markwardt’s in-custody statement was voluntary: any stress she was under was “unrelated to police conduct” (¶37); she didn’t unequivocally assert her rights (¶40); that the interrogator “was at times confrontational and raised his voice is not improper police procedure and does not, by itself, establish police coercion” (¶42, citing State v. Owen, 202 Wis. 2d 620, 642, 551 N.W.2d 50 (Ct. App. 1996)); “although Markwardt was questioned for two hours, the questioning was not continuous but was punctuated by two breaks …. neither Markwardt’s length of custody nor her interrogation qualifies as coercive police conduct” (¶44-46); her handcuffs were removed an hour before the interrogation (¶¶47-48):
¶49   In short, none of the police conduct, when considered independently, or when considered as a whole, rises to the level of coercive misconduct. …

¶50   As such, it is improper to consider Markwardt’s personal characteristics because consideration of Markwardt’s personal characteristics is triggered only if there exists coercive police conduct against which to balance them. See State v. Clappes, 136 Wis. 2d 222, 239, 401 N.W.2d 759 (1987) (A defendant’s personal characteristics “only become determinative in the voluntariness analysis when there is something against which to balance them.”). Here, we do not reach the balancing test because there is no coercive police conduct against which to balance Markwardt’s personal characteristics.

Not raised by the facts of this case, but well worth keeping in mind is the distinction between voluntary and knowing-intelligent waiver, as recently discussed by Garner v. Mitchell, 6th Cir No. 02-3552, 9/11/07, fn. 5:
In Colorado v. Connelly, 479 U.S. 157 (1986), the Supreme Court held “that coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary,’” but did not suggest that coercive police activity is a necessary predicate to a conclusion that a waiver of Miranda rights was not knowing or intelligent. Id. at 167; see also United States v. Turner, 157 F.3d 552, 555 (8th Cir. 1998); Miller v. Dugger, 838 F.2d 1530, 1539 (11th Cir.) (“We do not read the Connelly decision as demonstrating an intent to eliminate this distinction between voluntariness and knowing waivers.”), cert. denied, 486 U.S. 1061 (1988). Indeed, the Connelly Court noted that an expert witness “testified that Connelly’s illness did not significantly impair his cognitive abilities. Thus, respondent understood the rights he had when [the police] advised him that he need not speak.” Connelly, 479 U.S. at 161-62.

We recognize that the Supreme Court’s requirement that a Miranda waiver be made knowingly and intelligently may, on occasion, put the police in the difficult position of having to assess a suspect’s understanding and intellectual capacities at the time of interrogation. This difficulty is not wholly unique, however, as courts face similar difficulties, for example, when assessing a defendant’s competency and understanding during a plea colloquy or when a defendant waives the right to counsel. Suspicions that a suspect’s initial Miranda waiver was not made knowingly and intelligently also do not preclude the police from interrogating the suspect later under different circumstances—for example, following evaluation by a mental-health professional, following treatment, or in the presence of a lawyer, see, e.g., In re B.M.B., 955 P.2d 1302, 1309-13 (Kan. 1998); cf. infra note 10—if the police desire greater assurances that the suspect’s statement will be deemed admissible at trial.

To suggest as the dissent does, however, that the validity of a Miranda waiver depends only on the objective conduct of the police is to read the requirement that a valid waiver be “a knowing and intelligent relinquishment or abandonment of a known right or privilege,” Edwards, 451 U.S. at 482, out of the Supreme Court’s Miranda jurisprudence. Under the dissent’s formulation, even a suspect who did not hear his Miranda rights being read somehow could give a knowing and intelligent waiver, so long as the police had no reason to believe that the suspect did not hear.

Police Coercion, Necessity of
State v. Paul D. Hoppe, 2003 WI 43, affirming unpublished opinion
For Hoppe: William E. Schmaal, SPD, Madison Appellate
Issue/Holding:
¶46. Both Connelly and Clappes support the proposition that some coercive or improper police conduct must exist in order to sustain a finding of involuntariness. However, both of these cases also recognize that police conduct does not need to be egregious or outrageous in order to be coercive. Rather, subtle pressures are considered to be coercive if they exceed the defendant's ability to resist. Accordingly, pressures that are not coercive in one set of circumstances may be coercive in another set of circumstances if the defendant's condition renders him or her uncommonly susceptible to police pressures.
But: waiver of Miranda rights must be knowing and intelligent as well as voluntary. Thus, even in the absence of police coercion -- which forecloses a claim of involuntariness -- a custodial statement from a suspect with an IQ of 54 and incapable of understanding her rights violated the knowing/intelligent waiver requirement. People v. Braggs, Ill. SCt No. 95350, 12/18/03.
Suspect’s “Severely Debilitated” Condition Coupled with “Subtle” Police Coercion
State v. Paul D. Hoppe, 2003 WI 43, affirming unpublished opinion
For Hoppe: William E. Schmaal, SPD, Madison Appellate
Issue/Holding: Under “somewhat unique” facts, a suspect’s statements made during interviews in a hospital over a three-day period while delusional and in the throes of acute alcohol withdrawal were involuntary despite the absence of any egregious police pressure. ¶¶47-59. (As suggested, this case is highly fact-specific, but what it seems to come down to is that Hoppe’s tether to reality was pretty frayed and the police, while dogged in the manner of a terrier going after a bone, were ankle-biting rather than going for his throat. On the other hand, given Hoppe’s condition, they didn’t have to go after the throat, which is really the point of this case: at the margins, relatively innocuous police conduct may be coercive. Just remember that you don’t find yourself at the margins that often. Hoppe presented expert suppression hearing testimony that during the time frame his condition “was severe, chronic, end-stage alcohol dependence; alcohol induced amnesiac disorder; alcohol induced psychotic disorder with delusions and hallucinations; alcohol withdrawal delirium; and alcohol related dementia (long-term decrease in cognitive functioning and memory which is present even after a person has recovered from alcohol withdrawal).” ¶24. There’s more, but that gives some of the flavor of Hoppe’s functionality. Still, United States v. Connelly, 479 U.S. 157 (1986) makes it clear that there must be police coercion for a statement to be involuntary, as the court recognizes, ¶37. “The court of appeals correctly explained that police coercion and a defendant's personal characteristics are interdependent concepts. The greater the vulnerability of the defendant, the more easily the defendant may be coerced by subtle means.” ¶58. Though there were no threats, the tone “relatively friendly,” and no single act “egregious,” this suspect’s will to resist was overborne by “subtle” pressures that nonetheless would have been proper if used against someone not “uncommonly susceptible to police pressures.” ¶59.
Absence of Police Coercion
State v. George W. Hindsley, 2000 WI App 130, 237 Wis. 2d 358, 614 N.W.2d 48
For Hindsley: James B. Connell
Issue: Whether a statement is involuntary, even in the absence of police coercion, simply because the Miranda warnings aren't effectively communicated.
Holding: A suspect's deafness doesn't alter the test for voluntariness, "which was and remains focused on police coercion, and considers a person's language and culture only insofar as they bear on whether coercion by more subtle means, rather than by overt acts, took place. ¶41. No coercion was used, and the statement, though violating Miranda, was voluntary.
Private Citizen's Coercion
State v. Marvin J. Moss, 2003 WI App 239, PFR filed 10/27/03
For Moss: F.M. Van Hecke
Issue/Holding:
¶2. The issue in this case is whether a defendant's incriminating statement improperly coerced by a person who is not a state agent offends constitutional due process such that the statement is inadmissible. We conclude that there is no due process violation where, as in this case, a private citizen coerces a confession from another private citizen and there is no state action or state nexus. We uphold the trial court's order denying Moss's motion to suppress and affirm the judgment.
Moss was a pastor. He illicitly touched a girl he was counseling. He sought help himself and confessed to a psychologist-minister (Fringer), but only after assurances that his statements would be confidential and privileged. Fringer then falsely told Moss that he was a “mandatory reporter” (see § 48.981(2)(a)), and that Moss would be turned in if he didn’t self-report. The court of appeals draws the following conclusions: Fringer was a private actor, not a state agent; Fringer was not a mandatory reporter; Fringer’s actions amounted to coercion. ¶¶10-12. However, coercive police conduct is required to make a statement involuntary, under Colorado v. Connelly, 479 U.S. 157 (1986), ¶13; State v. Bowe, 88 P.2d 538, 542 (Haw. 1994) rejected, ¶20.
(Connelly gave a statement to the police and therefore the case stands for the idea that a statement that is the product only of someone’s mental abnormality is not the product of coercion at all. In other words, you can read the holding to lay stress on the need for coercion rather than for police activity, because that’s what was raised by the facts. But Connelly nonetheless contains broad language: “[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause.” 479 U.S. at 166. Moss follows that prescription, ¶20 (“we are bound by the decisions of the United States Supreme Court on matters of federal law”). But that still leaves open the possibility of suppression (or, to be technical, exclusion) on some other theory. Moss itself goes on to acknowledge such a possibility:
¶21. Our rejection of Moss's constitutional due process claim does not render statements such as these automatically admissible. Rather, as the Connelly Court recognized, the Constitution leaves "sweeping inquiries into the state of mind of a defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State" to be resolved by state laws governing the admission of evidence and erects no standard of its own in this area. Connelly, 479 U.S. at 166-67. Thus, "[a] statement rendered by one in the condition of [Connelly] might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary rules of the forum, and not by the Due Process Clause of the Fourteenth Amendment." Id. at 167 (citation omitted). Therefore, given the coercive effect of Fringer's actions, Moss could have availed himself of Wisconsin's rules of evidence to challenge the reliability of his statement. See, e.g., Boyer v. State, 91 Wis. 2d 647, 662, 284 N.W.2d 30 (1979) (a trial court has the authority to exclude a statement pursuant to Wis. Stat. § 904.03 where the statement is "so unreliable that its probative value is substantially outweighed by the danger of prejudice and confusion").
Some states (se, e.g. Bowe), will suppress privately coerced statements as a matter of common law; see also State v. Kula, 260 Neb. 183, 616 N.W.2d 313 (2000). Other states don’t. E.g., State v. Pappaconstantinou, 352 Md. 167, 721 A.2d 241 (1998) (“We hold that Maryland’s common law voluntariness requirement does not apply to confessions elicited by purely private conduct. Consistent with our prior case law, the voluntariness requirement is applicable when a confession is elicited by one in authority, or in his or her presence and with his or her sanction.”) It simply isn’t clear whether Moss (which did not discuss this theory for suppression; excluding a statement under § 904.03 isn’t the same thing) denies the possibility of suppression on this basis. For a survey of cases in other states, see Annot., Coercive Conduct by Private Person as Affecting Admissibility of Confession under State Statutes or Constitutional Provisions--Post-Connelly Cases, 48 A.L.R.5th 555 (1997).)

Particular Miscellaneous Issues

Admissibility of Statements Taken in Foreign Jurisdiction by Wisconsin Officers
State v. Edward Townsend, 2008 WI App 20, PFR filed 2/13/08
For Townsend: Ellen Henak, SPD, Milwaukee Appellate
Issue: Whether admissibility of evidence gathered in a foreign jurisdiction by Wisconsin officers is tested by the law of that jurisdiction or of Wisconsin.
Holding:
¶1        … Townsend contends that the circuit court should have suppressed unrecorded statements he made while in custody in St. Paul, Minnesota. He argues the circuit court should have applied Minnesota law to the motion to suppress, which requires suppression of evidence gathered from an unrecorded custodial interview, and not Wisconsin law, which presently encourages electronic recording of custodial interviews [2] but does not require suppression of evidence obtained from an unrecorded interview of an adult. [3] Because we conclude that the circuit court properly applied Wisconsin law to Townsend’s suppression motion, we affirm.

¶7        … He cites Kluck v. State, 37 Wis. 2d 378, 389, 155 N.W.2d 26 (1967), in which the Wisconsin Supreme Court applied Minnesota law in determining the validity of a Minnesota arrest, and Kennedy, 134 Wis. 2d at 320, where we said: “The manner and method of obtaining evidence is governed by the law of the jurisdiction in which the evidence is secured.”

¶15      … Consistent with the rationale supporting Kennedy, we conclude that Wisconsin law shall be applied to evidence gathered in a foreign state by a Wisconsin official charged with the duty to gather evidence for use in a Wisconsin criminal prosecution.

¶16      Turning to the facts of this case, we conclude the circuit court was correct in applying Wisconsin law to the question of whether to suppress the unrecorded custodial statement. Townsend was arrested in Minnesota on a Minnesota warrant following a lawful traffic stop. The Minnesota police were subsequently informed that the vehicle in which Townsend was a passenger had been reported stolen in a car-jacking two days earlier in Milwaukee. Huerta, a detective from Milwaukee, interviewed Townsend in a Minnesota jail about the car-jacking and about another car-jacking that also occurred in Milwaukee. Townsend was subsequently charged and convicted in Wisconsin of crimes related to the car-jackings. The statement taken by Huerta in Minnesota was used in the Wisconsin trial. Applying the rationale set forth in Kennedy, it is unreasonable to require and expect Huerta to be aware of and implement Minnesota’s evidence gathering rules. [6]

Testimony in Response to Statement Obtained in Violation of Sixth Amendment
State v. Christopher Anson, 2005 WI 96, affirming, 2004 WI App 155
For Anson: Stephen J. Watson
Issue/Holding:Given a statement taken in violation of the Anson’s 6th amendment right to counsel, in which Anson admitted to facts underlying one of the charges and was prominently mentioned in the opening statements and “evidentiary phase of the trial,” and as to which he filed an unsuccessful interlocutory appeal asserting that admission of the statement would “strategically force” him to testify, the State failed to prove beyond reasonable doubt that Anson would have testified despite introduction of the statement, ¶¶43-56.
Defendant's Testifying in Response to Illegally Obtained Statements
State v. Christopher D. Anson, 2002 WI App 27; subsequent history, see: 2005 WI 96
For Anson: Steven J. Watson
Issue/Holding:
¶27. This issue is governed by Harrison v. United States, 392 U.S. 219 (1968). Harrison teaches us that when a defendant takes the stand in order to overcome the impact of illegally obtained and used statements, his or her testimony is tainted by the same illegality that rendered the statements themselves inadmissible. See State v. Middleton, 135 Wis. 2d 297, 302, 399 N.W.2d 917 (Ct. App. 1986). If such is the case, the defendant does not waive his or her right against self-incrimination and the testimony should be suppressed. See id. at 316-17. The factual basis for such a finding, however, is for the trial court. See id. at 322.

¶28. Even where the trial court finds that the defendant would have decided to testify regardless of whether or not his or her statements had been suppressed, Harrison tells us it does not necessarily follow that the defendant's testimony is purged of the taint of the underlying illegality. On the contrary, Harrison teaches us that the natural inference is that the defendant would not have taken the stand and repeated the damaging statements if the prosecutor had not already placed the statements before the jury. See Harrison, 392 U.S. at 225-26.

¶29. We direct the trial court on remand to hear evidence and make findings of historical fact concerning whether Anson testified in order to overcome the impact of the incriminating statements he made to the investigators. The State bears the burden of showing that its use of the unlawfully obtained statements did not induce Anson's testimony. See id. at 225. Further, even if the trial court finds that Anson would have testified anyway, Harrison dictates that for the State to meet its burden of proving that Anson's testimony was obtained by means sufficiently distinguishable from the underlying constitutional violation, it must dispel the natural inference that Anson would not have repeated the inculpatory statements when he took the stand. See id. at 225-26. If the trial court finds that a link in fact exists between the State's constitutional violation and Anson's subsequent decision to take the stand and repeat the inculpatory statements, Anson has not waived his right against self-incrimination and is entitled to a new trial.

Prolonged Detention.
State v. James H. Oswald, 2000 WI App 3, 232 Wis.2d 103, 606 N.W.2d 238.
For Oswald: James L. Fullin, Jr., SPD, Madison Appellate.
Issue: Whether a statement made while hospitalized should have been suppressed, as the product of a lengthy detention for the purpose of interrogation.
Holding: "Oswald's detention was not even for interrogation, much less prolonged interrogation meant to extract a confession," but was for injuries suffered during the shoot-out that led to his arrest. ¶47.
Confessions – Post-Voice Stress Analysis – "Honesty Testing" Admissibility: Same Test as Polygraphs
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding:
¶20      Principles applicable to polygraph testing are equally applicable to voice stress analysis. See Wis. Stat. § 905.065(1); 7 Daniel D. Blinka, Wisconsin Evidence § 5065.1 (2d ed. 2001) (concluding that there is little reason to treat the forms of honesty testing mentioned in § 905.065 differently, "at least under the present state of the scientific art"). We see no reason at this time to treat these two methods of "honesty testing" differently.

¶21      Our analysis, as detailed below, primarily requires us to determine whether a defendant's statement was given at an interview totally discrete from the voice stress analysis. If the defendant's statement was given at an interview that was totally discrete from the voice stress analysis test, its admission is not automatically precluded. The statement, however, is also subject to ordinary principles of voluntariness. Therefore, if the statement is given at an interview that is totally discrete from the voice stress analysis test and the statement is voluntarily given, the statement is admissible.

¶44      While some prior precedent from this court and the court of appeals may not have clearly or perhaps even properly articulated the underlying rationale for excluding statements made during honesty testing, [16] the underlying rationale is simply that our state legislature has generally precluded such a scenario under the plain language of Wis. Stat. § 905.065. [17] Wisconsin Stat. § 905.065(2) states, "[a] person has a privilege to refuse to disclose and to prevent another from disclosing any oral or written communications during or any results of an examination using an honesty testing device in which the person was the test subject."

¶45      Therefore, the legislature has decided that statements made during honesty testing are generally excluded, but if those statements are given at an interview that is totally discrete from the honesty testing, under the factors articulated in this opinion, and the statement was given voluntarily, then the statement is admissible. However, if the statements and examination are not totally discrete events but instead are considered one event, then the statements must be excluded by virtue of Wis. Stat. § 905.065.

Confessions – Post-Voice Stress Analysis – Admissibility: “Totally Discrete” Statement
State v. Keith A. Davis, 2008 WI 71, on Certification
For Davis: Chris A. Gramstrup
Issue/Holding1: Admissibility of a statement made in connection with a voice stress analysis (or other form of “honesty test”) turns on whether the statement is “totally discrete” from the testing procedure as gauged by the following factors:
¶23      Under the totality of the circumstances, we conclude that Davis's statement was not so closely associated with the voice stress analysis test so as to render it one event; rather, the statement and voice stress analysis were two totally discrete events. Whether a statement is considered part of the test or a totally discrete event is largely dependent upon whether the voice stress analysis is over at the time the statement is given and the defendant knows the analysis is over. Greer, 265 Wis.  2d 463, ¶12. To make this determination, the following factors should be weighed and considered: (1) whether the defendant was told the test was over; (2) whether any time passed between the analysis and the defendant's statement; (3) whether the officer conducting the analysis differed from the officer who took the statement; (4) whether the location where the analysis was conducted differed from where the statement was given; and (5) whether the voice stress analysis was referred to when obtaining a statement from the defendant. See id., ¶¶12-16 (articulating and applying these principles).
Issue/Holding2: On the particular facts, Davis’s statement was “totally discrete” from the testing procedure, despite close temporal proximity:
¶30      In the case at hand, the voice stress analysis and the interview were totally discrete events: Two different officers were involved——one conducted the examination and the other conducted the interview. Before any statement was made, Detective Buenning stated, "I'm finished here," closed up his laptop, and left the room with all the voice stress analysis equipment. The interviewing officer did not refer to the polygraph examination or its results during the interview, and the examination and interview took place in different rooms.

¶31      While here, very little time passed between the examination and interview, time alone is not dispositive. For example, in McAdoo, the examination and interview were virtually seamless. However, in McAdoo, as in the case at hand, the interviewer never referred back to the polygraph examination or results, and the equipment was removed from the defendant. Even if little time passes between the two events, the statement may still be admissible so long as two totally discrete events occurred. See Johnson, 193 Wis.  2d at 389 (concluding that neither Barrera v. State [14] nor Schlise proscribe a bright-line rule of timing and instead look to the totality of the circumstances). "[W]here there is a distinct break between the two events and the post-polygraph interview does not specifically relate back to the . . . test, the events are sufficiently attenuated." Johnson, 193 Wis.  2d at 389. Unlike the case at hand, in Schlise the interview and examination were conducted by the same person, in the same room, and even the test examiner considered the procedure one event. Schlise, 86 Wis.  2d at 43.

This is a highly fact-intensive case, and therefore no attempt will be made to describe the operative facts in any detail; the reader is urged to closely study the opinion, including the dissent (¶¶47-80, which very persuasively argues that Davis had good reason to think the stress analysis wasn’t over when he made his statement. (And see, especially, ¶¶58-59, which make the point that the majority effectively “alters the test” from whether the examination and interview are totally discrete to whether the examination and statement are.) The upshot may well be that once the subject is unhooked from the testing device and statement is likely to be admissible – though, to be sure, the court makes no such generalization; again: read it closely and draw your own conclusion.
Confessions – Post-Polygraph – Admissibility
State v. Jeremy T. Greer, 2003 WI App 112, on remand following equally-divided result, 2003 WI 30; PFR filed 6/12/03
For Greer: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶14. In this case it is not disputed that before he confessed to Detective Williams, Greer was told, both orally and in writing, that the polygraph test was over. It is also not disputed that before he confessed to Detective Williams, Greer was not only disconnected from the polygraph machine but was moved to a different room, which did not have any polygraph machines in it. As the trial court found, there was an hour between the end of the polygraph examination and the start of Greer's interrogation by Detective Williams. And, Detective Williams was not the polygraph examiner. As the State points out, this, too, "clearly signal[ed] that the polygraph [was] over and what is to follow is no longer part of the polygraph examination." Thus, from a purely spatial and temporal standpoint, it cannot be said here, in the words of Schlise, that "[t]he post-mechanical interview was so closely associated with the mechanical or electronic testing, both as to time and content, that it must be considered as one event," Schlise, 86 Wis. 2d at 43, 271 N.W.2d at 627, unless the fact that Greer was told that he had failed the examination trumps the other elements. We conclude that it does not.…

¶17. In our view, a truthful comment to a suspect, either volunteered by the officer or in response to the suspect's question, does not override the other factors that we have used consistently to determine whether a defendant's post-examination statements should be suppressed. Under the facts here, Greer's post-examination interview was discrete from the polygraph test: he knew the examination was over, he was disconnected from the polygraph machine, he was escorted out of the examination room and put in another room, he acknowledged that he understood "that any questions that I may be asked after this point in time, and any answers I may give to those questions, are not part of the polygraph examination," and an hour had passed between the end of the polygraph examination and the start of the interview. Accordingly, the trial court should not have suppressed Greer's confession.

(Neither the results of a polygraph, State v. Dean, 103 Wis. 2d 228, 279, 307 N.W.2d 628 (1981), nor statements made during the examination, State v. Schlise, 86 Wis. 2d 26, 42-44, 271 N.W.2d 619 (1978), are admissible.
¶10. The touchstone of admissibility is whether the interviews eliciting the statements are "found to be totally discrete from the examination which precedes them." Schlise, 86 Wis. 2d at 42, 271 N.W.2d at 626. Stated another way, statements that a defendant makes after he or she takes a polygraph examination will be suppressed if "[t]he post-mechanical interview was so closely associated with the mechanical or electronic testing, both as to time and content, that it must be considered as one event." Id., 86 Wis. 2d at 43, 271 N.W.2d at 627.
As indicated above, the fact that a defendant is told s/he flunked the test doesn’t have a trumping effect. The police told Greer his test was over; the court now says, in effect, that that’s enough to end his issue too. Couple of points. Shouldn’t the issue of whether the statement was “totally discrete” from the test be one of historical fact? In this instance, the trial court suppressed, meaning that its finding that test-interrogation inseparability should be given deference on appeal. The court of appeals pays mechanical lip service to the test for review, ¶9, but its succeeding analysis seems totally discrete. The court does say that application of law to given facts is subject to de novo review, ¶13 – why does that notion always appear to be overarching in state’s appeals? – but the court does not say whether the trial court’s determination of inseparability is one of fact or law. This omission, if nothing else, may allow the opinion to be read as establishing severability as a conclusion of law. Second, the court, intimating a waiver bar, refuses to allow Greer to raise a belated voluntariness argument. ¶5 n. 3 (supplemental briefing would be “inappropriate,” given Greer’s prior, “ample opportunity to raise the voluntariness issue”; an issue not briefed is waived). Whether or not a defensible approach, this refusal is bad policy from a purely judicial cost-benefit standpoint. This is a pretrial, state’s  appeal. Greer will undoubtedly be able to challenge the statement on voluntariness grounds on remand, especially in the absence of an appellate resolution. (Indeed, Greer wouldn’t necessarily be barred from renewing voluntariness on remand even if the court of appeals had ruled against him. State v. Wurtz, 141 Wis.2d 795, 797, 416 N.W.2d 623 (Ct. App. 1987) (admissibility of statements is discretionary trial court matter which law of the case doesn’t bar revisiting on remand).) So, the issue is going to get decided, it’s simply a matter of who you want to have first crack at it; it would seem most efficient under the circumstances to have the court of appeals resolve it, given that that’s who actually has the case. Nor is it irrelevant that the defendant is the respondent, having prevailed below: “The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court.” Dandridge v. Williams, 397 U.S. 471 (1970). Of course, that doesn’t mean that the appellate court has to let the prevailing party raise a belated argument. It’s just that there’s no good reason not to. Remember this result, too, next time the court sua sponte affirms on a theory it came up with on its own. And the precise voluntariness argument sought to be raised? Not clear, though the court of appeals does allude to a trial court finding that the police told Greer he’d get 120 years in prison, but if he confessed he’d only get 5 years probation. ¶6. Sounds like support for a compelling voluntariness argument.)