SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1767-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Brian I. Harris,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED: April 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 18, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Michael S. Wilk
JUSTICES:
CONCURRED: ZIEGLER, J. joined by GABLEMAN, J. concurs
(opinion filed).
DISSENTED: ABRAHAMSON, J. dissents (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendants-appellant-petitioners, there was a brief
by Kathleen M. Quinn and Kathleen M Quinn Attorney at Law,
Milwaukee, and oral argument by Kathleen M. Quinn.
For the plaintiff-respondent the cause was argued by David
H. Perlman, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1767-CR
(L.C. No. 2011CF797)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
APR 7, 2017
Brian I. Harris,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DANIEL KELLY, J. The question before the court is
whether the State compelled Petitioner, Brian Harris, to be a
witness against himself in violation of the Fifth Amendment to
the United States Constitution and article I, section 8 of the
Wisconsin Constitution.1
1
This is a review of a published decision of the court of
appeals, State v. Harris, 2016 WI App 2, 366 Wis. 2d 777, 874
N.W.2d 602, affirming the circuit court's judgment of
conviction, Hon. S. Michael Wilk presiding.
No. 2014AP1767-CR
I. BACKGROUND
¶2 In the early morning hours of August 13, 2011, a
Kenosha resident awoke to loud, metallic-sounding noises coming
from an adjacent residence. When the noises persisted for
several minutes, a neighbor called the police.
¶3 Officer Justin Niebuhr of the Kenosha Police
Department responded and met with the caller. Both could hear
the sound of metal clanging coming from inside the neighboring
residence. Officer Niebuhr approached the front door of the
supposedly-vacant residence and found it locked, and upon
looking through a window saw only darkness. In the process of
examining the exterior of the residence, Officer Niebuhr noticed
the screen was off the unlatched kitchen window.
¶4 After backup arrived, Officers Niebuhr and Arturo
Gonzalez entered the residence and traced the noises to the
basement. Two additional officers responded to the scene and
"cleared" the main and upstairs floors of the residence.
Officers Niebuhr and Gonzalez went down to the basement where
they found Mr. Harris secreted in a crawl space under the
stairs. Strewn about him were copper piping, a flashlight with
a red lens, and a duffle bag containing a saw and replacement
blades, a bolt-cutter type instrument, and some crowbars. Mr.
Harris' outfit included a pair of black work gloves. The
officers took Mr. Harris into custody and eventually placed him
in Officer Niebuhr's squad car.
¶5 While still in the squad car in front of the
residence, Mr. Harris commenced an unprompted narrative of his
2
No. 2014AP1767-CR
criminal activities. Mr. Harris told Office Niebuhr he had been
homeless for approximately seven years, he frequently went into
vacant homes to sleep, and he often committed misdemeanor crimes
to get items to sell. He said this was his plan for the copper
piping. Neither Officer Niebuhr, nor any of the other officers
present, were questioning Mr. Harris when he made these
statements. Officer Niebuhr confirmed he neither said nor did
anything of a threatening nature to prize out Mr. Harris'
statements, nor did he promise Mr. Harris anything in exchange
for them. Officer Niebuhr did not give Mr. Harris a Miranda2
warning before he made these statements.
¶6 Later that morning, Detective Chad Buchanan of the
Kenosha Police Department went to the Kenosha County Jail to
interview Mr. Harris. He met Mr. Harris at about 9:00 a.m. in
the common area, just outside the interview rooms. What
occurred next is not entirely clear, but Detective Buchanan
asked a question to the effect of "Would you like to give me a
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
No. 2014AP1767-CR
statement?"3 Mr. Harris responded: "They caught me man, I got
nothing else to say." Detective Buchanan did not inform Mr.
Harris of his Miranda rights prior to speaking with him.
¶7 The State charged Mr. Harris with burglary, possession
of burglarious tools, criminal damage to property, and criminal
trespass, each as a repeater. Mr. Harris brought a suppression
motion to prevent the State from using his "they caught me"
statement at trial.4 The circuit court found that "Detective
Buchanan's intent was to ask the defendant to come to the
interview rooms for an interview and . . . the question was,
would you like to give a statement?" The circuit court said the
expected response to this question would have been "yes, I'll
give a statement or, no, I won't give a statement."
Consequently, the circuit court found no violation of Mr.
Harris's right to be free from self-incrimination, and so denied
the suppression motion. The State used his statement at trial,
3
At the suppression hearing, Detective Buchanan said he
asked Mr. Harris "if he would like to come with me to the
detective bureau to be interviewed." At trial, Detective
Buchanan testified that he "asked the defendant if he would like
to give me a statement . . . ." Although not entirely clear, it
appears Mr. Harris bases his argument on Detective Buchanan’s
trial testimony. This makes sense——between the two
characterizations, the trial testimony describes a question
closer to the Miranda line than the question described at the
suppression hearing. Consequently, our analysis will focus on
the formulation presented at trial. If that passes
constitutional muster, then so will the other.
4
The suppression motion encompassed other statements as
well, but the "they caught me" statement is the only one Mr.
Harris presented for our review.
4
No. 2014AP1767-CR
following which the jury found Mr. Harris guilty on all four
counts.
¶8 Mr. Harris timely appealed his conviction. In a
published decision, the court of appeals affirmed. It noted the
confusion over the precise wording of the question that preceded
Mr. Harris's "they caught me" statement, but found it
unimportant to the outcome. The court of appeals concluded
that, whatever the exact wording, it was "not reasonably likely
to elicit an incriminating response; [and] thus, the
communication did not constitute interrogation and Miranda
warnings were not required."5
II. STANDARD OF REVIEW
¶9 We employ a two-step process in reviewing a circuit
court's denial of a motion to suppress. State v. Eason, 2001
WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625. First, we review
the circuit court's factual findings and uphold them unless they
are clearly erroneous. Id.6 Second, we apply constitutional
principles to those facts de novo, without deference to the
courts initially considering the question, but benefitting from
their analyses. In re Commitment of Mark, 2006 WI 78, ¶12, 292
Wis. 2d 1, 718 N.W.2d 90 ("We also review, de novo, the
application of constitutional principles to established
5
Harris, 366 Wis. 2d 777, ¶25.
6
Notwithstanding the uncertainty over the exact wording of
Detective Buchanan’s question, neither party argues that any of
the circuit court’s factual findings were clearly erroneous.
Consequently, we do not address this step of the review process.
5
No. 2014AP1767-CR
facts."); State v. Hansford, 219 Wis. 2d 226, 234, 580
N.W.2d 171 (1998) ("Although we review questions of law de novo,
we benefit from the analyses of the circuit court and the court
of appeals.").
III. DISCUSSION
¶10 Mr. Harris presents a single question for our
consideration: Whether the State compelled him to be a witness
against himself by using his answer to Detective Buchanan's
question at trial.7 A simple question like "Would you like to
give me a statement?" may seem an unlikely candidate for a
constitutional violation, but as our analysis here demonstrates,
we are unstinting in our protection of criminal defendants'
rights.
¶11 There is history behind the protection against self-
incrimination, history that reminds us of why that barrier is so
important. It is born of experience, and responds to the
dangers inherent in the inquisitorial method of questioning
suspects:
The maxim 'Nemo tenetur seipsum accusare,'[8] had its
origin in a protest against the inquisitorial and
manifestly unjust methods of interrogating accused
7
The Fifth Amendment to the United States Constitution
provides that no "person . . . [shall] be compelled in any
criminal case to be a witness against himself." U.S. Const.
amend. V. The Wisconsin Constitution article I, section 8
contains an analogous provision, which says that "No
person . . . may be compelled in any criminal case to be a
witness against himself or herself."
8
"No one is bound to accuse himself."
6
No. 2014AP1767-CR
persons, which [have] long obtained in the continental
system, and, until the expulsion of the Stuarts from
the British throne in 1688, and the erection of
additional barriers for the protection of the people
against the exercise of arbitrary power, [were] not
uncommon even in England. While the admissions or
confessions of the prisoner, when voluntarily and
freely made, have always ranked high in the scale of
incriminating evidence, if an accused person be asked
to explain his apparent connection with a crime under
investigation, the ease with which the questions put
to him may assume an inquisitorial character, the
temptation to press the witness unduly, to browbeat
him if he be timid or reluctant, to push him into a
corner, and to entrap him into fatal contradictions,
which is so painfully evident in many of the earlier
state trials, . . . made the system so odious as to
give rise to a demand for its total abolition.
Brown v. Walker, 161 U.S. 591, 596—97 (1896).9 The ease with
which innocent questions can become inquisitorial requires that
this protection apply to criminal suspects whether they are
inside or outside of the courtroom: "[T]he privilege against
self-incrimination protects individuals not only from legal
compulsion to testify in a criminal courtroom but also from
'informal compulsion exerted by law-enforcement officers during
in-custody questioning.'" Pennsylvania v. Muniz, 496 U.S. 582,
589 (1990) (quoting Miranda v. Arizona, 384 U.S. 436, 461
(1966)). Thus, our constitutional protection against self-
9
Although this excerpt from Brown specifically addressed
coerced confessions, instead of the broader right to remain
silent (which we address here), its condemnation of the
inquisitorial method served as part of the motivating rationale
for the ubiquitous Miranda warnings. And its description of the
inquisitorial method provides valuable insight as we consider
what constitutes the "functional equivalent" of an
interrogation.
7
No. 2014AP1767-CR
incrimination is called to duty whenever the State interrogates
a suspect in police custody. See Miranda, 384 U.S. 436; see
also State v. Armstrong, 223 Wis. 2d 331, ¶29, 588 N.W.2d 606
(1999).
¶12 This freedom from compelled self-incrimination is one
of the nation's "most cherished principles." Miranda, 384 U.S.
at 458. We are sufficiently solicitous of this protection that
we guard it by patrolling a generous buffer zone around the
central prohibition.
A. Procedural Requirements
¶13 The most important aspect of that buffer is the right
to remain silent while in police custody. We actualize the
right by requiring the State's agents, before conducting an in-
custody interrogation, to formally instruct the suspect of his
constitutional rights and then conduct themselves according to
how he elects to preserve or waive them. Thus, a suspect must
be warned prior to any questioning that he has the
right to remain silent, that anything he says can be
used against him in a court of law, that he has the
right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.
Miranda, 384 U.S. at 479.
¶14 This procedural safeguard arose out of an
understanding that custodial interrogations present a uniquely
intimidating atmosphere that can interfere with a suspect's
exercise of his rights: "The concern of the Court in Miranda
was that the 'interrogation environment' created by the
interplay of interrogation and custody would 'subjugate the
8
No. 2014AP1767-CR
individual to the will of his examiner' and thereby undermine
the privilege against compulsory self-incrimination." Rhode
Island v. Innis, 446 U.S. 291, 299 (1980) (quoting Miranda, 384
U.S. at 457–58). Requiring this warning, and scrupulous
adherence to the suspect's decisions thereafter, give us
assurance that his decision to remain silent has not been
overborne. The consequence of failing to honor this safeguard
is loss of the evidence: "[U]nless and until such warnings and
waiver are demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against [a
suspect]." Miranda, 384 U.S. at 479.
¶15 There is no doubt Mr. Harris was in police custody
when Detective Buchanan asked whether he would like to make a
statement (he was in jail), so our inquiry focuses on whether
that question qualifies as an interrogation. As we discuss
below, custodial interrogation can take the form of either
express questioning or its functional equivalent.10 We will
analyze Detective Buchanan's question and Mr. Harris' response
under each rubric. If either analysis reveals the question to
be an interrogation, then we must suppress Mr. Harris' response
because it was not preceded by a Miranda warning.
10
"[T]he term 'interrogation' under Miranda refers not only
to express questioning, but also to any words or actions on the
part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect."
Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
9
No. 2014AP1767-CR
B. Express Questioning
¶16 "Express questioning" does not encompass every inquiry
directed to the suspect. It covers only those questions
"designed to elicit incriminatory admissions." Pennsylvania v.
Muniz, 496 U.S. 582, 602 n.14 (1990). See also Doe v. U.S., 487
U.S. 201, 211 (1988) ("Unless some attempt is made to secure a
communication——written, oral or otherwise——upon which reliance
is to be placed as involving [the accused's] consciousness of
the facts and the operations of his mind in expressing it, the
demand made upon him is not a testimonial one." (quoting J.H.
Wigmore, 8 Wigmore on Evidence, § 2265 (4th ed. 1988))).
¶17 It is the nature of the information the question is
trying to reach, therefore, that determines whether it is
inquisitorial. If that information has no potential to
incriminate the suspect, the question requires no Miranda
warnings. Id. at 211 n.10 ("In order to be privileged, it is
not enough that the compelled communication is sought for its
content. The content itself must have testimonial
significance.").
¶18 Detective Buchanan's question did not constitute
express questioning because it sought nothing that could be
potentially incriminating. Although his question was certainly
designed to obtain a response, the only information it sought
was whether Mr. Harris would like to make a statement; it did
not seek the statement itself. The response to such a question
is either "yes" or "no," and neither would have any testimonial
significance whatsoever. Thus, Detective Buchanan's question
10
No. 2014AP1767-CR
did not constitute "express questioning" because the
constitutional privilege applies only to the search for
incriminating evidence.
C. Functional Equivalence
¶19 There are more ways than one to obtain incriminating
evidence from a suspect. Miranda addressed itself to the most
obvious——express questioning. But there are techniques of
persuasion that, in a custodial setting, can create the same
potential for self-incrimination even in the absence of an
express question. So the Innis Court expanded the prophylactic
buffer by applying Miranda's procedural safeguards to the
"functional equivalent" of an interrogation. Innis, 446 U.S. at
300–01. Such an equivalent includes "any words or actions on
the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect."
Id. at 301.
¶20 The test for determining what words or behavior might
constitute the functional equivalent of an interrogation is not
as straightforward as it first appears. The test (as stated
above) inquires into what the police officer should know,
implying the test might be conducted from his perspective.
However, Innis requires that we account for the suspect's
perception of events for the specific purpose of broadening the
buffer: "This focus reflects the fact that the Miranda
safeguards were designed to vest a suspect in custody with an
added measure of protection against coercive police practices,
11
No. 2014AP1767-CR
without regard to objective proof of the underlying intent of
the police." Id.
¶21 This means that, even where an officer's action had a
purpose other than interrogation, the action "must be viewed
from the suspect's perspective to determine whether such conduct
was reasonably likely to elicit a response." State v.
Cunningham, 144 Wis. 2d 272, 280, 423 N.W.2d 862 (1988).
Further, Innis noted that the police may need to be mindful of
the ease with which a given suspect might be persuaded to make
an incriminating statement: "Any knowledge the police may have
had concerning the unusual susceptibility of a defendant to a
particular form of persuasion might be an important factor in
determining whether the police should have known that their
words or actions were reasonably likely to elicit an
incriminating response from the suspect." Innis, 446 U.S. at
302 n.8.
¶22 In Wisconsin, we implement the "functional
equivalency" standard by positing a reasonable third-person
observer and inquiring into how such a person would expect the
suspect to react to the officer's words and actions:
[I]f an objective observer (with the same knowledge of
the suspect as the police officer) could, on the sole
basis of hearing the officer's remarks or observing
the officer's conduct, conclude that the officer's
conduct or words would be likely to elicit an
incriminating response, that is, could reasonably have
had the force of a question on the suspect, then the
conduct or words would constitute interrogation.
12
No. 2014AP1767-CR
Cunningham, 144 Wis. 2d at 278–79. This test is objective with
respect to each of the participants in the interaction. That is
to say, we do not consider what any of the participants actually
intended or understood. We consider only what the objective
third-party observer would conclude from the available
information.
¶23 In determining whether Detective Buchanan's dialogue
with Mr. Harris is the functional equivalent of an
interrogation, we consider more than just the bare words with
which he formed his question. We must reconstruct——as near to
verisimilitude as possible——the entire context within which the
dialogue took place. Then, as described above, we ask whether a
reasonable observer would conclude that the suspect in the
vignette would understand the officer's words and actions as
reasonably likely to elicit an incriminating response.
¶24 Here is what we know about the circumstances in which
Detective Buchanan had his brief conversation with Mr. Harris.
In the very early hours of a morning in 2011, the police found
Mr. Harris secreted away in the basement of a house in which he
did not belong, with copper piping and burglarious tools arrayed
about him. After taking him into custody, he was placed in the
back seat of Officer Niebuhr's patrol car, whereupon he
commenced divulging a great deal of information, much of it
incriminating. For example, he said he had been homeless for
seven years and frequently sleeps in vacant houses. He also
said he often commits misdemeanor crimes to obtain things to
sell "to get by," and that is what he intended to do with the
13
No. 2014AP1767-CR
copper piping.
¶25 Mr. Harris offered all of this information without
prompting. Officer Niebuhr made no threats or promises to
obtain the statements, and in fact asked no questions of Mr.
Harris at all (while he was in the patrol car) before he
provided this information. Officer Niebuhr said Mr. Harris did
not appear to be intoxicated, overly tired, or otherwise not in
control of his faculties. He also appeared to be clean and
decently attired.
¶26 The police then transported Mr. Harris to the Kenosha
County Jail. Later in the morning, at about 9:00 a.m.,
Detective Buchanan (who had not been present for Mr. Harris'
arrest), went to the jail to interview him. A guard brought Mr.
Harris (who was not handcuffed) to the main floor of the jail.
Detective Buchanan met him in a common area just outside the
interview rooms. He did not smell alcohol on Mr. Harris or
observe any behavior that would indicate he was intoxicated.
Detective Buchanan then asked Mr. Harris the question at issue
in this case.
¶27 As all such scenarios must be, this vignette is fact-
bound, which does not make it especially amenable to fixed rules
of interpretation. However, past cases help sketch the boundary
between "functional equivalents of interrogation" and
constitutionally-innocent questions and acts. We collected a
sampling of such cases in State v. Hambly, 2008 WI 10, 307 Wis.
2d 98, 745 N.W.2d 48, some of which we address below.
¶28 Our evaluation of Detective Buchanan's question
14
No. 2014AP1767-CR
accounts for the following principles useful in identifying the
"functional equivalent" of an interrogation. As we consider and
apply those principles, we keep firmly in mind that the ultimate
purpose of our analysis is to protect against coerced
confessions by respecting a suspect’s decision to remain silent:
"In deciding whether particular police conduct is interrogation,
we must remember the purpose behind our decisions in Miranda and
Edwards [v. Arizona, 451 U.S. 477 (1981)]: preventing government
officials from using the coercive nature of confinement to
extract confessions that would not be given in an unrestrained
environment." Arizona v. Mauro, 481 U.S. 520, 529–30 (1987).
Although the effect of that coercion may differ from suspect to
suspect, a specific individual's special susceptibility enters
the equation only if the State's agents should know of it. See,
e.g., Innis, 446 U.S. at 303 n.10 (the "subtle compulsion"
associated with an unknowing appeal to the suspect's conscience
is not an interrogation).
¶29 From our cases addressing police statements made to a
suspect, as opposed to questions asked of him, we confirm that
our primary point of focus is on the reasonably likely effect of
the officer's words on the suspect, not their grammatical
format. Seemingly innocuous statements, when freighted with
subtext or inquisitorial design, can become an interrogation.
Thus, a dialogue with a suspect can constitute an interrogation
even when law enforcement officers ask no questions. Hambly,
307 Wis. 2d 98, ¶46 ("A law enforcement officer may thus be
viewed as interrogating a suspect by a statement, without asking
15
No. 2014AP1767-CR
a single question, if the law enforcement officer's conduct or
speech could have had the force of a question on the suspect.").
¶30 However, to rise to the level of an interrogation, the
officer's statements (or, in this case, question) must exert a
compulsive force on the suspect: "Interrogation must reflect a
measure of compulsion above and beyond that inherent in custody
itself." Id. (quoting Innis, 446 U.S. at 300) (internal marks
omitted). For example, an officer's cryptic comment about
information only the perpetrator of the crime would recognize
may be considered functionally equivalent to an interrogation
because of the effect the comment causes. State v. Bond, 2000
WI App 118, 237 Wis. 2d 633, 614 N.W.2d 552. Similarly, giving
unresponsive answers to questions posed by a suspect with the
intent of provoking an incriminating response, and using
interrogation techniques during the conversation, can serve as
the functional equivalent of an interrogation. Hambly, 307
Wis. 2d 98, ¶¶63-65 (citing Hill v. United States, 858 A.2d 435
(D.C. Ct. App. 2004) (finding that an officer telling a suspect
that "he told us what happened" was unresponsive to the
defendant’s question regarding another person in custody and,
when coupled with other common interrogation techniques designed
to elicit a response, met the functional equivalency test)).
¶31 But police interactions with a suspect do not amount
to interrogations so long as they are not reasonably likely to
elicit an incriminating response. That is why law enforcement
officials may make context-appropriate, and accurate, comments
to a suspect without running afoul of Miranda and Innis. They
16
No. 2014AP1767-CR
can, for example, provide information responsive to questions
posed by defendants. Hambly, 307 Wis. 2d 98, ¶¶65–66 (finding
no functional equivalence where defendant made an incriminating
statement after the police officer, prior to giving him the
Miranda warnings, informed the defendant of why he was under
arrest). Similarly, if a suspect volunteers incriminating
information following an officer's non-leading, direct responses
to the suspect's questions about possible charges against him,
there has been no functional equivalent of an interrogation.
State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656 N.W.2d 503
(finding that "an objective observer would not, on the sole
basis of hearing [defendant's] words and observing his conduct,
conclude that [an officer's] answers to [defendant's] direct
questions about the evidence against him would be likely to
elicit an incriminating response . . . ."). Nor are non-
editorialized statements of fact the functional equivalent of an
interrogation. Easley v. Frey, 433 F.3d 969 (7th Cir. 2006)
(finding no interrogation when suspect confessed after being
accurately informed that someone had implicated him in a crime,
and that he could be subject to the death-penalty if convicted).
¶32 Finally, we must also pay attention to the atmosphere
in which the suspect incriminates himself. As Innis observed,
the Miranda Court was concerned with the "interrogation
environment" created by custodial questioning. Innis, 446 U.S.
at 299. A police officer's quotidian question posed to a person
strolling in a park may carry an objectively different import if
growled at a manacled suspect held incommunicado for an extended
17
No. 2014AP1767-CR
period of time in a stark interview room.
¶33 With all of this in mind, we have no difficulty
finding that Detective Buchanan's question was not the
functional equivalent of an interrogation under the Cunningham
formulation. There is no indication Detective Buchanan intended
his question to elicit an incriminating statement, nor is there
anything to suggest that asking a suspect whether he would like
to make a statement is a police practice designed to
surreptitiously cause the suspect to divulge incriminating
evidence.
¶34 Further, the context in which he asked the question
conveyed a non-inquisitorial purpose. Mr. Harris and Detective
Buchanan were standing in a common area outside the interview
rooms. A reasonable observer would conclude that Detective
Buchanan's question was diagnostic in nature: Should he conduct
Mr. Harris into the interview room where he would then give his
statement, or should he instead return Mr. Harris to his cell?11
Incidentally, Mr. Harris' response strongly suggests this is how
he understood it, too. He said: "They caught me man, I got
nothing else to say." The latter part of his statement
indicates he believed there was no point in proceeding to the
interview room, and so he gave what amounted to a functional
"no" to the Detective's invitation. The initial clause of his
11
By "diagnostic" we mean a question that seeks information
useful for a State agent’s functional (as opposed to
inquisitorial) interaction with a suspect.
18
No. 2014AP1767-CR
statement simply (and, perhaps, unwisely) explained why he was
declining the invitation. But even if he subjectively
understood it otherwise, a reasonable observer would not expect
this question, presented in this setting, to convey to Mr.
Harris that he was being asked to immediately provide
incriminating information.12
¶35 This diagnostic question aligns well with situations
in which we find no constitutional violation when police convey
non-editorial statements of fact to suspects, or provide
accurate responses to their questions. In neither of those
circumstances is there an inquisitorial subtext to the
communication. That is true here as well. Detective Buchanan's
Mr. Harris urges us to follow the conclusion reached in
12
State v. Hebert, 82 P.3d 470 (Kan. 2004). But Messrs. Harris
and Hebert's situations are sufficiently dissimilar that the
Kansas Supreme Court's resolution does not counsel a different
result here. There, Special Agent Cordts, before giving the
Miranda warnings, said:
Talk to you a little bit and get both sides of the
story. I've only heard one side of the story and,
obviously, there's always two sides of a story here
and I'd like in your words, your input and tell me
what happened and explain in your words and coming
from you. Would you like the opportunity to tell me
your side of the story?
Id. at 480. Mr. Hebert then started divulging incriminating
information.
Agent Cordts' question is similar to that of Detective
Buchanan. But unlike here, it did not exist in isolation. The
preamble to Agent Cordts' question conveyed the idea that he
wanted Mr. Hebert to start talking. Agent Cordts' statement and
question, taken together, was tantamount to an instruction to
give a statement. Thus, Hebert is substantively distinct from
Detective Buchanan's isolated diagnostic question, and so can
give Mr. Harris no support.
19
No. 2014AP1767-CR
question was not an excerpt from an extended conversation, nor
was there any indication Detective Buchanan was pressuring Mr.
Harris or menacing him. There was no trickery, no good cop/bad
cop routine, no attempt to make him contradict prior statements,
and no evidence of any other discernible form of interrogation
technique.13 Thus, there was no proscribed inquisitorial element
to the question. Sometimes, an inquiry calling for a "yes" or
"no" answer really does seek nothing more than that.
¶36 Finally, there is the question of what the police
knew, or should have known, about Mr. Harris and any particular
susceptibility he may have had to a particular form of
persuasion. Innis, 446 U.S. at 302 n.8. This question need not
detain us long because the record does not indicate that
Detective Buchanan exercised any form of persuasion, either
expressly or implicitly, when he asked if Mr. Harris wished to
make a statement. We will, however, briefly address Mr. Harris'
suggestion that his particular vulnerability to police
questioning made Detective Buchanan's question an interrogation.
¶37 Mr. Harris says his "emotional state was one in which
he was especially inclined to explain himself to law enforcement
with statements that a prosecutor would want to introduce at
trial." He says Detective Buchanan, having read the police
13
We list these techniques only to identify ways in which
police conduct may become inquisitorial, thereby serving as the
functional equivalent of an interrogation. We are not
suggesting there is anything amiss with these tactics when
employed in the proper context.
20
No. 2014AP1767-CR
reports before meeting him outside of the interview rooms, would
have known this. He does not say what that emotional state was
or how Detective Buchanan was supposed to infer from the
report's recounting of events what his emotional state had been.
Nor does he say what his emotional state at the time of arrest
might tell Detective Buchanan about his emotional state when he
met him outside the interview rooms. Because so many factors
and inputs affect one's state of mind, emotional lability is to
be expected. So a person's emotional condition from hours past
is a poor predictor of what it might be presently.
¶38 Mr. Harris points out, correctly, that the police
reports reveal he provided several unprompted incriminating
statements to Officer Niebuhr after he was arrested. He says
this should have warned Detective Buchanan that his question
would likely result in incriminating statements. Mr. Harris'
conclusion, however, does not logically follow from his premise.
One may deduce from the report that Mr. Harris may be
loquacious, but little more. It says nothing about how he
responds to questioning——his statements were, after all,
unprompted. And neither Officer Niebuhr nor any other State
agent had exercised any form of persuasion on Mr. Harris before
he implicated himself. Thus, his interaction with Officer
Niebuhr could not instruct Detective Buchanan on how particular
forms of persuasion might affect him. Whatever reason Mr.
Harris had for volunteering his statements to Officer Niebuhr,
his behavior did not indicate he would be particularly prone to
incriminating himself in response to Detective Buchanan's
21
No. 2014AP1767-CR
question.
¶39 Our analysis of this factor would be incomplete if we
did not account for both sides of the "susceptibility" ledger.
That is to say, we should consider not just what might make him
more susceptible to police tactics, but also what would be
likely to make him less susceptible. This was not Mr. Harris'
first encounter with police questioning. Nor was it his first
time being arrested or convicted. In fact, he was charged in
this case as a repeat offender. Repeat, indeed——the record
discloses that this conviction makes it an even dozen for Mr.
Harris. His familiarity with the criminal justice system does
not, of course, diminish the State's obligation to scrupulously
follow constitutional mandates. But our project at this point
of the analysis is to discern, as accurately as possible,
whether Detective Buchanan's question would be reasonably likely
to elicit an incriminating response from Mr. Harris. It is
reasonable to believe that a person’s twelfth time through the
criminal justice system will be less intimidating than the
first. Inasmuch as Mr. Harris has not identified any
characteristic making him particularly susceptible to law
enforcement officers' persuasion tactics, we will not infer one
for him just because he is loquacious.
¶40 We conclude that there was no functional equivalent of
an interrogation because, considered in the context of all the
circumstances described above, there was no reasonably causal
relationship between the State's words or actions and Mr.
Harris' incriminating statement. A question such as "Would you
22
No. 2014AP1767-CR
like to give me a statement?", when posed in the situation
obtaining here, would not logically cause a suspect to say
something incriminating. It is true that Mr. Harris' "they
caught me" statement followed Detective Buchanan's inquiry, but
only post hoc ergo propter hoc reasoning can make the question
the cause of the answer’s incriminating substance. We will not
entertain that logical error.
¶41 Mr. Harris brings to our attention a Hawai'i case with
a prescription that would effectively eliminate the need for our
"functional equivalency" analysis here. State v. Eli, 273
P.3d 1196 (Haw. 2012). In that case, as here, a police officer
asked the suspect if he would like to make a statement. Mr. Eli
said he would, without saying anything incriminating. The
officer then gave him the Miranda warnings, only after which Mr.
Eli incriminated himself. Nevertheless, Hawai'i's Supreme Court
said the officer's diagnostic question compelled Mr. Eli to
serve as a witness against himself.
¶42 The Eli court concluded that a pre-Miranda agreement
to give a statement has an effect so coercive that the Miranda
warnings cannot counteract it. So the court said the Miranda
warnings must precede any inquiry into whether the suspect would
like to speak. The reasoning appears to be that, once a suspect
agrees to give a statement, his will is so completely overthrown
that immediately instructing him he need not speak still leaves
him unable to remain silent. Why such an innocuous question
would have such a catastrophic effect, and why a suspect would
be affected more by the remote question than the immediate
23
No. 2014AP1767-CR
instruction, is unclear. We do not, as a rule, assume that a
suspect is so fragile that a diagnostic question such as the one
posed by Detective Buchanan can shatter his will so thoroughly
that it leaves him beyond the rehabilitative ministrations of
the Miranda warnings. In point of fact, our jurisprudence is to
the contrary.14
¶43 Our conclusion mirrors a recent United States Court of
Appeals opinion (more recent than Eli) treating an almost
identical dialogue. United States v. Wallace, 753 F.3d 671 (7th
Cir. 2014). There, agents of the Drug Enforcement Agency raided
Mr. Wallace's house, wherein they found large amounts of illegal
drugs. During the search, law enforcement officers had
marshalled the house's occupants into the front room, including
Mr. Wallace. The lead DEA agent approached Mr. Wallace and
asked: "[W]ould you mind stepping out to talk about this?" Id.
14
See, e.g., Oregon v. Elstad, 470 U.S. 298, 309 (1985)
("Though Miranda requires that the unwarned admission must be
suppressed, the admissibility of any subsequent statement should
turn in these circumstances solely on whether it is knowingly
and voluntarily made."); State v. Armstrong, 223 Wis. 2d 331,
588 N.W.2d 606 (1999) (finding oral statements made before a
Miranda warning inadmissible, but written statements made after
Miranda warning admissible); Briggs v. State, 76 Wis. 2d 313,
251 N.W.2d 12 (1977) (finding that even where an initial
statement made without Miranda warnings was inadmissible,
subsequent statements given at a police station after Miranda
warnings were admissible as they were the result of routine
investigative procedures); State v. Loeffler, 60 Wis. 2d 556,
211 N.W.2d 1 (1973) (holding that statements given after Miranda
warnings are admissible, even when the arrest that preceded the
statements was constitutionally deficient).
24
No. 2014AP1767-CR
at 673. Mr. Wallace answered "I don't want to waste your time,
everything in there's mine." Id.
¶44 Messrs. Harris and Wallace occupy identical
constitutional ground. Both were in police custody. Both were
asked by law enforcement officers whether they would like to
discuss criminal activity. Both could have fully and accurately
answered the question with either a "yes" or a "no." And both
chose, instead, to respond with incriminating statements.
¶45 The Wallace court did not belabor the analysis. It
observed that "[t]he agent was just asking the defendant whether
he wanted to make a statement, to which the expected and proper
answer would have been yes or no." Id. at 674. So the court
found no constitutional violation: "That was not a statement
elicited by an interrogation, or even responsive to the agent's
question (which called for a yes or no answer, not a
confession), and so there was no violation of the Miranda rule."
Id. And although the court did not explicitly address the Innis
functional equivalency test, it relied on that case to support
its conclusion.
¶46 The Fifth Amendment to the United States Constitution
and article I, section 8 of the Wisconsin Constitution prevent
the State’s agents from compelling a defendant to serve as a
witness against himself. But their protection is against the
State. They do not protect Mr. Harris from himself. Whether or
not it was wise for him to make the statement he did, he was not
coerced into forsaking his silence. Detective Buchanan’s
question was not the "functional equivalent" of an
25
No. 2014AP1767-CR
interrogation, and so no Miranda warnings were necessary before
he asked it.15
V. CONCLUSION
¶47 Detective Buchanan's inquiry into whether Mr. Harris
would like to make a statement was diagnostic in nature, not
inquisitorial, and the circumstances confirm that it was not the
functional equivalent of an interrogation. Thus, Mr. Harris'
statement that "They caught me man, I got nothing else to say"
followed a voluntary decision to speak with Detective Buchanan.
¶48 Because the State did not compel Mr. Harris to be a
witness against himself, the judgment of the court of appeals is
affirmed.
By the Court.—The decision of the court of appeals is
affirmed.
15
The dissent is concerned that the uncertainty over the
exact wording of Detective Buchanan’s question weakens our
analysis. Of all the potential ways in which the parties say he
may have phrased his question, we opted to consider the one most
favorable to Mr. Harris. Indeed, it is the phrasing he adopted
in his own briefs. So if there is weakness-inducing uncertainty
here, neither logic nor the dissent identifies what it might be.
26
No. 2014AP1767-CR.akz
¶49 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority opinion so long as it is read to answer only the
issue presented and does not alter, change, or affect existing
case law concerning Miranda, 384 U.S. 436 (1966), or an issue
not present here, Goodchild (voluntariness). See State ex rel.
Goodchild v. Burke, 27 Wis. 2d 244, 262, 133 N.W.2d 753 (1965).
The question in this case is exceedingly narrow. "Miranda
warnings need only be administered to individuals who are
subjected to a custodial interrogation." State v. Armstrong,
223 Wis. 2d 331, 344-45, 588 N.W.2d 606 (1999), modified, 225
Wis. 2d 121, 591 N.W.2d 604 (1999) (per curiam). There is no
dispute that Harris was in custody at the time that Detective
Buchanan asked Harris whether he wanted to give a statement.
Thus, the only issue this court need resolve in the present case
is whether Detective Buchanan's question constitutes
"interrogation." Supreme Court case law, in turn, instructs
that "the term 'interrogation' under Miranda refers not only to
express questioning, but also to any words or actions on the
part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect."
Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnote
omitted). I agree with the court's determination that Detective
Buchanan's brief interaction with Harris does not fit this
definition and that the absence of a Miranda warning prior to
that interaction does not, therefore, mandate reversal.
1
No. 2014AP1767-CR.akz
¶50 I write separately to clarify that the court's
additional writing beyond the narrow question to be answered
should not be read to change the law relating to Goodchild
inquiries, which are not at issue in this case. A Goodchild
analysis is distinct from a Miranda analysis: "In Miranda the
question is, was the confession or other statement obtained
under such circumstances of custodial interrogation as to
require the exclusion of the statement from evidence. In
Goodchild the question is, was the statement involuntary and
therefore should be excluded from evidence." Roney v. State, 44
Wis. 2d 522, 533, 171 N.W.2d 400 (1969).
¶51 When examining whether a declarant's statement was
voluntary, the question is "whether [the statement] was obtained
under such circumstances that it represents the uncoerced, free
will of the declarant or whether the circumstances deprived him
of the ability to make a rational choice." Id. at 532-33.
This court applies a totality of the
circumstances standard to determine whether a
statement was made voluntarily. We must balance the
personal characteristics of the defendant, such as
age, education, intelligence, physical or emotional
condition, and prior experience with law enforcement,
with the possible pressures that law enforcement could
impose. Possible pressures to consider include the
length of questioning, general conditions or
circumstances in which the statement was taken,
whether any excessive physical or psychological
pressure was used, and whether any inducements,
threats, methods, or strategies were utilized in order
to elicit a statement from the defendant.
State v. Davis, 2008 WI 71, ¶37, 310 Wis. 2d 583, 751 N.W.2d 332
(citations omitted).
2
No. 2014AP1767-CR.akz
¶52 To be clear, the question in this case is not whether
Harris' statement was voluntary; instead, the court has simply
been asked to determine whether Detective Buchanan interrogated
Harris. At times, the majority opinion could be read to deviate
from the relevant analysis and dabble with considerations
relevant to voluntariness, conflating the analyses. I join this
opinion only if it is read to answer the question of whether
this was interrogation, leaving untouched the body of case law
which otherwise addresses Miranda or Goodchild. Thus, I write
to emphasize that this opinion should not be read to otherwise
change the law.
¶53 For the foregoing reasons, I respectfully concur.
¶54 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this opinion.
3
No. 2014AP1767-CR.ssa
¶55 SHIRLEY S. ABRAHAMSON, J. (dissenting). A homeless
man, Brian Harris, was arrested late one night while he was
sleeping off a day's drinking in the basement of an abandoned
building.1 He was not given Miranda warnings.2
¶56 It is easy to use soaring rhetoric promising a court's
"unstinting" protection of a criminal defendant's constitutional
right not to be compelled to be a witness against himself,3 "one
of the nation's 'most cherished principles.'"4 It's harder to
make the promise ring true, however, when a court stints in
protecting the defendant's constitutional rights.
¶57 I begin by briefly setting the stage underlying
Harris's assertion that he was compelled to be a witness against
himself.
¶58 Both in the abandoned building's basement where Harris
was arrested and in his ride in the back of the squad car on his
1
At trial, Harris testified that he was too intoxicated to
have any memory of the night's events other than glimpses of
waking up in a mysterious basement with a police officer
standing over him and arresting him.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Majority op., ¶¶10-14.
The Fifth Amendment to the United States Constitution
provides that no "person . . . shall be compelled in any
criminal case to be a witness against himself . . . ." U.S.
Const. amend. V. This provision is made applicable to the
states through the Fourteenth Amendment. Malloy v. Hogan, 378
U.S. 1 (1964).
4
Majority op., ¶12.
1
No. 2014AP1767-CR.ssa
way to jail, Harris was loquacious. The talkative Harris told
the arresting officers that he had been homeless for
approximately seven years; that he frequently went into vacant
buildings to sleep; that he was going to take copper piping from
the building in which he was arrested and sell it for money for
food; that he often commits misdemeanor crimes to get items to
sell for food to get by; and that he was alone. Harris's
statements at his arrest that were admitted at trial are not at
issue in this court.5
¶59 In the morning, Harris was led by jail guards to an
area in the jail outside of an interview room. He met up with
Detective Buchanan. No one disputes that Harris was in custody.
No one disputes that the Detective asked Harris one question and
5
Citing State v. Wedgeworth, 100 Wis. 2d 514, 302
N.W.2d 810 (1981), the circuit court ruled that the basement and
squad car statements "were voluntary, and they appear to me to
be the product of free and unconstrained will, reflecting
deliberate choice, not coerce [sic] of improper police
pressure."
Harris appealed the circuit court's decision admitting
these statements.
The court of appeals ruled that Harris' statements made in
the basement were the result of custodial interrogation and
should be suppressed. The court of appeals ruled, however, that
Harris's statements in the squad car were not the result of
interrogation and were sufficiently attenuated from the improper
questioning in the basement. State v. Harris, 2016 WI App 2,
¶¶11-19, 366 Wis. 2d 777, 874 N.W.2d 602. Harris did not appeal
this ruling and does not challenge before this court the
admissibility of the statements in the basement or in the squad
car.
2
No. 2014AP1767-CR.ssa
that Harris made an incriminating response before any Miranda
warnings were given.6
¶60 The incriminating response to the Detective was not
suppressed by the circuit court.7 It was introduced at trial
during the State's case-in-chief. Harris testified at trial,
and the jury found him guilty of all charges.8 Majority op., ¶7.
¶61 The admissibility of Harris's response at the jail is
at issue in the instant case. The relatively straightforward
legal issue presented is whether the Detective's question was
interrogation under the Fifth Amendment. The State must prove
by a preponderance of evidence that the Detective's question was
not an express question or the functional equivalent of an
express question for Fifth Amendment purposes.9 If the
Detective's question was either, Harris's response should have
been suppressed.
6
"[T]he words 'incriminating response' mean any response——
whether 'inculpatory or exculpatory——that the prosecution may
seek to introduce at trial.'" State v. Cunningham, 144
Wis. 2d 272, 279, 423 N.W.2d 862 (1988) (quoting Rhode Island v.
Innis, 446 U.S. 291, 301 n.5 (1980)).
7
The court of appeals affirmed, holding that Harris was not
subject to interrogation at the jail. Harris appealed the
decision of the court of appeals.
8
Harris was charged (as a repeater) with burglary,
possession of burglarious tools, criminal damage to property,
and criminal trespass. The jury convicted him of all four
counts. The circuit court withheld sentence on all counts and
put Harris on probation for many months.
9
State v. Armstrong, 223 Wis. 2d 331, 345, 588 N.W.2d 606
(1999); State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656
N.W.2d 503.
3
No. 2014AP1767-CR.ssa
¶62 My dissent takes two approaches, each considering the
case "upon its own facts," as the case law instructs.10
¶63 Under the first approach, I probe whether the majority
opinion can or should reach a decision when the record does not
reveal the precise words of the question the Detective posed to
Harris that prompted Harris to respond with an incriminating
statement.
¶64 Under the second approach, I take the same tack as the
majority opinion. I apply the rule of law set forth in State v.
Cunningham, 144 Wis. 2d 272, 423 N.W.2d 862 (1988), to the
facts. Majority op., ¶¶21-22. Although I use a Cunningham
analysis as does the majority opinion, I reach a different
result.
¶65 I avoid, however, addressing the majority opinion's
belabored account of the applicable law on custodial
interrogations. The legal principles set forth in the majority
opinion would be easier to understand and apply if the opinion
stayed with the Cunningham analysis.
I
¶66 The first approach examines the record to reveal that
the court does not know the Detective's precise word choice for
his question to Harris. Exactly what did Detective Buchanan say
to Harris that brought forth Harris's incriminating statement?
We do not know. Indeed the case is awash with different
narratives about the Detective's question to Harris.
10
Cunningham, 144 Wis. 2d at 274.
4
No. 2014AP1767-CR.ssa
¶67 At the suppression hearing, the Detective testified as
follows about his question to Harris and Harris's response:
I went there [to the jail] with the intention of
asking Mr. Harris if he would like to come with me to
the detective bureau to be interviewed. I asked him
if he would, and he stated to me something to the
effect that they caught me, what's the point.
¶68 At trial, the Detective altered his testimony somewhat
from the motion hearing and testified as follows about his
question to Harris and Harris's response:
I reviewed the reports and went to jail. . . . I asked
the defendant if he would like to give me a statement,
and he said, they caught me man, I got nothing else to
say.
¶69 The question was not recorded or videotaped and the
Detective's communication with Harris ended right then and
there.
¶70 The State's brief explains that "the altered
testimony" does not "materially alter the terrain" and for
"purposes of clarity and consistency" it "will go with Detective
Buchanan's testimony at trial as the operative fact."11
¶71 The majority opinion uses the words the circuit court
used: "Would you like to give a statement?" Majority op., ¶6.
¶72 With regard to this wording and to add to the
confusion about the words the Detective used to communicate with
Harris, the court of appeals concluded that the words "would you
like to give a statement" were "never used at trial." The court
of appeals assures the reader, however, that the circuit court's
11
Brief of Plaintiff-Respondent at 5 n.2.
5
No. 2014AP1767-CR.ssa
"mischaracterization" of the Detective's words did not affect
the decision of the court of appeals. The court of appeals
explained its position as follows:
The circuit court indicated in its ruling that
Buchanan asked Harris "would you like to give a
statement"——words Buchanan never used in his
testimony, but which, in one sense reasonably could be
considered a shorthand phrasing of Buchanan's
testimony. Thus whether as a summary of Buchanan's
actual testimony or as an erroneous recollection of
it, the [circuit] court chose to use specific words
Buchanan never actually spoke in his testimony.12
¶73 Regardless of the precise words the Detective used,
the State argues, as might be expected, that the Detective's
question can reasonably be interpreted as an inquiry into
whether Harris wished to talk with the police, was answerable
with a "yes" or "no," and was not the functional equivalent of
an express question. In contrast, as might be expected, Harris
views the Detective's question as an express question or the
functional equivalent of an express question.
¶74 Cunningham directs a court to view the law enforcement
officer's communication from the suspect's perspective.13 It is
therefore important for a Miranda analysis to know the officer's
12
Harris, 366 Wis. 2d 777, ¶22. The court of appeals
further explained that the circuit court's mischaracterization
of the Detective's testimony was not drawn from "whole cloth"
but was probably based on the prosecutor's and defense counsel's
frequent restating of the Detective's communication in argument
as "Would you like to give a statement?" Harris, 366
Wis. 2d 777, ¶22 n.2.
13
Cunningham, 144 Wis. 2d at 279 ("[T]he focus of the Innis
test is primarily upon the perceptions of the suspect.")
(internal quotation marks and citations omitted).
6
No. 2014AP1767-CR.ssa
exact language and the context in which the communication
occurred. A law enforcement officer's choice of words might
have material bearing on how a suspect will understand the
officer's communication. Wording can be dispositive.
¶75 Different words may evoke different responses from a
suspect, and the same words or substantially the same words may
evoke different responses from different justices and different
courts.14
¶76 Not knowing what the Detective said to Harris renders
the court's analysis in the instant case weak.
II
¶77 The second approach is the one the majority opinion
takes: Apply the rule of law set forth in State v. Cunningham,
144 Wis. 2d 272, 423 N.W.2d 862 (1988), to the record to
determine whether the communication at issue is, for Fifth
Amendment purposes, an express question or the functional
equivalent that must be prefaced by Miranda warnings. I do not
reach the same conclusion as the majority opinion.
¶78 Cunningham, 144 Wis. 2d at 278-79, sets forth the
objective observer test to determine whether a law enforcement
14
See, e.g., the discussions in the majority opinion and in
the State's brief in State v. Hebert, 82 P.3d 470 (Kan. 2004),
and State v. Eli, 273 P.3d 1196 (Hawai'i 2012).
7
No. 2014AP1767-CR.ssa
officer's conduct or words constitutes interrogation of a
suspect. Cunningham directs courts to consider the following:15
• The Miranda procedures are designed to protect a
suspect in custodial situations where the compulsion
to confess may be present. When a custodial suspect
is interrogated by law enforcement officers without
Miranda warnings, there is a presumption that any
ensuing statements of the suspect resulting from the
unwarned interrogation were compelled and must be
suppressed.16
• The focus is primarily upon the perception of the
suspect to determine whether the officer's words or
conduct was reasonably likely to elicit a response.
• The test is not directed at the subjective intent of
the officer.
• The officer's communication is judged from the
standpoint of an objective observer who has the same
knowledge of the suspect as the police officer.
• The objective observer would have the officer's
knowledge of a suspect's unusual susceptibility to a
particular form of persuasion.17
15
Cunningham's objective observer foreseeability test
involves a review of many fact-intensive factors: the suspect's
perspective, the officer's intent, the length of the discussion,
the officer's knowledge of the suspect's susceptibility, the
suspect's emotional state, and the purpose behind the Miranda
and Innis decisions. Cunningham, 144 Wis. 2d at 278-80.
16
Miranda, 384 U.S. at 471–72; Dickerson v. United States,
530 U.S. 428, 435 (2000); Oregon v. Elstad, 470 U.S. 298, 309,
310, (1985) ("Miranda requires that the unwarned admission must
be suppressed . . . ." This is true even though "[t]he failure
of police to administer Miranda warnings does not mean that the
statements received have actually been coerced, but only that
courts will presume [that] the privilege against compulsory
self-incrimination has not been intelligently exercised.").
17
Confinement might increase a suspect's anxiety and make
him more likely to seek discourse with others and more
susceptible to talking. See 2 Wayne R. LaFave et al., Criminal
Procedure § 6.7(c), at 877 (4th ed. 2015).
8
No. 2014AP1767-CR.ssa
• The objective observer would determine whether the
officer's conduct or words play on the suspect's
unusual susceptibility.
• The objective observer could, on the sole basis of
hearing the officer's remarks or observing the
officer's conduct, conclude that the officer's
conduct or words would have had the force of a
question on the suspect.
• The objective observer could, on the sole basis of
hearing the officer's remarks or observing the
officer's conduct, conclude that the officer's
conduct or words would be likely to elicit an
incriminating response.
• Officers cannot be held accountable for the
unforeseeable results of their words or actions.
¶79 The determination of whether the facts of a case
satisfy the legal standard articulated in Cunningham is a
question of law that this court determines independently of the
circuit court.18 I therefore apply the objective observer test
to the facts as a matter of law.
¶80 Before meeting Harris in a jail hallway outside of an
interrogation room, the Detective had read the reports on Harris
and was familiar with Harris's conduct of the previous night.
The Detective was well aware that Harris was a very garrulous
repeat offender who had already made numerous admissions to the
arresting officer.
¶81 Thus, the objective observer was on alert that Harris
was "unusually susceptible" to the coercive nature of police
custody and questioning. The objective observer would have to
18
Cunningham, 144 Wis. 2d at 282.
9
No. 2014AP1767-CR.ssa
determine whether the Detective's conduct or words played on the
suspect's unusual susceptibility.
¶82 The objective observer could, on the sole basis of
hearing the Detective's remarks or observing the Detective's
conduct, conclude that the Detective's conduct or words would
have had the force of a question on the suspect or would be
likely to elicit an incriminating response.19 The objective
observer could have concluded that Harris would have perceived
the Detective's communication as having the force of a Fifth
Amendment interrogation.20 See majority op., ¶34 & n.12.
¶83 Informing my conclusions is the principle that the
Fifth Amendment's right against self-incrimination calls on
courts to be "unstinting in our protection of criminal
defendants' rights." Majority op., ¶10.
¶84 Accordingly, I conclude in this close case that the
Detective's words constituted interrogation that should have
been (but was not) preceded by Miranda warnings and should have
been suppressed.
19
See Innis, 446 U.S. at 302 n.8 (recognizing that an
officer's knowledge "concerning the unusual susceptibility of a
defendant to a particular form of persuasion might be an
important factor in determining whether the [officer] should
have known that [his] words or actions were reasonably likely to
elicit an incriminating response").
20
I would not introduce the idea of a "diagnostic" question
into Miranda law.
10
No. 2014AP1767-CR.ssa
¶85 Finally, I conclude that, had my view prevailed,
Harris would be entitled to a remand for a Harrison/Anson
hearing to fully assess harmless error.21
¶86 For the reasons set forth, I dissent.
21
Harrison v. United States, 392 U.S. 219 (1968); State v.
Anson, 2005 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776.
11
No. 2014AP1767-CR.ssa
1