2021 WI 7
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP858-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Brian L. Halverson,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 389 Wis. 2d 554,937 N.W.2d 74
PDC No:2019 WI App 66 - Published
OPINION FILED: January 29, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 14, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Chippewa
JUDGE: Steven R. Cray
JUSTICES:
HAGEDORN, J., delivered the majority opinion for a unanimous
Court. REBECCA GRASSL BRADLEY, J., filed a concurring opinion,
in which ZIEGLER, J., joined. DALLET, J., filed a concurring
opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Megan Sanders-Drazen, assistant state public defender.
There was an oral argument by Megan Sanders-Drazen.
For the plaintiff-appellant, there was a brief filed by
Sarah L. Burgundy, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Sarah L. Burgundy.
2021 WI 7
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP858-CR
(L.C. No. 2017CM83)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant, FILED
v. JAN 29, 2021
Brian L. Halverson, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Respondent-Petitioner.
HAGEDORN, J., delivered the majority opinion for a unanimous
Court. REBECCA GRASSL BRADLEY, J., filed a concurring opinion,
in which ZIEGLER, J., joined. DALLET, J., filed a concurring
opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Affirmed and
cause remanded to the circuit court with directions.
¶1 BRIAN HAGEDORN, J. You have "a right to remain
silent." Miranda v. Arizona, 384 U.S. 436, 444 (1966). So
begins the ubiquitous Miranda warnings, procedural safeguards
the United States Supreme Court has mandated must be
administered to suspects prior to any "custodial interrogation."
Id. If the warnings are not given, any statements made are
inadmissible in court. Id.
No. 2018AP858-CR
¶2 The question in this case concerns the scope of
"custody" for purposes of Miranda. The defendant, Brian L.
Halverson, was an inmate in jail when he returned a call from an
officer regarding an incident at Halverson's prior correctional
institution. During the short call, the officer asked Halverson
about an inmate's missing property, and Halverson admitted that
he took and destroyed the property. No Miranda warnings were
given. Halverson argues that his statements must be suppressed
because he was in custody as an inmate in jail, and therefore he
also was most assuredly "in custody" for purposes of Miranda.
¶3 In a 1999 case, this court agreed. State v.
Armstrong, 223 Wis. 2d 331, 588 N.W.2d 606 (1999). Relying on
United States Supreme Court precedent, we held "that a person
who is incarcerated is per se in custody for purposes of
Miranda." Id. at 355. In 2012, however, the United States
Supreme Court clarified this is not what federal law requires.
In Howes v. Fields, the Court concluded that the Constitution
contains no such per se rule. 565 U.S. 499, 508 (2012). The
Court emphasized that "custody" for purposes of Miranda is a
term of art; it is not consonant with the inability to leave or
with incarceration generally. Id. at 508-09. Whether a suspect
was "in custody" depends on an inquiry of the totality of the
circumstances, looking to the degree of restraint and coercive
nature of the interrogation. Id. at 509.
¶4 Recognizing that the federal constitutional landscape
does not support his argument, Halverson asks this court to
readopt the per se rule, this time relying on the Wisconsin
2
No. 2018AP858-CR
Constitution. We decline Halverson's request. While this court
need not always follow federal constitutional interpretation in
lockstep, we conclude that neither the Wisconsin Constitution
nor the purposes underlying the Miranda warnings support a
judicially-created rule treating all incarcerated individuals as
"in custody." In the alternative, Halverson contends that his
incriminating statements should be suppressed because he was "in
custody" under the traditional Miranda custody test. We
disagree and conclude that Halverson was not in custody for
purposes of Miranda.
I. BACKGROUND
¶5 Brian L. Halverson was an inmate in the Vernon County
Jail when Officer Matthew Danielson called and requested to
speak with him. Officer Danielson was investigating a claim of
theft and destruction of property at Stanley Correctional
Institution that occurred when Halverson was incarcerated there.
Halverson returned the call and admitted to the crimes. The
State charged Halverson with one count of criminal damage to
property and one count of misdemeanor theft, both as a repeater.
Halverson filed a motion to suppress his statements in part on
the grounds that he was not read his Miranda warnings.
¶6 During the suppression hearing, Officer Danielson
testified that he called the Vernon County Jail the morning of
September 27, 2016, and requested to speak to Halverson. He
received a call back within ten minutes from a deputy at the
jail who put Halverson on the phone. Officer Danielson began
3
No. 2018AP858-CR
the call by introducing himself, explaining the purpose of the
call, and asking if Halverson knew the individuals who were
involved in the incident at Stanley Correctional Institution.
When questioned initially, Halverson stated that he believed the
items were inadvertently placed in the garbage. But when asked
about two letters admitting his guilt that Halverson wrote to
the victim and another inmate, Halverson's tone shifted. While
calm at the outset, Halverson began yelling. He ultimately
admitted to Officer Danielson that he took and destroyed the
property. The entire phone call lasted no more than five
minutes. Officer Danielson testified that, for his part, his
tone was calm and normal throughout the call. Halverson was not
read his Miranda warnings, Officer Danielson explained, because
while "he was in custody somewhere else for something else,"
Halverson was not "in custody with me."
¶7 The circuit court relied on Officer Danielson's
uncontested testimony as factual background, but it granted
Halverson's motion to suppress.1 The circuit court concluded it
was bound to apply Armstrong's per se rule that incarcerated
individuals are in custody for Miranda purposes. The State
moved for reconsideration.
1 The Honorable Steven R. Cray, Chippewa County Circuit
Court, presiding.
4
No. 2018AP858-CR
¶8 At the reconsideration hearing, Vernon County
Sheriff's Deputy Matthew Hoff testified.2 Deputy Hoff did not
specifically remember the call. Instead, he testified regarding
the standard operating procedures at the Vernon County Jail,
testimony the circuit court accepted as credible.
¶9 When an inmate at the jail receives a phone call, the
inmate can choose whether to take or return the call. If an
inmate wishes to do so, a deputy escorts the inmate from his pod
to the jail's community room. The community room is
approximately 15-by-25-feet in size and doubles as the jail
library. The deputies visually monitor the inmate through
observation glass, but they cannot hear what occurs in the
community room and the calls are not recorded. Once the call is
complete, the inmate is escorted back to his pod. The inmate is
not handcuffed at any point during this process.
¶10 Following the hearing, the circuit court denied the
State's motion for reconsideration, once again concluding it was
bound to follow the per se rule in Armstrong and suppress
Halverson's statements.
¶11 The State appealed and the court of appeals reversed.
The court of appeals held that the per se rule adopted by this
court in Armstrong was effectively overruled by the United
States Supreme Court in Howes, and it declined to readopt the
2 Deputy Hoff was subpoenaed to appear at the initial
suppression hearing, but he did not appear. The circuit court
reserved the right for the parties to provide Deputy Hoff's
testimony at a reconsideration hearing.
5
No. 2018AP858-CR
per se rule under the Wisconsin Constitution. State v.
Halverson, 2019 WI App 66, ¶65, 389 Wis. 2d 554, 937 N.W.2d 74.
It further concluded that Halverson was not in custody for
purposes of Miranda under the totality of the circumstances.
Id., ¶66. We granted Halverson's petition for review and agree
with the court of appeals.
II. DISCUSSION
¶12 The issues in this case center on the nature of
"custody" for purposes of determining whether Miranda warnings
must be administered. Halverson contends he was in custody for
two independent reasons. First, Halverson argues all
incarcerated individuals should be deemed "in custody" for
purposes of Miranda solely due to their incarceration. Although
the United States Supreme Court rejected a per se rule to this
effect, he asks us to adopt this approach under the Wisconsin
Constitution. Second, if we decline that request (as we do),
Halverson asserts the totality of the circumstances nonetheless
demonstrates he was in custody for purposes of Miranda. We
begin with the constitutional backdrop underlying these claims,
and then address the merits of each in turn.
A. The Law of Miranda
¶13 The Fifth Amendment of the United States Constitution
provides in relevant part: "No person . . . shall be compelled
in any criminal case to be a witness against himself . . . ."
U.S. Const. amend. V. In Miranda, the Supreme Court created a
6
No. 2018AP858-CR
set of procedural safeguards, enforced by the remedy of
exclusion, aimed at "protecting a defendant's Fifth Amendment
privilege against self-incrimination." Withrow v. Williams, 507
U.S. 680, 691 (1993). These safeguards were proposed in
response to four cases consolidated before the Court. Miranda,
384 U.S. at 491-99. All four concerned the questioning of a
defendant by a law enforcement officer, detective, or district
attorney in a police station where the defendant was isolated
from the outside world and eventually orally admitted to the
underlying crime after at least two hours of questioning.
Id. at 491-98.
¶14 The Court has explained that these warnings, and the
evidentiary penalty for failing to administer them, constitute a
prophylactic rule that extends beyond the requirements of the
constitutional text itself. See Oregon v. Elstad, 470 U.S. 298,
306 (1985) ("The Miranda exclusionary rule, however, serves the
Fifth Amendment and sweeps more broadly than the Fifth Amendment
itself. It may be triggered even in the absence of a Fifth
Amendment violation."). Instead, Miranda is a judicially
instituted effort to protect against self-incrimination by
creating an unrebuttable legal presumption of coercion whenever
the warnings are not administered. Id. at 306 n.1 ("A Miranda
violation does not constitute coercion but rather affords a
bright-line, legal presumption of coercion, requiring
suppression of all unwarned statements.").
¶15 This anti-coercion objective is central to
understanding the reach and limits of the Miranda requirements.
7
No. 2018AP858-CR
This goal explains why the Court established what it called
"custodial interrogation" as the trigger for administration of
these warnings. Miranda, 384 U.S. at 444 ("[T]he prosecution
may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination."). The issues
before us center on what makes an interrogation "custodial."
¶16 The United States Supreme Court has made clear that
"custody" for purposes of Miranda is not equivalent to a
dictionary definition of the term.3 Rather, "custody" in the
context of Miranda "is a term of art that specifies
circumstances that are thought generally to present a serious
danger of coercion." Howes, 565 U.S. at 508-09.
¶17 The Miranda custody analysis proceeds in two steps.
First, courts "ascertain whether, in light of 'the objective
circumstances of the interrogation,' a 'reasonable person
[would] have felt he or she was not at liberty to terminate the
interrogation and leave.'" Id. at 509 (alteration in original)
(quoted sources omitted). This requires examining the totality
of the circumstances, including relevant factors such as "the
location of the questioning, its duration, statements made
during the interview, the presence or absence of physical
restraints during the questioning, and the release of the
3Colloquially, "custody" is defined as "[t]he state of
being detained or held under guard, especially by the police."
Heritage Dictionary of the English Language 462 (3d ed. 1992).
8
No. 2018AP858-CR
interviewee at the end of the questioning." Id. (citations
omitted). The inability to leave and terminate the
conversation, however, is not enough on its own to trigger the
need for Miranda warnings. Id. This inquiry "is simply the
first step in the analysis, not the last." Id. "[T]he freedom-
of-movement test identifies only a necessary and not a
sufficient condition for Miranda custody." Maryland v. Shatzer,
559 U.S. 98, 112 (2010). Instead, courts proceed to the second
step in the custody analysis where they ask "whether the
relevant environment presents the same inherently coercive
pressures as the type of station house questioning at issue in
Miranda." Howes, 565 U.S. at 509.
B. Incarceration and "Custody" Under Federal Law
¶18 Application of these principles in the context of
incarceration has not always been clear. In 1999, this court
addressed whether an inmate should have received Miranda
warnings when questioned for an offense unrelated to his
incarceration. Armstrong, 223 Wis. 2d 331. We examined federal
cases and our cases interpreting federal precedent and held
"that a person who is incarcerated is per se in custody for
purposes of Miranda." Armstrong, 223 Wis. 2d at 355.
¶19 In 2012, however, the United States Supreme Court
reached the opposite conclusion. Howes, 565 U.S. at 508. In
that case, the defendant was in jail when escorted to a
conference room where two armed sheriff's deputies questioned
him for between five and seven hours about allegations pre-
9
No. 2018AP858-CR
dating his time in prison. Id. at 503. Fields was uncuffed and
told several times that he could leave and return to his cell.
Id. The door to the conference room was open and shut at
different times during the questioning. Id. Fields ultimately
confessed. Id. At no point during the questioning, however,
was he read his Miranda warnings. Id. at 504.
¶20 On these facts, the Court expressly rejected a
categorical rule that questioning an inmate is custodial.
Id. at 505. Instead it reviewed and re-emphasized the two-step,
totality-of-the-circumstances custody inquiry established in
prior cases. Id. at 509. Using that analysis, it reasoned that
incarcerated individuals are not automatically in custody for
purposes of Miranda. Id. The Court offered three reasons to
support its conclusion——all centering on whether the environment
necessarily contains the same coercive pressures that animated
the Court's holding in Miranda. Id. at 511-12. First,
questioning an incarcerated person does not involve the same
kind of shock accompanying someone arrested in the first
instance, and therefore the coercive pressures are substantially
diminished. Id. at 511. Second, incarcerated individuals have
far less pressure to speak with the hope of securing release.
Id. They know that when the questioning is finished, they will
remain incarcerated. Id. Finally, incarcerated individuals
know that their questioners "probably lack authority to affect
the duration of [their] sentence." Id. at 512. Therefore, the
Court held that incarceration alone does not necessarily
10
No. 2018AP858-CR
implicate the same anti-coercion interests that motivated the
Court's prophylactic efforts in Miranda. Id.4
¶21 In this case, the court of appeals correctly deduced
that it was bound to follow the United States Supreme Court's
decision in Howes rather than our earlier decision in Armstrong.
Halverson, 389 Wis. 2d 554, ¶34. As we explained in State v.
Jennings, "The court of appeals must not follow a decision of
this court on a matter of federal law if it conflicts with a
subsequent controlling decision of the United States Supreme
Court." 2002 WI 44, ¶19, 252 Wis. 2d 228, 647 N.W.2d 142.
Accordingly, we recognize that the Court's decision in Howes
functionally overruled Armstrong's per se rule.
C. Incarceration and "Custody" Under the Wisconsin Constitution
¶22 Bereft of a per se determination that incarceration
produces Miranda custody under federal law, Halverson asks us to
adopt a per se rule in reliance on the Wisconsin Constitution.
Constitutional interpretation is a question of law we review
independently. Serv. Emp. Int'l Union, Loc. 1 v. Vos, 2020
WI 67, ¶28, 393 Wis. 2d 38, 946 N.W.2d 35. In interpreting the
4 Three justices dissented in part. The partial dissent did
not object to the majority's analysis rejecting a per se rule.
Howes v. Fields, 565 U.S. 499, 517 (2012) (Ginsburg, J.,
concurring in part and dissenting in part). Rather, it asserted
that Miranda warnings should have been given to this particular
suspect because he was "subjected to 'incommunicado
interrogation . . . in a police-dominated atmosphere.'" Id. at
518. Thus, even the partial dissent aimed its analysis at
honoring "the Fifth Amendment privilege Miranda was designed to
safeguard." Id. at 519.
11
No. 2018AP858-CR
Wisconsin Constitution, we focus on the language of the adopted
text and historical evidence including "the practices at the
time the constitution was adopted, debates over adoption of a
given provision, and early legislative interpretation as
evidenced by the first laws passed following the adoption."
Id., ¶28 n.10.
¶23 While we must follow the United States Supreme Court
on matters of federal law, we have an independent responsibility
to interpret and apply the Wisconsin Constitution. Jennings,
252 Wis. 2d 228, ¶¶18, 38. Fulfilling our duty to uphold the
Wisconsin Constitution as written could yield conclusions
affording greater protections than those provided by the federal
Constitution. State v. Doe, 78 Wis. 2d 161, 171, 254 N.W.2d 210
(1977).
¶24 That said, this court has underscored that any
argument based on the Wisconsin Constitution must actually be
grounded in the Wisconsin Constitution. State v. Roberson, 2019
WI 102, ¶56, 389 Wis. 2d 190, 935 N.W.2d 813 ("[T]he question
for a state court is whether its state constitution actually
affords greater protection."); Jennings, 252 Wis. 2d 228, ¶¶38-
39 (explaining that any upward departure from the standards
based on the federal Constitution announced by the Supreme Court
"must itself be grounded in requirements found in the state
constitution or laws"). "A state court does not have the power
to write into its state constitution additional protection that
is not supported by its text or historical meaning." Roberson,
389 Wis. 2d 190, ¶56.
12
No. 2018AP858-CR
¶25 Halverson recognizes that Miranda warnings are a
prophylactic tool fashioned to protect the privilege against
self-incrimination, a right independently protected in both
constitutions. Halverson therefore asks this court to create an
expanded prophylactic to protect a person's rights under the
Wisconsin Constitution.5
¶26 The self-incrimination clause of Article I, Section
8(1), adopted before incorporation of federal protections
against the states via the Fourteenth Amendment, is
substantively identical to the Fifth Amendment. It provides in
relevant part: "No person . . . may be compelled in any
criminal case to be a witness against himself or herself." Wis.
Const. art. I, § 8(1).6 We have generally interpreted Article I,
Section 8 consistent with the protections afforded by the Fifth
Amendment. State v. Bartelt, 2018 WI 16, ¶30, 379 Wis. 2d 588,
906 N.W.2d 684.7 Halverson provides no textual or historical
5 In support of this request to create an expanded
prophylactic, Halverson points to our decision in State v. Knapp
where we expanded the scope of the exclusionary rule beyond its
federal corollary. 2005 WI 127, ¶2, 285 Wis. 2d 86, 700
N.W.2d 899. However, Knapp does not suggest anything about
whether this court should adopt Halverson's proposed rule in
this case.
6 Article I, Section 8, originally provided in relevant
part: "No person . . . shall be compelled in any criminal case
to be a witness against himself . . . ." Wis. Const. art. I,
§ 8 (1848). It was later amended to add "or herself."
7 See also State v. Edler, 2013 WI 73, ¶¶29-30, 350
Wis. 2d 1, 833 N.W.2d 564 (acknowledging an exception to this
general rule yet nevertheless "declin[ing] to extend the meaning
of Wisconsin Constitution Article I, Section 8 in this situation
so as to provide different protection than the Fifth Amendment
13
No. 2018AP858-CR
basis to suggest any meaningful difference between the two
provisions meriting an expanded judicially-created prophylactic
rule. Nor do we see any basis in the Wisconsin Constitution for
Halverson's request.8
¶27 Instead, Halverson focuses chiefly on the argument
that incarceration inherently creates the kind of custodial
circumstances meriting Miranda warnings. We agree, however,
with the Supreme Court's determination in Howes that a per se
rule does not serve the anti-coercion purposes of Miranda.
Interrogation of incarcerated individuals does not always
present the "same inherently coercive pressures as the type of
station house questioning at issue in Miranda," nor would an
inmate always be unable to terminate questioning. Howes, 565
to the United States Constitution"); State v. Ward, 2009 WI 60,
¶55, 318 Wis. 2d 301, 767 N.W.2d 236 ("Article I, Section 8 of
the Wisconsin Constitution provides the same protections prior
to charging a suspect as does the Fifth Amendment to the United
States Constitution."); Hoyer v. State, 180 Wis. 407, 411, 193
N.W. 89 (1923) ("Sec. 8 corresponds in substance with art. V and
sec. 11 is identical with art. IV, respectively, of the
amendments to the United States constitution."); Thornton v.
State, 117 Wis. 338, 340, 93 N.W. 1107 (1903) ("This rule and
practice of the common law was crystallized and expressed in the
fifth amendment to the constitution of the United States in
words identical with those above quoted from sec. 8, art. I of
our own constitution.").
Certainly
8 nothing in the text of the Wisconsin
Constitution supports Halverson's request. To the extent any
historical evidence may assist Halverson's case, he has not
presented those arguments here, nor will we develop them for
him. See Serv. Emp. Int'l Union, Loc. 1 v. Vos, 2020 WI 67,
¶24, 393 Wis. 2d 38, 946 N.W.2d 35 ("We do not step out of our
neutral role to develop or construct arguments for parties; it
is up to them to make their case.").
14
No. 2018AP858-CR
U.S. at 509. As we conclude below, Halverson's circumstances do
not even satisfy the standard requirements for custody under
Miranda's framework. Further, no facts in Halverson's case
indicate coercion or anything close to it. And that is the
whole point of requiring Miranda warnings in the first place.
In other words, Halverson's case exemplifies the problem with
his proposed rule. Officer Danielson's questioning of Halverson
simply does not raise the specter of coerced admissions. More
to the point, Halverson's relatively benign and distanced
interaction demonstrates that incarceration alone lacks the
inherent dangers of the station-house interrogation. This was
why the United States Supreme Court rejected the per se rule in
Howes, and Halverson offers no strong reasons to diverge from
this rationale.
¶28 In short, nothing in Article I, Section 8(1) of the
Wisconsin Constitution suggests this court should deem all
incarcerated individuals "in custody" for purposes of Miranda.
Neither the purposes of Miranda warnings nor the text and
history of the Wisconsin Constitution support Halverson's
invitation to adopt his proposed per se rule.
D. Miranda "Custody" Applied to Halverson
¶29 Halverson has an alternative argument——namely, that he
was "in custody" for purposes of Miranda under the prevailing
two-step inquiry examining the totality of the circumstances.
In conducting this analysis, we accept the circuit court's
factual findings unless they are clearly erroneous. State v.
15
No. 2018AP858-CR
Dobbs, 2020 WI 64, ¶28, 392 Wis. 2d 505, 945 N.W.2d 609.
Whether those facts support a determination of custody for
purposes of Miranda is a question of law we review de novo. Id.
¶30 As previously explained, custody for purposes of
Miranda first requires an objective determination of whether the
suspect was free to move and terminate the interview. Howes,
565 U.S. at 509; Bartelt, 379 Wis. 2d 588, ¶31. Relevant
factors include "the location of the questioning, its duration,
statements made during the interview, the presence or absence of
physical restraints during questioning, and the release of the
interviewee at the end of the questioning." Howes, 565 U.S. at
509 (citations omitted); see also Bartelt, 379 Wis. 2d 588, ¶32
("Such factors include: the degree of restraint; the purpose,
place, and length of the interrogation; and what has been
communicated by police officers."). Regarding 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."
Bartelt, 379 Wis. 2d 588, ¶32.
¶31 Unlike Miranda challenges in most cases, Halverson's
interview occurred over the phone. The State argues, and we
agree, that interrogation by phone call is unlikely to rise to
the level of Miranda custody. This is so because a phone call
will rarely present objective circumstances where a reasonable
person would believe he is not free to terminate the
16
No. 2018AP858-CR
interrogation. A suspect can end questioning at any time simply
by hanging up. To our knowledge, no court has concluded that a
telephonic interrogation triggered Miranda custody.9 The fact
that Officer Danielson's interview occurred by phone strongly
weighs against a determination of Miranda custody.
¶32 The length of the interview reinforces the same
conclusion. Officer Danielson testified that his conversation
with Halverson lasted "a few minutes, maybe three, four." This
is far afield from the five- to seven-hour questioning in Howes,
which the Supreme Court found did not trigger a determination of
custody for purposes of Miranda. Howes, 565 U.S. at 503.
Similarly, in State v. Lonkoski, we observed that a 30-minute
timeframe weighed against determining the defendant was in
Miranda custody. 2013 WI 30, ¶31, 346 Wis. 2d 523, 828
N.W.2d 552. The less-than-five-minute interview here similarly
supports the State's argument.
¶33 Halverson responds that unlike the defendant in Howes,
he was not informed that he could terminate the interview at any
time. This failure, he contends, is fatal to the State's
9 See Pasdon v. City of Peabody, 417 F.3d 225, 227 (1st Cir.
2005) (holding the defendant was not "in custody" when he was
asked questions over the phone); State v. Mills, 293 P.3d 1129,
1136 (Utah Ct. App. 2012) (concluding "[t]he overall length,
form, and circumstances of the voluntary, transcontinental
telephone interview simply do not rise to the level of being so
long, so draining, or so fierce as to be problematic under
Miranda"); State v. Denton, 792 P.2d 537, 540 (Wash. Ct. App.
1990) (determining the defendant who was in jail at the time of
the phone call was not in custody for Miranda purposes because
he was free to terminate the phone call at any time).
17
No. 2018AP858-CR
argument. Such a disclosure is certainly relevant to the
inquiry, but it is not mandatory. The question remains whether
a reasonable person in Halverson's situation would feel free to
terminate the interview. According to the unchallenged
testimony of Deputy Hoff, Halverson had the choice whether to
return Officer Danielson's call in the first place. Halverson
did so. Officer Danielson began the call by explaining why he
was calling, and Halverson chose to continue the conversation.
Officer Danielson testified that he kept his tone calm and
neutral during the interview, even after Halverson became more
animated. We observe nothing in the record suggesting the brief
phone interview was no longer optional after it began. Under
these circumstances, a reasonable person would have felt free to
terminate the interview by hanging up the phone at any time.
¶34 Halverson's physical environment also shows he was
free to terminate the call. When Halverson elected to return
Officer Danielson's call, the record suggests a deputy escorted
Halverson from his pod to the jail's community room, which
doubled as a library. Then, although visually observed during
the interview, Halverson spoke to Officer Danielson alone and
without physical restraints. The record does not reveal any
restraint upon Halverson any more than in his daily life as an
inmate.
¶35 For many of the same reasons, proceeding to the second
step of the custody analysis, we conclude Halverson's
environment did not "present[] the same inherently coercive
pressures as the type of station house questioning at issue in
18
No. 2018AP858-CR
Miranda." Howes, 565 U.S. at 509; see also Bartelt, 379
Wis. 2d 588, ¶33. He spoke to Officer Danielson over the phone
in the jail's community room where he was alone, without
physical restraints, and could sit or stand at will. The
interview lasted less than five minutes, and during that time
Officer Danielson kept his tone calm. These circumstances are
nowhere close to the kind of coercive pressures of station-house
questioning that sparked the Supreme Court's holding in Miranda.
¶36 In light of all of these factors, especially the fact
that this interview occurred over the phone, we conclude that
Halverson was not "in custody" for purposes of Miranda.
III. CONCLUSION
¶37 We decline Halverson's invitation to adopt a per se
rule that incarcerated individuals are necessarily "in custody"
for purposes of Miranda. Applying the standard two-part test,
we conclude Halverson was not "in custody" when Officer
Danielson interviewed him by phone regarding the missing
property. Halverson's motion to suppress should have been
denied, and we remand with directions to the circuit court to do
so.
By the Court.—The decision of the court of appeals is
affirmed, and the cause is remanded to the circuit court with
directions.
19
No. 2018AP858-CR.rgb
¶38 REBECCA GRASSL BRADLEY, J. (concurring). I join the
majority opinion in full. I write separately to address the
petitioner's reliance on State v. Knapp, 2005 WI 127, 285
Wis. 2d 86, 700 N.W.2d 899. Because the Knapp court's
interpretation of Article I, Section 8 of the Wisconsin
Constitution lacks any mooring in text or history, this court
should restore the original meaning of this constitutional
provision.
¶39 The procedural posture of the Knapp case is somewhat
unusual, with this court having had two separate opportunities
to decide it. The defendant, Matthew Knapp, was suspected of
killing a woman with a baseball bat. Knapp, 285 Wis. 2d 86,
¶¶3-5. Following the incident, an officer visited Knapp at his
apartment to arrest him, and requested the clothes he was
wearing the night of the murder. Id., ¶8. Knapp pointed to a
sweatshirt containing human blood, which the officer seized.
Id., ¶9. During this exchange, the officer intentionally
withheld Miranda warnings in an effort to procure the physical
evidence. Id., ¶¶14-15. The State charged Knapp with first-
degree intentional homicide, after which he filed a motion
seeking to suppress the physical evidence obtained at the scene
of the arrest. The circuit court denied the motion. On appeal,
this court reversed the circuit court's suppression ruling,
holding that physical evidence must be suppressed if it was
procured while intentionally violating Miranda. State v. Knapp,
2003 WI 121, ¶1, 265 Wis. 2d 278, 666 N.W.2d 881 (Knapp I).
1
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¶40 The State appealed the Knapp I decision to the United
States Supreme Court. The Court vacated the judgment and
remanded the case back to the Wisconsin Supreme Court in light
of the United States Supreme Court's decision in United States
v. Patane, 542 U.S. 630 (2004) (plurality opinion). Wisconsin
v. Knapp, 542 U.S. 952 (2004). In Patane, the Court held that
the failure to give Miranda warnings does not "require[]
suppression of the physical fruits of the suspect's unwarned but
voluntary statements." Patane, 542 U.S. at 633-34. The Court
explained that, within this context, "[t]here is simply no need
to extend (and therefore no justification for extending) the
prophylactic rule of Miranda." Id. at 643.
¶41 On remand, despite the United States Supreme Court
declining to create an expanded prophylactic under the Fifth
Amendment's privilege against self-incrimination, the Wisconsin
Supreme Court held that the Wisconsin Constitution's analog to
the Fifth Amendment——Article I, Section 8——affords greater
protections than the United States Constitution. In particular,
using different reasoning than its first decision but arriving
at substantially the same conclusion, the second Knapp court
held that, "[w]here physical evidence is obtained as the direct
result of an intentional Miranda violation, . . . [Article I,
Section 8 of the Wisconsin Constitution] requires that the
evidence must be suppressed." Knapp, 285 Wis. 2d 86, ¶2 (Knapp
II). The Knapp II court articulated that, "[i]t is the
prerogative of the State of Wisconsin to afford greater
protection to the liberties of persons within its boundaries
2
No. 2018AP858-CR.rgb
under the Wisconsin Constitution than is mandated by the United
States Supreme Court." Id., ¶59 (quoting State v. Doe, 78
Wis. 2d 161, 171, 254 N.W.2d 210 (1977)). According to the
Knapp II court, although the text of Article I, Section 8 and
the Fifth Amendment are "virtually identical," other factors
weighed in favor of expanding state constitutional protections
beyond those afforded under the Fifth Amendment. Id., ¶62.
More specifically, the Knapp II court invented the sanction of
suppressing evidence because the officer's "conduct at issue was
particularly repugnant and require[d] deterrence." Id., ¶75.
The Knapp II court also invoked the "preservation of judicial
integrity" as a basis for contriving a different meaning for
Article I, Section 8 than the United States Supreme Court gives
the nearly identical Fifth Amendment. Id., ¶¶75-83.
¶42 Knapp II represents an unprecedented departure from
the traditional tools employed by this court in interpreting the
Wisconsin Constitution.1 Halverson's reliance on that case to
request an expanded prophylactic to protect the privilege
against self-incrimination indicates it is time for this court
1"Before Knapp, the Wisconsin Supreme Court had repeatedly
held that in the absence of a meaningful difference in language,
intent, or history, the state constitution's Declaration of
Rights should be interpreted in conformity with the United
States Supreme Court's interpretation of parallel provisions in
the Bill of Rights. The language of the state constitutional
right against compulsory self-incrimination is virtually
identical to the Self-Incrimination Clause of the Fifth
Amendment; the court had declined many previous invitations to
interpret the state right more expansively than its federal
counterpart." The Honorable Diane S. Sykes, Reflections on the
Wisconsin Supreme Court, Marq. Law., March 2006, at 59-60.
3
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to revisit Knapp II's holding. As we noted in Roberson, "states
have the power to afford greater protection to citizens under
their constitutions than the federal constitution does." State
v. Roberson, 2019 WI 102, ¶56, 389 Wis. 2d 190, 935 N.W.2d 813.
Critically, however, "[a] state court does not have the power to
write into its state constitution additional protection that is
not supported by its text or historical meaning." Id.
Restoring the proper method of interpreting Article I, Section 8
is imperative if this court takes seriously its oath to uphold
the Wisconsin Constitution. The question for this court is not
whether the Wisconsin Constitution should afford greater
protections, but whether it "actually affords greater
protection[s]." Id. (emphasis added). Rather than applying the
actual constitutional meaning of Article I, Section 8, the Knapp
II court instead breathed its policy preferences into this
provision. It was quite transparent about doing so. "[T]he
court accepted the defendant's invitation to——as the court put
it——'utilize . . . the Wisconsin Constitution to arrive at the
same conclusion as in Knapp I.' This language is revealing for
its pure, unvarnished result-orientation." The Honorable Diane
S. Sykes, Reflections on the Wisconsin Supreme Court, Marq.
Law., March 2006, at 60.
¶43 Despite acknowledging that the text of Article I,
Section 8 and the Fifth Amendment are "virtually identical," the
Knapp II court nevertheless engaged in judicial gymnastics to
justify its disregard for these textual similarities. Knapp,
285 Wis. 2d 86, ¶¶58-62. The only permissible avenue for
4
No. 2018AP858-CR.rgb
deviating from the United States Supreme Court's interpretation
of the Fifth Amendment would be uncovering a historical meaning
of Article I, Section 8 different from the original public
meaning of its federal counterpart. The Knapp II court failed
to do so.2 To be sure, the Knapp II court did note that,
"shortly after Wisconsin earned statehood," this court declared
that "no person is compelled to give evidence against himself,
or to testify to any matter tending to criminate himself." Id.,
¶63 (citing Schoeffler v. State, 3 Wis. 823, 733 (1854)). This
case, however, says nothing to suggest the historical meaning of
Article I, Section 8 is any different than its federal analog,
2Justice Rebecca Dallet's concurrence suffers from the same
shortfalls as the court's decision in State v. Knapp, 2005 WI
127, 285 Wis. 2d 86, 700 N.W.2d 899 (Knapp II). Exposing the
policy-making of the Knapp II court, Justice Dallet notes that
the court "reached [the] conclusion [in Knapp II] for two
important reasons: to deter bad police behavior and to preserve
the integrity of the judiciary." Concurring op., ¶54.
Overstepping the constitutional boundaries of the judicial role,
Justice Dallet then charges that "[t]o abandon Knapp II is to
abandon this court's long history of upholding the Wisconsin
Constitution's protection against overbearing law-enforcement
practices." Id., ¶57. While it is the court's responsibility
to faithfully apply the protections constitutionally preserved
for Wisconsin citizens, this court is confined to interpreting
what the Wisconsin Constitution actually says rather than
imposing particular justices' policy preferences. Whether or
not this court thinks it is a good idea to "deter police
behavior" or sanction "overbearing" police practices is simply
irrelevant in ascertaining whether the Wisconsin Constitution
actually affords heightened protections as compared to the
United States Constitution. Only the text of the constitutional
provision and its original meaning may resolve this question.
State v. Roberson, 2019 WI 102, ¶56, 389 Wis. 2d 190, 935
N.W.2d 813. Imposing judicial policy preferences in the name of
a constitutional provision that does not reflect them
constitutes an exercise of judicial will and encroaches on a
purely legislative prerogative.
5
No. 2018AP858-CR.rgb
nor does the Knapp II court even attempt a historical analysis
to support such a theory. Instead, Knapp II pivots to declaring
that rights under Article I, Section 8 are "sacred" and
construed in favor of private citizens. Id. This analysis
falls far short of substantiating the Knapp II court's
conclusion that Article I, Section 8 embodies heightened
protections, especially for a provision that repeats the federal
text nearly verbatim.
¶44 Instead of exploring the meaning of the Wisconsin
Constitution's text, as Roberson instructs, Knapp II relied
heavily upon the view that the officer's conduct was "repugnant"
and "require[d] deterrence," and that this court needed to
"preserv[e] . . . judicial integrity." Knapp, 285 Wis. 2d 86,
¶¶75, 79. Judicial policy goals, however estimable, cannot
alter the meaning of the state constitution. "It is simply not
compatible with democratic theory that laws mean whatever they
ought to mean, and that unelected judges decide what that is."
Antonin Scalia, Common-Law Courts in a Civil-Law System: The
Role of United States Federal Courts in Interpreting the
Constitution and Laws, in A Matter of Interpretation: Federal
Courts and the Law 22 (Amy Gutmann ed., 1997). The judiciary
must exercise its judgment, not its will. These principles do
not reflect a novel approach to constitutional interpretation
but form the core of the Founders' conception for the judicial
role. See The Federalist No. 78 (Alexander Hamilton) ("The
judiciary . . . can take no active resolution whatever. It may
truly be said to have neither force nor will, but merely
6
No. 2018AP858-CR.rgb
judgment."). "It is, in other words, the judge's job to employ
not his own will but the traditional tools of legal analysis[.]"
Neil Gorsuch, A Republic, If You Can Keep It 195 (1st ed.,
2019).
¶45 The Knapp II court discarded these venerable
principles, impermissibly factoring into its analysis what a
majority of justices believed was "not tolera[ble]" and
importing a non-textual, ahistorical consequence in reaction to
"the police deliberately ignoring Miranda's rules as a means of
obtaining inculpatory physical evidence." Knapp, 285
Wis. 2d 86, ¶72. Neither "repugnant" facts nor intolerable
actions have anything to say about the meaning of the privilege
against self-incrimination set forth in the Wisconsin
Constitution or the remedies for its violation; they are solely
justifications for the exercise of judicial will.
¶46 In this case, the court correctly determines that
Halverson fails to provide a "textual or historical basis to
suggest any meaningful difference between the two provisions
meriting an expanded judicially-created prophylactic rule."
Majority op., ¶26. The same was true in Knapp II. Article I,
Section 8 states, in part, that "[n]o person may be held to
answer for a criminal offense without due process of law, and no
person for the same offense may be put twice in jeopardy of
punishment, nor may be compelled in any criminal witness against
himself or herself." Wis. Const. art. I, § 8. Wisconsin's
clause mirrors the Fifth Amendment: "[no person] shall . . . be
subject for the same offence to be twice put in jeopardy of life
7
No. 2018AP858-CR.rgb
or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or
property, without due process of law." U.S. Const. amend. V.
During Wisconsin's constitutional ratification, the people
adopted many provisions that closely parallel their federal
counterparts, including——as relevant for Miranda——the right
against compulsory self-incrimination. See Ray A. Brown, The
Making of the Wisconsin Constitution: Part II, 1952 Wis. L. Rev.
23, 58 (1952).
¶47 With this understanding, Wisconsin courts have
repeatedly held that the clauses embodying the privilege against
self-incrimination in the state and federal constitutions are
interpreted in lock-step. In State v. Ward, for example, this
court held that, in regard to the waiver of Miranda rights prior
to criminal charging, "Article I, Section 8 of the Wisconsin
Constitution provides the same protections . . . as does the
Fifth Amendment to the United States Constitution." 2009 WI 60,
¶55, 318 Wis. 2d 301, 767 N.W.2d 236. See also State v. Edler,
2013 WI 73, ¶30, 350 Wis. 2d 1, 833 N.W.2d 564 ("We decline to
extend the meaning of Wisconsin Constitution Article I, Section
8 in this situation so as to provide different protection than
the Fifth Amendment to the United States Constitution."). Knapp
II is the only case to depart from Wisconsin's longstanding
approach to interpreting Article I, Section 8 and the Fifth
8
No. 2018AP858-CR.rgb
Amendment in consonance.3 But Knapp II offered no foundation for
abandoning the court's well-established understanding of the
privilege against self-incrimination and the remedy for its
breach.
¶48 Knapp II's holding lacks any foundation in the text or
historical meaning of the constitutional language it construed.
It rests solely on judicial policy preferences rather than the
law and was rendered without any textual analysis or historical
examination of the controlling language of the constitution.
While state constitutional provisions may afford greater
protections than the United States Constitution, the
constitution itself must actually provide them. Although a
majority of this court may prefer certain constitutional
protections for criminal suspects, it remains the prerogative of
the people of Wisconsin to bestow them. Because Article I,
Section 8 does not require suppression of evidence obtained as
the result of voluntary statements made by a criminal suspect
from whom the reading of Miranda rights was withheld, only a
constitutional amendment could create this remedy. The court in
3 In her concurrence, Justice Dallet maintains that to
interpret Article I, Section 8 in consonance with the Fifth
Amendment is "to ignor[e] [this court's] robust tradition of
independently interpreting the Wisconsin Constitution."
Concurring op., ¶57. Not so. Of course "states have the power
to afford greater protections to citizens under their
constitutions than the federal constitution does." Roberson,
389 Wis. 2d 190, ¶56. But the constitution must actually do so—
—not because a justice desires such protections, but because the
people do. Neither the Knapp II court nor Justice Dallet
performed an analysis of the text or original understanding of
Article I, Section 8 necessary to support their proffered
interpretation of that constitutional provision.
9
No. 2018AP858-CR.rgb
Knapp II acted beyond its authority in devising it. Its holding
should be overturned. I respectfully concur.
¶49 I am authorized to state that Justice ANNETTE
KINGSLAND ZIEGLER joins this concurrence.
10
No. 2018AP858-CR.rfd
¶50 REBECCA FRANK DALLET, J. (concurring). As the
majority aptly recognizes, neither the United States nor the
Wisconsin Constitution supports a judicially created, per se
rule by which all incarcerated persons are in custody for
purposes of Miranda.1 I write separately to emphasize that the
Wisconsin Constitution was never intended to be interpreted in
lockstep with the United States Constitution. Indeed, when it
comes to certain individual liberties, particularly the right
against self-incrimination, this court has long held that the
Wisconsin Constitution provides greater protection than its
federal counterpart.
I
¶51 As long ago as 1855, we recognized that "[t]he people
of this state shaped our constitution, and it is our solemn
responsibility to interpret it." See Attorney Gen. ex rel.
Bashford v. Barstow, 4 Wis. 567 (*567), 786 (*757) (1855). In
order to protect individual liberties, this court "will not be
bound by the minimums . . . imposed by the [United States]
Supreme Court." State v. Doe, 78 Wis. 2d 161, 172, 254
N.W.2d 210 (1977); see also State v. Roberson, 2019 WI 102,
¶¶99-101, 389 Wis. 2d 190, 935 N.W.2d 813 (Dallet, J.,
dissenting) (noting this court's 160-year history of
interpreting the Wisconsin Constitution as granting protections
over and above those recognized in the United States
Constitution). The individual liberties protected by the
Wisconsin Constitution, especially the right against self-
1 Miranda v. Arizona, 384 U.S. 436 (1966).
1
No. 2018AP858-CR.rfd
incrimination, are fundamental to our liberty and must be
staunchly guarded by this court:
The rights intended to be protected by [Article I,
Section 8 of the Wisconsin Constitution] are so
sacred, and the pressure so great towards their
relaxation in case where suspicion of guilt is strong
and evidence obscure, that it is the duty of the
courts to liberally construe the prohibition in favor
of private rights, and to refuse to permit those first
and doubtful steps which may invade it in any respect.
Thornton v. State, 117 Wis. 338, 341, 93 N.W. 1107 (1903)
(emphasis added). Even before the exclusionary rule became
obligatory upon the states pursuant to Mapp v. Ohio, 367
U.S. 643 (1961), we held that evidence seized in violation of
the right against self-incrimination must be excluded from
trial, thus elevating the right to one of substance rather than
a mere "form of words."2 See Hoyer v. State, 180
Wis. 407, 415-16, 193 N.W. 89 (1923). We explained that there
was "no reason in logic, justice, or in that innate sense of
fair play," that evidence obtained in violation of one's right
against self-incrimination should be treated any differently
than that obtained in violation of one's right to be free from
unreasonable searches and seizures. Id. at 417 (reasoning that
both constitutional guarantees were of "equal standing and
value").
¶52 It was therefore no surprise when, nearly a century
after Hoyer, we held in State v. Knapp (Knapp II), 2005
WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, that the Wisconsin
Silverthorne
2 Lumber Co. v. United States, 251
U.S. 385, 392 (1920).
2
No. 2018AP858-CR.rfd
Constitution requires the suppression of physical evidence
obtained via an intentional Miranda violation. Id., ¶2. The
facts of Knapp II are particularly egregious. Detective Timothy
Roets arrived at Matthew Knapp's apartment ostensibly to arrest
him for consuming alcohol, a parole violation. But in reality,
the arrest was the start of Roets's investigation into Knapp for
a woman's murder the night before. When Knapp saw Roets, he
picked up the phone to call his attorney. Knapp eventually hung
up the phone and let Roets in; Knapp informed Roets that he had
been attempting to call his attorney. Without reading Knapp his
Miranda warnings, Roets asked Knapp about the clothes he had
been wearing the night before. Knapp pointed to a pile of
clothes on the floor, which contained a bloody sweatshirt.
Roets collected those clothes and formally placed Knapp under
arrest. During continued questioning by Roets, Knapp twice said
that an attorney told him not to talk to the police and that he
would not write or sign a statement without an attorney. Roets
never read Knapp the Miranda warnings. Id., ¶¶7-10.
¶53 At a Miranda-Goodchild hearing,3 Roets admitted that he
deliberately did not inform Knapp of his Miranda rights. Roets
testified he was concerned that Knapp, who had requested an
attorney, would refuse to make a statement once he learned of
his rights. So, "to keep the lines of communication open,"
3 At a Miranda-Goodchild hearing, the court adjudicates the
admissibility of evidence obtained contrary to the right against
self-incrimination. See State v. Jiles, 2003 WI 66, ¶25, 262
Wis. 2d 457, 663 N.W.2d 798; State ex rel. Goodchild v. Burke,
27 Wis. 2d 244, 133 N.W.2d 753 (1965).
3
No. 2018AP858-CR.rfd
Roets purposefully withheld the Miranda warnings prior to
questioning Knapp about his clothing. Id., ¶¶13-14.
¶54 This court held that, under Article I, Section 8 of
the Wisconsin Constitution, the exclusionary rule bars the
prosecution from introducing at trial the "physical fruits"——in
Knapp II, the bloody sweatshirt——of a deliberate Miranda
violation. We reached this conclusion for two important
reasons: to deter bad police behavior and to preserve the
integrity of the judiciary. First, we reasoned that the
Constitution could not abide such repugnant police conduct.
Id., ¶75. We recognized that holding otherwise would send law
enforcement the wrong message; that it was "better to
interrogate a suspect without the Miranda warnings than to use
legitimate means to investigate crime." Id., ¶77 (quoted source
omitted). The Constitution, however, does not permit law
enforcement to intentionally disregard its personal-liberty
guarantees in order to obtain evidence.
¶55 Second, we noted that the judicial system maintains
its reputation as a fair and neutral arbiter only if it holds
all parties to the same constitutional standards. Id., ¶79.
Safeguarding Wisconsinites' constitutional rights means ensuring
that those rights are protected throughout the entire
prosecutorial process. But that process would be
"systematically corrupted" if we were to allow into the
courtroom evidence obtained by unconstitutional "investigatory
shortcuts." Id., ¶81. Indeed, just as "[i]t is not too much to
expect law enforcement to respect the law," it is not too much
4
No. 2018AP858-CR.rfd
to expect the same of this court. See id. ("[F]air play
requires the players to play by the rules, especially those
players who enforce the rules.").
II
¶56 Neither party has asked us to overturn Knapp II. In
fact, at oral argument, the State expressly told the court that
it was "not asking for Knapp II to be overturned."4 And, as the
majority rightly points out, "Knapp [II] does not suggest
anything" about how the court should resolve Halverson's case.
Majority op., ¶25 n.5.
¶57 Yet Justice Rebecca Grassl Bradley's concurrence calls
on the court to overturn Knapp II anyway, ignoring our robust
tradition of independently interpreting the Wisconsin
Constitution.5 But to do so would not only erode Wisconsinites'
4https://wiseye.org/2020/09/14/wisconsin-supreme-court-
oral-argument-state-v-brian-l-halverson/, at 33:22.
5Justice Rebecca Grassl Bradley's concurrence charges that
Knapp II is out of step with the United States Supreme Court's
interpretation of the Fifth Amendment in United States v.
Patane, 542 U.S. 630 (2004) (plurality op.). This assertion
rests on a thin reed. See generally Yale Kamisar,
Postscript: Another Look at Patane and Seibert, The 2004
Miranda "Poisoned Fruit" Cases, 2 Ohio St. J. Crim.
L. 97, 97-107 (2004).
5
No. 2018AP858-CR.rfd
constitutional protections by sanctioning flagrant and
deliberate due-process violations, it would also take a step
toward making our own Constitution redundant with the federal
one. See Lynn Adelman & Shelley Fite, Exercising Judicial
Power: A Response to the Wisconsin Supreme Court's Critics, 91
Patane is a plurality opinion with only three Justices
concluding that, in the Fifth Amendment context, the
exclusionary rule could never reach non-testimonial "fruits"
obtained as the result of a Miranda violation. Patane, 542 U.S.
at 633-34. That rationale was explicitly disavowed by the two
concurring Justices. Id. at 645 (Kennedy, J., concurring).
Instead, the concurrence applied a balancing test much like the
one used in the Fourth Amendment context, counterbalancing "the
concerns underlying" the Miranda rule against the "other
objectives of the criminal justice system." Id. at 644. A
majority of the Justices in Patane thus agreed that a balancing
test, and not the plurality's absolute rule, was the proper
approach. See 1 Robert P. Mosteller et al., McCormick on
Evidence § 176 (8th ed. 2020) (noting that a majority of the
Patane Court "agreed that whether the Miranda federal
constitutional exclusionary requirement should and would extend
to fruit of the poisonous tree depended on balancing the value
of excluding fruit as a means of deterring conduct violating the
constitutional provision against the costs of doing so").
As the Court did in Patane, we engaged in a balancing
analysis in Knapp II; we just reached a different conclusion.
See State v. Knapp (Knapp II), 2005 WI 127, ¶¶33-43, 72-81, 285
Wis. 2d 86, 700 N.W.2d 899. That result is justified by the
stark contrast between the egregious violation in Knapp II and
the excusable Miranda error in Patane. Compare Knapp II, 285
Wis. 2d 86, ¶¶7-10, with Patane, 542 U.S. at 635 (plurality op.)
("Detective Benner attempted to advise respondent of his Miranda
rights but got no further than the right to remain silent. At
that point, respondent interrupted, asserting that he knew his
rights, and neither officer attempted to complete the
warning."). Other states have also examined Patane but afforded
broader protections under their state constitutions. See, e.g.,
State v. Vondehn, 236 P.3d 691 (Or. 2010) (en banc); State v.
Peterson, 923 A.2d 585 (Vt. 2007); State v. Farris, 849
N.E.2d 985 (Ohio 2006); Commonwealth v. Martin, 827 N.E.2d 198
(Mass. 2005).
6
No. 2018AP858-CR.rfd
Marq. L. Rev. 425, 443-44 (2007) (observing that the state
legislature has "historically failed to regulate the conduct of
law enforcement," leaving it to the courts to prevent
constitutional abuses); see also Jeffrey Sutton, 51 Imperfect
Solutions 47-83 (2018) (cautioning states to avoid
"lockstepping," particularly in the criminal-procedure context).
To abandon Knapp II is to abandon this court's long history of
upholding the Wisconsin Constitution's protection against
overbearing law-enforcement practices, even if those practices
meet the federally mandated minimum requirements. See Doe, 78
Wis. 2d 161, 171-72; Hoyer, 180 Wis. 407; see also Sutton, supra
at 47-83.
¶58 Federal courts interpret the federal constitution. We
have the final say on ours. Bashford, 4 Wis. at 786 (*757).
And for nearly a century, we have held that, in comparison to
those protected by the federal constitution, the individual
liberties enshrined in the Wisconsin Constitution are rights "of
substance rather than mere tinsel." See Hoyer, 180 Wis. at 415.
We should keep it that way.
¶59 For the foregoing reasons, I respectfully concur.
¶60 I am authorized to state that Justices ANN WALSH
BRADLEY and JILL J. KAROFSKY join this concurrence.
7
No. 2018AP858-CR.rfd
1