¶ 96. (dissenting). I conclude that the majority opinion errs in assuming that Spaeth's February 15, 2006, statements to his probation agent were incriminating, compelled testimony, and then permitting that assumption to drive its conclusion that Spaeth's confession to Oshkosh police officers must be suppressed. As I explain fully herein, Spaeth's statements to his probation agent were not incriminating, compelled testimony and his confession to the Oshkosh police officers was voluntarily made. Therefore, I would affirm Spaeth's conviction of four counts of first-degree sexual assault of a child. Accordingly, I respectfully dissent from the majority opinion.
I. BACKGROUND
¶ 97. On February 15, 2006, Joseph Spaeth was on probation after being convicted of fourth-degree sexual assault of a child as a result of Spaeth's 1991 sexual assault of his 11-year-old niece, when he was 24 years old. Spaeth also was convicted of first-degree sexual assault of a child in 1993 because of Spaeth's sexual assault of his six-and-one-half-year-old niece, when he was 26 years old.1
*256¶ 98. Rebecca DeWitt was Spaeth's probation agent on February 15, 2006, and it was she who asked Spaeth to undergo a polygraph as part of her supervision of him. After the test, Spaeth was interviewed by DeWitt. She was questioned at trial and said:
Q And based on those communications, did you have any concern as to whether or not Mr. Spaeth had been involved in any type of inappropriate sexual activity?
A After the polygraph examination is completed, the examiner will come and talk to me .... So, the examiner came and talked to me in my office and then we went into the polygraph examination room to discuss the statements that Joe had made after the exam actually.
Q And was Mr. Spaeth present when you had those discussions?
A Yes, he was.
Q And at that point did Mr. Spaeth make any admissions that he had sexual contact with children in your presence?
A At that time he said that he had been horse-playing with his nieces and nephews and he knew that to be wrong.
Because she believed that "horse-playing" with children violated Spaeth's mies of probation, DeWitt contacted the Oshkosh Police Department to pick up Spaeth on a probation hold. In regard to the probation hold, she testified:
*257Q So, at that point you had discussed with Mr. Spaeth and with the polygraph examiner — When you had that interview, you discussed with him, with Mr. Spaeth, that you felt he may have violated his rules, correct?
A Yes.
Q And, specifically, you felt he may have violated his rules by sexual contact with children?
A At that point, no.. . .
Q So, at that point not sexual assault of children but at least some other violations with the children?
A Correct.
¶ 99. Before a police officer arrived and with no indication in the record of further questioning by Agent DeWitt, Spaeth continued to talk about his interactions with his young nieces and nephews. He told DeWitt that he "may have brushed up against his nieces and nephews vaginas or butts or breast area." These latter statements were more than a violation of a rule of probation; they had the potential to indicate that sexual assaults had occurred.
¶ 100. When Officer James Framke arrived from the Oshkosh Police Department to take Spaeth into custody for the probation hold, DeWitt told him the specifics that Spaeth had relayed about his interactions with his nieces and nephews. Officer Framke asked Spaeth if he would be willing to talk with him about the touching of his nieces and nephews. DeWitt told Spaeth that he did not have to talk to the officer and that he could have an attorney, but Spaeth said that he would like to talk.
*258¶ 101. Spaeth was taken to the Oshkosh Police Department where Detective James Busha joined Spaeth and Officer Framke. Spaeth was given Miranda warnings by the officers.2 He signed a waiver of rights form and the interrogation began. Spaeth then gave the officers a statement, which the officers wrote out and Spaeth signed.
¶ 102. Spaeth told the officers that on February 11, 2006, while at his brother's house, he "brushed against" his niece, N.B., who was seven-and-one-half-years-old. In so doing, he said his hand touched her "vagina, buttocks and chest."3 He said that he knew what he was doing was wrong, but he just "get[s] a 'don't care' feeling."
¶ 103. Spaeth also told the officers that on February 14, 2006, while at his brother's house, he again touched N.B. and also touched his niece, A.R.B., who was three-and-one-half-years-old, and his niece T.M.B., who was six-and-one-half-years-old. He said he touched the girls' vaginas, buttocks and chests, and that his hand would just "rest" there for 30 seconds to one minute. At the time of these assaults, Spaeth was 38 years old.
¶ 104. Spaeth was charged with four counts of first-degree sexual assault of a child. He moved to suppress his statements to Officer Framke and Detec*259tive Busha. His motion was denied because the circuit court concluded that Spaeth's statements were voluntarily made.
¶ 105. Spaeth was convicted on all counts after a jury trial, but the circuit court set aside the verdict and ordered a new trial because the jury had considered prejudicial information. Subsequently, Spaeth again was convicted on all four counts of first-degree sexual assault of a child after he pled no contest. He was sentenced to 15 years imprisonment on each conviction, five years of incarceration, followed by ten years of supervision. The sentences were concurrent.
II. DISCUSSION
A. Standard of Review
¶ 106. Whether Spaeth's statements to his probation agent were incriminating and compelled testimony such that the Fifth Amendment privilege against compulsory self-incrimination became self-executing is a question of law for our independent review. See Minnesota v. Murphy (Murphy II), 465 U.S. 420, 426 (1984); State v. Evans, 77 Wis. 2d 225, 227-28, 252 N.W.2d 664 (1977).
¶ 107. Whether Spaeth's confession to police was the result of his voluntarily waiving his Fifth Amendment privilege against self-incrimination involves the application of constitutional principles to facts found. This also presents a question of law for our independent review. State v. Ward, 2009 WI 601, ¶ 17, 318 Wis. 2d 301, 767 N.W.2d 236.
*260B. Compelled Testimony
1. Fifth Amendment principles
¶ 108. In order to receive protection under the Fifth Amendment of the United States Constitution without personally raising the privilege against self-incrimination, a person's statement must be testimonial, incriminating and compelled.4 State v. Mark (Mark II), 2008 WI App 44, ¶ 10, 308 Wis. 2d 191, 747 N.W.2d 727. However, court opinions do not always discuss all three components, but will assume that one of the components has been met.
¶ 109. The case before us is an example of that because the majority opinion assumes, without analysis, that Spaeth's statements to DeWitt were compelled.5 When an incriminating statement has been compelled, the Fifth Amendment privilege does not have to be raised by the speaker, but rather, Fifth Amendment immunity for incriminating, compelled testimony is self-executing. Murphy II, 465 U.S. at 426. However, not all statements that a probationer makes to his probation agent are compelled statements. See id. at 438.
*261¶ 110. My discussion of incriminating, compelled testimony and whether immunity is a self-executing result of governmental questioning begins with Kastigar v. United States, 406 U.S. 441 (1972), where the scope of Fifth Amendment immunity was explained. In Kastigar, Kastigar and other petitioners were subpoenaed to appear before a grand jury. Because the government believed that the petitioners might invoke their Fifth Amendment right to silence, a government officer obtained a court order directing the petitioners to give answers to certain questions and produce certain documents before a grand jury, which order included a grant of immunity pursuant to 18 U.S.C. §§ 6002-03. Id. at 442.
¶ 111. The petitioners argued that the scope of 18 U.S.C. §§ 6002-03 was not coextensive with the privilege afforded by the Fifth Amendment; therefore, protection under §§ 6002 and 6003 was not sufficient immunity to compel their testimony. Id. Accordingly, they refused to answer the questions asked and were taken into custody. The Supreme Court granted certiorari to determine whether testimony may be compelled by granting "use immunity," as the statute did, or whether it was necessary to grant "transactional immunity" before testimony could be compelled.6 Id. at 443.
¶ 112. The Fifth Amendment privilege against compulsory self-incrimination "protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Id. at 444-45. The *262Supreme Court concluded that the "statute's explicit proscription of the use in any criminal case of 'testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)' is consonant with Fifth Amendment standards." Id. at 453. The Court also explained that "[wjhile a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader" than the Fifth Amendment privilege. Id. The Court then concluded that transactional immunity was not required by the Fifth Amendment privilege. Id.
¶ 113. Kastigar did not delineate the circumstances that would cause testimony to be compelled. It assumed that the court order directing answers to certain questions before the grand jury was sufficient to show a governmental attempt to compel testimony.
¶ 114. Evans, decided in 1977 after Kastigar, was the first Wisconsin appellate case to undertake a thorough discussion of the method by which testimony is compelled. Evans set out the steps necessary to decide whether an incriminating statement had been compelled by government action.
¶ 115. Evans was a probationer who, during the course of his probation, was charged in a criminal complaint with conspiracy to deliver controlled substances. Evans, 77 Wis. 2d at 228. When the charges came to the attention of Evans' probation agent, he asked Evans to give an accounting of his activities on certain dates relevant to the charged conspiracy. Evans refused to answer, on the advice of counsel. Id. at 228-29. The probation agent sought revocation based on Evans' refusal. At his probation revocation hearing, Evans again refused to answer those questions. His *263probation was revoked, and he was then returned to court for sentencing on the conviction that preceded his probation. Id. at 229-30.
¶ 116. In approving the revocation of probation for asserting his Fifth Amendment right to silence, we explained that "[t]he liberty enjoyed by a probationer is, under any view, a conditional liberty. . . . His position is not that of the non-convicted citizen." Id. at 230. We went on to explain that "the situation in which the probationer fears self-incrimination in a criminal proceeding entails another consideration, that, 'no person . . . shall be compelled in any criminal case to be a witness against himself." Id. at 232. Therefore, even though Evans had a constitutional right to remain silent, his status as a probationer permitted revocation of probation for exercising his silence.7
¶ 117. We described two steps that must be taken before a probation agent's question will impact the Fifth Amendment right to silence. First, only certain types of questions have the potential to generate Fifth Amendment concerns when answers to those questions are compelled. We said:
[S]tatements made by a probationer to his probation agent or in a probation revocation hearing in response to questions which, as here, are the result of pending charges or accusations of particular criminal activity, may not be used to incriminate the probationer in a subsequent criminal proceeding.
Id. at 227-28 (footnote omitted) (emphasis added). Questions asked must be those whose answers would incriminate the probationer in the commission of a *264crime. Therefore, not every question that a probation agent asks a probationer compels an incriminating answer. Stated otherwise, it is the question itself that drives the Fifth Amendment inquiry, not the answer that is given, or refused to be given, by the probationer.
¶ 118. For example, an agent may question a probationer who is subject to a curfew about the time he returned home. A probationer is required to answer his agent truthfully, and the answer could subject the probationer to a revocation hearing. However, because the question does not relate to "pending charges" or an "accusation!] of particular criminal activity," it does not satisfy the first necessary step of Evans. That is, it is not a question whose answer would incriminate the probationer in a crime. As we said, "Probation conditions may proscribe activity which is not in itself violative of the criminal law." Id. at 234.
¶ 119. Or, a probationer who is asked a question about whether he is adhering to curfew may answer the question asked and then continue talking about matters for which no questions had been asked. If he does so and implicates himself in a crime, he will have volunteered incriminating information. However, because the probation agent did not ask a question about a pending charge or particular criminal activity, the probationer's incriminating statement would not have been compelled by the probation agent's question.
¶ 120. Evans also explained that a probationer could be subject to revocation proceedings both for failing to answer an agent's question about conduct that is not violative of criminal law and for refusing to answer questions concerning criminal activity. Id. at 234 — 35. We explained, "[I]t would be an absurd result to say: 'You may be revoked and sent to prison for refusal to answer questions concerning noncriminal but proscribed activ*265ity, but you may not be revoked for refusal to answer questions about possible criminal activity.’" Id.
¶ 121. The second step in Evans requires us to examine whether a question, the answer to which would incriminate the probationer, compelled the answer given. Threatened penalties, civil or criminal, for refusing to answer will suffice to cause impermissible compulsion. We explained that "the fifth amendment cannot be vitiated by imposing non-criminal penalties as a price of its exercise." Id. at 232. It is impermissible to threaten to impose a sanction that makes the exercise of the "Fifth Amendment privilege 'costly.'" Id. at 233 (citing Spevack v. Klein, 385 U.S. 511, 515 (1967)).
¶ 122. In Murphy II, decided in 1984 after Evans, the United States Supreme Court addressed the criteria that must be met before a court could conclude that questioning by a probation agent would cause a violation of the probationer's Fifth Amendment privilege against self-incrimination.
¶ 123. Murphy was a probationer who was required to "be truthful with the probation [agent] 'in all matters.'" Murphy II, 465 U.S. at 422. As a condition of probation, Murphy attended a sex offenders treatment program. Id. Murphy's agent learned that he had discontinued the program and required him to report to her office. Id. at 422-23. Murphy admitted he was no longer attending the program; however, the agent did not commence revocation proceedings because Murphy was doing well in other areas. Id. at 423.
¶ 124. Subsequently, the probation agent learned that Murphy told a counselor that he had committed a rape and murder in 1974. She contacted Murphy and asked him to come in and discuss a treatment plan for the remainder of his probation. Id. When Murphy *266arrived for the meeting, the probation agent did not ask Murphy questions about the 1974 crimes; rather, she told Murphy about the information she had been given in regard to the 1974 rape and murder. Id. at 423-24. Murphy became angry at what he said was a breach of his confidences to the counselor, and in his anger, he admitted the 1974 crimes. Id. at 424.
¶ 125. The agent explained to Murphy that her primary concern was the relationship between the crime for which he was on probation and the 1974 criminal conduct. Id. She encouraged Murphy to turn himself in, but he refused. Id. She then secured an arrest and detention order, and a state grand jury returned an indictment charging Murphy with first-degree murder. Id. at 424-25.
¶ 126. Murphy sought to suppress his statements to the probation agent on the grounds that they were obtained in violation of his Fifth and Fourteenth Amendment rights. Id. The trial court found that Murphy was not in custody at the time the statements were made and the statements were not compelled. Id. The Minnesota Supreme Court reversed, holding the statements were compelled " '[bjecause of the compulsory nature of the meeting, because [Murphy] was under court order to respond truthfully to his agent's questions, and because the agent had substantial reason to believe that [Murphy's] answers were likely to be incriminating.'" Id. (quoting Minnesota v. Murphy (Murphy I), 324 N.W.2d 340, 344 (Minn. 1982)). The Minnesota Supreme Court also reasoned that the agent should have warned Murphy that he had a privilege against self-incrimination. Id.
¶ 127. In Murphy II, the United States Supreme Court addressed "whether a statement made by a probationer to his probation officer without prior warnings *267is admissible in a subsequent criminal proceeding." Id. In reversing the Minnesota Supreme Court, the United States Supreme Court focused on whether Murphy's statements were compelled. Underlying the opinion is the Supreme Court's conclusion that not every statement made by a probationer to his probation agent is protected by the Fifth Amendment privilege against self-incrimination. The Supreme Court articulated this in several ways.
¶ 128. First, the Supreme Court explained that "the general obligation to appear and answer questions truthfully did not in itself convert Murphy's otherwise voluntary statements into compelled ones."8 Id. at 427. The Court said that although the agent could compel *268Murphy's attendance and the giving of truthful answers, that circumstance is no different than the expectations of a witness before a grand jury, who is subpoenaed to appear and sworn to tell the truth. Id. at 431.
¶ 129. Second, the Court noted that Murphy was not in custody when he made his incriminating admissions; therefore, no Miranda warnings were required before he spoke with his probation agent. Id. The Court said this lack of a warning was no different from a grand jury witness where there is no requirement to warn the witness of the Fifth Amendment right to remain silent. See id.
¶ 130. Third, the Court explained that generally if a witness, who is not in custody but is in circumstances where he is expected to answer questions, does so instead of claiming the Fifth Amendment privilege, the government has not "compelled" him to incriminate himself. Id. at 432.
¶ 131. The Court explained that an interview with a probation agent was significantly different from a custodial interview. The Court said that when a person is in custody, he faces "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id. at 430 (citing Miranda v. Arizona, 384 U.S. 436, 467 (1966)). Accordingly, when a person is in custody at the time of questioning, he must be provided with certain warnings to protect his Fifth Amendment right to silence. Id.
¶ 132. The Court concluded that an interview with a probation agent was not similar to an in-custody interview with law enforcement because one is placed in custody by arrest and is not free to leave. However, interviews with a probation agent are arranged by appointment and the person is free to leave. Therefore, *269an interview with a probation agent requires a probationer to assert his Fifth Amendment privilege. Id. at 433. Accordingly, the Fifth Amendment does not provide a self-executing privilege for all probation interviews. Id. at 434.
¶ 133. The Supreme Court also recognized that the general rule for non-custodial probation interrogation is "inapplicable in cases where the assertion of the privilege is penalized so as to Toréelos [e] a free choice to remain silent, and . . . compe[l]. . . incriminating testimony. " Id. (quoting Garner v. United States, 424 U.S. 648, 661 (1976)).9 The Supreme Court classified such cases as "penalty" cases because there was a penalty threatened for the exercise of the Fifth Amendment right. The Court pointed out that in each "penalty" case, "the State not only compelled an individual to appear and testify, but also sought to induce him to forgo the Fifth Amendment privilege by threatening to impose economic or other sanctions 'capable of forcing the self-incrimination which the Amendment forbids.'" Id. (citing Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977)).
¶ 134. The Court explained that each penalty case also contained a threat of punishment for reliance on the privilege against self-incrimination. Id. at 435. Accordingly, it is permissible for a state to require a probationer to appear and truthfully discuss circumstances that affect his probationary status. In such a probation interview, without more, the Fifth Amendment privilege is not self-executing. Id. However, the *270Court also explained that the nature of the questions could warrant a different analysis.
The result may be different if the questions put to the probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution.
Id. The Court concluded that with questions that sought answers that would incriminate the probationer, the state also must require the probationer "to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent" before there is compulsion under the Fifth Amendment. Id. at 436. The United States Supreme Court concluded that Minnesota did not "take the extra, impermissible step"; therefore, Murphy's statements were not compelled by state action. Id.
2. In regard to Spaeth
¶ 135. Murphy II and Evans provide the foundation for the analysis a court must undertake in regard to whether a probationer's statement to his probation agent was compelled. Murphy II establishes that in order for testimony to be compelled under Fifth Amendment jurisprudence, a person either must be in custody when questioned or he must be threatened with a penalty if he refuses to answer questions that would incriminate him in a crime. Id. at 430-31.
¶ 136. During Spaeth's interviews with DeWitt, he was not in custody. DeWitt testified that Spaeth was asked to come in to take a polygraph examination, and he agreed to do so. Spaeth was free to leave the probation interview.
¶ 137. After the examination was concluded, DeWitt talked with Spaeth because the test results showed *271that he may have been deceptive in some of his answers. The record does not contain the question that DeWitt asked prior to Spaeth's telling her that he had been "horse-playing" with his young nieces and nephews and that he knew that was "wrong."
¶ 138. Therefore, we don't know if DeWitt's question had the potential to elicit incriminating statements under the standards explained in Evans. However, it is very unlikely that it was a qualifying question because there is nothing in the record to imply that the question she asked related to "pending charges or accusations of particular criminal activity," as Murphy II and Evans require. Murphy II, 465 U.S. at 435; Evans, 77 Wis. 2d at 227-28; see also State v. Mark (Mark I), 2006 WI 78, ¶ 33 n.12, 292 Wis. 2d 1, 718 N.W.2d 90 (affirming Evans' delineation of the type of questions that have the potential to elicit incriminating testimony).10
¶ 139. Furthermore, Spaeth's later description of his interactions with his nieces and nephews as to his hands touching their breasts, butts and vaginas appears to have been volunteered without any additional question from DeWitt. Although the record is silent in regard to any of DeWitt's questions, we do know that *272DeWitt called the Oshkosh Police Department to come to pick up Spaeth before he described what turned out to be criminal conduct.
¶ 140. Furthermore, even if I were to assume, arguendo, that DeWitt asked Spaeth questions that had the potential to incriminate him in a pending charge or were related to specific criminal activity, there is nothing in the record to suggest that DeWitt threatened Spaeth with revocation if he refused to answer. As the United States Supreme Court has stated, "the general obligation to appear and answer questions truthfully d[oes] not in itself convert... otherwise voluntary statements into compelled ones." Murphy II, 465 U.S. at 427; see also Mark I, 292 Wis. 2d 1, ¶ 25 (concluding that "the mere fact that an individual is required to appear and report truthfully to his or her probation (or parole) officer is insufficient to establish compulsion"). Therefore, because the State did not take the impermissible step of requiring Spaeth to choose between revocation and answering DeWitt's questions, his answers were not compelled. Murphy II, 465 U.S. at 433; see also State v. Thompson, 142 Wis. 2d 821, 829, 419 N.W.2d 564 (Ct. App. 1987) (concluding that Thompson's statements were compelled because the State required him to choose between his conditional liberty and his Fifth Amendment right to remain silent).
¶ 141. It is also important to note that nothing in the record demonstrates that Spaeth was granted use immunity by statute or court order if he answered the questions asked on the polygraph test or answered the questions asked by DeWitt. "The power to grant immunity is a legislative power[;] not an inherent power of either the prosecutor or the court." Grant v. State, 83 Wis. 2d 77, 89, 264 N.W.2d 587 (1978) (citing Elam v. State, 50 Wis. 2d 383, 392-93, 184 N.W.2d 176 (1971)). *273Therefore, it is critical that the requirements for concluding that a question to the probationer was of a type that would elicit incriminating testimony and that the facts necessary to show compulsion are present. If a complete analysis on compelled statements is not undertaken, courts may fall into the analysis employed by the Minnesota Supreme Court, whose erroneous analysis caused the United States Supreme Court to reverse the Minnesota court's decision.
¶ 142. As a reminder to the reader, the Supreme Court quoted the erroneous Fifth Amendment analysis of the Minnesota Supreme Court:
[N]otwithstanding the lack of custody in the usual sense, Murphy's failure to claim the privilege when he was questioned was not fatal to his claim "[b]ecause of the compulsory nature of the meeting, because [Murphy] was under court order to respond truthfully to his agent's questions, and because the agent had substantial reason to believe that [Murphy's] answers were likely to be incriminating." In the [Minnesota] court's view, "the agent should have warned [Murphy] of his privilege against compelled self-incrimination before she questioned him and . . . her failure to do so, when she had already decided to report his answers to police, bars use of [Murphy's] confession at this trial."
Murphy II, 465 U.S. at 425 (citation omitted) (quoting Murphy I, 324 N.W.2d at 344).
¶ 143. Perhaps because the issue of compulsion to answer a question that would elicit an incriminating statement was conceded by the State, the majority opinion inadvertently expands the scope of the Fifth Amendment privilege set out in Kastigar and Murphy II. It does so when it erroneously employs Evans by stating, "The [Evans] court recognized the right of the state to compel answers from probationers and parolees, but *274only if they were granted corresponding immunity as outlined in Kastigar.11 The Evans holding is much more limited. It permitted use immunity for compelled answers only to certain kinds of questions:
[W]e hold that upon timely objection in criminal proceedings, the testimony of a probationer or a parolee given in response to questions by a probation or parole agent or at a probation or parole revocation hearing, which questions are prompted by pending charges or accusations of particular criminal activity, or any evidence derived from such testimony, is inadmissible against the probationer or parolee during subsequent proceedings on related criminal charges.
Evans, 77 Wis. 2d at 235 (emphasis added). Therefore, without knowledge of whether the questions that DeWitt asked Spaeth were "prompted by pending charges or accusations of particular criminal activity" there is no immunity for Spaeth's answers pursuant to Kastigar or Murphy II. Accordingly, Spaeth's statements to DeWitt were not compelled.
C. Spaeth's Statement to Oshkosh Police
¶ 144. At the hearing on Spaeth's motion to suppress his confession, the circuit court found that Spaeth's confession to law enforcement officers at the Oshkosh Police Department was voluntary. Therefore, his confession was not suppressed.12
¶ 145. At the suppression hearing, the argument of Spaeth's counsel focused on whether there was a sufficient break between the polygraph examination *275and Spaeth's subsequent confession to Oshkosh police officers.13 The argument that his confession to the officers should be suppressed because it was the fruit of incriminating, compelled testimony to DeWitt was not raised for the circuit court's consideration. Therefore, no inquiry was made of DeWitt in regard to the questions she asked Spaeth or whether all of Spaeth's statements to her were in response to her questions, rather than voluntary statements.
¶ 146. I note that although the State has the burden of proof during a suppression hearing, the defendant has the burden of production to establish initial facts showing that his rights have been violated. State v. Jackson, 229 Wis. 2d 328, 336, 600 N.W.2d 39 (Ct. App. 1999). Answers to a probation agent's questions that would incriminate the probationer are compelled if the State attaches an "impermissible penalty to the exercise of the privilege against self-incrimination." Murphy II, 465 U.S. at 437. To attach an "impermissible penalty," a defendant must be informed "during the crucial meeting with his probation officer that an assertion of the privilege would result" in the revocation of probation. Id. at 438.
¶ 147. Spaeth made no record from which a court could conclude that his statements to DeWitt were anything other than voluntary statements. Therefore, the confession to law enforcement should not be analyzed as the fruit of incriminating, compelled testimony. Rather, Spaeth's statements to law enforcement should be examined under the usual cannons applicable to in-custody interrogations. Statements to law enforce*276ment are voluntary "if they were 'the product of a free and unconstrained will, reflecting deliberateness of choice.'" Ward, 318 Wis. 2d 301, ¶ 18 (quoting State v. Davis, 2008 WI 71, ¶ 36, 310 Wis. 2d 583, 751 N.W.2d 332).
¶ 148. In regard to Spaeth's interrogation, DeWitt reminded him that he did not have to talk with the officer, before he left with the officer. When they arrived at the station house, Detective Busha said that he had been told that Spaeth had a matter that he wanted to talk about and Spaeth said he did. Detective Busha asked Spaeth if he could understand and read the English language, and Spaeth said that he could.
¶ 149. At 1:20 p.m., Spaeth was given the Miranda warnings form and he read out loud the Miranda warnings set out on the form. Detective Busha asked Spaeth if he understood what he had read. Spaeth said that he did, and at 1:24 p.m., he signed the form that he had read. The interrogation then began.
¶ 150. Detective Busha testified that he did not imply to Spaeth that his probation status would be affected by whether he cooperated in the interview. He also said that even though he knew of the polygraph examination earlier that day, he did not mention it to Spaeth. Detective Busha said that Spaeth appeared to understand his constitutional rights and that he did not appear to be under the influence of any drugs or alcohol.
¶ 151. Spaeth gave a statement about his conduct with his young nieces and nephews. An officer wrote up the statement and Spaeth signed it at 2:40 p.m. Therefore, the interview was not overly long.
¶ 152. I conclude that the totality of the circumstances supports the circuit court's conclusion that Spaeth's confession was voluntarily made. Spaeth was *27738 years old. He could read and write English and had experience with law enforcement due to his two prior convictions. He said that he had something that he "wanted to get. . . off his chest." The officers were courteous, offering Spaeth's breaks and coffee. The interview lasted only one hour and 20 minutes. There is nothing to indicate that his statements to law enforcement were coerced in any way. Accordingly, the circuit court correctly denied Spaeth's motion to suppress his confession.
III. CONCLUSION
¶ 153. I conclude that the majority opinion errs in assuming that Spaeth's February 15, 2006, statements to his probation agent were incriminating, compelled testimony and then permitting that assumption to drive its conclusion that Spaeth's confession to Oshkosh police officers must be suppressed. As I explained fully herein, Spaeth's statements to his probation agent were not incriminating, compelled testimony and his confession to the Oshkosh police officers was voluntarily made. Therefore, I would affirm Spaeth's conviction of four counts of first-degree sexual assault of a child. Accordingly, I respectfully dissent from the majority opinion.
Spaeth initially received probation for the sexual assaults of his two nieces, but his probation was revoked and he was incarcerated due to the sexual assault of his aunt. On February *25615, he was on parole after his release from prison. However, I use the term "probation" to indicate his status because that is the term chosen by the majority opinion. Majority op., ¶ 4 n.2.
The warnings arise from Miranda v. Arizona, 384 U.S. 436 (1966). They inform the suspect that he or she has the right to remain silent and the right to have an attorney present. They also caution that any statements the suspect makes can be used against him or her.
When officers later interviewed family members about Spaeth's conduct with their children, N.B.'s mother explained that N.B. is cognitively challenged and could not confirm or deny whether Spaeth had inappropriately touched her.
The Fifth Amendment provides in relevant part that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const, amend. V.
Majority op., ¶ 58. In all fairness to the majority opinion, I note that the State conceded that Spaeth's statements were compelled. However, whether the requisite compulsion has occurred is a question of law. See State v. Evans, 77 Wis. 2d 225, 227-28, 252 N.W.2d 664 (1977) (concluding that certain statements were compelled). Because it is our constitutional duty to declare what the law is, we are not bound to accept concessions of law. Lloyd Frank Logging v. Healy, 2007 WI App 249, ¶ 15 n.5, 306 Wis. 2d 385, 742 N.W.2d 337. Therefore, I do not accept the concession.
"Use immunity" includes immunity for the use and derivative use of compelled testimony that is incriminating. Kastigar v. United States, 406 U.S. 441, 453 (1972). "Transactional immunity" is absolute immunity from prosecution for the crime to which the compelled, incriminating testimony relates. Id.
It is also likely that Evans would have been subject to revocation proceedings if the answers he gave incriminated him in the commission of a crime.
The concurrence asserts, "Compulsion exists when the probationer is required to 'choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent.'" Concurrence, ¶ 85 (quoting Minnesota v. Murphy (Murphy II), 465 U.S. 420, 436 (1984)). In so stating, the concurrence leaves out the United States Supreme Court's complete statement of the premise that the Court was explaining. For completeness, the reader should note that the Court went on to state, immediately following the language quoted in the concurrence, "Because we conclude that Minnesota did not attempt to take the extra, impermissible step, we hold that Murphy's Fifth Amendment privilege was not self-executing." Murphy II, 465 U.S. at 436.
By so explaining, the United States Supreme Court emphasized that it took something more than being required to appear and give truthful answers to a probation agent's questions before a probationer's answers were compelled testimony. Id. at 436-38. In the case now before this court, all that Spaeth was required to do was to appear and to answer truthfully. The probation agent took no extra, impermissible step, which is required by Murphy II before Spaeth's statement could constitute compelled testimony.
Murphy had argued that revocation of his probation was threatened if he was not truthful upon questioning by his probation agent. Murphy II, 465 U.S. at 434. The Supreme Court held this argument insufficient to prove compulsion. Id. at 437-38.
In State v. Mark (Mark I), 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90, we remanded to the circuit court to determine whether Mark's statements were compelled, and we noted that the nature of the questions asked was an issue in making this determination. Id., ¶ 33 n.12. When the court of appeals reviewed the subsequent circuit court decision, it did not address the type of question that was asked. It considered only the answers given by Mark. See State v. Mark (Mark II), 2008 WI App 44, ¶¶ 16-25, 308 Wis. 2d 191, 747 N.W.2d 727. This led the court of appeals to an incorrect analysis because it is the question that compels an incriminating answer. It is not the incriminating answer that determines whether the question was compelling.
Majority op., ¶ 55.
With new counsel, Spaeth moved for reconsideration. The circuit court denied that motion as well.
Counsel argued, "There wasn't any significant timeframe between the time he made the statements to the polygraph examiner and the statements to law enforcement, so we're seeking to suppress any of those statements made that day."