¶ 29. (dissenting).
Ah, when constabulary duty's to be done, to be done,
A policeman's lot is not a happy one, happy one.
So wrote William S. Gilbert in The Pirates of Penzance. Sadly, the majority's decision reverses a conviction because a police officer, trying to do his job to protect this community, responded to Ondra Bond's statement "You're the man" in a way that the majority does not like. In my view, the officer's response, "No, you're the man behind the man," made "real quickly" (Majority op. at 7) in a swirling, unstable, and potentially dangerous situation, is so far from what both the United States and Wisconsin supreme courts have characterized as the "functional equivalent of interrogation" that the rules governing what police officers in this state *658can and cannot do have been dramatically and substantially changed. If today's decision is allowed to stand, the lot not only of police officers will be less happy, but, indeed, so will the lot of our community. Accordingly, I respectfully dissent.
¶ 30. We are all familiar with how an object that appears to be bright when it is viewed in isolation will seem to have less luster when placed next to something far brighter. In my view, whether the officer's fleeting response to Bond's statement was the functional equivalent of interrogation for the purposes of Miranda v. Arizona, 384 U.S. 436 (1966), must be decided by comparing the circumstances here to the circumstances in the two cases that control our decision: Rhode Island v. Innis, 446 U.S. 291 (1980), and State v. Cunningham, 144 Wis. 2d 272, 423 N.W.2d 862 (1988). Once that comparison is made, it is clear that the officer's repartee to Bond was not the functional equivalent of interrogation.
¶ 31. Innis: Thomas J. Innis was arrested for the shotgun robbery of a taxi driver. Id., 446 U.S. at 293-294. Advised of his Miranda warnings, Innis told the officers that he wanted to speak with a lawyer. Id., 446 U.S. at 294. Three officers rode with Innis as they took him to a police station. Ibid. Two of the officers then discussed how horrible it would be if the shotgun they suspected Innis had used would be found by children attending a nearby school for the handicapped. Ibid. Innis heard all of the comments. Id., 446 U.S. at 294 n.1.
¶ 32. One of the officers said, as related by him in his testimony, "there's a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves." Id., 446 U.S. at 294-295. The third *659officer, who did not participate in the discussion, testified that the first officer also "said it would be too bad if the little — I believe he said a girl — would pick up the gun, maybe kill herself." Id., 446 U.S. at 295. At that point, Innis apparently had enough and said that he would show them where the shotgun was. Ibid.
¶ 33. In holding that the officer's comments were not the functional equivalent of interrogation for Miranda purposes, the majority in Innis opined that "[i]t cannot be said" that the officers — expressing their concern that a little handicapped girl might, "God forbid," find the shotgun and "maybe kill herself' — "should have known that their conversation was reasonably likely to elicit an incriminating response from" Innis. Id., 446 U.S. at 302. The majority explained:
There is nothing in the record to suggest that the officers were aware that [Innis] was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children. Nor is there anything in the record to suggest that the police knew that [Innis] was unusually disoriented or upset at the time of his arrest.
Id., 446 U.S. at 302-303. That the officer's dialogue may have constituted "subtle compulsion" and that it "struck a responsive chord" was not enough because, as the majority put it, there was nothing in the appellate record that established that Innis's "incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response." Id., 446 U.S. at 303.
*660¶ 34. Justice Thurgood Marshall, dissenting in an opinion joined in by Justice William J. Brennan, Jr., put the majority's holding in perspective:
One can scarcely imagine a stronger appeal to the conscience of a suspect — any suspect — than the assertion that if the weapon is not found an innocent person will be hurt or killed. And not just any innocent person, but an innocent child — a little girl — a helpless, handicapped little girl on her way to school. The notion that such an appeal could not be expected to have any effect unless the suspect were known to have some special interest in handicapped children verges on the ludicrous. As a matter of fact, the appeal to a suspect to confess for the sake of others, to "display some evidence of decency and honor," is a classic interrogation technique. See, e.g., F. Inbau & J. Reid, Criminal Interrogation and Confessions 60-62 (2d ed. 1967).
Id., 446 U.S. at 306. Clearly, if the compelling appeal to conscience in Innis was not the functional equivalent of interrogation for Miranda purposes, the officer's "No, you're the man behind the man" here also is not.
¶ 35. Cunningham: Police officers lawfully entered the home of Robert W. Cunningham to execute a search warrant. Id., 144 Wis. 2d at 274-275, 423 N.W.2d at 863. Cunningham resisted the search, ran into his "bedroom in an attempt to grab or discard items near the head of the bed," scuffled with the officers, and was subdued by them. Id., 144 Wis. 2d at 275, 423 N.W.2d at 863. He was arrested and handcuffed. Ibid. The officers did not advise him of his rights under the Miranda decision. Ibid.
¶ 36. After they subdued Cunningham, the officers searched his bedroom and "found a loaded revolver between the mattress and box spring, two to *661four feet from the headboard and about one foot from the side of the bed." Ibid. What then happened was argued by Cunningham to be the functional equivalent of interrogation in violation of the Miranda and Innis decisions:
One officer unloaded the revolver and then showed it to the defendant, advising him where it had been found and saying to the other officer, "This was apparently what Mr. Cunningham was running into the bedroom for." Upon seeing the revolver and hearing the officer's comment, [Cunningham] stated something to the effect that it was his bedroom and that he had a right to have a gun.
Cunningham, 144 Wis. 2d at 275, 423 N.W.2d at 863. Holding that what the officer did and said was not the functional equivalent of interrogation, Cunningham noted that Innis applied "at least two factors" that Cunningham recognized as important:
First, the Innis court considered the length of conversation between the officer and the suspect in determining whether the police officer should have known that his words would elicit an incriminating response. Second, the Innis court looked to the emotional state of the suspect in determining the suspect's unusual susceptibility.
Cunningham, 144 Wis. 2d at 281, 423 N.W.2d at 866. Applying these factors here, I conclude — as in Cunningham — that the record in this case does not support the majority's conclusion that the officer's comment to Bond was the functional equivalent of interrogation.
¶ 37. First, the officer's remark to Bond here was fleeting — far shorter than either the show-and-say display in Cunningham or the dialogue in Innis. Moreover, unlike the situation in both Innis and Cun*662ningham, the officer's comment was made in immediate response to Bond's statement to the officer. Additionally, the officer's comment was not made in the calm, stable atmosphere that was present in both Innis and Cunningham, but, rather, as we have already seen, in the midst of a highly volatile situation.
¶ 38. Second, there is nothing in the appellate record here indicating that Bond's "emotional state" made him unusually susceptible to the officer's repartee. Most important, however, Cunningham recognizes that Innis is the benchmark against which assertions that are claimed to be functional equivalents of interrogation must be measured. See Cunningham, 144 Wis. 2d at 283, 423 N.W.2d at 866 ("The facts of this case are stronger for the prosecution than those in Innis. The police officer's conduct and words in this case were not as provocative as the officer's comments in Innis."). The officer’s response to Bond here was not nearly as provocative as were the officer's we-must-protect-the-children assertions in Innis. I would affirm.1
That the officers' dialogue in Innis was not with Innis, while here the "No, you're the man behind the man" was directed to Bond in response to Bond's comment to the officer is a distinction without a difference. Thus, Justice John Paul Stevens noted in his dissenting opinion in Innis that the officer could have gotten Innis to tell them where the shotgun was in any one of three ways, any of which, in Justice Stevens's view, would have been the functional equivalent of interrogation for Miranda purposes. The officer could have:
(1) directly asked Innis:
Will you please tell me where the shotgun is so we can protect handicapped school children from danger?
(2) announced to the other officers in the wagon:
If the man sitting in the back seat with me should decide to tell us where the gun is, we can protect handicapped children from danger.
*663or (3) stated to the other officers:
It would be too bad if a little handicapped girl .would pick up the gun that this man left in the area and maybe kill herself.
In my opinion, all three of these statements should be considered interrogation because all three appear to he designed to elicit a response from anyone who in fact knew where the gun was located.
Innis, 446 U.S. at 312.