State v. Forbush, 796 N.W.2d 741

Background

Forbush was charged May 8, 2008 with attempted second-degree sexual assault and false imprisonment and extradition was waived in Michigan with counsel.
Wisconsin extradition brought him back; he was questioned by Detective Norlander on May 16, 2008 after Miranda warnings and a waiver was obtained.
Forbush moved to suppress, asserting his Sixth Amendment and Article I, Section 7 right to counsel were violated because he was represented on the charges when questioned.
The circuit court found counsel was known to investigators and suppressed the statements; the court of appeals reversed, citing Montejo and the prior Dagnall framework.
The Wisconsin Supreme Court granted review to decide whether Montejo overruled Dagnall and whether Wisconsin may maintain its prior invocation standard.
The lead opinion holds that Montejo does not authorize police interrogation of a charged and represented defendant in the circumstances presented, and suppression is required; the circuit court’s suppression is affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does Montejo overrule Dagnall on interrogation of represented defendants?	Forbush contends Montejo preserves Dagnall's protections; represented defendants cannot be questioned after invocation.	State argues Montejo displaces Dagnall and allows questioning if counsel is present or appointed.	Montejo does not authorize police questioning of a represented charged defendant; Dagnall remains viable here.
Was Forbush's Sixth Amendment right to counsel invoked before interrogation began?	Forbush invoked by retaining and receiving counsel for the pending charges, and authorities knew of this representation.	State disputes that the invocation occurred via retention; invocation requires an affirmative request by the defendant.	Yes; Forbush invoked his right by appearance with counsel, and questioning violated that right.
Did the investigators' knowledge of counsel affect the waiver/continuation of interrogation?	Knowledge of counsel implies interrogation should have ceased under invocation rules.	State contends the presence of counsel or appointment should not automatically bar questioning after proper warnings.	The investigators' knowledge supports suppression; interrogation should have ceased.
Does Wisconsin constitutional law provide greater protection than the federal Sixth Amendment in this context?	Forbush relies on Article I, Section 7 to extend protections beyond the federal standard.	State argues Montejo harmonizes with federal law and Wisconsin should follow federal interpretation.	Wisconsin constitutional protections in this context align with the result—suppress the statements.

Key Cases Cited

State v. Dagnall, 236 Wis. 2d 339 (Wis. 2000) ( Sixth Amendment invocation framework for charged, represented defendants; suppression when counsel known)
Massiah v. United States, 377 U.S. 201 (U.S. 1964) (pretrial interrogation without counsel violates Sixth Amendment)
Davis v. United States, 512 U.S. 452 (U.S. 1994) (unequivocal invocation required to invoke counsel at custodial interrogation)
Smith v. Illinois, 469 U.S. 91 (U.S. 1984) (invocation of right to counsel must be unequivocal)
Edwards v. Arizona, 451 U.S. 477 (U.S. 1981) (Edwards rule: once right to counsel is invoked, interrogation must cease)
Montejo v. Louisiana, 556 U.S. ..., 129 S. Ct. 2079 (U.S. 2009) (overruled Michigan v. Jackson; requires unequivocal request to invoke Sixth Amendment right to counsel; Jackson rule discarded)
United States v. Wade, 388 U.S. 218 (U.S. 1967) (Sixth Amendment extends to pretrial proceedings)
Patterson v. Illinois, 487 U.S. 285 (U.S. 1988) (valid waiver requires knowing, voluntary, intelligent relinquishment)
Kirby v. Illinois, 406 U.S. 682 (U.S. 1972) (when adversary proceedings initiated, right to counsel attaches)