State v. Andrew M. Edler

Plaintiff-Appellant, State of Wisconsin, Defendant-Respondent. Andrew M. Edler, Supreme Court No. 2011AP2916-CR. argument April Oral July

—Decided 2013 WI 73 (Also 564.) reported in 833 N.W.2d For the plaintiff-appellant, argued by cause was Perlman, David H. assistant attorney general, Hollen, whom on the briefs was J.B. Van general.

For the defendant-respondent, there was a brief Hahn, by Richard Christopher M. and Holden Eippert, Hahn, S.C., & and oral Sheboygan, argument by M. Christopher Eippert. 1. CROOKS, N. PATRICK J. This is a review of granting Andrew M. Edler's court's order

the circuit during suppress he made a cus- statements motion to interrogation. of the circuit We affirm the order todial made after he invoked his The Edler court. statements suppressed. April on must be to counsel proceedings circuit court for further remand to the We with this decision. consistent appeals II for District certified 2. The court of (Rule) § pursuant appeal 809.61,1 and to Wis. Stat. accepted we the certification.2 questions, the certified we must 3. To answer April 20 made Edler on decide whether statements requires suppressed. an examination must be This case police, separate Edler and interactions between of two unambiguous involving unequivocal, re- Edler's one quest on March and the for counsel while are to the All references to the Wisconsin Statutes 2009-10 version. questions The certified are as follows: rely [Wlhether follow Shatzer or on the Wisconsin should I, [art. § 8] Constitution as the Wisconsin

Wisconsin Court has done with Fifth Amendment issues on other occasions. asked, way squad the defendant in the car on the to the 2. When my attorney interrogation, "can he for this?" did he second unambiguously invoke to counsel? ambiguous, If the declared to be then we ask that statement is supreme court resolve a third issue. Does it make a difference ambiguous was made before Miranda whether statement warnings given opposed were as to afterwards? that the questions. We answer the first two Because we hold unequivocal, unambiguous request statement Edler was an counsel, the for we need not and do not address whether as that pre-Miranda standard for a statement is the same Jennings, in 252 Wis. 2d articulated State v. WI States, (1994), and Davis v. United 512 U.S. 452 647 N.W2d not or whether the standard should differ when a defendant has recently rights. told of his or her constitutional been involving my statement, other attorney Edler's arrest and "Can present April Accordingly, this," on potential suppressing April there are two bases for 20 statements.

¶ 4. Wefirst examine Edler's March 30 invocation light Supreme of the recent United States Court case (2010). Maryland Shatzer, 559 U.S. 98 In Shatzer the Supreme presump- United States Court examined the (1981), Arizona, tion Edwards v. 451 U.S. 477 suspect validly any after a counsel, invokes subsequent waiver is invalid unless an is suspect or the "initiates further communica- exchanges, police." tion, or conversations with the Edwards, 451 U.S. at 484-85. The Court in Shatzer explained presumption that the Edwards ends when police custody days. been has outside for 14 Shatzer, 559 U.S. at 110. Edler asks court this not to adopt interpret Shatzer and instead the Wisconsin require permanent subsequent Constitution to bar on interrogation, adopt or in the alternative, a different interpret test. We see no need in this case provide protection Wisconsin Constitution to different provided by than that the United States interpretation Court's of the United States Constitu- adopt tion. We therefore the rule created in Shatzer days passed and, because 19 had between when Edler was released from he when was reinterro- gated, hold that the March 30 invocation does not bar April on separate suppressing A5. basis for the state- may presumption ments exist even if the Edwards no longer applied. If Edler's statement in the car on April unequivocal, unambiguous 20 was an invocation presumption of the the Edwards would begin again. surrounding Given circumstances understanding

invocation and the that statements be- ginning request, with the "can" often word constitute a my attorney we hold that statement, Edler's "can this," for was a valid invocation of the pre- counsel. The invocation re-starts the Edwards sumption, barring Edler's waiver of later that day provided because Edler was not with counsel and "initiate[] exchanges, did not further communication, police." request or conversations with the After Edler's attorney, police questioning for an should have ceased they him. Because not, did Edler's made statements request suppressed. request after that must be His unequivocal, unambiguous invocation of his counsel.

I. FACTUALBACKGROUND

AND PROCEDURAL HISTORY seventeen-year-old firefighter 6. Edler was a Department. respond the Waldo Fire He was able to probationary fires, but because he was on status, he was providing moving limited to assistance such as hoses or firefighters. other items for the He became nearby two arsons committed in a town due to his unusually quick response to those fires.

¶ 7. On March 30, 2011, Detective Gerald Urban burglary. met with Edler about an unrelated In an department, room at the sheriffs Urban rights, questioned read Edler his Miranda3 and Urban burglary. Edler about the After Edler made incriminat ing burglary, statements about the Urban room, left the returning eight point, about minutes later. At that began Urban to ask Edler about the two arsons. Edler unequivocally, unambiguously requested then Arizona, Miranda v. (1966). 384 U.S. 436 stating: point lawyer I'd on, "From this like here." questioning spent Urban ceased Edler. After Urban explaining respon that if Edler about two minutes was stop behavior, sible for the fires he should Edler jail charging burglary. taken to on was to await jail day, requested ¶ 8. From the next Edler to speak transported jail Edler was from the with Urban. department, to the sheriffs where an interview room up. had been set Urban met with Edler the interview room, and Edler him about he asked when would be having appearance. if his initial Urban asked Edler he anything say arsons, had responded, to about the to Edler which honestly anything say

"I don't have about any questions did that." Urban not ask further about the arsons at that time. charged burglary

¶ 9. Edler was with one count of theft, one count of made initial misdemeanor his appearance, April 1, and was released from on appointed public 2011. Edler was defender for the burglary April 2011. case on April 18, 2011, 10. On Urban talked with a agreed friend of Edler. Edler's friend to wear a covert talk to Edler in the two wire to about involvement damaging arsons. Edler made some statements that day. were recorded on that April 20, 2011, Urban arrested Edler at On inquired for the arson fires. Edler's father

Edler's home why being arrested, about Edler was and Urban ex- being plained Edler's father that he arrested for was Edler's father then told Edler to be honest and fires. cooperate the detectives. placed Edler handcuffed and in the back unmarked car. Urban sat next to

seat of detective's they car, Edler in the back seat. As rode in the Urban encouraged Edler to follow his father's advice and

cooperate investigation. with the About five minutes my attorney drive, stated, into the Edler "Can responded, this," to which "Yes, Urban he any incriminating can." Edler did not make statements during the ride. they

¶ 13. When at the station, arrived Edler was brought having into an room.4 Edler was difficulty breathing crying and was when Urban en- explained they tered the room. Urban the evidence had against him and that Edler needed to come clean. Once again, encouraged he Edler to follow his father's advice. got play by Then Urban stated, "I've the rules." He gave warnings, then Edler his Miranda and Edler rights. Subsequently, waived those Edler made incrimi- nating statements to Urban.5 charged April

¶ 14. Edler was on 2011, with two counts of in arson violation of Wis. Stat. 943.02(l)(a) § possessing, and one count of manufactur- ing, selling or a Molotov cocktail in violation of Wis. § 943.06(2), party Stat. each as a to the crime under § Wis. Stat. 939.05. suppress 15. Edler moved to the statements he right April

made after he waived his to counsel on 20 on grounds rights the that his Fifth and Sixth Amendment were violated.6

4 The interview was video-recorded. interview, Toward the end of the appeared Edler to have a panic attack and then vomited. question Urban did not Edler after that occurred. 6 Edler also suppress April 18, 2011, moved to state ments recorded on the covert on wire Sixth Amendment grounds. The circuit court denied the motion suppress April dismissing statements on the use of the Sixth Amend case, ment in stating this rights "Sixth Amendment do not attach until the adversary State proceedings," commences citing Sheboygan County Court, 16. The Circuit presiding, granted Honorable Terence T. Bourke suppress grounds motion on that when in cus- tody April unequivocally, unambiguously on Edler right during transportation invoked his to counsel department, finding to the sheriffs several facts: way the car on the to the station Edler asked if his attorney present; attorney could be Edler had an in his burglary case but did not matters; have one the arson and, Edler had talked to Urban three weeks earlier requested being time, at that Edler while questioned about the arsons.

¶ 17. The circuit court held that Edler's Fifth Amendment to counsel was violated when Urban interrogated unequivocal, Edler after Edler's unam- biguous April assertion of the to counsel on Miranda, The circuit court reasoned that under after a request "scrupulously made, for counsel is it must be subsequent honored," and Edler's of his waiver at the station was therefore not valid. quoted holding in The circuit court Edwards: accused, Edwards, We further hold that an such as having expressed only deal his desire to with the through subject is not to further by the until authorities counsel has been made avail- him, further able unless the accused himself initiates communication, exchanges, or conversations with the police.

Edwards, at 451 U.S. 484-85. appealed suppress

¶ 18. The State order to grounds Edler's statements on that Edler's state- (1991). Wisconsin, McNeil v. 501 U.S. The circuit 171 court explained why exceptions to this rule were not satisfied appeal here. Edler did not that order. question

ment was a about his and not itself an rights. appeals assertion of the The court of certified (Rule) § appeal pursuant to Wis. Stat. 809.61. II. STANDARDOF REVIEW apply ¶ 19. Whether this court will rule adopt or Shatzer a different rule under the Wisconsin question Constitution is a of law which we decide independently. County Dep't Kenosha Human Servs. of ¶ W., v. Jodie 93, 19, 530, 2006 WI 293 Wis. 2d N.W2d 845. effectively

¶ 20. Whether a defendant invoked his question Fifth Amendment to counsel is a by two-part constitutional fact decided this court in a Hambly, test. State v. 10, 16, 2008 WI 98, Wis. 2d upholds First, 745 N.W.2d 48. this court the circuit findings clearly court's of facts unless erroneous. Id. independently applies Second, this court constitutional principles benefitting facts, to those from the circuit interpretation. court's Id. The relevant facts are not in dispute; question therefore, we must answer the suppressed whether the statements should be under either the United States or Wisconsin constitutions. Knapp, State v. 2005 WI 285 Wis. 2d N.W.2d899.

III. ANALYSIS adopt 21. We first decide whether this court will 14-day break-in-custody adopt rule of If Shatzer. we complied that rule and find that it was here, then we must decide whether the statement Edler in the back of the unequivocal car after he had been arrested was unambiguous.

or United Fifth Amendment to the States 22. The part: person.. in "No . relevant Constitution states any compelled a in criminal case to be witness be shall against contains a himself." The Wisconsin Constitution may compelled person provision: "No ... be similar against any a himself or criminal case to be witness 8(1). Const, §I, art. herself." Wis. Supreme Court has inter- The United States applied protections

preted Fifth Amendment as and rights requiring warning certain constitutional subjected interroga- to custodial a defendant is when prevent law enforce- created a rule to tion. Miranda violating Fifth Amendment. from ment officers "pro- and is still often called the rule has been While phylactic,"7 Court, Chief the United States majority, writing Rehnquist confirmed for the Justice in Dickerson v. United a "constitutional rule" that it is (2000). requires rule that States, 428, 444 The 530 U.S. rights, suspect apprised of certain constitutional a including custodial interro- counsel, before gation. Arizona, U.S. 444-45 Miranda v. (1966). given warnings suspect these If the is not incriminating incriminating statements, those makes suppressed. If Id. at 444. must be statements (1990) (a See, Michigan Harvey, e.g., 494 U.S. "mea describing prophylactic rules as Amendment case Sixth pro are that constitutional designed to ensure sures tected.") that Edwards Shatzer majority emphasized Recently the rules and and Miranda were judicially prescribed prophylactic justify any expansion. obligation to the Court had an (2010). Shatzer, Maryland v. The concur- 559 U.S. 103-05 made it clear that the Shatzer rule was rence Justice Stevens argued that Fifth Amendment based on the 'judicially prescribed "demeans Edwards as layer' 'second (Stevens, J., concurring). Id. at 120 prophylaxis.'" chooses to invoke his or her request "scrupulously must be honored," and "the interrogation attorney present." must cease until an is Id. at

¶ 24. The United States Court in Ed- interpreted wards further Miranda. The relevant facts from are Edwards as follows: arrested, Edwards was given warnings, cooperating was police. Miranda and was passed,

451 U.S. at 478-79. After some time attorney making "I stated, Edwards want an before question deal." Id. at 479. The did not Edwards day. day, further on that Id. The next two different jail. officers went to see Edwards Id. Edwards at- tempted to decline to talk to them but was told guard guard brought "that 'he had' to talk." Id. The Edwards to the officers, the officers then informed him rights, of his Miranda and he waived them. Id. The Supreme Court held that "an accused, such Edwards, as having expressed police only his desire to deal with the through subject counsel, is not to further by the authorities until counsel has been made avail- him, able to unless the accused himself initiates further exchanges, communication, or conversations with the police." pre- Id. at 484-85. Thus, Edwards created a sumption of involuntariness of a waiver of Miranda made after a valid invocation of the provided counsel unless an is or the defendant police. initiates further communication with ¶ 25. As earlier, we noted the United States Su- preme recently interpreted pre- Court the Edwards sumption presump- in Shatzer and determined that the 14-day custody. tion of Edwards ends after a break in The Shatzer court examined whether a break in presumption. ended the Shatzer, Edwards 559 U.S. at facility 100. Shatzer was incarcerated at a correctional serving A offense. Id. at 100-01. on another a sentence gave institution, Shatzer at the met with detective warnings, and Shatzer waived Shatzer his rights. confusion at 101. There was some Id. those for, there but when the detective was about what to talk the detective wanted Shatzer realized what attorney, speak declined to without about, Shatzer general population released back into and Shatzer was years prison.8 later, a and six months Id. Two at the institution went to the correctional different detective The detec- transferred. Id. Shatzer had been to which warnings, gave and Shatzer his Miranda tive provided Shatzer rights. Id. Shatzer of those a written waiver during incriminating subsequently statements made agreed polygraph examina- and also to a the interview again days later, Shatzer Id. at 101-02. Five tion. polygraph rights, given a waived his in- failed, and made additional which he examination criminating then moved Id. at 102. Shatzer statements. suppress the Fifth as a violation of his statements grounds the that Edwards barred Amendment on the he had invoked his statements because use of his years earlier. Id. two and a half to counsel disagreed Supreme with Shatzer 26. The Court not violated. Fifth Amendment was and held that the as the reasons behind Edwards The described Court integ- judicial "preserving] "conserving the resources," police rity communicate with an accused's choice to of police "preventing only through from counsel," and held that in Shatzer The United States Court a break population constituted general into being released back minimizing the harsh custody, stating: "Without in Miranda im incarceration, imprisonment we think lawful realities of the coercive a crime does not create posed upon conviction of Shatzer, 559 U.S. at 113. identified in Miranda." pressures badgering waiving previously a defendant into his as- (citations omitted). rights." serted Miranda Id. at 106 Explaining problems permanent the with a bar to questioning prophylac- future and establishment of presump- rules,9 tic the court decided that the Edwards 14-day custody. tion ends after there is a break in Id. at provides plenty "[t]hat reasoned, 110. It for time get suspect to life, reacclimated to normal his consult any with friends and and to shake off residual prior custody." effects coercive recognized Id. The court clarity certainty and that result from "[confessions and Edwards stated that after obtained a break in a 2-week and waiver of Miranda unlikely compelled, are most to be hence are unreasonably excluded." Id. at

A. argues adopt ¶ 27. The State that we should rule of Shatzer because it strikes reasonable balance competing protec- preserving interests, between providing predictability Edwards, tions of argues normally Edler officers. Edwards would bar further of a defendant after he had in- subsequent voked his to counsel and that The Edwards holding does not describe the as creating prophylactic rule. It holds that a constitutional occurred, stating, violation "Because the use of [Edwards'] against confession him at his trial rights violated his under the and Fourteenth Amendments as construed in Miranda v. Fifth Arizona, we judgment reverse the of the Arizona Arizona, (1981) 477, Court." Edwards v. added) (internal (emphasis 451 U.S. 480 omitted). citation The Edwards rule has been subsequently Shatzer, characterized as a prophylactic rule. See Louisiana, 559 at (citing Montejo U.S. 105 v. 556 U.S. 787 (2009); Michigan Harvey, (1990); v. 494 U.S. 349 Solem v. (1984)). Stumes, 638, 644, 465 U.S. n.4 interrogation He was in of Edwards. of Edler violation argues rule the that the Shatzer constricts further invoked their to of defendants who have urges protection extend the Edler this court to counsel. provided in under Article Section 8 of the Wisconsin beyond provided by the that Wisconsin Constitution suggests Supreme Court in Shatzer. He United States subsequent permitted custodial that only suspect's if if or the the is alternative, In the he initiates further communication. totality suggests deter- a of the circumstances test to custody in is sufficient. mine whether a break adopt 14-day of The the rule Shatzer. We days, custody therefore, in more than 14 break 19-day interrogating break hold that Edler after we agree did Edwards. We not itself violate important predictability is when Shatzer that court guidance creating prophylactic police have clear rules so they Shatzer, U.S. at do and when.10See on what can spares setting agree also that the two-week rule 110. We suspect being inquiry to asked courts whether rights has asserted a Miranda waive Miranda right ever Id. at 111-12. at an earlier date. counsel holding that is with the fact 29. This consistent interpret States and Wiscon- both United we often e.g., way. See, the same State sin constitutions Jennings, 228, 44, 252 Wis. 2d N.W2d 2002 WI rule Shatzer recognize We that calls by it mandated the United "prophylactic," implying that is not case, argues this court In this Edler States Constitution. prevent type this interpret should the Wisconsin Constitution to us Similarly, appeals certified police. the court of behavior question of to extend the Wisconsin Constitution whether in Shatzer. For these than that provide protection different reasons, scope we of the Wisconsin Constitution. discuss exceptions example, There are to this For in rule. Knapp, this court looked to the Wisconsin Constitution provide protection beyond that described United States Court. 285 Wis. 2d 86. In Knapp, police officer that he had testified intention- ally provide warnings suspect failed to Miranda to a so "keep open." communication Id., as to the lines of acknowledged ¶¶ 13-14. The officer that he was suspect attempting aware that was to contact police brought counsel before the for interrogation. Additionally, ¶ Id., custodial 14. "the ha[d] physical State conceded that evidence was seized as a direct result an intentional Miranda Id., violation." 20. This court held that "the exclusion- ary physical rule bars fruits obtained from a deliberate Id., ¶ I, violation under Article 8." Section (footnote omitted).

¶ 30. The case at hand does not the same kind of constitutional issues as the intentional violation Knapp. meaning ofMiranda in We decline to extend the of Wisconsin this Constitution I, Article Section 8 provide protection situation so as to different than the Fifth Amendment to the United States Constitution. provide pro- 31. Because we decline to different apply 14-day break-in-custody tection, we rule of parties agree Shatzer. The Edler outside of days. complied Therefore, Shatzer was suppressed here, and the statements cannot on grounds the interrogation that Edler's March 30 invocation barred the April

on

B. enough passed if Even under Shatzer time since Edler invoked his Miranda to counsel such subsequent interrogation that his did not violate presumption, we determine must whether Edwards police unequivocal, an in the car was Edler's statement right unambiguous of to counsel such invocation the subsequent the waiver at the station was invalid that under Edwards.11 presump-

¶ above, creates 33. Edwards a As noted suspect either "initiates further com- tion that unless a provided exchanges, conversations," or munication, or is attorney, any a made after valid invoca- an waiver right Edwards, is 451 U.S. of the to counsel invalid. tion legal sufficiency invoca- of a defendant's at 484-85. "The during interroga- right a custodial tion of the to counsel application a is determined the of constitutional tion Jennings, 228, 252 2d to facts." Wis. historical standard ¶ independently "the historical 25. This measures court against standard, uniform constitutional benefit- facts ing a deferring circuit deci- from, to, the court's but not omitted). (citations sion." Id. States,

¶ 512 U.S. 452 34. In Davis v. United (1994), Supreme Court established the United States right to of a statement invoked the the test whether subjected custodial Generally, a defendant be to must get of Miranda interrogation protections in order to Lonkoski, 30, 41, 2d WI 346 Wis. Edwards. See State v. 3, 10,WI 523, Hambly, In State v. 828 N.W.2d 552. had been we held a who 2d 745 N.W2d that Wis. being interrogated could invoke his yet not arrested was case, split In this court on the right that to counsel. impend "imminent or of whether must be issue must be "imminent or justices deciding that it ing," with three concluding question that justices impending" and three Id., that We need not answer not be answered. need a that Edler had here the State conceded question because police transport when rights during invoke his Miranda forthcoming. attempted interrogation was "[I]f suspect counsel as follows: a a makes reference to ambiguous equivocal an that is or in that a light officer reasonable in of the circumstances would only suspect might have understood that the invok- ing precedents require our do not questioning." cessation Id. at 459. test The adopted objective "Although suspect one: need 'speak don,' not with the discrimination an Oxford he must articulate his desire have counsel sufficiently clearly reasonable officer circumstances would understand the statement to be a (internal omitted). request attorney." for an Id. citation adopted This court the United States Court's Jennings, ¶¶ test 252 Wis. 2d 30, Under the objective test, we must examine the circumstances surrounding request.12 support 35. The relevant circumstances holding unequivocal, that Elder's statement was an unambiguous request for counsel. Urban had interro- gated Edler on March at which time Edler had requested attorney stating, an arsons, on the "From this point lawyer request on, I'd like a here," and the had 12 by objective We that using note test of Davis and Jennings to determine whether the statement was an unam biguous, unequivocal counsel, invocation of the to arewe answering question not by third certified the court of appeals. our explanation: Recall earlier Because we hold that unequivocal, the statement Edler was an unambiguous request for we need not do not address pre-Miranda whether the standard for statement is the same as Jennings, WI44, that articulated State v. 2002 252 Wis. 2d States, (1994), N.W2d 142 and v. Davis United U.S. or if the recently standard should differ when a defendant has not rights.

been told of his or her constitutional Supra, 2 n.2. present complied March had been on with. Urban

been arsons, about the to which tried to ask Edler honestly anything say responded, "I don't have Edler father, and Urban had talked to Edler's that." about encouraged had Edler honest with father to be Edler's right to At the time Edler invoked his the detectives. disputes and no that arrested, he had been one counsel interrogation. forthcoming "this" to the the word related charged burglary and Edler with knew had been Urban attorney charge. An in Urban's an on that officer had previous position that Edler had on would have known requested matter, to deal with this counsel occasions likely understand make more which would the officer attorney light again. asking In of that Edler was for attorney my circumstances, statement, "can Edler's sufficiently present this," for clear to a reasonable be position understand the statement officer in Urban's attorney. request for an to be a Regardless surrounding circum- including previous experience De- stances, Edler's statement, Urban, we are satisfied Edler's tective my this," constituted "can holding unambiguous, unequivocal is invocation. Our approaches other that have courts consistent with e.g., See, United States at similar statements. looked (7th 2005) (holding I have a "can Lee, 413 F.3d 622 Cir. lawyer" and that should was a valid invocation they the the unless clarified have ended statement); Wysinger, suspect's v. 683 F.3d United States 2012) (7th (citing reiter- decision in Lee and Cir. its lawyer" phrase ating I is an "can have a that counsel); request unambiguous unequivocal, v. for State (R.I. 2000) (holding that Dumas, A.2d colloquial get lawyer" phrase a "can I a amounted to 2001) (Ga. Taylor request); State, 553 S.E.2d 598 (holding phrase lawyer present "can I that have a response police's that," I when do when made in to the request suspect story, a tell that her side of the anwas unequivocal, unambiguous request attorney); an (Va. 2005) Hilliard, Commonwealth v. 613 S.E.2d 579 (holding get lawyer already I in that "can a ... I here? lawyer," unequivo- in circumstances, have anwas unambiguous request attorney). cal, for an

¶ 37. For the above, reasons stated we hold that unequivocal, unambiguous Edler's statement anwas request for counsel. There is no that after indication unequivocal, unambiguous request Edler's that Edler initiated further with Urban communications to indi- any cate a valid waiver under Therefore, Edwards. requested statements made Edler he after his attor- ney way department in the car on the to the sheriffs suppressed. must be

IV CONCLUSION ¶ 38. We first examine Edler's March 30 invoca- light Supreme tion the recent United States Court case Shatzer. In Shatzer the United States presumption Court examined Edwards, suspect validly any after a invokes the subsequent waiver is invalid unless is suspect or the "initiates further communica- exchanges, police." tion, or conversations with the Ed- wards, 451 U.S. at The 484-85. Court in Shatzer explained presumption that the Edwards ends when days. has been outside for 14 Shatzer, 559 U.S. at 110. Edler asks this court not to adopt interpret Shatzer and instead the Wisconsin require permanent subsequent Constitution to bar on interrogation, adopt or in alternative, a different interpret in this case to no need We see test. protection provide different Constitution Wisconsin provided the United States that than interpretation Constitu- United States of the Court's adopt created in Shatzer the rule therefore We tion. days passed Edler between when had and, because he reinterro- and when was from released was the inter- gated, does not bar 30 invocation the March April rogation on suppressing separate the state- basis for A39. presumption may no if the Edwards exist even

ments longer applied. car on in the If Edler's statement unambiguous unequivocal, April invocation anwas presumption would counsel, the Edwards of the surrounding again. begin circumstances Given understanding be- that statements invocation ginning request, "can" often constitute the word with my attorney be statement, "can hold that Edler's we present right to of the invocation this," was a valid pre- the Edwards re-starts The invocation counsel. sumption, barring later Edler's waiver of provided day counsel not Edler was because exchanges, "initiate[] communication, further did not request police." Edler's After with the conversations or questioning attorney, police have ceased should for an they made statements not, Edler's Because did him. request suppressed. request His must be after that unambiguous unequivocal, of his invocation counsel.

By remanded. and cause the Court.— Affirmed partici- GABLEMAN,J., did not ¶ MICHAEL J. pate. (concur ABRAHAMSON, C.J. S. 41. SHIRLEY

ring). state The defendant's in the mandate. I concur suppressed. join part

ment I is to be the the of opinion concluding police in that Edler's statement unequivocal, unambiguous car was an invocation of his right subsequent to counsel such that the waiver at the station invalid under Edwards.1 person being interrogated custody

¶ 42. A does precise lawyer" not have to use the "I words want right discussing invoke the to counsel. In whether a unequivocal defendant's statement about counsel is an request wisely the Texas Court carry printed observed: "While often cards precise warnings, public ensure not is required carry they give similar cards so can simi- larly precise responses."2 court This should follow this sage, practical advice. separately

¶ agree I write I do not because majority opinion fully with the that the should court adopt 14-day Maryland Shatzer, of rule v. 559 U.S. (2010). 98 present

¶ 44. There nois need in the case for the adopt court to decide whether to the Shatzer rule. The right defendant's of invocation to counsel at the interrogation second decides the case. The made statements after invocation to counsel suppressed. must be I If were to reach issue, the Shatzer I would holding

follow Shatzer to the extent law subjecting enforcement's has invoked —who to counsel and been has released from custodial within the Shatzer —to Arizona, (1981). Edwards 451 U.S. 477 H.V., (Tex. 1998) (footnote In re 252 S.W3d omitted). and Edwards violates Miranda3 unless 14-day period lawyer reinitiates the conversation or a is the suspect made available. under state obligations 46. Law enforcement days governed by for the first 14 would thus be

law rule set under federal sync bright-line rule under 14-day law.4 I would this adopt prophylactic the court's and administrative author- superintending 3(1).5 VII, § Art. ity Wis. Const. I not Shatzer's rule adopt prophylactic 47. would Edwards has no effect.6 14-day period

that after (1966). Arizona, Miranda v. 384 U.S. 436 4 Nevertheless, Thomas, agree I Justice who wrote in with arbitrary justifiable merely "an rule is not Shatzer that otherwise gives to enforcement officers." because it clear instruction law (2010) Shatzer, 98, (Thomas, J., concurring). 119 559 U.S. 5 C.J., See, 40-41, e.g., In 2005 283 re Jerrell WI ¶¶ 3(1)). VII, § (relying 2d 110 on Art. Wis. N.W2d articles, Citing numerous law review Professor LaFave the criticism of the United States Court's discusses administratively prophylactic reliance on rules rather than based rules as follows: general, explanation In commentators have criticized the Court's (often though agreeing prophylactic its utilization of rules even themselves). The commentators cite the Court's failure to the rules authority rules, fully explain prescribe its to such the Court's failure (if any) fully explain prophylactic the difference to between rules, administratively per provide se the Court's failure to based guidelines imposition prophylactic rule clear as to when the of a is inconsistency "prophylactic"

justified, the Court's in its use of the describing appear functionally in simi- characterization what standards, any significant lar and the Court's failure to establish by legislation guidelines determining safeguards provided when replace prophylactic are sufficient to standards. 2.9(h) (3d LaFave, Supp. § ed. & Wayne R. Crim. Proc. 2012). explained 14-day that after a break The Shatzer court longer in a defendant is "free custody, Edwards is no effect but suspect Edwards, Under once a invokes the during interrogation, subsequent counsel custodial by showing waiver of that "cannot be established only responded police-initiated that he to further cus- interrogation todial if even he has been advised of bis rights."7 today's majority 48. The Shatzer decision and

opinion entirely unsupported generali- are based on an suspects, namely 14-day zation about all that a break will somehow overcome the compulsion concern of coercion and that is the basis for specu- Edwards line of cases. The Shatzer Court "[i]t period lated days seems to us that" a of "14 . . . provides plenty get of time for the reaccli- mated to life, his normal to consult with friends and any counsel, and to shake off residual coercive effects of prior custody."8 agree I with Justice John Paul Stevens that speculation "may prove this many well inaccurate in days arbitrary figure.10 circumstances."9 Fourteen is an to claim prophylactic protection of arguing that Miranda — his waiver of Miranda was in involuntary fact under Shatzer, (internal Johnson v. Zerbst." 559 U.S. at 110-11 n.7 omitted). citations 7Edwards, 451 U.S. at 484. This court has stated that such presumed waiver is Harris, to be invalid. State v. 199 Wis. 2d (1996). 251-52, 544 N.W.2d 545 8 Shatzer, (2010). 559 U.S. at 110 9 (Stevens, J., Id. at 123-24 n.7 concurring). Roberson, In Arizona v. the Supreme United States Court explained as follows: suspect "[T]o a who has indicated his inability cope to pressures with the of interrogation custodial requesting any interrogation further without counsel having provided been surely will exacerbate compul- whatever speak sion to the may feeling." Roberson, Arizona v. (1988). 675, 486 U.S. 686 10The Shatzer court admitted that "while certainly it is

24 honored an earlier police When have not commitment provide lawyer, likely a detainee with a the detainee to (expressed) "understan[d] will his wishes to have been ignored" "may objection future well see as futile (true not) only way or end and confession as to interrogation.". Simply giving .. a "fresh set of precise governing unusual for this Court to set forth time limits Shatzer, action, it is not unheard-of." 559 U.S. 110 police (2010). Ironically, only case the Shatzer court cites for its decision to forth a time limit held that "unusual" set must bring person magistrate forth a a to a arrested without warrant judge probable within 48 hours to establish cause for continued (2010) Shatzer, (citing County detention. 559 U.S. of (1991)). McLaughlin, McLaughlin Riverside v. 500 U.S. The delay recognized presumption up Court that to a 48-hour in holding probable hearing cause after arrest was reasonable constitutionally permissible. and hence McLaughlin, required In the Court law enforcement to do something specified period time in within a short of order to Shatzer, accused, protect rights while in of Court doing concluded that if law from some- enforcement refrains time, thing period for a sufficient the accused's have sufficiently respected. been

Still, McLaughlin, the Court held that even if law mandate, complied the accused enforcement may 48-hour prove McLaughlin, still a Constitutional violation. 500 U.S. (1991). at 56-57 (2001) Davis, 678, 701, Zadvydas (citing See 533 U.S. 56-58) McLaughlin, (noting 500 U.S. at that the 48-hour rule appeals' based on the court of determination of the time contrast, required complete probable hearing). cause In the the 14-day period relationship selected Shatzer bears no enforcément, suspect, needs of law the the characteristics of the or during days. the 14 circumstances occur Davis, Casenote,

See also Jessica A. Another Tweak to Significantly Miranda: The Court Limits the Edwards Interrogation, 36 Presumption Involuntariness in Custodial (2012) ("According majority, S. Ill. U. L.J. to the days pressures fourteen is sufficient for the coercive to custodial so."). says disappear because it " warnings" not suspect will 'reassure' a who has been denied the clearly requested counsel he has "11 that his untrammeled.' have remained 50. As Justice Edwards wrote, Stevens may require a 14 longer period than under days, the circum- case, stances of a for a court to conclude that a suffi- cient break in custody occurred to dissipate linger- ing coercive effects prior of the interrogation.12 11Shatzer, (2010) 98, (Stevens, J., 559 U.S. 121-22 concur (citations omitted) ring) (quoting States, Davis v. United 512 (1994) U.S. (Souter, J., 472-73 concurring judgment); 686). Roberson, 486 U.S. at 12As Justice Stevens commented: troubling aspect The most of the Court's time-based rule is that it (or disregards fourth) compulsion third, caused a second or indigent suspect of who was told that if he requests lawyer, provided police a one bewill for him. When tell an indigent suspect right attorney, that he has the to an that he is not required speak attorney present, without an and that an provided will questioning, to him at no cost before police significant promise. they have made questioning If cease reinterrogate suspect days then providing 14 later without lawyer,

him suspect likely with a police is to feel that the lied really any to him and lawyer. that he does not have to a Shatzer, (2010) (Stevens, J., U.S. concurring). See Kit Kinports, Supreme The Court's Love-Hate Relation- Miranda, ship with 101 J. Crim. L. & Criminology 375, 386 (2011) ("[Ojnce suspect is released from custody, she is not entitled to state-provided (assuming counsel charges have not filed). yet been For those unable to afford private lawyers, then, a fourteen-day break in custody provide does not a meaningful advice.") (footnote opportunity omitted). to obtain legal Romano, See also Ilian M. Comment, Note & Is Miranda on Verge Extinction? The Court Loosens Miranda's Grip Enforcement, Favor Law Nova L. Rev. (2011) (presenting following hypothetical application of Shatzer: holding expressly "This permits police engage in a where, tactic once a invokes his willing If 51. a court is not to extend Edwards indefinitely and the court concludes that the coercive prior interrogation may dissipate effects of the with then the time, court should determine whether the dissipated particular coercive effects have in that case. A approach court should take an individualized to the dissipation prior interroga- of the coercive of the effects generalized tion, not a one. Under these circumstances, 14-day period the court should hold that after the ends, presumption by the established Edwards continues and proving by the State has the burden of clear and con- vincing dissipated evidence that time has the coercive prior interrogation effects of the in that case. In situations, these the court should consider totality including age,

the of circumstances the educa- intelligence suspect; physical, psy- tion, and of the the chological suspect; and emotional condition of the and suspect's prior experience police the with to determine prior interrogation whether the coercive of the effects dissipated. personal have The characteristics of the sus- pect along must used, be viewed with the tactics interrogations length such as the time between and interrogations, general the the conditions under which physical psychologi- the made, statements were the pressures brought suspect, cal to bear on the the induce- strategies prior enforcement, ments and used law the relationship interrogating the between officer and the suspect, ensuing period and the circumstances the exercising suspect's right between to counsel and re-interrogation. simply suspect, days, try again release the wait fourteen hoping intelligent enough this time the is not invoke may provided his which not have been to him around."). the first time Examining

¶ 53. whether coercive effects of prior interrogation dissipated comports have genuine concern for individual voluntariness re- quired by Edwards, Miranda and rather than a blanket generalization subsequent about human reaction to or repeated interrogations, and assists law enforcement governing officers in their conduct.13 validly invoking In case, after regard investiga- to counsel with to the arson 17-year-old tion, the defendant was released from cus- tody. days Then, 19 later —after law enforcement had covertly placed young a wire on the defendant's friend previ- —the same detective whom the defendant had ously up refused talk to showed at his home to arrest again investigation. him to discuss the same As the away squad car, defendant was led to the his father told cooperate him to be honest and to with the detectives. ¶ 55. We know that at no time was the defendant provided requested during an as he the custo- interrogation. suggested dial The State has not that the [d] defendant changes, "initiate further communication, ex- police."14 or conversations with the inquiry necessary ¶ par- 56. Further is about this beyond just ticular defendant circumstances, and the saying days passed, join opinion that 14 I before can concluding, law, as a matter of that the coercive effects prior interrogation dissipated. of the had separately. ¶ forth, For the reasons set I write {con- 58. ANNETTE ZIEGLER, KINGSLAND J. curring part, dissenting part). in I concur I because See Hannah Maryland v. Shatzer: Misner, Comment, Stamping Fourteen-Day Expiration Rights, Date on Miranda (2010). 88 Denv. U. L. Rev. 14 Edwards, 451 U.S. at 485.

agree with the majority's Maryland v. adoption Shatzer, 559 U.S. 98 (2010). See majority 31. I op., dissent and write separately to discuss lack of opinion's for the regard fundamental question in this presented case: what is the legal standard to be applied when a counsel suspect makes statement about post-custody, pre-Miranda warnings, pre-interrogation, and pre-waiver of Miranda rights. Arizona, Miranda v. (1966). 384 U.S. 436 In my view, accepted we certification to answer this question. Instead, the majority opinion merely restates the previously adopted Davis standard as if Edler's statement was made post-custody, post- Miranda warnings, during interrogation, and after waiver of Miranda States, v. rights. Davis United (1994). U.S. 452, 459 It was not. We should answer the fundamental question presented provide guidance enforcement, for law courts, as this issue is to recur light of Shatzer and its likely especially Arizona, (1981). Edwards on impact 451 U.S. 477 Here, the issue is presented whether, under circumstances, Edler's "Can question my attorney be for this?" constitutes an invocation of the right to counsel. In response to this question, Detective Urban "Yes responded he can." About 20 after minutes Edler was read his making statement, rights. While his rights read, were Edler inter- being Urban and stated "If rupted I lawyer request a —if does that lawyer, you mean still bring have to me into and I custody have to sit in go jail?" Urban told Edler that he was and already that Urban needed to read the full Miranda rights they before could talk further. Urban read Edler his Miranda rights in their entirety. Edler waived his right to counsel and made incriminating statements. Approximately

¶ 60. three weeks earlier, Edler rights, unambigu- arrested, read his Miranda and ously right by stating invoked his to counsel "From this point lawyer scrupu- on, I'd like to have a here." Urban lously request any question- honored that and ceased ing. unambiguously Thus, Edler knew how invoke right questioning his to counsel and knew that would requested if cease he so counsel. Urban also knew capable invoking Edler was his and scrupulously Urban demonstrated that he would honor request for counsel. Simply my ¶ 61. stated, dissent distils into the (1) following points, four which are interrelated: majority's analysis proper has not adhered to the de (2) majority review; novo standard of muddies the respect existing precedent, waters with the "reset" for interrogation permitted by impact Shatzer, and the (3) majority provide Edwards; Shatzer on does not analysis regarding sufficient how or whether en- law may clarify pre-Miranda questions forcement such (4) suspect; ripe from a this issue is for determina- litigants, tion so that enforcement, law and courts will know how to evaluate such statements.

I. FACTUALBACKGROUND undisputed. ¶ 62. The facts are On March 2011, Detective Urban met with Edler to discuss a burglary. Urban read Edler his Miranda interrogated incriminating him, and Edler made state- burglary. ments about the After a break, short Urban asked Edler about two arsons that were unrelated to burglary. point, successfully At this Edler invoked by stating point to counsel "From on, this I'd lawyer respected like a here." Urban Edler's invocation interrogation. and ceased the In fact, after Edler made began again statement, this talk he to and Urban told quiet" lawyer. him be "to because had he asked a In interrogation, scrupu- words, other in the first Urban lously honored Edler's invocation counsel. spent night jail

¶ requested 63. Edler and day. to with meet Urban the next aAfter brief conver- burglary charge, sation about the Urban Edler if asked anything say he had to about the arsons. Edler re- sponded honestly anything say that "I don't have again scrupulously about that." Urban honored Edler's wish remain silent. April charged 64. On Edler was with

burglary, appearance made initial his from the Public office, Defender's and was released signature April from on a bond. On 4, 2011, appointed public burglary Edler was on defender the charge. April later, 65. Almost three weeks 20, 2011, on being

Edler was arrested for Edler arson. As urged coop- arrested, his father him to be honest and police. placed erate with the Edler was handcuffed, squad transported police of a car, back and to the Edler station. was not read his Miranda at this point. About five minutes into 20 minute car ride to my attorney station, Edler asked "Can responded for this?" Urban "Yeshe can." Edler did not any up questions ask follow or make further statements attorney during remaining about an ride, car any questions Urban did not ask Edler about burglary during or the arsons the car ride. At station, read Urban Edler his rights. portion

Miranda As Edler was read the of his rights regarding Edler interrupted lawyer "If I Urban asked re-—if quest lawyer, you bring does that mean still have to jail?" go custody in the Urban to sit and I have

intome already and that responded Edler that willing after further the issue to discuss he reading be would rights. reread the then Urban entirety warnings Edler waived to Edler. in its you "realizing have rights. that Edler asked Urban questions?" willing you rights, to answer are now these incriminating "yeah." replied then made Edler Edler to Urban. statements OF REVIEW

II. STANDARD majority agree that the standard ¶ I uphold find the trial court's is two-fold. We of review clearly they ings erroneous, and we are unless of fact principles apply those facts inde to the constitutional benefiting pendently inter from the trial court's while Hambly, pretation. 16, 307 2008 WI State v. majority's disagree with the 48. 1 2d 745 N.W2d Wis. application of review. of this standard finding engage in fact did not The trial court regarding discretionary required determinations that credibility, facts to version of the demeanor, or which accept accept. found the trial court the facts as We legal engage in a de novo review of then them. We legal applied. this Because the trial court standard certainly determined, no fault never been has standard specific without court, the trial court was of the trial legal apply legal con- it reached its to when standard legal applied the correct If the trial court clusion. adopt analysis, If the trial that standard. we should analysis, legal applied we a different have court should The does neither. that rule. should set forth majority's quarrel I not with the 69. While do my lawyer question such as "Can that a determination request unambiguous an for this?" could be circumstances, counsel under certain another court opposite just easily could come to the conclusion as different circumstances. enforcement, Law courts, litigants expect opinions give necessary our to them the jobs properly. majority opinion tools to do their The does provide guidance. not Because the mere mention impor- an is not invocation of it is clarify question tant what about Edler's meets applicable pr standard e-Miranda The invocations. majority specifically does not extend the Davis standard pr clarify scenario,1 this e-Miranda it does not what legal applied, standard should be nor does it conclude always that this statement is an of invocation counsel. majority op., applicable legal ¶ Hence, See regard- standard remains unanswered for statements ing suspect custody, counsel when is in has not been given warnings, yet being the Miranda is not interro- gated, rights.2 and or has not waived his her Miranda majority op., ¶¶ See 2 n.2, 34 n.12. canWe do better. 1 apply Davis would be rule to here a suspect when has given rights, them, been being Miranda has waived and is States, interrogated. 452, (1994); Davis v. United 512 U.S. 459 (1966). Arizona, v. Miranda 384 U.S. 436 Edler made no such regarding attorney statement an after he waived his rights. 2 Though previously Wisconsin has not decided whether applies Davis standard to statements made before Miranda See, warnings given, question. are other have courts faced this e.g., 1072, Rodriguez, n.6, United States v. 518 F.3d 1079 1080 (9th 2008) (listing Cir. 10 cases that have considered the standard applicable pr concluding to e-Miranda invocations and that Davis supersede did not requiring Ninth Circuit case law clarification ambiguous prior waiver); obtaining statements a Miranda Gee, Harvey Ambiguous An Request Before, Counsel Not for Rodriguez, a Miranda Waiver: United States v. United After (2009) Blackburn, Fry and v. Brief States v. State Crim. L. invocations). (discussing pr standards e-Miranda SHATZER, PRECEDENT,

III. AND OFFICER CONDUCT Precedent

A. ¶ it than clear that Precedent makes less my attorney present question be for this?" "Can Edler's "[I]f right to invoke his counsel. is sufficient attorney ambiguous or makes an that is a reference to light equivocal in that a of the reasonable officer only that circumstances would have understood suspect might invoking our be questioning." precedents require do not the cessation of Davis, not U.S. at 459. The does conclude my question that the "Can for this?" always majority op., is an invocation counsel. See question fact, 35. In courts often conclude that such regarding invocation, even if it is counsel is not given.3 warnings asked after Miranda were example, Ward, we 71. For State v. concluded police whether she that where the defendant asked the question equivocal attorney, should call an 60, insufficient to invoke her to counsel. 2009 WI also, 2d See Hal 318 Wis. 767 N.W2d 236. (Tex. App. State, brook 302-04 Ct. S.W.3d 3 get lawyer?" may A I question, such as "Can a be suffi ciently right in the right clear to invoke the to counsel circum majority read to opinion stances. The should not be conclude including I" starting that "Can and the word statements "lawyer" unambiguous unequivocal requests are all and for Marcy Strauss, op., counsel. See 36. See also Under States, 1011, 1037 v. 40 L. Rev. standing Loy. Davis United L.A. (2007) ("The question, get lawyer?' I a has a more 'Can received reception. Many type courts found checkered have this ambiguous, question way simply asking to be and a rights."); of one's Annual Review of Criminal Pro clarification (2011). cedure, 40 L.J. Ann. Rev. Crim. Proc. 199-202 Geo.

34 2000) (holding question get opportu- that the "Do I an nity my attorney present?" ambiguous to have was Davis); Doe, under United v. 1162, States 170 F.3d 1166 (9th 1999) (concluding question Cir. that defendant's lawyer?" ambiguous will I "What time see a was under Davis); Younger, 1179, States v. United 398 F.3d 1187 (9th 2005) (concluding that did Cir. defendant not sufficiently right invoke his to counsel he when asked right, lawyer "[b]ut, me, if I I excuse am can have present through right?") abrogated part all this, on grounds, Vongxay, other United v. States 594 F.3d (9th 2010); Redmond, 1116 Cir. Commonwealth v. 568 (Va.2002) (holding speak S.E.2d 700 I that "Can to my [a] lawyer? lawyer I I can't even talk before make any anything?" ambiguous kinds of comments or was equivocal, and and therefore insufficient to invoke the counsel); Marcy Strauss, defendant's Under- standing Loy. States, Davis v. United L.A. L. Rev. (2007) (reporting 1011, 1035-37 often con- courts questions lawyer ambiguous). clude about a are frequently fairly ¶ 72. Courts conclude that even pointed obtaining lawyer, op statements about as posed questions, ambiguous are nevertheless and equivocal. For instance, the Court Davis concluded "Maybe lawyer" that the statement I should talk ato ambiguous therefore did not constitute Applying Davis, invocation. 512 U.S. at 462. we held in Jennings, maybe State v. "I I that the statement think lawyer" need to talk to a invoke the was insufficient to ¶ 36, to counsel. 2002 2d WI 44, Wis. example, Long, N.W.2d 142. As another in State appeals court of concluded that the state defendant's "My attorney ment told I shouldn't talk he me unless is ambiguous equivocal here" was an statement. 4 1994) (Ct. App. See 397, 526 N.W2d 386, 2dWis. (Mo. 1994) Parker, 908, 886 S.W.2d v. also State "ought (concluding that he statement defendant's invocation); unambiguous attorney" not an talk to (Mass. Jones, 1197, 1206 786 N.E.2d v. Commonwealth 2003) (concluding that he was defendant's statement lawyer "going not constitute an sometime" did to need a attorney); unambiguous request State, Baker v. for an 2005) (Ark. (concluding defendant's 214 S.W.3d you without an "I feel that I can talk to don't statements attorney sitting right give give me them here to —have going legal I'm need one. I "I think some advice" and ambiguous). like that" were mean, it looks upon by Significantly, the cases relied clearly distinguishable and from the facts are majority op., at See circumstances in the case issue. Taylor majority opinion upon Lee relies 36. The my attorney support conclusion that "Can to present its Taylor of counsel. for this?" is an invocation (Ga. 2001); Lee, State, United States v. 553 S.E.2d 598 2005). (7th Taylor However, in both 413 F.3d 622 Cir. Lee, hand, case at the statements were unlike the persuasive appeals provide recent court of cases Two authority reaffirming adherence to strict stan Wisconsin's her Miranda that a must meet to invoke his or dard Smith, appeals held that rights. In State v. the court of where he defendant did not invoke his to remain silent this," referring specific to a "I don't want to talk about stated willingness questioning, line but he also indicated where Smith, 2012AP520-CR, discussing other matters. No. continue (Wis. 2013). In unpublished slip op., App. 8-10 Ct. Jan. ¶¶ appeals held that the defendant Cummings, State v. the court of he made the did to remain silent where not invoke "Well, then, during interrogation: take following statement 2011AP1653-CR, unpublished my Cummings, No. me to cell." 2013). (Wis. slip op., App. Ct. Jan. 8-9 ¶¶ post-custody, post warnings, during made -Miranda interrogation. Taylor, Lee, 601-02; 553 S.E.2d at 413 Taylor Lee, Further, F.3d at 624. in unlike the case heavily issue, at the court relied on the fact that law actually discouraged suspects enforcement obtaining the from lawyer. Taylor, Lee, a 602; 553 S.E.2d at 413 engage any F.3d at 627. Law enforcement did not in such conduct in the case at issue. upon by majority

¶ 74. Other cases relied the are distinguishable especially likewise due to the fact that suspects' questions post were asked -Miranda warn- ings. Dumas, In State v. the court stated that " post question get lawyer?' -Miranda I 'Can a could be sufficiently [the in clear some circumstances to meet (R.I. 2000) Davis] 420, 422, standard." 750 A.2d added). (emphasis However, the Dumas court con- question cluded that the defendant's in and of itself did not amount to an invocation. It remanded the matter for the trial court to consider the circumstances sur- rounding question, including the defendant's "the re- sponses any by of the officers and further utterances majority defendant." Id. at Here, does not remand this case to the trial court to consider the officer's actions and further utterances the defen- majority Wysinger support dant. The also cites as for its position. Wysinger, United States v. 683 F.3d (7th 2012). Wysinger Lee, Cir. While it is true that cites post question a case -Miranda I wherein "Can have lawyer?" unequivocal request a deemed to be an was Wysinger distinguishable counsel, the facts are from (quoting the facts before this court. Id. United v. States (7th 2005)). Lee, 622, 624, 413 F.3d In fact, Cir. Wysinger, suspect's pre- the court that the concluded question lawyer "Do I need a we start before talking?" right insufficient to invoke his to counsel. Hilliard, See also Commonwealth

683 F.3d at 794-95. (Va. 2005) (holding post-Miranda 613 S.E.2d get lawyer I in here?" statement "Can was sufficient to counsel). invoke majority opinion I because the could dissent overruling implicitly as well-established case be viewed by majority opinion cited and because the cases law provide distinguishable. intends to If the are by altering suspects protections the standard to more by tethering subsequent to counsel or invoke interrogation majority previous arrest, the should to a any majority the should event, that clear.5 In make evaluating the standard to be used when these outline especially given the invocations, Shatzer and likelihood Unfortunately, recur. the this scenario will majority's decision is cabined to this one defendant's day, assertion, this under these circumstances. on Maryland B. v. Shatzer majority adopts opinion ¶ Moreover, 76. thorough but lacks a discussion Shatzer Shatzer 5 cases, In has been inter some Wisconsin Constitution greater than preted provide protections the United States Patane, example, in 542 U.S. Constitution. For United States (2004), Court concluded that "the fruit of the tree doctrine does not extend to derivative evidence poisonous voluntary a result of a defendant's statements discovered as warnings." v. Knapp, without Miranda State 2005 WI obtained 127, 1, 86, The in Knapp 285 Wis. 2d 700 N.W.2d 899. court ¶ Constitution, the exclu concluded that under the Wisconsin sionary physical fruits obtained from a deliberate rule barred Id., However, previously 2. this court has Miranda violation. any meaningful differ "[w]e determined that cannot discover protections and federal constitutional ence between the state against compulsory Jennings, self-incrimination." State v. 42, 228, 2d 142. WT Wis. N.W.2d majority op., ¶ its limitation of Edwards.6 See Specifically, Shatzer, under the rule oí Edwards —that a defendant who has invoked the to counsel is not subject applicable to further not if the —is custody days. defendant Shatzer, has been out of for 14 ("[W]hen 559 U.S. at 111-12 it is determined that the pleading custody defendant Edwards has been out of interrogation, for two weeks before the contested spared inquiry court is the fact-intensive into whether anywhere, ever, he asserted his Miranda to coun- sel."). seemingly Thus, Shatzer limited the Edwards prohibition subsequent interrogation. my on a In view, majority opinion could be viewed as one which holding diminishes the in Shatzer because it relies so heavily post on Edler's -Miranda invocation of counsel prior three weeks and on the fact that the same officer was involved both arrests. custody case, In this Edler had been out of days April

for 19 when he was arrested on Shatzer, arson. Under the rule of the break in operated opportunity to reset the for law enforcement interrogate Nonetheless, Edler. focuses

6 Though majority opinion describes the rule of Shatzer rule, as a constitutional Shatzer states that the court in "[w]e frequently emphasized the Edwards rule is not a have that mandate, judicially prescribed constitutional but prophylaxis." Shatzer, Maryland v. Edwards v. (2010); 559 U.S. 105 (1981). Arizona, Logically, 477 any changes U.S. in the Edwards rule similarly would result in judicially-prescribed States, rules. See also Dickerson United 530 U.S. (2000) (Scalia, dissenting) (stating J. majority opinion that the in Dickerson describes Miranda as a constitutional decision and based, constitutionally says as violating but never Constitution). Clearly violates the the language in the Fifth Amendment of the United States Constitution does not refer 14-day custody. ence a break in prophy These rules are instead protections pertaining lactic to the Fifth Amendment. entirely previous almost on the invocation of counsel and the fact that the same officer was involved both Majority op., analysis arrests. 35. The of whether right by stating my Edler invoked his attorney to counsel "Can present seemingly be for this?" should focus on surrounding the facts and circumstances Edler's state- they April 20, ment as existed on 2011, rather than a days relying residual invocation from earlier. In on previous interrogations the facts related to the and on knowledge previous interrogations, Urban's the of majority opinion diminishing could be the clean break majority opinion rule Instead, of Shatzer. could be reviving viewed as the Edwards rule of continued invo- despite cation of the rule of Shatzer. I would hope regarding legal implications for more discussion previous of Shatzer and of a invocation of counsel. majority's analysis, place ¶ 78. Given the what jurisprudence? majority does Shatzer hold our Is the elevating the Edwards continued invocation rule over adopting the Shatzer clean break rule? Is Wisconsin its majority own version of Does the Shatzer/Edwards? question my attorney conclude the "Can itself, this?" in and of is an invocation majority analysis counsel? Does the limit its to a situa- tion where the same officer is involved in both arrests?

C. Officer Conduct Similarly, majority's analysis ¶ 79. how question reasonable officer would understand Edler's knowledge gained by turns on Urban three weeks earlier, when Edler invoked his to counsel. See majority op., ¶ 35. Because the makes much of interrogations, the fact that Urban was involved in both majority opinion is further limited. Id. Unfortu- nately, majority clarify why does not it is so focused knowledge prior. on Urban's from three weeks that Considering circumstances of are prior interrogation seminal to the majority's analysis, it is curious that the majority attaches no weight to the fact that Urban scrupulously honored Edler's invo prior cation. Why does the assume that Urban has now failed to honor a for counsel request when he previously demonstrated that he would scrupulously honor such a Gonzalez, See request? People v. 104 P.3d (Cal. 2005) 98, 107 that (stating where interrogating officers knew the had suspect been read his Miranda rights on a prior occasion, "the could reasonably have assumed that defendant was an capable making desired").7 unequivocal request for counsel if he so Under the majority's analysis, Urban's knowledge that Edler capable invoking right to counsel and Urban's history of honoring invocation of counsel deserve no consideration. In the earlier Urban interrogation, respected

Edler's invocation by ceasing interrogation, when Edler made statements, further Urban acknowl- edged invocation and told Edler "to be quiet" because he had invoked his In right counsel. this subsequent arrest, about five minutes into the ride, car Edler asked "Can my this?" Urban responded "Yeshe can." to the earlier Compared Urban's response, latter that he response suggests understood Edler to be asking question about his rights rather than invoking his right to counsel. Markwardt, See also State v. App 2007 WI

Wis. 2d (stating N.W.2d 546 that the rules for invocation Davis, silent, of the to remain which are derived from do not leave room for reasonable competing inferences: "[A]n asser permits tion that competing reasonable inferences demonstrates sufficiently did not invoke the to remain silent"). Lee, 82. Unlike enforcement and Taylor law ¶ Urban did not to dissuade Edler from attempt obtaining a Edler lawyer. my lawyer present asked "Can be this?" about minutes five into the 20 minute car ride Here, any before Urban could well interrogation.8 very have understood Edler to be asking question about his rights. 83. Under Davis and an officer Jennings, is not

¶ to an or to ask required stop interrogation follow up if questions about counsel makes an am- biguous statement about an but this attorney, court has suggested that it is a good practice. See Jennings, 2dWis. 32. Should we a rule adopt requiring law ¶ enforcement such clarify pre-Miranda questions? Again, majority on this opinion passes opportunity such provide guidance to law enforcement. 84. From Urban's perspective, statement made by station, Edler at the police whether he would timing question The my attorney of Edler's "Can be support for this?" could that it rights was a clarification of his and Davis, not an (stating invocation. See 512 U.S. at 461 that the "unwilling Court is layer prophylaxis to create a third prevent police questioning suspect might when the want a Fischer, lawyer"). example, For in State v. before read the defendant rights his Miranda and before be gan, the defendant stated that if rights, the officers read him his he questions request would not answer attorney. would 5, 19, 259 App 799,656 2003 WI Wis. 2d N.W.2d503. The court held that a "conditional and request futuristic for counsel ais statement that light a reasonable officer in circumstances only would have invoking made [the understood might defendant] to counsel." Id. Since Edler's statement was prior

20 minutes to the interrogation, start of Edler's statement could be viewed as conditional futuristic similar to the statement in majority op., Fischer. See (decliningto 32 n.11 clarify temporal standard that was left unsettled State v. 48). Hambly, 2008 WI 2d 307 Wis. 745 N.W2d lawyer, jail requested likely sit in he clarifies that if to counsel in the car. The Edler did not invoke any analysis majority opinion question lacks of Edler's regarding during station, counsel at the the time when reading warnings, the Miranda Urban was or his rights. majority waiver of his Miranda The does not going consider how Urban made clear that he was not engage in to reading discussion with Edler until he finished rights.

him his and Edler waived his The Edler, does not discuss not reini- Urban, how by asking question. tiated the conversation Urban a interrogating during Urban was not Edler the car ride reading warnings. he or while was the Miranda attorney pending As Edler had an 85. on burglary charge, question my attorney his "Can be present may clarifying for this?" have been whether particular attorney present that could be for the forth- coming interrogation, though yet he did even not have attorney uncharged might an He on arson. also asking any have been whether he was entitled to have attorney present during interrogation. totality circumstances, the 86. Given the of the quick is too to conclude that law enforcement objectively question my "Can

would know lawyer present unambiguous be for this?" was an invo- cation of counsel and that law enforcement erred accepting giving rights Edler's Edler his I do not conclude that a enforce- waiver. reasonable law particularly officer, ment one aware that Edler is who is capable invoking rights, his would believe that question my "Can for this?" was unambiguous request court should for counsel. Our by illuminating provide guidance to law enforcement post- applicable made the standard to a statement custody, pre-Miranda warnings, pre-interrogation, and pre-waiver rights. of Miranda

IV CONCLUSION readily question might ¶ I concede that Edler's poorly-worded request attorney. have been a for an totality circumstances, however, Under the of the it is just likely question as that Edler's was a clarification of something require or else. Precedent does not cessation when a reasonable law suspect might enforcement officer believes the be invok- ing Davis, to counsel. See 512 U.S. at 459. majority opinion I dissent because the nei- ther extends Davis to Edler's statement nor enunciates apply. Simply majority opin- stated, the standard to open questions likely ion leaves that are to recur. The majority opinion "unambigu- has not concluded that the unequivocal" objective ous and applies post-custody, pr standard from Davis warnings, pre-

e-Miranda interrogation, pre-waiver rights. of Miranda The majority opinion interroga- does not determine whether impending tion must be for a to invoke his majority opinion open to counsel. The leaves whether clarify potential request law enforcement must pr counsel under these e-Miranda circumstances. It re- mains unknown whether law enforcement should ever clarify potential request by reading warnings. regarding The law is now less clear implications sepa- of Shatzer on I Edwards. write rately highlight analyzing that our court should be regard question, these issues with to Edler's which was post-custody, pr warnings, pre- made interrogation, e-Miranda pre-waiver rights. of Miranda We clarify should the law. foregoing respectfully

¶ 89. For the I reasons, part part. concur in and dissent in

Case Details

Case Name: State v. Andrew M. Edler

Court Name: Wisconsin Supreme Court

Date Published: Jul 12, 2013

Citation: 833 N.W.2d 564

Docket Number: 2011AP002916-CR

Court Abbreviation: Wis.