*1 of Wisconsin, State Plaintiff-Respondent,
Scott M. Hambly, Defendant-Appellant-Petitioner.
Supreme Court
argument
No. 2005AP3087-CR. Oral
September
February
Decided
For the plaintiff-respondent Moeller, attorney general, M. assistant by Marguerite Hollen, attorney J.B. Van on the brief was with whom general. The defen- S. ABRAHAMSON, C.J. 1. SHIRLEY a published seeks review of
dant, Hambly, M. Scott of con- affirming judgment decision appeals court of Washington for the Circuit Court viction entered J. County, Faragher, Patrick defendant was Judge.1 *6 count delivering convicted of one cocaine to contrary 961.41(l)(cm) (2001-02). Wis. § Stat. We affirm the decision of the court of to the appeals refusing suppress and inculpatory defendant's statements the affirming conviction. on The issue review is whether the circuit
court erred in
the defendant's motion to
denying
sup-
to
press inculpatory statements he made
a law enforce-
ment officer
he was in custody.
while
The defendant
contends
that
the
ob-
inculpatory
statements were
tained in violation of his
invocation
his Fifth Amend-
Miranda2
ment
right
to
More
specifically,
counsel.
defendant
three
raises
arguments
supporting suppres-
(1)
sion of his statements:
He
his
effectively invoked
Fifth Amendment Miranda
counsel
right
request-
ing
being
counsel after
taken
custody
into
and
he
before
(2)
was interrogated;
The law enforcement
officer's
statements
after
to him
he
his right
invoked
to counsel
(3)
interrogation;
constituted
In
and
signing
form he did
voluntarily, knowingly,
waiver
not
waive his
intelligently
right
to counsel.
3. We conclude as follows:
(1) The
effectively
defendant
invoked his Fifth
Amendment Miranda
when
counsel
he re-
quested
custody
counsel while he
inwas
and before the
law
officer interrogated
enforcement
him under both a
requiring only
standard
that a
be in
Hambly,
State v.
App
2006 WI
297 Wis. 2d
N.W.2d 697.
(1966).
Arizona,
Miranda v.
The Fifth person Amendment "no . .. shall be compelled in any against criminal case to be a witness himself1 applicable and is through states the Fourteenth Amend ment. request for counsel is made a standard
when interrogation impend- be "imminent or requiring ing request when the for counsel is made." An invoca- right to of the Amendment Miranda counsel tion Fifth for the attor- is a defendant's assistance interrogation by ney dealing with custodial "in police."3
(2) The enforcement officer's statements to the law effectively his Fifth Amend- after he invoked defendant given he ment Miranda to counsel and before was warnings the Miranda did constitute officer. by the
(3) invoked effectively After defendant his Fifth counsel, he initiated Amendment Miranda *7 the law enforcement officer and- communication with knowingly, intelligently waived voluntarily, and then counsel, inculpatory right rendering to state- his ments admissible. question court is divided on the whether temporal adopt
to standard to determine whether suspect custody effectively invoked his or her has to Three Miranda counsel. Fifth Amendment justices, Roggensack, Butler, Prosser, and Justices may effectively adopt in- that a the standard Amendment Fifth to counsel voke the has "an un- when a is in and made speak attorney" equivocal to an even impending. is imminent or Justice before Roggensack's concurrence, 106.4 (1991) Wisconsin, (emphasis 501 U.S. McNeil original). in-custody request concurring opinion refers "to This protect the Fifth Amendment's for counsel invoked to Fifth Amendment against compelled self-incrimination as the justices, Bradley ¶ 5. Three Justices and Crooks opinion, they and the author of this conclude that need appropriate not, not, and do address whether the tem- poral adopt "anytime custody" standard to impending interrogation" standard or the "imminent or Ziegler participate standard. Justice did not in this case. Accordingly, ¶ 6. we affirm the decision of the appeals affirming court the circuit court's order refusing suppress inculpatory the defendant's state- affirming ments the conviction. ¶ 7. briefly relating We summarize facts to the
I inculpatory defendant's statements to officer. De- Clausing, Washington Rindt tectives both of the County Department, approached Sheriffs the defen- parking apartment dant in a lot outside his and at- tempted speak him convince to them without their custody. taking him into repeatedly speak
¶ 8. The defendant refused to requested with the detectives. Detective Rindt first the defendant meet with the detectives at drug station to discuss several transactions in which he go was involved. The defendant said he did not want they to the station. then Rindt asked whether could talk *8 the inside defendant's The residence. defendant refused this as Rindt well. then told the defendant that Clausing investigating drug he and were transactions they speak and informed the defendant that to wanted options again with him about to available him. Rindt asked the if defendant he would converse with the Roggensack's concurrence, to counsel." Justice 105 n.l. ¶ The this final defendant refused detectives somewhere. day. telling request, come back another the detectives to ¶ was Rindt then told the defendant that he began leading to arrest, him, him under handcuffed and squad to the car. As Rindt and the defendant walked the speak squad car, the said he wanted to defendant attorney. put Rindt the defendant the back with attorney him that he call an once the car and told they could Washington County Jail. then arrived at the Rindt Clausing the in the car while waited with defendant to the vehicle incident arrest. No searched defendant's produced this was at trial from search. evidence squad ¶ car, the defendant told While in the why he he under Rindt that did not understand responded Rindt the had sold arrest. defendant Mychal Meyer, informant, on occa- cocaine to an three Meyer cooperating and that had been with sions again police during The defendant those transactions. going on and stated he did not understand what was speak him find Rindt that and to told he wanted options his were. out what 11. Rindt read defendant his
warnings. defendant said he Rindt testified that any questions, rights, his understood did not have speak drug Rindt transac- about wanted Rindt removed the defendant's handcuffs tions. then squad placed him Rindt in the front seat of the car. the defendant to the Miranda waiver asked review rights form, did. defendant which defendant signed then Miranda waiver form. ap- the defendant for 12. Rindt interviewed During
proximately interview, the defen- hour. one sold admitted to that he had cocaine dant Rindt spent Meyer of the most on several occasions. Rindt determining would whether the defendant interview *9 cooperate police. Deciding with the that the defendant cooperate, again would not Rindt once handcuffed the placed squad him defendant, car, in the back of the jail. took him to charged State the defendant with three delivering Meyer.
counts of cocaine The defendant suppress moved to the statements he made to Rindt squad car. The court circuit denied this motion after hearing. The circuit court concluded that the defen- unequivocally dant had invoked his Fifth Amendment and that counsel under v. Edwards (1981), questioning Arizona, 451 U.S. all of the had Edwards, defendant In cease. the United States Supreme Court held that once an "ex- accused has pressed police only through desire his to deal with the subject [he] interrogation by counsel, is not to further the authorities until counsel has been made available him, unless himself accused initiates further com- exchanges, po- munication, or conversations with the though Nevertheless, lice."5 quested even the defendant re- suppress counsel, the court circuit refused to inculpatory the defendant's statements because the defendant initiated substantive discussion wdth the law enforcement officer. The circuit court also found rights that the defendant's waiver of his Miranda knowing intelligent. jury guilty 14. The found the defendant of one delivering grams
count of guilty five or less of cocaine and not charge delivering gram of one one less jury charge cocaine. The on a divided second of deliver- ing gram one or less of cocaine. appealed
¶ 15. The conviction, defendant his ar- guing denying that the circuit court had erred his Arizona, (1981). Edwards 451 U.S. 484-85 *10 suppress he made to Rindt. motion the statements appeals affirmed the circuit court's order The court of denying suppression affirmed the conviction. II
and argument ¶ consider first State's that We for counsel did not defendant's constitute of his Fifth Amendment an invocation effective defendant effec- Miranda to counsel. Whether the tively right to his Fifth Amendment Miranda invoked question of constitutional fact that this counsel is a two-part This court under a test.6 court will decides findings uphold of historical eviden- circuit court's clearly tiary they court fact are erroneous.7 This unless application principles of constitutional determines the evidentiary independently of the to those facts circuit appeals and but benefits from circuit court court analyses.8 appeals' court's and court ¶ case 17. The State the instant contends anticipatorily question can raises whether right Amendment Miranda counsel. invoke his Fifth negative question in the The answers this State effectively a criminal defendant does not asserts that 6 44, 228, 20, 2d 647 Jennings, State 252 Wis. ¶ v. 2002 WI omitted). (citation 142 N.W.2d 7 (2005-06). 805.17(2) "clearly errone § See Wis. Stat. findings of made a circuit for fact ous" standard review weight essentially "great as the and clear court is same Dimiceli's, Inc., 641, 115 Wis. 2d preponderance" test. Noll v. (Ct. 1983) 643, (citing Robertson-Ryan & App. 340 575 N.W.2d Assocs., Pohlhammer, 583, n.*, 591 334 112 Wis. 2d Inc. (1983) (Abrahamson, J., dissenting). N.W.2d 246 Jennings, 252 Wis. 2d Amendment Miranda his Fifth invoke to counsel he is being interrogated.9 unless both is 18. The State its on position rests in a language Wisconsin, footnote in McNeil v. U.S. n.3 (1991), in which the United States Court Supreme declared, "We fact never held that a can have person invoke his Miranda rights a context anticipatorily, other than 'custodial ."10 interrogation'... position, argues As alternative the State if a custody, is in an invocation of Fifth Amendment long to counsel is effective as so
imminent.
10The McNeil Court held that invocation the of Sixth right Amendment to counsel does not an act as invocation of the right Fifth Amendment suspect Miranda to counsel. The in had never invoked right McNeil his Fifth Amendment Miranda to He right counsel. had instead invoked his Sixth Amendment to preliminary the assistance of counsel a a hearing charge at on interrogated unrelated to the one for which he was later in McNeil, custody. See atU.S. reaching any not on
While conclusion the issue Fifth anticipatory right invocation the Amendment Miranda counsel, to the Supreme United States Court declared McNeil right ”[i]f that Miranda can counsel be invoked at a preliminary hearing, argued, it could be logical there is no why by reason it could not prior arrest, he invoked a letter even prior indeed suspect.... to identification as a The fact that counsel, asserted, we have allowed the Miranda once respect be effective with to future interrogation custodial does not mean that initially we will allow it to be asserted outside the interrogation, context custodial with similar future effect." McNeil, 501 U.S. at n.3. Illinois, (1984)
Compare Smith 469 U.S. 97 n.6 (rejecting "plainly wrong" position as "that the authorities stop questions need not their if requests an accused counsel prior during to or warnings," Miranda reasoning "[a] that request coming any for stage process requires counsel at of the may perceived between the A tension be .19. . anticipatorily suspect language about a McNeil rights invoking and the Miranda Amendment Fifth pre-interrogátion "a that Court's statement Miranda affirmatively [the] lawyer..-, secures for a not, Court did The Miranda one."11 to have "pre- explicitly is meant a address what however, custody during request" interrogation and for counsel point prior inter- to custodial at what did not address effectively may rogation Fifth invoke the a Likewise, the to counsel. Amendment question a whether not address Court did McNeil interroga- may of custodial be in the "context" begins. interrogation actual tion before acknowledges Indeed, case law Supreme not resolved Court has United States attorney suspect's request while for an effect of a interrogation.12 prior to but (quo- provided.") has been until counsel questioning cease omitted) original). (emphasis in and citations tation marks of counsel the assistance requested in Smith The defendant a law just after room while had a that he the defendant officer had informed enforcement lawyer present with lawyer to have a right to consult with holding in U.S. at 92-93. during questioning. 469 him *12 later the McNeil Court's not therefore does contradict Smith person can held that a had never that the Court assertion than in a context other rights or her Miranda invoke his interrogation. custodial 11 Miranda, at Miranda, 384 U.S. See also U.S. at 470. 384 444-45. 12 (3d Redman, 1237, 1245 Cir. 34 F.3d See, v. e.g., Alston Villalobos, (1995); denied, People v. 1160 1994), 513 U.S. cert. (Ill. State, 2000); 215 S.W.3d Russell 2d 642 737 N.E. 2007). (Tex. App.
Ill 21. McNeil the of only raised question of a timing suspect's request for counsel as an effective Amendment Miranda invocation of the Fifth counsel but also stated that under Edwards an effective of Miranda invocation the Fifth Amendment minimum, "requires, counsel at some statement can reasonably be construed to be an of a expression in with for the of dealing attorney desire assistance custodial interrogation by the police."13 The timing for counsel determine request may help whether is for the assistance of an in attorney dealing custodial interrogation by police, as the cases demonstrate. 22. Case supports law the State's position Amendment Fifth
suspect's are rights specific in Miranda in- interrogation. custodial facts The volved custodial "It is interrogation.14 premise
13McNeil, 501
at 178 (emphasis
original).
U.S.
14The Miranda Court
its holding
described
as follows:
may
prosecution
statements,
"[T]he
not use
exculpa
whether
tory
inculpatory, stemming
or
interrogation
from custodial
the defendant unless it
procedural
demonstrates the use of
safeguards effective to secure
privilege against
self-
Miranda,
Miranda,
incrimination."
The Miranda court defined
custodial
as fol-
"By
interrogation,
lows:
custodial
questioning
we mean
initi-
ated
law enforcement
person
officers after a
been
has
taken
into
deprived
otherwise
of his freedom of action in
Miranda,
any significant way."
cobedo v.
U.S.
a Sixth Amendment
right-to-counsel
case.
Miranda Court considered Escobedo
part
relevant
because law
enforcement officers Escobedo
*13
from the
of coercion results
danger
that
the
interrogation."15
and official
custody
interaction of
in Miranda's protection
set forth
safeguards
procedural
"are
not where
required
rights
of Fifth Amendment
rather where a
custody,
into
but
is
talcen
simply
subjected
interrogation."16
in
custody
in a
interrogated him
custody and
the defendant into
"took
obtaining
of
a confession"
purpose
for
police station
the
police denied his
interrogation,
the
"[djuring this
because
Miranda,
attorney."
384
at 440.
to his
U.S.
request
speak
the Court as
stated the issue before
The Escobedo Court
whether,
the
case is
under
question
"The critical
this
follows:
petitioner's
to honor
circumstances,
refusal
lawyer during the course
with his
request
to consult
of Counsel'
denial of 'the Assistance
interrogation constitutes a
...."
to the Constitution
of the Sixth Amendment
in violation
added).
Escobedo,
During the course
(emphasis
at 479
378 U.S.
"repeat-
Escobedo
police headquarters,
at
his
lawyer
lawyer"
told that "his
speak to his
and was
edly asked to
Escobedo,
Escobedo
U.S. at 481.
to see' him."
378
'didn't want
being transported
for
while
initial
counsel
also made an
Escobedo,
The third right to counsel invoke the suspect "to allowing *14 The State that present the case argues ¶ when defendant for an attorney the asked he was not custodial subject interrogation. to The State concludes in custody the defendant was but was not being the defendant's for an attor- interrogated, request was thus and that ney the defendant did anticipatory, Fifth Amendment Miranda effectively not invoke his to counsel. right federal and state cases the State cites do
not, however,
position
its
that a
support
for
request
counsel before interrogation cannot
con-
anticipatorily
stitute an
of
effective invocation
the Fifth Amendment
Miranda
right
to counsel even if the
was for
request
of
assistance
counsel during interrogation.17 We are
outside of
context of
interrogation,
the
custodial
would diminish
'bright
Supreme
the
line' nature
juris
of the
Miranda
Court's
prudence,
by
often cited
as one
qualities
Court
of the
of that
Alston,
body of law."
swered then asked to consult with his whether attorney "about to consent search [a] his [grocery] market."23 The LaGrone court held the defendant not effectively did invoke his Fifth Amendment Miranda counsel because matter at was a search issue warrant and did "not concern 'the sort [interrogation,] particular of lawyerly "24 of Miranda.' La- the subject assistance that is Grone court concluded that Edwards "at a requires minimum, some statement can be reasonably expression construed to be of a for desire the assistance anof dealing with custodial interrogation attorney police."25 27. The LaGrone case makes clear that sus- can invoke Fifth pect Amendment (1) to counsel when *16 19LaGrone, F.3d at 43 20 Id. at 339-40.
21 Id. at 339. 22"At the time LaGrone asked attorney, to talk his he was LaGrone, in a interrogation custodial atmosphere." F.3d 43 at 337.
23 7d.
24 Id. 178). McNeil, (quoting 501 U.S. at The Indiana a suspect Constitution affords right lawyer to a before consenting to a property. warrantless search of 25LaGrone, F. 3d (emphasis original). 43 at 336 in
116 (2) imminent, for counsel relates to during assistance counsel interrogation. 28. Other cases the State recognize cites also
that an effective invocation of the Fifth Amendment Miranda to counsel in may by be made custody requesting counsel when the is faced or imminent impending interrogation.26 None of the decisions the State cites the standard to be specifies in used whether an is im- determining interrogation pending or imminent. It to us from the cases appears that an if interrogation impending is or imminent reasonable the defendant's person position would have believed that im- interrogation was imminent or pending.27 29. Under LaGrone and other cases a suspect invoke his or her Fifth
may effectively
Amendment
to counsel
counsel when a
requesting
reasonable
would be-
person
suspect's position
26
("[A]
Nguyen,
Rptr.
suspect may
See
33 Cal.
3d at 395
protections
interrogation
invoke Miranda's
if
im
custodial
is
("Miranda
Grimes,
imminent.");
pending or
lieve that is imminent. These cases im- pose temporal request limit on a for counsel as well as requirement request that for counsel must during interrogation. relate to assistance of counsel possible ¶ 30. Another standard for Miranda and purposes suspect may effectively Edwards is that a invoke his or her Fifth Amendment Miranda by requesting any counsel counsel time the is in custody, warnings even before Miranda or the onset of questioning.28 Collins, State v. 122 320, Wis. 2d (Ct. 1984), App. may adopting N.W.2d 229 be read as such a standard.29 requested immediately 31. Collins counsel after p.m.
he was arrested at 2:35 at his home. He made incriminating statements after law enforcement offic- interrogation p.m. ers initiated at 4:05 at the appeals rejected argu- station. The court of the State's request ment that Collins' for counsel was an ineffective invocation of his Fifth Amendment Miranda counsel because the invocation was made before custo- begun dial rights had and the Miranda 28See, Villalobos, e.g., (Heiple, J., N.E.2d at 650 dis (focus senting) should not be on when the defendant made the request for counsel but type on the of assistance of counsel that defendant requested; suspect clearly thus when and unambigu ously requests the assistance of an attorney dealing custodial interrogation, honored; must be "the fifth amendment to counsel may attaches and by be invoked any defendant at time after he is taken custody."). into 29The quotes Collins court Miranda for the rule that an invocation of counsel is effective if any it comes at stage of the process. Collins, State v. Wis. 2d 363 N.W.2d (Ct. 1984) App. Miranda, 444-45). (quoting 384 U.S. at Neither Collins nor Miranda precisely states what is denoted process term or when process begins or ends. *18 had not yet attached. The court appeals decided that "Collins' to talk to his request attorney, made after he in custody but before he was his rights, advised of was sufficient protection of the Edwards trigger rule."30 The Collins court of does not appeals use the phrase "impending or imminent interrogation" to de- scribe the situation in which Collins found himself when he requested counsel.31 32. The court is divided about whether to adopt
¶ a temporal standard to determine whether a suspect requests counsel has effectively who invoked his or her Fifth Amendment right to counsel. justices, Three Justices Prosser, and But- Roggensack, ler, adopt standard that a suspect may effectively Amendment Miranda right to counsel the Fifth invoke when a is in custody and has made "an un- equivocal request with an speak attorney" even
30Collins, 122
rejected
Wis. 2d at 329. The Collins court
argument
State's
that Collins' invocation could not be effective
"because no
interrogation
yet begun":
custodial
had
Arizona,
There is no indication in either Miranda v.
Id. 470. The Court that an effective waiver of the right only warnings given. to counsel can occur after are Id. It did indicate, however, applies that the same rule to an effective assertion of the to counsel. Id. at 328-29. (N.C. 1992) Torres, See State v. 412 S.E. 2d (characterizing involving Collins as who "invoked his present during have counsel impending interroga his tion"). impending. interrogation Justice is imminent or
before They Roggensack's concurrence, conclude temporal require- adopting a line of cases the LaGrone impending imminent contra- ment of justices conclude that the Miranda. These three venes present attorney in the case for an defendant's Fifth Amend- invocation of the constituted an effective "anytime under the ment Miranda to counsel custody" temporal standard. justices, Bradley and Crooks 33. Three Justices *19 opinion, they conclude that need the author of this appropriate
not, not, address whether the tem- and do poral adopt standard to to determine whether effectively Fifth in has invoked his or her "anytime custody" Amendment to counsel is the interrogation" impending or the "imminent or standard justices These three conclude that the standard. attorney present request for an in the case defendant's of his Fifth Amend- constituted an effective invocation temporal ment Miranda to counsel under impending" interrogation. standard of "imminent standard, met these three Because defendant this justices request conclude that the defendant's for an attorney present in the case also constituted an effec- Fifth tive invocation of the Amendment Miranda "anytime custody" to counsel under the standard. might adopt ¶ 34. Concerned that this court impending interrogation" temporal "imminent or stan- argues dard, the State that the defendant has not met temporal First, this standard for reasons: two reason to defendant had no assume custodial imminent because the drive to jail twenty would take between fifteen and minutes lawyer call Rindt told the defendant he could they got when simply Second, there. the defendant's stated request request for counsel was a for counsel to secure police custody, help his release from not to him in interrogation. We are not convinced the State's reasoning.
¶ 35. The record does not reveal when Rindt initially subject intended to the defendant to custodial interrogation. leading up In the minutes to the request defendant's counsel, for Detective Rindt made question it clear that he intended to the defendant. The reasonably defendant could have surmised that because persistent wanting interrogate Rindt was him, attempt interrogate Rindt would continue to him in setting speak a custodial after he refused to with Rindt setting. in a noncustodial The defendant had no reason eagerness question to believe that Rindt's him dissi- pated custody. once Rindt took him into
¶ 36. The State's contention that the defendant's request for counsel was directed to secure his release police custody from and that the defendant's for help dealing counsel was not for counsel to him in interrogation by unconvincing. custodial present requested When the defendant in the case attorney, his entire discussion with Rindt had thus far *20 permit focused on whether the defendant would Rindt LaGrone, interview him. Unlike in the defendant in present case did not invoke his to counsel in response request to a officer's for a consent to requested attorney search. The defendant instead an already after Rindt had made it evident that he wished interrogate defendant had taken the defen- custody dant into when the defendant rebuffed several of Rindt's offers to conduct a noncustodial interview.32
32The State's contention that request defendant's for merely counsel was anticipatory interroga- because custodial present case of ¶ in the The circumstances 37. interrogation impending the defen- demonstrate that suspects LaGrone, ex- in McNeil dant, unlike the attorney pressed "in of an for the assistance a desire police."33 interrogation dealing with custodial in addition to ¶ cases The State cites several 38. position support that the in of its and LaGrone McNeil timely, request not but these counsel was for defendant's easily distinguished at hand. from the one are cases App Kramer, 133, 294 ¶ WI In v. 39. State example, Kramer 459, for 780, 2d 720 N.W.2d Wis. dealing attorney him in to assist officers for an asked Everyone police during armed standoff. with the custody agreed he re not when that Kramer was ap quested Furthermore, ruled the court counsel. clearly peals, request for counsel was not one for interrogation.34 during Accord a custodial assistance ingly, appeals that Kramer had no the court of ruled any ensuing expect statements would not against substantively him at trial. used be App Hassel, 80, 280 In 2005 WI State custody 270, Hassel was not 637, 2d 696 N.W.2d Wis. response silent in the time he asked to remain at questions officers; he was not from law enforcement day.35 Hassel did not until the next taken into request to remain re- counsel. Hassel's silent interroga- interrogation hut not to custodial lated to squad in a car is also not normally place take tion does place in convincing. In has taken numerous cases squad car. 33 McNeil, original). (emphasis at 179 See 501 U.S. Kramer, 133, 10, 780, App 294 Wis. 2d State v. 2006 WI 720 N.W.2d
35Hassel, 2-3, 2d App 280 Wis. 2005 WI ¶¶ N.W.2d 270.
122
appeals
tion. The court of
concluded that Hassel's
right
of
invocation
his
remain silent
a valid
was not
right
of his Fifth
invocation
Amendment
to remain
subject
silent "because he was
custodial
interro-
gation.
prior
Therefore, there is no
invocation with
police
which the
should have been concerned."36
govern suspect
¶ 41. Kramer and Hassel
a
who is
custody during police interrogation.
not in
The cases
person
custody
stand for the rule
is not in
who
anticipatorily
cannot
invoke
Fifth
Amendment
counsel
to remain silent. In
case,
the instant
the defendant
in
was
his
expression
for counsel
anwas
of a
"for
desire
attorney
dealing
the assistance of an
interrogation
with custodial
police."37
the
(10th
Kelsey,
¶ 42. United
States
40 Alston, example, In for F.2d at court federal appeals suspect Kelsey characterized facing impend as ing interrogation. *22 "reasonably construed that could be
made a statement expression [an] of an for the assistance of desire to be by attorney dealing interrogation in custodial Kelsey right police"41 his "the fact invoked and that that required police him inform to to counsel before were that irrelevant."42 of ¶ the defendant was in Because immi- belief had a reasonable impending, his for counsel was nent or of Fifth Amendment Miranda effective invocation his custody" "anytime to under both the counsel interroga- impending standard and the "imminent temporal tion" standard. type present illustrates "the of 44. The case appli- atmosphere generates the need for
coercive After the defendant cation of the Edwards rule."43 effectively his Fifth Amendment Miranda invoked interrogation, police counsel, unless initiated Arizona, defendant, 451 U.S. would violate Edwards (1981). I I I question turn Detec- 45. We now to the whether defen- tive Rindt's statement the defendant after the interroga- right dant invoked his counsel constituted tion. meaning interpreting
¶ 46. The seminal case interrogation under Miranda is Island v. of Rhode 179) McNeil, Kelsey, (quoting F.2d at 1199 U.S. at McNeil). (emphasis
42 Kelsey,
43Id.
(1980).
Supreme
Innis,
to elicit an A law may interrogat enforcement officer thus be viewed as ing suspect by asking single statement, a without question, if the law enforcement officer's conduct or speech question could have had the force of a on the suspect. "Interrogation" "must reflect a measure of compulsion beyond above and that inherent in itself."46 interrogation
¶ 47. The Innis test for
was summa-
Cunningham,
rized in State v.
272, 278-79,
Wis. 2d
"(I]f
(1988),
objective
45 Id.
46 Id. at 300.
police specific knowledge suspect."47 officer's of the primarily upon perceptions focus is of the ignored.48 but the intent of the is not interpreting applying In the Innis test interrogation, keep constitutes a court must what by mind the evils addressed Miranda. As this court explained Cunningham, purpose oí Miranda and " prevent 'government using Innis is to officials from the coercive nature of confinement to extract confes- given sions that would not be an unrestrained "49 environment.' We must determine whether Rindt's implicate purpose. conduct and words this subject interroga- 49. Whether a government question tion is a of constitutional upset fact. This court will not the circuit court's find- ings evidentiary they or historical fact unless are clearly erroneous.50 The determination of whether the satisfy legal question facts standard is a of consti- independently tutional law which this court decides appeals benefiting the circuit court or court of but from analyses.51 their
¶ 50. The defendant asserts that the interaction
interrogation
between himself and Rindt was either an
(a
format)
question
in the traditional sense
and answer
equivalent
express questioning.
or the functional
of
47Cunningham,
48Innis,
n.7;
¶ 51. We the defendant's claim that Rindt's explanation why being the defendant was arrested present interrogation amounted case to in the questions traditional Rindt no sense. Detective asked "express questioning." the defendant. A statement not ¶ 52. We therefore address the defendant's claim response equivalent that Rindt's was the functional express questioning. although instructive, The case law is each 53.. Innis,
case stands on its In own facts. the Court found interrogation place no had taken when two officers conversed in front of Innis about their desire to locate a gun supposedly any discarded, Innis had used and lest nearby handicapped students from a school for children weapon "find a with shells and ... hurt themselves."52 response colloquy, In to the officers' Innis revealed gun's location. Supreme Innis, United States Court in place,
determined that had taken no stating appears that "the entire conversation to have consisted of more than a no few offhand remarks"53 and nothing suggested in the record "the officers peculiarly [Innis] susceptible were aware that was anto appeal concerning safety to his conscience of handi- capped [Innis] children" or that "the knew that unusually upset disoriented or at the time of his arrest."54
52Innis, officer, party 446 U.S. at A third to the 294-95. conversation, "He colleague: testified of one said it would be too girl if pick up gun, had the little —I believe he said a —would maybe kill herself." Id. at 295.
53Id. at 303.
54Id. at 302-03. *25 (7th Frey, Easley
¶ 55.
In
v.
searching Cunningham's home, a officer showed Cunningham an unloaded revolver officer had dis Cunningham's covered in bedroom and remarked to apparently officer, another "This was what Mr. Cun ningham running was into the bedroom for."57The Cunningham court concluded that the officer's words likely incriminating and conduct were not to elicit an response, is, the officer's words and conduct could reasonably question have had the force of on the suspect. explained The court that there was no indica Cunningham unusually tion in that the "was susceptible display to the officer's words and conduct gun" ing or that "at the time he made the state [suspect] unusually up- ments the disoriented or 55Easley, 433 F.3d at 971.
56Easley,
57Cunningham,
59 Id. at 283.
60 may justifiable, been confusion have The defendant's September taken into given Was defendant Meyer 2003; involving the defendant and three transactions 2003, 2002, February April in November occurred of the reason holding explanation that an officer's For cases inquiry response suspect's to a for an arrest United see, e.g., equivalent express questioning, functional 1993). (1st Taylor, 985 F.2d States v. Cir. States 2d at 282. See also United Cunningham, Wis. 1992) ("[T]he (4th Innis Payne, 954 F.2d Cir. capture so broad as to within definition of is not by police officers Miranda's declaratory statements reach all Although Meyer, ¶ 58. informant, was a child- nothing defendant, hood friend of the in the record supports suggestion that Rindt knew or should have response known that his brief would result in the objective defendant's further An statements. observer response could not have concluded that Rindt's to the why defendant, who stated that he did not understand likely incriminating he arrest, was under would elicit an *27 response. merely Rindt stated the defendant had drugs cooperating sold to an informant who had been police during those transactions. We conclude that compelling pressures "[t]he in-custody interrogation working identified in Miranda as 'to undermine the compel speak' individual's will to resist and to him to present were not in the circumstances of this case."62 heavily ¶ 59. The defendant relies on State v. App Bond, ¶ 118, 15, 2000 WI 633, 237 Wis. 2d 614 equally 552, court, N.W.2d an divided 56, 2001 Wl aff'd suspect Bond, Wis. 2d 627 N.W.2d484. In the given was in warnings. but had not been the Miranda appeals The court of determined that the failing suppress circuit court erred in Bond's state response police ment made to a officer's remark to Bond.
concerning
charges against
the nature of the
suspect
the
the
relating
evidence
charges.");
those
United States v.
Jackson,
(4th
1989) (no
863 F.2d
when,
Cir.
response
to a suspect's questions about the
for
reason
his
arrest,
agent
a DEA
named
person
police
to whom
believed
cocaine);
had sold
Spencer,
State v.
of-fact communication only cryptic to the remark that made sense made a person Bond was the crime for which who committed Consequently, understand- Bond's comment arrested. response, expected ing officer's words was equivalent the functional words were thus the officer's interrogation. testified that One of the officers *28 response designed... from" to elicit a "was comment appeals concluded that the Bond court of Bond.68The equivalent remark was officer's warning that Bond's of a the absence suppressed. incriminating response had to be 63 Bond, 118, 3-5, 633, 2d State v. App 237 Wis. ¶¶ 2000 WI court, 56, by equally an divided 552, 2001 WI 614 N.W.2d aff'd 476, 484. 2d 243 Wis. N.W.2d
64 Bond, 4. 2d 237 Wis.
65 Id., 4-5. ¶¶ 66 Id., 4-5 & n.4. ¶¶ 67Id., 5-6. ¶¶ 68 Id., significantly
¶ 62. Bond is different from the present provocative case. Rindt's remarks were less pointed rejoinder than the officer's in Bond. Rindt's meaning, plain comments designed form, were clear and not response to elicit a from the defendant. Bond govern present therefore does case.
¶ 63. The defendant also rests on Hill v. United
(D.C.
2004).
custody,
States,
¶ 64. The Hill court considered the context in place significant. which the conversations took to be The colleagues detective had admonished his not to advise rights Hill of his Miranda and then had left Hill "incom- municado, handcuffed a chair in an interview room for ,"73 approximately three and one-half hours... appeals court of determined that these actions "under- [d] [a] plan [Hill] purposely score to intimidate withholding rights the advisement of meant to counter- pressure interroga- act inherent in custodial (D.C. 2004). States, Hill v. United 858 A.2d Cir. 70Id. 443-44, Id. at 72Id. at 443.
73Id. at 447. finally to ."74 the detective returned tion... When "combinetd] speak also classic Hill, the detective establishing interrogation techniques" by first author- against confronting ity, the with evidence then (ten finally "creating] a verbal vacuum to him, and silence) person first of in which the fifteen seconds losing party."75 the silence constitutes break running telling Hill, "I'm room, detective entered charged you going be with murder the show and are Under these circumstances the Hill court con- II."76 benign seemingly that transmittal infor- cluded "the of games [Hill]... the kind mental mation to resembles largely generated the Miranda decision itself."77 that significantly 65. Hill different from present Rindt's comment the defendant was case. responsive statement. The record to the defendant's reply planned Rindt's does not demonstrate that strategy the one considered in Hill. like forth, set we conclude For reasons interroga- not did constitute Rindt's words conduct express questioning engage tion; Rindt did questioning express equivalent after functional effectively his Fifth Amendment defendant invoked Rindt's would not to counsel. statement type objective as the of com- viewed observer be encourage some the defendant make ment would reasonably objective incriminating observer remark. A would not foresee that Rindt's conduct and words could incriminating response from the defendant. elicit an 74 Id. Id. at
76 Id.
77 Id. at 447.
IV suspect ¶ 67. after Even a asks to speak lawyer, thereby requiring with a that inter- "all rogation lawyer present,"78 must cease until a is a suspect may or waive his her Fifth Amendment right to Miranda counsel.79 suspect ¶ 68. In order to a establish that has . validly waived the Fifth Amendment effectively invoking after it, counsel the State must meet two criteria: (A) First, the State has the- burden show preliminary suspect "initiate[d]
as a matter that exchanges, communication, further or conversations police."80 go with the This criterion does not to the validity suspect's purported of the instead waiver but prophylactic designed protect rule, "in effect a police custody being badgered by police accused from officers ... ."81 (B) Second, the State has the burden to that
show waived the to counsel 78Innis, 474). Miranda, (citing U.S. at 446 293 384 at U.S. 79 (1981). Arizona, Edwards v. 451 U.S. 80Id. (1983). Oregon Bradshaw, Eight U.S. justices agreed with this statement of the first criterion. Bradshaw,
See also 462 U.S. (explaining at 1045 whether a initiated further discussion and whether the suspect validly rights waived her Miranda are separate inquir- "clarity ies application gained and that by melding is not together"). them That is, knowingly intelligently."82
"voluntarily, be only voluntary, "of must not but must counsel waiver intelligent relinquish- constitute knowing also a known privilege, ment or abandonment of in each case depends particular matter which upon case, includ- surrounding facts and circumstances *31 and conduct of the background, ing experience, accused."83 questions standard of on the 71. The review initiated communica- the defendant further
whether
voluntarily,
tion with
and whether
the defendant
Rindt
Fifth Amend-
waived his
knowingly,
intelligently
and
ment counsel
is as follows: This
of
findings
court will
a circuit court's
historical
uphold
fact
are
erroneous.
they
clearly
or
unless
evidentiary
82Miranda,
phrases
444. The
Court
384 U.S. at
Bradshaw
"knowing
intelligent,"
a
and
as
waiver is
the test
whether
Bradshaw,
omitting
"voluntary."
The defendant's brief sometimes articulates or "knowingly intelligently" a and waived his whether phrase "voluntarily and rights her at other times uses but phrases. used Both intelligently." The circuit court also different discussing a the circuit court seem to be the defendant and test, differently points at different in the single only phrasing it discussion. 83 Turner, Edwards, 136 451 U.S. 482. See State v. at also (1987) Edwards, 333, 347, (quoting 2d 401 N.W.2d827
Wis. 481) ("An right to counsel when there U.S. at accused waives the 'knowing, intelligent relinquishment or voluntary, Kramar, privilege.'"); or State v. of a known abandonment Turner). (1989) 767, 790, (citing 149 Wis. 2d N.W.2d legal application This court determines the evidentiary principles constitutional facts in- those dependently appeals of the circuit court and court of ap- hut from benefits the circuit court's and court of peals' analyses.84
A ¶ 72. The defendant asserts the State has not shown he initiated a discussion or conversation with Rindt. determining
¶ 73. Tests for whether a initiated discussion or conversation law en- Oregon forcement were officers set forth v. Brad- (1983). four-justice shaw, 462 U.S. Brad- plurality suspect's "inquiries shaw concluded that a relating . statements .. to routine incidents relationship" custodial would not be sufficient to con- questions "initiation," stitute but that or statements *32 totality that under the of circumstances "evinced a willingness generalized and a desire for a discussion investigation" about the would.85 four-justice supplied ¶ 74. The Bradshaw dissent competing arguing test, its own that when the "Court in spoke 'initiating] Edwards of further communication' 'reopening] dialogue with the and the with the 84Jennings, 228, 2d 252 Wis. ¶ Turner, See 136 2d (discussing Wis. at 343-49 the standard of questions review for of constitutional implicitly fact and applying this question standard both to the suspect whether a had initiated further with police communication and to the question suspect knowingly whether the and intelligently counsel). waived the Miranda
85Bradshaw,
136 obviously or authorities,’ had in mind communication it subject dialogue criminal invest matter the about igation.'86 uncertainty persists about what con- Thus "initiating" suspect's further communication
stitutes free choose either the We are with law enforcement. plurality's We not make the the dissent's test. need or analysis present Our and conclusion case. choice present under either the case would not differ in the plurality's for a of the test or dissent's statement suspect's communication or dia- "initiation" further logue.87 asserts that for a 76. The defendant dialogue abe there must
"initiate" communication suspect's break between the invocation by subsequent communication counsel and the inculpatory to the to law enforcement led According dialogue defendant, the to the statements. never Rindt initiated with defendant had had dialogue in the occurred between ceased and no break (Marshall, J., (emphasis Id. at 1053 dissenting) original). alterations rejected two-step approach
The ninth Bradshaw justice admissible because there was and deemed the confession rights. of his knowing intelligent waiver Bradshaw Bradshaw, (Powell, J., concurring). at 1049 462 U.S. (N.J. 1997) ("We Chew, See State 695 A.2d tests,' 'separate but have not acknowledged that these are
have flatly perceive [citation omitted]. or the We chosen one other ..."). . between the tests little difference al., of the Bradshaw case, For see LaFave et a discussion 6.9(f) objective supra (concluding § note at that "an *33 [Bradshaw] would seem to circumstances assessment of the question only suspect's] [The .... would justify one conclusion "). either of the tests.... amount 'initiation' under to the defendant's the invocation of counsel and supposedly the defendant's comment that fur- initiated ther communication.
¶ 77. Whether a ''initiates" communication dialogue depend solely elapsing or does not on the time between the of invocation the to counsel and the suspect's beginning exchange with law enforcement, although lapse time is a factor to consider. Oregon
¶ Bradshaw, 78. The facts 462 U.S. (1983), question 1039, 1044 are instructive on the present whether the defendant case "initiated" further communication with Rindt. inquired police "[e]i- officer, Bradshaw a just during," trip before,
ther or a from the station jail, going happen "Well, what is to me The now?"88 plurality posing ques- Bradshaw observed that in this " tion, Bradshaw 'initiated' further communication in ordinary dictionary sense that word."89 plurality opinion recognized, The however, fact that Bradshaw initiated further commu- ordinary dictionary nication in the sense was insuffi- cient to establish that he "initiated" further communi- evincing willingness generalized cation for investigation. plurality opin- discussion about the acknowledged may ion that some initial statements be they fairly represent "so routine that cannot be said to part open up a desire on of an accused to a more generalized relating directly indirectly discussion investigation."90 Bradshaw, (1983). at 1042 U.S. 89 Id. at 1045.
90 Id. *34 opinion plurality ¶ that Brad- The concluded 81. under the circum- had "initiated" communication shaw question ambiguous the case. Bradshaw's stances of relating interpreted by the as officer could have been investigation. generally so That the officer un- to the question apparent from fact is derstood the immediately he not reminded Bradshaw that did officer said he understood to talk to officer. Bradshaw have they The Court concluded that and then conversed.91 going hap- "question to as what was ... to Bradshaw's willingness pen desire a to him a a for evinced investigation" generalized discussion about necessary arising merely inquiry out of the "was not relationship."92 incidents of the custodial ambiguous ques- In to Bradshaw's contrast going happen him, the to tion about what was here he did not understand defendant's statement clearly seeking why informa- he under arrest was was of constituted an initiation communication tion and ordinary of the The in the most sense word. with Rindt merely "to did not relate routine defendant's statement relationship."93 The context of the custodial incidents of supports the conclusion that the defendant's statement willingness desire for a and a the statement evinced investigation. generalized discussion about the per- cites do cases defendant on The defendant's reliance United suade us otherwise. (11th 1991), Gomez, F.2d 1530 Cir.
States v. 91 Id. at 1045-46.
92Id. See id. at 1045. examples inquiries As related the Bradshaw relationship, custodial routine incidents request or a "a for a drink water plurality suggests Id. telephone." use a
misplaced. requested Gomez arrested and counsel. agent years A federal then told Gomez that he faced 10 prison cooperation might give life and that him a lighter sentence. Minutes later asked Gomez the federal agent why agent he had been arrested. After the federal *35 explained speak arrest, for reason Gomez asked to cooperating. to someone about ¶ 84. The Gomez court held that the federal agent's initiation of conversation with Gomez after right Gomez invoked his Fifth Amendment Miranda to likely incriminating response counsel was to elicit an interrogation. began and constituted That Gomez con- agent versation with the a few moments later about his agent's interroga- arrest did not cure the initiation of tion after a valid Fifth Amendment Miranda invocation of the to counsel.94 thus Gomez stands for the proposition police illegally interrogate that once a sus- pect contrary Edwards, to Miranda and "no claim that the accused 'initiated' more conversation will be presents very heard."95 Gomez different facts from the present case.
¶
relying
85. The
defendant also errs
on Mc
(Ga. 2004).
Dougal
having
State,
v.
¶ asking McDougal 86. In to detectives, see the previously not had indicated a waiver of his invoked seeking counsel the reason he was out the detectives. The court concluded that there was "no Gomez, (11th See v. United States 1530, 1538-39 927 F.2d 1991). Cir. 95Id. at 1539. State, (Ga. 2004). McDougal 591 S.E.2d [McDougal] intended to initiate the ... that indication 'generalized by engaging in a discussion conversation "97 investigation.' it Indeed, court, wrote the about McDougal inquire possible intended to about "that his or an allowed to contact wife he would be when yet permitted attorney, do, or been he had not which police daughter, had which he could see his when during arrange promised the initial interview."98 McDougal speak, the could detective Before McDougal, stating person whom confronted strong implicated McDougal had a alibi. as a shooter had McDougal held that the detective's court McDougal interrogation, had constituted statement law enforcement "reinitiated" communication with detective, and that his mere to see responses McDougal's interro- statements were McDougal effectively gation his Fifth invoked after right to counsel. Amendment Miranda *36 present McDougal, case, ¶ in the In contrast Fifth Amendment invoked his after the defendant any counsel, did not make the detective Miranda provocative arrest or the crime. statements about the exchange began Rindt with Rather, the defendant straight- the detective made a a comment to which with totality response. the circum- Under the of forward present comment in the case the defendant's stances generalized willingness for a and a desire evinced a discussion. forth, we conclude the reasons set 90. For with communication "initiated" further
the defendant Rindt.
97 1046). Bradshaw, 462 U.S. at (quoting Id.
98Id. at 794-95.
B ¶ 91. We now consider whether the defendant voluntarily, knowingly, intelligently and waived his Fifth Amendment Miranda to counsel. AMiranda voluntary product if waiver is it "the of free is and intimidation, deliberate choice rather coercion, than deception."99 knowing For a Miranda waiver to be and intelligent, it "must have been made a fuil aware- right being ness of both nature of the abandoned consequences and the of the decision to abandon it."100 Resolving question requires case-by-case the waiver examination all the facts circumstances, includ- ing suspect's background, experience, and con- duct.101
¶ 92. A circuit court's determination the waiver rights as reviewed follows: A circuit findings evidentiary court's of historical or will fact clearly be disturbed unless erroneous. This court deter- application principles mines the of constitutional evidentiary independently those facts of the circuit appeals benefiting court and court of but from their analyses.102 argument 93. The defendant summarizes his voluntarily, knowingly, intelligently
that he did not
stating
his
to counsel,
waive
that at the time of his
Burbine,
(1986).
Moran
475 U.S.
v. Santiago,
18-19,
State
2dWis.
102Santiago,
of the he casts himself as limited time of his arrest. While (and sophistication intelligence the circuit court and apparent acknowledged limited intelli- the defendant's understanding), gence does not the defendant legal incompetent waive his to exercise or claim to be Clausing rights. Although Rindt and did Detectives his he had a chance to eat arrest the defendant before does not seem to claim breakfast, the defendant ability hunger deprived him of the had somehow knowingly intelligently. The defen- make decisions undoubtedly and scared. Most uncomfortable dant was delivering suspicion people on cocaine would arrested probably and scared. be uncomfortable that "there was no The circuit court found sleep deprived intoxicated he was or indication that general physical anything in and emotional or that his unusually objectively him viewed, made condition, as experience previous susceptible. had He substantial level)." juvenile (although at the with and the that the time circuit court observed relatively length short. The of the were being explained the defendant was circuit court possible respect questioned and interviewed According cooperation. court, threats no to the circuit relating possible except promises those made were "subtly cooperation. Rindt claim that The defendant's he rewarded defendant when coerced" the by removing speak hand- decision defendant's squad putting car of the him in the front seat cuffs and *38 challenge finding. circuit does not court's The clearly findings fact circuit court's are not erroneous. pertinent allegation ¶ More 96. the defendant's Clausing that either Rindt or Detective Detective told necessary the defendant that it was for him to legal obtain The assistance. defendant asserts that the law enforcement officer's comment came when the get trying prior were him detectives to talk to them prior effectively to his arrest and to the defendant's invoking his Fifth Amendment Miranda to coun- According sel. decision, to the circuit court's Detective give take, Rindt not seem to this did recall and and the finding specific alleged circuit made court no exchange between the and defendant Rindt. circuit that, court made clear as a
general [of matter, it found the defendant's "version arrest] . . . full of internal inconsistencies and self- serving statements" and that it "bolsters State's case." The circuit court also characterized the law testimony demonstrating enforcement officer's " as memory key 'convenient'" lack of as to certain issues" memory lapses "certainly and characterized the as troubling." The circuit found., however, court that be- longer employed cause Rindt was no the sheriffs department, he had "no motivation to fabricate."103 decision, Circuit court Brief Appendix of Defendant- Appellant-Petitioner at App. 117. The court circuit commented sentencing at that the State's witness "seemed remember very things well the protected the State's interest and then [had lack of memory virtually any an] utter as to other detail. It very very bizarre. Not credible." The circuit court also police practices viewed the professional" here as "not and stated the officers "created get the offense" to the defendant give them some names. findings analysis The circuit court's totality of the circumstances that under the
establish *39 right after he of his to counsel the defendant's waiver warnings voluntary, given was know- the Miranda intelligent. ing, and agree
¶ that a court with the defendant 99. We wary viewing suspect's every a statement should be interrogation. suspect's question A as an invitation to right the to counsel should be meticu- invocation of lously lightly. aside We honored and should not be set present defen- however, that in the case the conclude, the enforce- "initiated" communication with law dant Fifth had invoked his ment after the defendant officer right Miranda to counsel and that Amendment knowing, voluntary, right of the to counsel was waiver intelligent. * * * v as forth, reasons set we conclude 100. For the follows:
(1) effectively invoked his Fifth The defendant when he re- Amendment Miranda right to counsel custody he was in and before quested counsel while interrogated him under both a enforcement officer law custody only that a be requiring standard a standard request for counsel is made and when the interrogation impend- "imminent or requiring that be is made." An invoca- ing request for counsel when Miranda right to counsel of the Fifth Amendment tion attorney dealing of an for the assistance is a interrogation police. custodial (2) officer's statements to The law enforcement effectively Fifth Amend- he invoked his defendant after given right ment Miranda to counsel and before he was warnings did not the Miranda constitute by the officer.
(3) effectively his Fifth After the defendant invoked counsel, right Miranda he initiated Amendment communication with the law enforcement officer and voluntarily, knowingly, intelligently then waived counsel, inculpatory rendering his state- ments admissible. question court divided 101. The on the adopt temporal determine
whether standard to effectively has his whether invoked or her Fifth Miranda Amendment counsel. justices, Roggensack, Prosser, Three Justices and But- effectively adopt suspect may ler, the standard that a the Fifth Amendment invoke to counsel *40 suspect custody in when a is and has made "an un- equivocal request speak attorney" to even interrogation impending. before is imminent or justices, Bradley ¶ 102. Three Justices and opinion, Crooks and the author this conclude that they appro- not, not, need and do address whether the priate temporal "anytime adopt standard to is the custody" impending standard or the in- "imminent or terrogation" Ziegler partici- standard. Justice did not pate in case. this Accordingly,
¶ 103. we affirm the decision of the appeals affirming court of the circuit court's order refusing suppress inculpatory to the defendant's state- affirming ments and the conviction.
By appeals the Court.—The decision of the court of is affirmed.
¶ ZIEGLER, J, 104. ANNETTE KINGSLAND did participate. ROGGENSACK, DRAKE 105. PATIENCE J. {concurring). Although agree appeals I that court Hambly's affirmed state- should be because decision given after he had invoked and then waived ments were right sepa- counsel,1 to I write his Fifth Amendment (1) opinion rately the lead reasons: a test that for two the Fifth Amendment to invoke establishes contrary requirements of Miranda v. is to the counsel (2) (1966); test, i.e., that Arizona, that 384 U.S. effectively suspect may his or her Fifth invoke "a by requesting Amendment counsel Miranda suspect's person in the a reasonable counsel when position imminent,"2 believe that would bright-line rule that law enforcement blurs Miranda's obligations fulfilling to a who its is to follow lawyer. custody unequivocally a asks to see is in
I. BACKGROUND Hambly requested the assistance of 106. Scott and led to a arrested, after he handcuffed counsel squad transport jail. question There is no ear for lawyer custody before he asked to see he was when any speaking However, further. to law enforcement Hambly effectively concluding simply instead of right to counsel because invoked his Fifth Amendment unequivocal request and had made an he was in attorney, opinion speak the lead creates with an may effectively invoke his or her test wherein "a by request- to counsel Fifth Amendment ing *41 person suspect's in counsel when a reasonable for counsel invoked to in-custody request an 1 i refer to compelled Amendment's self- right against protect the Fifth right to counsel. Fifth Amendment incrimination as the 2 op., Lead ¶ 147 position would believe that is imminent."3 majority opinion "possible remarks that another any suspect standard" is that time a is in unequivocally requests counsel, even before Miranda warnings, suspect invokes his her or Fifth Amend- right my view, ment In counsel.4 this alternative "possible standard is not a standard." It is the standard required by Simply any stated, Miranda. time a custody, warnings is in whether before or after Miranda given, questioning are whether before after is immi- impending, unambiguous request nent or for coun- always suspect's sel is effective to invoke a Fifth Amendment to counsel.5
II. DISCUSSION A. Standard of Review undisputed. 107. The facts before us are With
undisputed
independently
facts, we
review whether a
effectively
has
invoked his
to counsel, as a
question
Jennings,
of constitutional fact. State v.
2002
¶ 44,
20,
WI
252
2dWis.
1. Conflict with Miranda opinion ¶ 108. The lead sets out restrictions on suspect's the timeliness of a invocation of his or her 3Id.
4Id., view, In my appeals correctly court of applied Miranda Arizona, (1966), Collins, 384 U.S. in State v. 2d Wis. (Ct. 1984), App. N.W.2d 229 when it concluded that Collins "invoked his home, counsel while at his imme diately upon being arrested." Id. at 328. *42 right
Fifth Amendment to counsel that I conclude are Supreme inconsistent with the United States Court's in decision Miranda.6 pursuant
¶ 109. The
to counsel
to the Fifth
Amendment was first
in
There,
described Miranda.
Supreme
United States
Court reviewed statements
subjected
Miranda,
obtained from
who was
to custodial
police interrogation.
proce-
The Court examined the
necessary
dures that it concluded would be
to accord
privilege7 against
Miranda his Fifth Amendment
com-
pelled
Miranda,
self-incrimination.
¶ 111. Escobedo is relevant to the case before us (1) for at least two reasons: for counsel in op., Lead 7 The Fifth Amendment of the United States Constitution provides part: person relevant "No ... compelled shall be any criminal against case to be a witness himself... begun, questioning be- made was Escobedo was before custody, indictment, but Escobedo after
fore
(2)
Escobedo,
485;8
Miranda relied
at
378 U.S.
*43
expressed in Escobedo
concerns
on the constitutional
right
development of the Fifth Amendment
for the
Miranda,
counsel,
tody Escobedo, in a homicide case. 378 U.S. as a arresting Escobedo that 479. When the officer told at up pretty tight, might "they pretty and we well, had us sorry crime," said, "I am admit to this Escobedo as well lawyer." my from Id. but I like to have advice lawyer would provided However, until after Escobedo no was request, Id. Based on his the had incriminated himself. Supreme that Escobedo had been Court concluded right to counsel. Id. at denied his Sixth Amendment 490-91. reasoning
¶ 113. underlies Miranda's Escobedo's of the Fifth Amendment to counsel. establishment Miranda, 384 at 464-66. The same concerns about U.S. vulnerability interroga- the of a defendant custodial tion underlie both Miranda and Escobedo. Escobedo used the Sixth Amendment right to accord Escobedo the yet Supreme
to counsel because
Court had not
opinion
states
Escobedo's
for coun
lead
before,
during,
police interrogation.
op.,
Lead
sel came
While,
out,
opinion points
n.14.
as the lead
Rhode Island v.
Innis,
(1980),
statements,
established a to counsel in protect proscription order to the Fifth Amendment's against compelled However, self-incrimination. there was no hint that Escobedo's invocation of the premature counsel he it when he was because exercised being police station, was taken to rather than when explained: begin. questioning about to As the Court [Wjhere.. the suspect police . has been taken into custody, police carry process interrogations out a statements, eliciting incriminating lends itself to requested has been opportu- denied an nity to with his and the lawyer, consult have not effectively him warned of his absolute constitutional silent, right to remain the accused has been denied "the Assistance of Counsel" in of the Amend- violation Sixth ment Constitution obligatory upon as "made *44 by Amendment,"... States the Fourteenth no that during statement police interroga- elicited the the may against tion be used him at a criminal trial. (quoted
Escobedo,
¶ 114. The accorded to were Escobedo unambiguous. clarity clear and That was echoed in right Miranda the Fifth where Amendment to counsel explained being necessary protect was first as to suspect's Fifth Amendment to remain silent. holding prosecu- Court "Our stated, ... is this: The may exculpatory tion inculpatory, stemming use statements, whether or
from custodial of proce- the it defendant unless demonstrates the of use safeguards privilege dural against effective to secure the Miranda,
self-incrimination." at 384 U.S. explain prior any ques- The Court on to went to tioning, a defendant must be warned has the that he any silent; to remain statement he makes
may against him; that he has the be used during attorney present time that he is have an questioned. Id. requirements outlined 115. The bright-line not conditioned on rule. It was
formed qualities then the who was of the individual investigation. subject police in Miranda As the Court of a explained: Amendment privilege is so fundamental
The Fifth
expedient
rule and the
system
our
of constitutional
availability of the
warning as to the
giving
adequate
pause
inquire in
simple, we will not
privilege so
of his
whether the defendant was aware
individual cases
warning being given. Assessments
rights without a
possessed, based on
knowledge the
informa-
defendant
education, intelligence,
prior contact
age,
to his
tion as
authorities,
speculation.
can never be more than
added).
(emphasis
at
Id.
468-69
(1984), sup-
Illinois,
Id. at 94-95 Edwards v. (1981)). Supreme then Court Smith 484-85 " 'rigid' requirement for counsel as a described the necessary prophylactic prevent compelled rule" self- Supreme permitted Id. incrimination. at 95. The Court in-custody request no further condition on Smith's for counsel. It was effective when made must be my honored. at 94-95. This is Id. consistent with view unequivocal request that an while for counsel made custody effectively right invokes Fifth Amendment to counsel. opinion places
¶ 117. The lead conditions on a suspect's request by establishing for counsel a time before which the invocation of the Fifth Amendment right may opinion to counsel not be effective. The lead possible may asserts it is that invocation not be person suspect's effective "a until reasonable in the position [have] believe[d] would [was] Conditioning imminent."9 to counsel as opinion contrary express the lead has done is to the "An statement Miranda: individual need not make a pre-interrogation request lawyer. While such re- for quest affirmatively one, secures his to have his lawyer failure for a to ask not Accordingly, does constitute a waiver." added). (emphasis Id. at 470 I conclude opinion's that the lead conditions on the timeliness an invocation the Fifth Amendment to counsel is in direct conflict with Miranda and is therefore an impermissible interpretation rights of the accorded under the Fifth Amendment of the United States Con- stitution. Blurring bright-line Miranda's rule beyond dispute
¶ 118.
It
that Miranda at-
tempted
"give
guidelines
concrete constitutional
for
agencies
enforcement
law
courts
follow."Arizona
op.,
Lead
*46
(1988) (quoting Miranda,
Roberson,
U.S.
v.
441-42).
Supreme
Court has
U.S.
As
at
principal
'[o]ne
occasions,
of the
on numerous
"stressed
advantages'
clarity
of
ease and
its
Miranda is the
of
omitted).
(citations
requirements
application."
The
Id.
prophylactic
ward
violations
a
to
off
of Miranda are
suspect's
remain
McNeil
to
silent.
a
constitutional
(1991). Factors that
501 U.S.
Wisconsin,
necessarily
prophylactic
under
use of a
condition the
opinions
in our
that
mine its
Statements
effectiveness.
contrary
Supreme
has instructed
to what
Court
are
uncertainty
inject
into the law.10
addition, I
not know how a "reason-
In
do
suspect's
person
position"
know that
in the
would
able
"interrogation
prior personal
imminent."11 Do the
is
experiences
his
that
Does
or
of the
affect
test?
intelligence
age,
he or
or
inform whether
her
education
"interrogation
imminent or
believe that
is
she would
impending"?
that
Miranda teaches
such conditions are
assuring
place
speculation
that
mere
and have no
protected.
guarantees
Miranda,
constitutional
will be
¶ 120. is once custody unequivocal and makes an lawyer, effectively speak he she has right for invoked the Fifth Amendment counsel questioning. purpose responding Nothing opinion more or is needed. A test the lead less 10 my view, opinion In lead onto the conditions the adds way protect in which Miranda chose the Fifth Amendment's State, provide for to remain silent no benefit for the They suspects simply or for enforcement. add law uncertainty Court would be Supreme expected to what clear. 11Lead op., ¶
suggests bright-line pro- blurs the rule that Miranda apply, addition, vides. In will test be difficult to *47 thereby generating occasions when a is in who unequivocally lawyer asks for a bewill may denied that assistance law enforcement who rightly questioning believe that is not "imminent or impending." Accordingly, join
¶ 121. because I cannot the con- opinion permit placed ditions the lead would to be on against compelled constitutional self- respectfully incrimination, I concur. I am authorized to state that Justice joins
DAVIDT. PROSSER
in this concurrence
joins
Justice LOUIS B. BUTLER, JR.
in this concur-
exception
rence,
with
its discussion
v.
Escobedo
(1964).
Illinois,
join Roggensack's concurring opinion, Justice with the exception its Illinois, discussion of Escobedo (1964). U.S. 478 has, date, While Escobedo never been Supreme overturned, the United State Court has since adopted Arizona, the rule forth set in Miranda v. (1966), respect interrogation. U.S. 436 to custodial necessary rely upon As it is not reach Escobedo now to bring result, correct I would not it into the discus- respects, join Roggensack's sion. In all other I Justice concurrence.