STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. KEITH M. ABBOTT, DEFENDANT-APPELLANT.
Case No.: 2019AP21-CR
COURT OF APPEALS OF WISCONSIN
April 16, 2020
2020 WI App 25
Blanchard, Graham and Nashold, JJ.
PUBLISHED OPINION. Appeal from a judgment of the circuit court for Rock County: MICHAEL A. HAAKENSON, Judge. Affirmed.
Appellant ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the briefs of Frances Colbert, assistant state public defender.
Respondent ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the brief of Amy C. Miller, assistant attorney general, and Joshua L. Kaul, attorney general.
COURT OF APPEALS DECISION DATED AND FILED April 16, 2020
Sheila T. Reiff Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
Appeal No. 2019AP21-CR Cir. Ct. No. 2011CF1324
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, V. KEITH M. ABBOTT, DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Rock County: MICHAEL A. HAAKENSON, Judge. Affirmed.
Before Blanchard, Graham, and Nashold, JJ.
BACKGROUND
¶2 In the early morning of January 3, 2011, Abbott returned to the home he shared with his wife, Ermelinda Cruz. He told Cruz that he had been having an affair with Kristin Miller and that he thought he had killed her. Cruz called the police, and Officers Gary Kovacs and Robert Gelden arrived at the home at approximately 6:30 a.m. At that time, Cruz did not inform the officers about the incriminating statement that Abbott had made.
¶3 The officers found Abbott sitting on the living room floor, shaking and unresponsive to questioning. Medical personnel arrived and, during their examination of Abbott,
¶4 Later that morning, Officer Kovacs received a voicemail message from a nurse indicating that Abbott had suspicious injuries and that she had observed suspicious spots on his clothing. Officer Kovacs returned to the hospital at approximately 9:30 a.m. Soon after, he called Officer Gelden and asked him to return to Abbott‘s home.
¶5 When Officer Gelden returned to Abbott‘s home, he observed what he believed to be blood on the tailgate of Abbott‘s pickup truck. He spoke to Cruz, who told him that Abbott had been missing for two days, that Abbott and Miller had been having an affair, that Miller had allegedly been blackmailing Abbott, and that Abbott said he may have killed Miller. Cruz also told Officer Gelden that she was seeking a divorce and that Abbott was currently living in the basement. Officer Gelden asked if he could take the sweatshirts that Abbott had been wearing, which remained on the living room floor, and Cruz assented. Later testing confirmed that Miller‘s blood was on the sweatshirts, and also on Abbott‘s pickup truck. Officer Gelden‘s seizure of the sweatshirts is the subject of Abbott‘s first claim of error in this appeal.
¶6 Meanwhile, Officer Kovacs remained at the hospital until approximately 6:00 p.m. At some point after his arrival, a hospital employee gave him a transparent plastic bag, which we refer to as a “patient
¶7 At approximately 6:00 p.m. that day, Abbott was committed pursuant to
¶8 Miller‘s body was discovered on January 31, 2011. Police arrested Abbott on February 1 and conducted an interrogation. The officers read Abbott his Miranda rights and repeatedly asked whether he would answer questions without an attorney present.3 They considered his responses to the questions about whether he wanted an attorney to be ambiguous and did not cease the interrogation. The officers’ failure to cease questioning is the subject of Abbott‘s third claim of error, and additional facts related to the custodial interrogation are set forth in the discussion section below.
¶9 The State charged Abbott with first-degree intentional homicide and related counts. The criminal proceedings were delayed for several years by competency evaluations, but Abbott was eventually determined competent to stand trial. Abbott then moved to suppress certain evidence. After the circuit court denied some but not all of Abbott‘s suppression motions, he entered an Alford plea to second-degree intentional homicide and was sentenced. Abbot appealed pursuant to
STANDARD OF REVIEW
¶10 An order granting or denying a suppression motion presents a question of constitutional fact. State v. Howes, 2017 WI 18, ¶ 17, 373 Wis. 2d 468, 893 N.W.2d 812. “A question of constitutional fact is a mixed question of law and fact to which we apply a two-step standard of review. We review any challenges to the circuit court‘s findings of historical fact under the clearly erroneous standard, and we review independently the application of those facts to constitutional principles.” State v. Tomaszewski, 2010 WI App 51, ¶ 5, 324 Wis. 2d 433, 782 N.W.2d 725.
DISCUSSION
¶11 Abbott argues that officers seized his sweatshirts and the patient belongings bag in violation of the Fourth Amendment, and that officers violated the Fifth Amendment during the custodial interrogation by continuing to question him after he invoked his right to counsel. We address Abbott‘s Fourth Amendment challenges in Section I, and then in Section II, we turn to his Fifth Amendment challenge. We conclude that the circuit court erred by denying Abbott‘s motion to suppress the patient belongings bag, and in Section III, we address the parties’ arguments regarding harmless error.
¶12 The Fourth Amendment protects against “unreasonable searches and seizures” by the government.
A. The Sweatshirts
¶13 Abbott argues that evidence gathered from his sweatshirts must be suppressed. As noted above, Cruz told Officer Gelden that he could take Abbott‘s sweatshirts, which were lying on the floor in the living room of the marital home. Abbott acknowledges that Cruz consented to the seizure, but he argues that she did not have authority to give consent.
¶14 Consent is an exception to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). A third party may consent to a search of someone else‘s property when the third party shares “common authority” over that property. United States v. Matlock, 415 U.S. 164, 171 (1974). The same “common authority” standard that applies in the search context also determines whether a third party can consent to a seizure. State v. Ramage, 2010 WI App 77, ¶¶ 11-12, 325 Wis. 2d 483, 784 N.W.2d 746; see also United States v. James, 571 F.3d 707, 714 (7th Cir. 2009). And even if actual common authority is lacking, there may be apparent common authority when the information available to the police officers at the time of the search or seizure would justify a reasonable belief that the party consenting had the authority to do so. State v. Pickens, 2010 WI App 5, ¶ 39, 323 Wis. 2d 226, 779 N.W.2d 1.
¶15 Whether common authority exists depends on whether the third party has “joint access [to] or control” over the individual‘s property such that the individual has “assumed the risk” of the intrusion. Matlock, 415 U.S. at 171 n.7. Common authority to consent depends on the “totality of the circumstances,” and the State has the burden of proving consent by clear and convincing evidence. State v. Tomlinson, 2002 WI 91, ¶¶ 21, 31, 254 Wis. 2d 502, 648 N.W.2d 367. “[W]idely shared social expectations” are an important factor in determining common authority. State v. Sobczak, 2013 WI 52, ¶ 15, 347 Wis. 2d 724, 833 N.W.2d 59 (quoting Georgia v. Randolph, 547 U.S. 103, 111 (2006)).
¶16 For the reasons we now explain, we conclude that Cruz had actual authority to consent to the seizure. Abbott acknowledges the presumption noted by one federal circuit court that a spouse “presumptively has authority to consent to a search of all areas of the homestead.” United States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992). However, he makes three arguments in an attempt to rebut this conclusion in this case. Specifically, Abbott argues that common authority was lacking because he and Cruz were “estranged,” his sweatshirts were “personal effects,” and the sweatshirts had been “forcibly removed” from him by medical personnel. We consider each of these arguments in turn.
¶17 We do not agree that what Abbott calls “estrangement” negated Cruz‘s common authority to consent to the seizure of the sweatshirts. Abbott notes that he had an affair, that he was living in the basement, and that Cruz planned to divorce
¶18 Citing United States v. Rodriguez, 888 F.2d 519 (7th Cir. 1989) and State v. Evans, 372 P.2d 365 (Haw. 1962), Abbott argues that spouses do not necessarily have common authority over one another‘s “personal effects.” We are not persuaded. The item at issue in Rodriguez was a briefcase stored in a locked room, 888 F.2d at 523, and the item at issue in Evans was jewelry hidden in a cuff links case stored in the defendant‘s closed bureau drawer, 372 P.2d at 368. Here, by contrast, nothing suggests that Cruz‘s access to Abbott‘s sweatshirts was limited in any way. The sweatshirts were not in a locked room or closed container, but were instead on the living room floor in Cruz‘s own living quarters. Further, it is beyond dispute that in today‘s society, spouses routinely move, clean, and even wear one another‘s clothing. Cf. Matlock, 415 U.S. at 171 n.7 (common authority rests on “joint access or control“); Sobczak, 347 Wis. 2d 724, ¶ 15 (“widely shared social expectations” are an important factor in determining common authority). Abbott points to no facts in the record suggesting he took steps to keep his clothing private from his wife, and he even concedes that Cruz might have worn his clothes.
¶19 Finally, Abbott argues that his sweatshirts were “forcibly removed from him during a medical emergency,” but Abbott does not explain why this matters. Common authority depends on “joint access or control,” Matlock, 415 U.S. at 171 n.7, and Abbott cites no authority to show that any act of relinquishing control to a third party is required.
¶20 For the above reasons, we conclude that the State has proven by clear and convincing evidence that Cruz had actual authority to consent to the warrantless seizure of Abbott‘s sweatshirts and that the circuit court did not err when it denied Abbott‘s motion to suppress them. Having reached this conclusion, we do not address the State‘s alternative arguments that Cruz had apparent authority to consent and that the sweatshirts were properly seized under the plain view doctrine.
B. The Patient Belongings Bag
¶21 As noted above, at some time between approximately 9:30 a.m. and 6:00 p.m. on January 3, 2011, an unidentified hospital staff member gave Officer Kovacs a transparent patient belongings bag containing clothing removed from Abbott at the hospital. The State argues that Officer Kovacs was entitled to search the patient belongings bag pursuant to United States v. Jacobsen, 466 U.S. 109 (1984), and that he properly seized the bag under the plain view warrant exception.4
¶23 Under Jacobsen, Officer Kovacs may well have had authority to visually inspect Abbott‘s clothing, since hospital staff had already done so and discovered what they described as suspicious spots on Abbott‘s socks. But Abbott does not challenge the inspection of his clothing—he challenges the seizure of the patient belongings bag and the DNA evidence subsequently gathered from it, which goes beyond the scope of the hospital‘s private search. The State fails to make any argument as to how Jacobsen permits these additional intrusions. Nor did it argue that the Fourth Amendment is inapplicable because the bag was seized by a private entity, rather than by law enforcement.5 Thus, the State fails to persuade us that evidence gathered from the patient belongings bag is admissible under Jacobsen.
¶24 We turn next to the argument that the plain view exception permitted the warrantless seizure of Abbott‘s personal belongings bag.6 The plain view exception applies when the following three conditions are met:
(1) the evidence must be in plain view; (2) the officer must have a prior justification for being in the position from which she discovers the evidence in plain view; and (3) the evidence seized in itself or in itself with facts known to the officer at the time of the seizure, [must provide] probable cause to believe there is a connection between the evidence and criminal activity.
State v. Guy, 172 Wis. 2d 86, 101-02, 492 N.W.2d 311 (1992) (internal quotations omitted). Abbott contends that the State has not met its burden to show the first or third conditions. We do not address Abbott‘s argument that the bag was not in plain view, since we agree with Abbott that the State has failed to meet its burden to prove that there was probable cause at the time of the seizure.
¶25 The State argues that Officer Kovacs had probable cause to seize the patient belongings bag based upon three facts he gathered after returning to the hospital: that Miller was “missing,” that a
¶26 Accordingly, the only facts in the record that could establish probable cause for the seizure are those that were undisputedly known to Officer Kovacs at the time he arrived at the hospital: that Abbott was exhibiting signs of a mental breakdown requiring medical attention, and that a nurse believed there were suspicious injuries and suspicious spots on Abbott‘s clothing. The State makes no argument that these facts, without more, suffice to give Officer Kovacs probable cause to seize the patient belongings bag.
¶27 We conclude that the State has failed to meet its burden to show by clear and convincing evidence that the plain view exception applies. Based on the limited record made before the circuit court, the contents of the patient belongings bag should have been suppressed. We address the proper remedy for the circuit court‘s failure to suppress this evidence in Section III below.
II. Fifth Amendment Challenge to Custodial Statements
¶28 We next consider Abbott‘s argument that the statements he made during the February 1 interview should be suppressed because he invoked his right to counsel. Abbott acknowledges that he did not make any unequivocal statement asking for an attorney, but he appears to argue that no such statement was needed to invoke the right to counsel since officers should have understood that he “did not have all his faculties” and was “not capable of asserting his right to an attorney.”
¶29 For purposes of understanding our resolution of this argument, it is essential to distinguish between, on the one hand, a valid waiver of Miranda rights, and, on the other hand, a later invocation of those rights. This distinction is important because the circuit court concluded that Abbott voluntarily waived his Miranda rights, and Abbott does not challenge that conclusion. Instead, Abbott argues that officers should have understood that he invoked his right to an attorney at some point during the custodial interrogation, and that after that point all questioning should have ceased.
¶30 The Fifth Amendment guarantees certain rights to persons subject to custodial interrogation.
¶31 A suspect may choose to waive these rights, and if so, the waiver need not be explicit. North Carolina v. Butler, 441 U.S. 369, 375-76 (1979). “The State establishes an ‘implicit waiver’ when it demonstrates that ‘a Miranda warning was given and that it was understood by the accused’ and that the accused then went on to make an uncoerced statement.” State v. Hampton, 2010 WI App 169, ¶ 32, 330 Wis. 2d 531, 793 N.W.2d 901 (quoting Berguis v. Thompkins, 560 U.S. 370, 384 (2010)). However, the State must always show that the waiver was knowing and voluntary. Butler, 441 U.S. at 373. The suspect‘s mental condition is a “significant factor” in this analysis. Colorado v. Connelly, 479 U.S. 157, 164, 169-70 (1986).
¶32 Separately, even after a suspect waives his Miranda rights, the suspect may later decide to invoke the right to remain silent or the right to have counsel present. Miranda, 384 U.S. at 473-74. To invoke either right, a suspect must do so “unambiguously.” Thompkins, 560 U.S. at 384. To invoke the right to counsel, a suspect must make an “unambiguous [and] unequivocal request for counsel ....” Davis v. United States, 512 U.S. 452, 462 (1994). If “a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning.” Id. at 459. However, once a suspect unambiguously invokes the right to counsel, all uncounseled questioning must cease. See State v. Stevens, 2012 WI 97, ¶ 48, 343 Wis. 2d 157, 822 N.W.2d 79.
¶33 Having explained the applicable law, we now more fully describe Abbott‘s February 1 custodial interrogation. After Abbott‘s arrest, officers read him his Miranda rights, and Abbott indicated he understood them. The officers then repeatedly asked Abbott if he would answer questions without an attorney present. Abbott‘s responses were generally ambiguous, and included statements such as “I don‘t want to get in trouble with [my attorney],” “Ask [my attorney] if it‘s okay,” and “[my attorney] said to have him here.” The officers did not cease uncounseled questioning.
¶34 The circuit court concluded that Abbott understood his rights and that he knowingly and voluntarily waived them, and as noted above Abbott does not appeal that determination. The court also concluded that Abbot did not unambiguously invoke his right to counsel until near the end of the interrogation, when he said, “I want [my attorney] to be here,” and it suppressed statements made after that point.
¶35 On appeal, Abbott argues that he actually invoked his right to counsel at an earlier point, and therefore questioning should have ceased earlier. However, Abbott does not specifically identify when he invoked his right to counsel, nor does he point to any specific statement he made to the officers,9 much less the unequivocal
¶36 Abbott‘s argument is not consistent with the law. As explained above, a suspect‘s personal characteristics can be relevant to whether they knowingly and voluntarily waived their Miranda rights, but Abbott does not point us to any law suggesting that a suspect‘s apparent mental state can relax the requirement that the right to counsel be invoked with an unambiguous and unequivocal statement.10 Abbott‘s proposition is contrary to Davis, which explains that the right to counsel must be invoked unambiguously even though this rule “might disadvantage some suspects who because of fear, intimidation, lack of linguistic skills, or a variety of other reasons—will not clearly articulate their right to counsel although they actually want to have a lawyer present.” 512 U.S. at 460. For these reasons, we conclude that the circuit court did not err when it declined to suppress Abbott‘s earlier statements from the custodial interrogation.
III. Harmless Error
¶37 We have concluded that the circuit court properly denied the motions to suppress Abbott‘s sweatshirts and earlier statements from the custodial interrogation, but that the circuit court should have granted Abbott‘s motion to suppress the patient belongings bag. We now turn to the parties’ arguments about the appropriate remedy.
¶38 For more than two decades, Wisconsin courts have consistently applied the harmless error test in cases like this, where a defendant enters a guilty plea11 and then successfully appeals the circuit court‘s denial of a motion to suppress evidence. See State v. Armstrong, 223 Wis. 2d 331, 368-71, 588 N.W.2d 606, opinion modified on denial of reconsideration, 225 Wis. 2d 121, 591 N.W.2d 604 (1999); see also State v. Rockette, 2005 WI App 205, ¶¶ 26-27, 287 Wis. 2d 257, 704 N.W.2d 382; State v. Semrau, 2000 WI App 54, ¶ 22, 233 Wis. 2d 508, 608 N.W.2d 376. Even though the law on this issue has been settled for years, the State urges us to “clarify” the
¶39 To understand our reasons for rejecting the State‘s argument that the manifest injustice standard should apply, it is helpful to understand the relationship between that standard and what we refer to as the “guilty plea waiver rule.” Pursuant to the guilty plea waiver rule, a defendant who pleads guilty waives the right to raise almost all claims of constitutional error on appeal. See State v. Riekkoff, 112 Wis. 2d 119, 123-25, 332 N.W.2d 744 (1983). Under most circumstances, a defendant may not withdraw a guilty plea after sentencing unless the defendant proves by clear and convincing evidence that plea withdraw is required to correct a “manifest injustice.” Hatcher v. State, 83 Wis. 2d 559, 564, 266 N.W.2d 320 (1978). The manifest injustice standard sets a high bar for overcoming waiver.
¶40 There is one statutory exception to the guilty plea waiver rule. Under
¶41 Prior to 1999, a defendant who pleaded to charges and then prevailed in a
¶42 The State asserts that there is “inconsistent” case law on whether the manifest injustice or the harmless error test applies, and it urges us to follow the Wisconsin Supreme Court‘s “most recent pronouncement” on this subject. But the State cites only one case in support of its assertion that the case law is inconsistent, and that case is inapt. In State v. Taylor, 2013 WI 34, ¶¶ 43-47, 347 Wis. 2d 30, 829 N.W.2d 482, the Wisconsin Supreme Court determined that the manifest injustice standard applies when a defendant seeks to withdraw a guilty plea based on an error in the plea colloquy. Taylor is inapt because plea colloquy error is not governed by
¶43 We could end our analysis here, since we are bound by Wisconsin Supreme Court precedent to apply the harmless error test. See Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997). We nevertheless address the State‘s two remaining arguments
¶44 First, the State argues that the language of
¶45 The purpose of § 971.31(10) is to promote judicial economy by offering defendants an incentive to plead guilty in cases where a crucial issue is “whether the order denying a motion to suppress was proper.” Riekkoff, 112 Wis. 2d at 125.12 The statute serves this purpose because defendants are more likely to plead guilty when they know that, if it is determined on appeal that the circuit court erroneously failed to suppress evidence, their conviction will be reversed and they are entitled to a trial unless the State proves that the error was harmless. But if the manifest injustice standard applied, the burden would instead be shifted to defendants. Defendants would have to prove the very same standard that applies in plea withdrawal situations not governed by § 971.31(10)—that the erroneous failure to suppress evidence caused a “manifest injustice.” And on direct appeal, defendants would not even have an opportunity for an evidentiary hearing, where they could introduce evidence necessary to satisfy their burden of proof.13
¶46 For these reasons,
¶47 Second, the State argues that we should adopt the manifest injustice test because Wisconsin courts have not always consistently articulated the standard for harmless error. Compare Armstrong, 223 Wis. 2d at 369 (articulating the
¶48 In summary, the State offers no compelling reason to depart from precedent and require a defendant to show a manifest injustice to prevail in a
¶49 We now turn to the harmless error test to determine whether Abbott‘s conviction should be reversed. In a harmless error analysis, a court may consider, among other things, “whether the erroneously admitted evidence duplicates untainted evidence.” Rockette, 287 Wis. 2d 257, ¶ 26 (quoting Hale, 277 Wis. 2d 593, ¶ 61); see also Armstrong, 223 Wis. 2d at 370 (concluding that failure to suppress evidence “identical to other admissible evidence” was harmless error).
¶50 The State argues that evidence gathered from the patient belongings bag does little more than duplicate untainted evidence, and we agree. The patient belongings bag contained Abbott‘s shoes and socks, on which Miller‘s blood was found, but Miller‘s blood was also found on untainted evidence—it was on Abbott‘s sweatshirts (as well as on his pickup truck.) Thus, even if the evidence gathered from the patient belongings bag were suppressed, the State would still have been able show that Miller‘s blood was on Abbott‘s clothing when he returned home on January 3, 2011. Abbott does not rebut this conclusion with any persuasive argument that suppression of the evidence from the patient belongings bag would have changed his decision to enter the Alford plea. Accordingly, we conclude that the State has met its burden to prove that the circuit court‘s failure to suppress the clothing from the bag was harmless.
CONCLUSION
¶51 For all of these reasons, we conclude that the circuit court did not err by denying Abbott‘s motions to suppress evidence gathered from his sweatshirts or statements made during his February 1 interrogation. We also conclude that the State did not meet its burden to prove that the seizure of the patient belongings bag falls within an exception to the warrant requirement. Nevertheless we conclude that the circuit court‘s failure to suppress this evidence was harmless. Accordingly, we affirm.
By the Court.—Judgment affirmed.