State v. Brian I. Harris

• Court: Wisconsin Supreme Court
• Decided: April 7, 2017
• Docket: 2014AP001767-CR
• Status: Published

Opinion

2017 WI 31

SUPREME COURT OF WISCONSIN CASE NO.: 2014AP1767-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Brian I. Harris, Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS 366 Wis. 2d 777, 874 N.W.2d 602 (Ct. App. 2016 – Published) PDC No.: 2016 WI App 2

OPINION FILED: April 7, 2017 SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 18, 2016

SOURCE OF APPEAL: COURT: Circuit COUNTY: Kenosha JUDGE: Michael S. Wilk

JUSTICES: CONCURRED: ZIEGLER, J. joined by GABLEMAN, J. concurs (opinion filed). DISSENTED: ABRAHAMSON, J. dissents (opinion filed). NOT PARTICIPATING:

ATTORNEYS: For the defendants-appellant-petitioners, there was a brief by Kathleen M. Quinn and Kathleen M Quinn Attorney at Law, Milwaukee, and oral argument by Kathleen M. Quinn.

For the plaintiff-respondent the cause was argued by David H. Perlman, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general. 2017 WI 31 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2014AP1767-CR (L.C. No. 2011CF797)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. APR 7, 2017 Brian I. Harris, Diane M. Fremgen Defendant-Appellant-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 DANIEL KELLY, J. The question before the court is whether the State compelled Petitioner, Brian Harris, to be a

witness against himself in violation of the Fifth Amendment to

the United States Constitution and article I, section 8 of the

Wisconsin Constitution.1

1 This is a review of a published decision of the court of appeals, State v. Harris, 2016 WI App 2, 366 Wis. 2d 777, 874 N.W.2d 602, affirming the circuit court's judgment of conviction, Hon. S. Michael Wilk presiding. No. 2014AP1767-CR

I. BACKGROUND

¶2 In the early morning hours of August 13, 2011, a

Kenosha resident awoke to loud, metallic-sounding noises coming

from an adjacent residence. When the noises persisted for

several minutes, a neighbor called the police.

¶3 Officer Justin Niebuhr of the Kenosha Police

Department responded and met with the caller. Both could hear

the sound of metal clanging coming from inside the neighboring

residence. Officer Niebuhr approached the front door of the

supposedly-vacant residence and found it locked, and upon

looking through a window saw only darkness. In the process of

examining the exterior of the residence, Officer Niebuhr noticed

the screen was off the unlatched kitchen window.

¶4 After backup arrived, Officers Niebuhr and Arturo

Gonzalez entered the residence and traced the noises to the

basement. Two additional officers responded to the scene and

"cleared" the main and upstairs floors of the residence.

Officers Niebuhr and Gonzalez went down to the basement where they found Mr. Harris secreted in a crawl space under the

stairs. Strewn about him were copper piping, a flashlight with

a red lens, and a duffle bag containing a saw and replacement

blades, a bolt-cutter type instrument, and some crowbars. Mr.

Harris' outfit included a pair of black work gloves. The

officers took Mr. Harris into custody and eventually placed him

in Officer Niebuhr's squad car.

¶5 While still in the squad car in front of the residence, Mr. Harris commenced an unprompted narrative of his 2 No. 2014AP1767-CR

criminal activities. Mr. Harris told Office Niebuhr he had been

homeless for approximately seven years, he frequently went into

vacant homes to sleep, and he often committed misdemeanor crimes

to get items to sell. He said this was his plan for the copper

piping. Neither Officer Niebuhr, nor any of the other officers

present, were questioning Mr. Harris when he made these

statements. Officer Niebuhr confirmed he neither said nor did

anything of a threatening nature to prise out Mr. Harris'

statements, nor did he promise Mr. Harris anything in exchange

for them. Officer Niebuhr did not give Mr. Harris a Miranda2

warning before he made these statements.

¶6 Later that morning, Detective Chad Buchanan of the

Kenosha Police Department went to the Kenosha County Jail to

interview Mr. Harris. He met Mr. Harris at about 9:00 a.m. in

the common area, just outside the interview rooms. What

occurred next is not entirely clear, but Detective Buchanan

asked a question to the effect of "Would you like to give me a

2 Miranda v. Arizona, 384 U.S. 436 (1966).

3 No. 2014AP1767-CR

statement?"3 Mr. Harris responded: "They caught me man, I got

nothing else to say." Detective Buchanan did not inform Mr.

Harris of his Miranda rights prior to speaking with him.

¶7 The State charged Mr. Harris with burglary, possession

of burglarious tools, criminal damage to property, and criminal

trespass, each as a repeater. Mr. Harris brought a suppression

motion to prevent the State from using his "they caught me"

statement at trial.4 The circuit court found that "Detective

Buchanan's intent was to ask the defendant to come to the

interview rooms for an interview and . . . the question was,

would you like to give a statement?" The circuit court said the

expected response to this question would have been "yes, I'll

give a statement or, no, I won't give a statement."

Consequently, the circuit court found no violation of Mr.

Harris's right to be free from self-incrimination, and so denied

the suppression motion. The State used his statement at trial,

3 At the suppression hearing, Detective Buchanan said he asked Mr. Harris "if he would like to come with me to the detective bureau to be interviewed." At trial, Detective Buchanan testified that he "asked the defendant if he would like to give me a statement . . . ." Although not entirely clear, it appears Mr. Harris bases his argument on Detective Buchanan’s trial testimony. This makes sense——between the two characterizations, the trial testimony describes a question closer to the Miranda line than the question described at the suppression hearing. Consequently, our analysis will focus on the formulation presented at trial. If that passes constitutional muster, then so will the other. 4 The suppression motion encompassed other statements as well, but the "they caught me" statement is the only one Mr. Harris presented for our review.

4 No. 2014AP1767-CR

following which the jury found Mr. Harris guilty on all four

counts.

¶8 Mr. Harris timely appealed his conviction. In a

published decision, the court of appeals affirmed. It noted the

confusion over the precise wording of the question that preceded

Mr. Harris's "they caught me" statement, but found it

unimportant to the outcome. The court of appeals concluded

that, whatever the exact wording, it was "not reasonably likely

to elicit an incriminating response; [and] thus, the

communication did not constitute interrogation and Miranda

warnings were not required."5

II. STANDARD OF REVIEW

¶9 We employ a two-step process in reviewing a circuit

court's denial of a motion to suppress. State v. Eason, 2001

WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625. First, we review

the circuit court's factual findings and uphold them unless they

are clearly erroneous. Id.6 Second, we apply constitutional

principles to those facts de novo, without deference to the courts initially considering the question, but benefitting from

their analyses. In re Commitment of Mark, 2006 WI 78, ¶12, 292

Wis. 2d 1, 718 N.W.2d 90 ("We also review, de novo, the

application of constitutional principles to established

5 Harris, 366 Wis. 2d 777, ¶25. 6 Notwithstanding the uncertainty over the exact wording of Detective Buchanan’s question, neither party argues that any of the circuit court’s factual findings were clearly erroneous. Consequently, we do not address this step of the review process.

5 No. 2014AP1767-CR

facts."); State v. Hansford, 219 Wis. 2d 226, 234, 580

N.W.2d 171 (1998) ("Although we review questions of law de novo,

we benefit from the analyses of the circuit court and the court

of appeals.").

III. DISCUSSION

¶10 Mr. Harris presents a single question for our

consideration: Whether the State compelled him to be a witness

against himself by using his answer to Detective Buchanan's

question at trial.7 A simple question like "Would you like to

give me a statement?" may seem an unlikely candidate for a

constitutional violation, but as our analysis here demonstrates,

we are unstinting in our protection of criminal defendants'

rights.

¶11 There is history behind the protection against self-

incrimination, history that reminds us of why that barrier is so

important. It is born of experience, and responds to the

dangers inherent in the inquisitorial method of questioning

suspects:

The maxim 'Nemo tenetur seipsum accusare,'[8] had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused

7 The Fifth Amendment to the United States Constitution provides that no "person . . . [shall] be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The Wisconsin Constitution article I, section 8 contains an analogous provision, which says that "No person . . . may be compelled in any criminal case to be a witness against himself or herself." 8 "No one is bound to accuse himself."

6 No. 2014AP1767-CR

persons, which [have] long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, [were] not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, . . . made the system so odious as to give rise to a demand for its total abolition. Brown v. Walker, 161 U.S. 591, 596—97 (1896).9 The ease with

which innocent questions can become inquisitorial requires that

this protection apply to criminal suspects whether they are

inside or outside of the courtroom: "[T]he privilege against

self-incrimination protects individuals not only from legal

compulsion to testify in a criminal courtroom but also from

'informal compulsion exerted by law-enforcement officers during

in-custody questioning.'" Pennsylvania v. Muniz, 496 U.S. 582,

589 (1990) (quoting Miranda v. Arizona, 384 U.S. 436, 461

(1966)). Thus, our constitutional protection against self-

9 Although this excerpt from Brown specifically addressed coerced confessions, instead of the broader right to remain silent (which we address here), its condemnation of the inquisitorial method served as part of the motivating rationale for the ubiquitous Miranda warnings. And its description of the inquisitorial method provides valuable insight as we consider what constitutes the "functional equivalent" of an interrogation.

7 No. 2014AP1767-CR

incrimination is called to duty whenever the State interrogates

a suspect in police custody. See Miranda, 384 U.S. 436; see

also State v. Armstrong, 223 Wis. 2d 331, ¶29, 588 N.W.2d 606

(1999).

¶12 This freedom from compelled self-incrimination is one

of the nation's "most cherished principles." Miranda, 384 U.S.

at 458. We are sufficiently solicitous of this protection that

we guard it by patrolling a generous buffer zone around the

central prohibition.

A. Procedural Requirements

¶13 The most important aspect of that buffer is the right

to remain silent while in police custody. We actualize the

right by requiring the State's agents, before conducting an in-

custody interrogation, to formally instruct the suspect of his

constitutional rights and then conduct themselves according to

how he elects to preserve or waive them. Thus, a suspect must

be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Miranda, 384 U.S. at 479.

¶14 This procedural safeguard arose out of an

understanding that custodial interrogations present a uniquely

intimidating atmosphere that can interfere with a suspect's

exercise of his rights: "The concern of the Court in Miranda

was that the 'interrogation environment' created by the interplay of interrogation and custody would 'subjugate the

8 No. 2014AP1767-CR

individual to the will of his examiner' and thereby undermine

the privilege against compulsory self-incrimination." Rhode

Island v. Innis, 446 U.S. 291, 299 (1980) (quoting Miranda, 384

U.S. at 457–58). Requiring this warning, and scrupulous

adherence to the suspect's decisions thereafter, give us

assurance that his decision to remain silent has not been

overborne. The consequence of failing to honor this safeguard

is loss of the evidence: "[U]nless and until such warnings and

waiver are demonstrated by the prosecution at trial, no evidence

obtained as a result of interrogation can be used against [a

suspect]." Miranda, 384 U.S. at 479.

¶15 There is no doubt Mr. Harris was in police custody

when Detective Buchanan asked whether he would like to make a

statement (he was in jail), so our inquiry focuses on whether

that question qualifies as an interrogation. As we discuss

below, custodial interrogation can take the form of either

express questioning or its functional equivalent.10 We will

analyze Detective Buchanan's question and Mr. Harris' response under each rubric. If either analysis reveals the question to

be an interrogation, then we must suppress Mr. Harris' response

because it was not preceded by a Miranda warning.

10 "[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

9 No. 2014AP1767-CR

B. Express Questioning

¶16 "Express questioning" does not encompass every inquiry

directed to the suspect. It covers only those questions

"designed to elicit incriminatory admissions." Pennsylvania v.

Muniz, 496 U.S. 582, 602 n.14 (1990). See also Doe v. U.S., 487

U.S. 201, 211 (1988) ("Unless some attempt is made to secure a

communication——written, oral or otherwise——upon which reliance

is to be placed as involving [the accused's] consciousness of

the facts and the operations of his mind in expressing it, the

demand made upon him is not a testimonial one." (quoting J.H.

Wigmore, 8 Wigmore on Evidence, § 2265 (4th ed. 1988))).

¶17 It is the nature of the information the question is

trying to reach, therefore, that determines whether it is

inquisitorial. If that information has no potential to

incriminate the suspect, the question requires no Miranda

warnings. Id. at 211 n.10 ("In order to be privileged, it is

not enough that the compelled communication is sought for its

content. The content itself must have testimonial significance.").

¶18 Detective Buchanan's question did not constitute

express questioning because it sought nothing that could be

potentially incriminating. Although his question was certainly

designed to obtain a response, the only information it sought

was whether Mr. Harris would like to make a statement; it did

not seek the statement itself. The response to such a question

is either "yes" or "no," and neither would have any testimonial significance whatsoever. Thus, Detective Buchanan's question 10 No. 2014AP1767-CR

did not constitute "express questioning" because the

constitutional privilege applies only to the search for

incriminating evidence.

C. Functional Equivalence

¶19 There are more ways than one to obtain incriminating

evidence from a suspect. Miranda addressed itself to the most

obvious——express questioning. But there are techniques of

persuasion that, in a custodial setting, can create the same

potential for self-incrimination even in the absence of an

express question. So the Innis Court expanded the prophylactic

buffer by applying Miranda's procedural safeguards to the

"functional equivalent" of an interrogation. Innis, 446 U.S. at

300–01. Such an equivalent includes "any words or actions on

the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect."

Id. at 301.

¶20 The test for determining what words or behavior might constitute the functional equivalent of an interrogation is not

as straightforward as it first appears. The test (as stated

above) inquires into what the police officer should know,

implying the test might be conducted from his perspective.

However, Innis requires that we account for the suspect's

perception of events for the specific purpose of broadening the

buffer: "This focus reflects the fact that the Miranda

safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, 11 No. 2014AP1767-CR

without regard to objective proof of the underlying intent of

the police." Id.

¶21 This means that, even where an officer's action had a

purpose other than interrogation, the action "must be viewed

from the suspect's perspective to determine whether such conduct

was reasonably likely to elicit a response." State v.

Cunningham, 144 Wis. 2d 272, 280, 423 N.W.2d 862 (1988).

Further, Innis noted that the police may need to be mindful of

the ease with which a given suspect might be persuaded to make

an incriminating statement: "Any knowledge the police may have

had concerning the unusual susceptibility of a defendant to a

particular form of persuasion might be an important factor in

determining whether the police should have known that their

words or actions were reasonably likely to elicit an

incriminating response from the suspect." Innis, 446 U.S. at

302 n.8.

¶22 In Wisconsin, we implement the "functional

equivalency" standard by positing a reasonable third-person observer and inquiring into how such a person would expect the

suspect to react to the officer's words and actions:

[I]f an objective observer (with the same knowledge of the suspect as the police officer) could, on the sole basis of hearing the officer's remarks or observing the officer's conduct, conclude that the officer's conduct or words would be likely to elicit an incriminating response, that is, could reasonably have had the force of a question on the suspect, then the conduct or words would constitute interrogation.

12 No. 2014AP1767-CR

Cunningham, 144 Wis. 2d at 278–79. This test is objective with

respect to each of the participants in the interaction. That is

to say, we do not consider what any of the participants actually

intended or understood. We consider only what the objective

third-party observer would conclude from the available

information.

¶23 In determining whether Detective Buchanan's dialogue

with Mr. Harris is the functional equivalent of an

interrogation, we consider more than just the bare words with

which he formed his question. We must reconstruct——as near to

verisimilitude as possible——the entire context within which the

dialogue took place. Then, as described above, we ask whether a

reasonable observer would conclude that the suspect in the

vignette would understand the officer's words and actions as

reasonably likely to elicit an incriminating response.

¶24 Here is what we know about the circumstances in which

Detective Buchanan had his brief conversation with Mr. Harris.

In the very early hours of a morning in 2011, the police found Mr. Harris secreted away in the basement of a house in which he

did not belong, with copper piping and burglarious tools arrayed

about him. After taking him into custody, he was placed in the

back seat of Officer Niebuhr's patrol car, whereupon he

commenced divulging a great deal of information, much of it

incriminating. For example, he said he had been homeless for

seven years and frequently sleeps in vacant houses. He also

said he often commits misdemeanor crimes to obtain things to sell "to get by," and that is what he intended to do with the 13 No. 2014AP1767-CR

copper piping.

¶25 Mr. Harris offered all of this information without

prompting. Officer Niebuhr made no threats or promises to

obtain the statements, and in fact asked no questions of Mr.

Harris at all (while he was in the patrol car) before he

provided this information. Officer Niebuhr said Mr. Harris did

not appear to be intoxicated, overly tired, or otherwise not in

control of his faculties. He also appeared to be clean and

decently attired.

¶26 The police then transported Mr. Harris to the Kenosha

County Jail. Later in the morning, at about 9:00 a.m.,

Detective Buchanan (who had not been present for Mr. Harris'

arrest), went to the jail to interview him. A guard brought Mr.

Harris (who was not handcuffed) to the main floor of the jail.

Detective Buchanan met him in a common area just outside the

interview rooms. He did not smell alcohol on Mr. Harris or

observe any behavior that would indicate he was intoxicated.

Detective Buchanan then asked Mr. Harris the question at issue in this case.

¶27 As all such scenarios must be, this vignette is fact-

bound, which does not make it especially amenable to fixed rules

of interpretation. However, past cases help sketch the boundary

between "functional equivalents of interrogation" and

constitutionally-innocent questions and acts. We collected a

sampling of such cases in State v. Hambly, 2008 WI 10, 307 Wis.

2d 98, 745 N.W.2d 48, some of which we address below. ¶28 Our evaluation of Detective Buchanan's question 14 No. 2014AP1767-CR

accounts for the following principles useful in identifying the

"functional equivalent" of an interrogation. As we consider and

apply those principles, we keep firmly in mind that the ultimate

purpose of our analysis is to protect against coerced

confessions by respecting a suspect’s decision to remain silent:

"In deciding whether particular police conduct is interrogation,

we must remember the purpose behind our decisions in Miranda and

Edwards [v. Arizona, 451 U.S. 477 (1981)]: preventing government

officials from using the coercive nature of confinement to

extract confessions that would not be given in an unrestrained

environment." Arizona v. Mauro, 481 U.S. 520, 529–30 (1987).

Although the effect of that coercion may differ from suspect to

suspect, a specific individual's special susceptibility enters

the equation only if the State's agents should know of it. See,

e.g., Innis, 446 U.S. at 303 n.10 (the "subtle compulsion"

associated with an unknowing appeal to the suspect's conscience

is not an interrogation).

¶29 From our cases addressing police statements made to a suspect, as opposed to questions asked of him, we confirm that

our primary point of focus is on the reasonably likely effect of

the officer's words on the suspect, not their grammatical

format. Seemingly innocuous statements, when freighted with

subtext or inquisitorial design, can become an interrogation.

Thus, a dialogue with a suspect can constitute an interrogation

even when law enforcement officers ask no questions. Hambly,

307 Wis. 2d 98, ¶46 ("A law enforcement officer may thus be viewed as interrogating a suspect by a statement, without asking 15 No. 2014AP1767-CR

a single question, if the law enforcement officer's conduct or

speech could have had the force of a question on the suspect.").

¶30 However, to rise to the level of an interrogation, the

officer's statements (or, in this case, question) must exert a

compulsive force on the suspect: "Interrogation must reflect a

measure of compulsion above and beyond that inherent in custody

itself." Id. (quoting Innis, 446 U.S. at 300) (internal marks

omitted). For example, an officer's cryptic comment about

information only the perpetrator of the crime would recognize

may be considered functionally equivalent to an interrogation

because of the effect the comment causes. State v. Bond, 2000

WI App 118, 237 Wis. 2d 633, 614 N.W.2d 552. Similarly, giving

unresponsive answers to questions posed by a suspect with the

intent of provoking an incriminating response, and using

interrogation techniques during the conversation, can serve as

the functional equivalent of an interrogation. Hambly, 307

Wis. 2d 98, ¶¶63-65 (citing Hill v. United States, 858 A.2d 435

(D.C. Ct. App. 2004) (finding that an officer telling a suspect that "he told us what happened" was unresponsive to the

defendant’s question regarding another person in custody and,

when coupled with other common interrogation techniques designed

to elicit a response, met the functional equivalency test)).

¶31 But police interactions with a suspect do not amount

to interrogations so long as they are not reasonably likely to

elicit an incriminating response. That is why law enforcement

officials may make context-appropriate, and accurate, comments to a suspect without running afoul of Miranda and Innis. They 16 No. 2014AP1767-CR

can, for example, provide information responsive to questions

posed by defendants. Hambly, 307 Wis. 2d 98, ¶¶65–66 (finding

no functional equivalence where defendant made an incriminating

statement after the police officer, prior to giving him the

Miranda warnings, informed the defendant of why he was under

arrest). Similarly, if a suspect volunteers incriminating

information following an officer's non-leading, direct responses

to the suspect's questions about possible charges against him,

there has been no functional equivalent of an interrogation.

State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656 N.W.2d 503

(finding that "an objective observer would not, on the sole

basis of hearing [defendant's] words and observing his conduct,

conclude that [an officer's] answers to [defendant's] direct

questions about the evidence against him would be likely to

elicit an incriminating response . . . ."). Nor are non-

editorialized statements of fact the functional equivalent of an

interrogation. Easley v. Frey, 433 F.3d 969 (7th Cir. 2006)

(finding no interrogation when suspect confessed after being accurately informed that someone had implicated him in a crime,

and that he could be subject to the death-penalty if convicted).

¶32 Finally, we must also pay attention to the atmosphere

in which the suspect incriminates himself. As Innis observed,

the Miranda Court was concerned with the "interrogation

environment" created by custodial questioning. Innis, 446 U.S.

at 299. A police officer's quotidian question posed to a person

strolling in a park may carry an objectively different import if growled at a manacled suspect held incommunicado for an extended 17 No. 2014AP1767-CR

period of time in a stark interview room.

¶33 With all of this in mind, we have no difficulty

finding that Detective Buchanan's question was not the

functional equivalent of an interrogation under the Cunningham

formulation. There is no indication Detective Buchanan intended

his question to elicit an incriminating statement, nor is there

anything to suggest that asking a suspect whether he would like

to make a statement is a police practice designed to

surreptitiously cause the suspect to divulge incriminating

evidence.

¶34 Further, the context in which he asked the question

conveyed a non-inquisitorial purpose. Mr. Harris and Detective

Buchanan were standing in a common area outside the interview

rooms. A reasonable observer would conclude that Detective

Buchanan's question was diagnostic in nature: Should he conduct

Mr. Harris into the interview room where he would then give his

statement, or should he instead return Mr. Harris to his cell?11

Incidentally, Mr. Harris' response strongly suggests this is how he understood it, too. He said: "They caught me man, I got

nothing else to say." The latter part of his statement

indicates he believed there was no point in proceeding to the

interview room, and so he gave what amounted to a functional

"no" to the Detective's invitation. The initial clause of his

11 By "diagnostic" we mean a question that seeks information useful for a State agent’s functional (as opposed to inquisitorial) interaction with a suspect.

18 No. 2014AP1767-CR

statement simply (and, perhaps, unwisely) explained why he was

declining the invitation. But even if he subjectively

understood it otherwise, a reasonable observer would not expect

this question, presented in this setting, to convey to Mr.

Harris that he was being asked to immediately provide

incriminating information.12

¶35 This diagnostic question aligns well with situations

in which we find no constitutional violation when police convey

non-editorial statements of fact to suspects, or provide

accurate responses to their questions. In neither of those

circumstances is there an inquisitorial subtext to the

communication. That is true here as well. Detective Buchanan's

Mr. Harris urges us to follow the conclusion reached in 12

State v. Hebert, 82 P.3d 470 (Kan. 2004). But Messrs. Harris and Hebert's situations are sufficiently dissimilar that the Kansas Supreme Court's resolution does not counsel a different result here. There, Special Agent Cordts, before giving the Miranda warnings, said: Talk to you a little bit and get both sides of the story. I've only heard one side of the story and, obviously, there's always two sides of a story here and I'd like in your words, your input and tell me what happened and explain in your words and coming from you. Would you like the opportunity to tell me your side of the story? Id. at 480. Mr. Hebert then started divulging incriminating information. Agent Cordts' question is similar to that of Detective Buchanan. But unlike here, it did not exist in isolation. The preamble to Agent Cordts' question conveyed the idea that he wanted Mr. Hebert to start talking. Agent Cordts' statement and question, taken together, was tantamount to an instruction to give a statement. Thus, Hebert is substantively distinct from Detective Buchanan's isolated diagnostic question, and so can give Mr. Harris no support.

19 No. 2014AP1767-CR

question was not an excerpt from an extended conversation, nor

was there any indication Detective Buchanan was pressuring Mr.

Harris or menacing him. There was no trickery, no good cop/bad

cop routine, no attempt to make him contradict prior statements,

and no evidence of any other discernible form of interrogation

technique.13 Thus, there was no proscribed inquisitorial element

to the question. Sometimes, an inquiry calling for a "yes" or

"no" answer really does seek nothing more than that.

¶36 Finally, there is the question of what the police

knew, or should have known, about Mr. Harris and any particular

susceptibility he may have had to a particular form of

persuasion. Innis, 446 U.S. at 302 n.8. This question need not

detain us long because the record does not indicate that

Detective Buchanan exercised any form of persuasion, either

expressly or implicitly, when he asked if Mr. Harris wished to

make a statement. We will, however, briefly address Mr. Harris'

suggestion that his particular vulnerability to police

questioning made Detective Buchanan's question an interrogation. ¶37 Mr. Harris says his "emotional state was one in which

he was especially inclined to explain himself to law enforcement

with statements that a prosecutor would want to introduce at

trial." He says Detective Buchanan, having read the police

13 We list these techniques only to identify ways in which police conduct may become inquisitorial, thereby serving as the functional equivalent of an interrogation. We are not suggesting there is anything amiss with these tactics when employed in the proper context.

20 No. 2014AP1767-CR

reports before meeting him outside of the interview rooms, would

have known this. He does not say what that emotional state was

or how Detective Buchanan was supposed to infer from the

report's recounting of events what his emotional state had been.

Nor does he say what his emotional state at the time of arrest

might tell Detective Buchanan about his emotional state when he

met him outside the interview rooms. Because so many factors

and inputs affect one's state of mind, emotional lability is to

be expected. So a person's emotional condition from hours past

is a poor predictor of what it might be presently.

¶38 Mr. Harris points out, correctly, that the police

reports reveal he provided several unprompted incriminating

statements to Officer Niebuhr after he was arrested. He says

this should have warned Detective Buchanan that his question

would likely result in incriminating statements. Mr. Harris'

conclusion, however, does not logically follow from his premise.

One may deduce from the report that Mr. Harris may be

loquacious, but little more. It says nothing about how he responds to questioning——his statements were, after all,

unprompted. And neither Officer Niebuhr nor any other State

agent had exercised any form of persuasion on Mr. Harris before

he implicated himself. Thus, his interaction with Officer

Niebuhr could not instruct Detective Buchanan on how particular

forms of persuasion might affect him. Whatever reason Mr.

Harris had for volunteering his statements to Officer Niebuhr,

his behavior did not indicate he would be particularly prone to incriminating himself in response to Detective Buchanan's 21 No. 2014AP1767-CR

question.

¶39 Our analysis of this factor would be incomplete if we

did not account for both sides of the "susceptibility" ledger.

That is to say, we should consider not just what might make him

more susceptible to police tactics, but also what would be

likely to make him less susceptible. This was not Mr. Harris'

first encounter with police questioning. Nor was it his first

time being arrested or convicted. In fact, he was charged in

this case as a repeat offender. Repeat, indeed——the record

discloses that this conviction makes it an even dozen for Mr.

Harris. His familiarity with the criminal justice system does

not, of course, diminish the State's obligation to scrupulously

follow constitutional mandates. But our project at this point

of the analysis is to discern, as accurately as possible,

whether Detective Buchanan's question would be reasonably likely

to elicit an incriminating response from Mr. Harris. It is

reasonable to believe that a person’s twelfth time through the

criminal justice system will be less intimidating than the first. Inasmuch as Mr. Harris has not identified any

characteristic making him particularly susceptible to law

enforcement officers' persuasion tactics, we will not infer one

for him just because he is loquacious.

¶40 We conclude that there was no functional equivalent of

an interrogation because, considered in the context of all the

circumstances described above, there was no reasonably causal

relationship between the State's words or actions and Mr. Harris' incriminating statement. A question such as "Would you 22 No. 2014AP1767-CR

like to give me a statement?", when posed in the situation

obtaining here, would not logically cause a suspect to say

something incriminating. It is true that Mr. Harris' "they

caught me" statement followed Detective Buchanan's inquiry, but

only post hoc ergo propter hoc reasoning can make the question

the cause of the answer’s incriminating substance. We will not

entertain that logical error.

¶41 Mr. Harris brings to our attention a Hawai'i case with

a prescription that would effectively eliminate the need for our

"functional equivalency" analysis here. State v. Eli, 273

P.3d 1196 (Haw. 2012). In that case, as here, a police officer

asked the suspect if he would like to make a statement. Mr. Eli

said he would, without saying anything incriminating. The

officer then gave him the Miranda warnings, only after which Mr.

Eli incriminated himself. Nevertheless, Hawai'i's Supreme Court

said the officer's diagnostic question compelled Mr. Eli to

serve as a witness against himself.

¶42 The Eli court concluded that a pre-Miranda agreement to give a statement has an effect so coercive that the Miranda

warnings cannot counteract it. So the court said the Miranda

warnings must precede any inquiry into whether the suspect would

like to speak. The reasoning appears to be that, once a suspect

agrees to give a statement, his will is so completely overthrown

that immediately instructing him he need not speak still leaves

him unable to remain silent. Why such an innocuous question

would have such a catastrophic effect, and why a suspect would be affected more by the remote question than the immediate 23 No. 2014AP1767-CR

instruction, is unclear. We do not, as a rule, assume that a

suspect is so fragile that a diagnostic question such as the one

posed by Detective Buchanan can shatter his will so thoroughly

that it leaves him beyond the rehabilitative ministrations of

the Miranda warnings. In point of fact, our jurisprudence is to

the contrary.14

¶43 Our conclusion mirrors a recent United States Court of

Appeals opinion (more recent than Eli) treating an almost

identical dialogue. United States v. Wallace, 753 F.3d 671 (7th

Cir. 2014). There, agents of the Drug Enforcement Agency raided

Mr. Wallace's house, wherein they found large amounts of illegal

drugs. During the search, law enforcement officers had

marshalled the house's occupants into the front room, including

Mr. Wallace. The lead DEA agent approached Mr. Wallace and

asked: "[W]ould you mind stepping out to talk about this?" Id.

14 See, e.g., Oregon v. Elstad, 470 U.S. 298, 309 (1985) ("Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made."); State v. Armstrong, 223 Wis. 2d 331, 588 N.W.2d 606 (1999) (finding oral statements made before a Miranda warning inadmissible, but written statements made after Miranda warning admissible); Briggs v. State, 76 Wis. 2d 313, 251 N.W.2d 12 (1977) (finding that even where an initial statement made without Miranda warnings was inadmissible, subsequent statements given at a police station after Miranda warnings were admissible as they were the result of routine investigative procedures); State v. Loeffler, 60 Wis. 2d 556, 211 N.W.2d 1 (1973) (holding that statements given after Miranda warnings are admissible, even when the arrest that preceded the statements was constitutionally deficient).

24 No. 2014AP1767-CR

at 673. Mr. Wallace answered "I don't want to waste your time,

everything in there's mine." Id.

¶44 Messrs. Harris and Wallace occupy identical

constitutional ground. Both were in police custody. Both were

asked by law enforcement officers whether they would like to

discuss criminal activity. Both could have fully and accurately

answered the question with either a "yes" or a "no." And both

chose, instead, to respond with incriminating statements.

¶45 The Wallace court did not belabor the analysis. It

observed that "[t]he agent was just asking the defendant whether

he wanted to make a statement, to which the expected and proper

answer would have been yes or no." Id. at 674. So the court

found no constitutional violation: "That was not a statement

elicited by an interrogation, or even responsive to the agent's

question (which called for a yes or no answer, not a

confession), and so there was no violation of the Miranda rule."

Id. And although the court did not explicitly address the Innis

functional equivalency test, it relied on that case to support its conclusion.

¶46 The Fifth Amendment to the United States Constitution

and article I, section 8 of the Wisconsin Constitution prevent

the State’s agents from compelling a defendant to serve as a

witness against himself. But their protection is against the

State. They do not protect Mr. Harris from himself. Whether or

not it was wise for him to make the statement he did, he was not

coerced into forsaking his silence. Detective Buchanan’s question was not the "functional equivalent" of an 25 No. 2014AP1767-CR

interrogation, and so no Miranda warnings were necessary before

he asked it.15

V. CONCLUSION

¶47 Detective Buchanan's inquiry into whether Mr. Harris

would like to make a statement was diagnostic in nature, not

inquisitorial, and the circumstances confirm that it was not the

functional equivalent of an interrogation. Thus, Mr. Harris'

statement that "They caught me man, I got nothing else to say"

followed a voluntary decision to speak with Detective Buchanan.

¶48 Because the State did not compel Mr. Harris to be a

witness against himself, the judgment of the court of appeals is

affirmed.

By the Court.—The decision of the court of appeals is

15 The dissent is concerned that the uncertainty over the exact wording of Detective Buchanan’s question weakens our analysis. Of all the potential ways in which the parties say he may have phrased his question, we opted to consider the one most favorable to Mr. Harris. Indeed, it is the phrasing he adopted in his own briefs. So if there is weakness-inducing uncertainty here, neither logic nor the dissent identifies what it might be.

26 No. 2014AP1767-CR.akz

¶49 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join

the majority opinion so long as it is read to answer only the

issue presented and does not alter, change, or affect existing

case law concerning Miranda, 384 U.S. 436 (1966), or an issue

not present here, Goodchild (voluntariness). See State ex rel.

Goodchild v. Burke, 27 Wis. 2d 244, 262, 133 N.W.2d 753 (1965).

The question in this case is exceedingly narrow. "Miranda

warnings need only be administered to individuals who are

subjected to a custodial interrogation." State v. Armstrong,

223 Wis. 2d 331, 344-45, 588 N.W.2d 606 (1999), modified, 225

Wis. 2d 121, 591 N.W.2d 604 (1999) (per curiam). There is no

dispute that Harris was in custody at the time that Detective

Buchanan asked Harris whether he wanted to give a statement.

Thus, the only issue this court need resolve in the present case

is whether Detective Buchanan's question constitutes

"interrogation." Supreme Court case law, in turn, instructs

that "the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the

part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect."

Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnote

omitted). I agree with the court's determination that Detective

Buchanan's brief interaction with Harris does not fit this

definition and that the absence of a Miranda warning prior to that interaction does not, therefore, mandate reversal.

1 No. 2014AP1767-CR.akz

¶50 I write separately to clarify that the court's

additional writing beyond the narrow question to be answered

should not be read to change the law relating to Goodchild

inquiries, which are not at issue in this case. A Goodchild

analysis is distinct from a Miranda analysis: "In Miranda the

question is, was the confession or other statement obtained

under such circumstances of custodial interrogation as to

require the exclusion of the statement from evidence. In

Goodchild the question is, was the statement involuntary and

therefore should be excluded from evidence." Roney v. State, 44

Wis. 2d 522, 533, 171 N.W.2d 400 (1969).

¶51 When examining whether a declarant's statement was

voluntary, the question is "whether [the statement] was obtained

under such circumstances that it represents the uncoerced, free

will of the declarant or whether the circumstances deprived him

of the ability to make a rational choice." Id. at 532-33.

This court applies a totality of the circumstances standard to determine whether a statement was made voluntarily. We must balance the personal characteristics of the defendant, such as age, education, intelligence, physical or emotional condition, and prior experience with law enforcement, with the possible pressures that law enforcement could impose. Possible pressures to consider include the length of questioning, general conditions or circumstances in which the statement was taken, whether any excessive physical or psychological pressure was used, and whether any inducements, threats, methods, or strategies were utilized in order to elicit a statement from the defendant. State v. Davis, 2008 WI 71, ¶37, 310 Wis. 2d 583, 751 N.W.2d 332

(citations omitted).

2 No. 2014AP1767-CR.akz

¶52 To be clear, the question in this case is not whether

Harris' statement was voluntary; instead, the court has simply

been asked to determine whether Detective Buchanan interrogated

Harris. At times, the majority opinion could be read to deviate

from the relevant analysis and dabble with considerations

relevant to voluntariness, conflating the analyses. I join this

opinion only if it is read to answer the question of whether

this was interrogation, leaving untouched the body of case law

which otherwise addresses Miranda or Goodchild. Thus, I write

to emphasize that this opinion should not be read to otherwise

change the law.

¶53 For the foregoing reasons, I respectfully concur.

¶54 I am authorized to state that Justice MICHAEL J.

GABLEMAN joins this opinion.

3 No. 2014AP1767-CR.ssa

¶55 SHIRLEY S. ABRAHAMSON, J. (dissenting). A homeless

man, Brian Harris, was arrested late one night while he was

sleeping off a day's drinking in the basement of an abandoned

building.1 He was not given Miranda warnings.2

¶56 It is easy to use soaring rhetoric promising a court's

"unstinting" protection of a criminal defendant's constitutional

right not to be compelled to be a witness against himself,3 "one

of the nation's 'most cherished principles.'"4 It's harder to

make the promise ring true, however, when a court stints in

protecting the defendant's constitutional rights.

¶57 I begin by briefly setting the stage underlying

Harris's assertion that he was compelled to be a witness against

himself.

¶58 Both in the abandoned building's basement where Harris

was arrested and in his ride in the back of the squad car on his

1 At trial, Harris testified that he was too intoxicated to have any memory of the night's events other than glimpses of waking up in a mysterious basement with a police officer standing over him and arresting him. 2 Miranda v. Arizona, 384 U.S. 436 (1966). 3 Majority op., ¶¶10-14.

The Fifth Amendment to the United States Constitution provides that no "person . . . shall be compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V. This provision is made applicable to the states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1 (1964). 4 Majority op., ¶12.

1 No. 2014AP1767-CR.ssa

way to jail, Harris was loquacious. The talkative Harris told

the arresting officers that he had been homeless for

approximately seven years; that he frequently went into vacant

buildings to sleep; that he was going to take copper piping from

the building in which he was arrested and sell it for money for

food; that he often commits misdemeanor crimes to get items to

sell for food to get by; and that he was alone. Harris's

statements at his arrest that were admitted at trial are not at

issue in this court.5

¶59 In the morning, Harris was led by jail guards to an

area in the jail outside of an interview room. He met up with

Detective Buchanan. No one disputes that Harris was in custody.

No one disputes that the Detective asked Harris one question and

5 Citing State v. Wedgeworth, 100 Wis. 2d 514, 302 N.W.2d 810 (1981), the circuit court ruled that the basement and squad car statements "were voluntary, and they appear to me to be the product of free and unconstrained will, reflecting deliberate choice, not coerce [sic] of improper police pressure."

Harris appealed the circuit court's decision admitting these statements.

The court of appeals ruled that Harris' statements made in the basement were the result of custodial interrogation and should be suppressed. The court of appeals ruled, however, that Harris's statements in the squad car were not the result of interrogation and were sufficiently attenuated from the improper questioning in the basement. State v. Harris, 2016 WI App 2, ¶¶11-19, 366 Wis. 2d 777, 874 N.W.2d 602. Harris did not appeal this ruling and does not challenge before this court the admissibility of the statements in the basement or in the squad car.

2 No. 2014AP1767-CR.ssa

that Harris made an incriminating response before any Miranda

warnings were given.6

¶60 The incriminating response to the Detective was not

suppressed by the circuit court.7 It was introduced at trial

during the State's case-in-chief. Harris testified at trial,

and the jury found him guilty of all charges.8 Majority op., ¶7.

¶61 The admissibility of Harris's response at the jail is

at issue in the instant case. The relatively straightforward

legal issue presented is whether the Detective's question was

interrogation under the Fifth Amendment. The State must prove

by a preponderance of evidence that the Detective's question was

not an express question or the functional equivalent of an

express question for Fifth Amendment purposes.9 If the

Detective's question was either, Harris's response should have

been suppressed.

6 "[T]he words 'incriminating response' mean any response—— whether 'inculpatory or exculpatory——that the prosecution may seek to introduce at trial.'" State v. Cunningham, 144 Wis. 2d 272, 279, 423 N.W.2d 862 (1988) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 n.5 (1980)). 7 The court of appeals affirmed, holding that Harris was not subject to interrogation at the jail. Harris appealed the decision of the court of appeals. 8 Harris was charged (as a repeater) with burglary, possession of burglarious tools, criminal damage to property, and criminal trespass. The jury convicted him of all four counts. The circuit court withheld sentence on all counts and put Harris on probation for many months. 9 State v. Armstrong, 223 Wis. 2d 331, 345, 588 N.W.2d 606 (1999); State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656 N.W.2d 503.

¶62 My dissent takes two approaches, each considering the

case "upon its own facts," as the case law instructs.10

¶63 Under the first approach, I probe whether the majority

opinion can or should reach a decision when the record does not

reveal the precise words of the question the Detective posed to

Harris that prompted Harris to respond with an incriminating

statement.

¶64 Under the second approach, I take the same tack as the

majority opinion. I apply the rule of law set forth in State v.

Cunningham, 144 Wis. 2d 272, 423 N.W.2d 862 (1988), to the

facts. Majority op., ¶¶21-22. Although I use a Cunningham

analysis as does the majority opinion, I reach a different

result.

¶65 I avoid, however, addressing the majority opinion's

belabored account of the applicable law on custodial

interrogations. The legal principles set forth in the majority

opinion would be easier to understand and apply if the opinion

stayed with the Cunningham analysis. I

¶66 The first approach examines the record to reveal that

the court does not know the Detective's precise word choice for

his question to Harris. Exactly what did Detective Buchanan say

to Harris that brought forth Harris's incriminating statement?

We do not know. Indeed the case is awash with different

narratives about the Detective's question to Harris.

10 Cunningham, 144 Wis. 2d at 274.

4 No. 2014AP1767-CR.ssa

¶67 At the suppression hearing, the Detective testified as

follows about his question to Harris and Harris's response:

I went there [to the jail] with the intention of asking Mr. Harris if he would like to come with me to the detective bureau to be interviewed. I asked him if he would, and he stated to me something to the effect that they caught me, what's the point. ¶68 At trial, the Detective altered his testimony somewhat

from the motion hearing and testified as follows about his

question to Harris and Harris's response:

I reviewed the reports and went to jail. . . . I asked the defendant if he would like to give me a statement, and he said, they caught me man, I got nothing else to say. ¶69 The question was not recorded or videotaped and the

Detective's communication with Harris ended right then and

there.

¶70 The State's brief explains that "the altered

testimony" does not "materially alter the terrain" and for

"purposes of clarity and consistency" it "will go with Detective

Buchanan's testimony at trial as the operative fact."11

¶71 The majority opinion uses the words the circuit court

used: "Would you like to give a statement?" Majority op., ¶6.

¶72 With regard to this wording and to add to the

confusion about the words the Detective used to communicate with

Harris, the court of appeals concluded that the words "would you

like to give a statement" were "never used at trial." The court

of appeals assures the reader, however, that the circuit court's

11 Brief of Plaintiff-Respondent at 5 n.2.

5 No. 2014AP1767-CR.ssa

"mischaracterization" of the Detective's words did not affect

the decision of the court of appeals. The court of appeals

explained its position as follows:

The circuit court indicated in its ruling that Buchanan asked Harris "would you like to give a statement"——words Buchanan never used in his testimony, but which, in one sense reasonably could be considered a shorthand phrasing of Buchanan's testimony. Thus whether as a summary of Buchanan's actual testimony or as an erroneous recollection of it, the [circuit] court chose to use specific words Buchanan never actually spoke in his testimony.12 ¶73 Regardless of the precise words the Detective used,

the State argues, as might be expected, that the Detective's

question can reasonably be interpreted as an inquiry into

whether Harris wished to talk with the police, was answerable

with a "yes" or "no," and was not the functional equivalent of

an express question. In contrast, as might be expected, Harris

views the Detective's question as an express question or the

functional equivalent of an express question.

¶74 Cunningham directs a court to view the law enforcement

officer's communication from the suspect's perspective.13 It is

therefore important for a Miranda analysis to know the officer's

12 Harris, 366 Wis. 2d 777, ¶22. The court of appeals further explained that the circuit court's mischaracterization of the Detective's testimony was not drawn from "whole cloth" but was probably based on the prosecutor's and defense counsel's frequent restating of the Detective's communication in argument as "Would you like to give a statement?" Harris, 366 Wis. 2d 777, ¶22 n.2. 13 Cunningham, 144 Wis. 2d at 279 ("[T]he focus of the Innis test is primarily upon the perceptions of the suspect.") (internal quotation marks and citations omitted).

6 No. 2014AP1767-CR.ssa

exact language and the context in which the communication

occurred. A law enforcement officer's choice of words might

have material bearing on how a suspect will understand the

officer's communication. Wording can be dispositive.

¶75 Different words may evoke different responses from a

suspect, and the same words or substantially the same words may

evoke different responses from different justices and different

courts.14

¶76 Not knowing what the Detective said to Harris renders

the court's analysis in the instant case weak.

II

¶77 The second approach is the one the majority opinion

takes: Apply the rule of law set forth in State v. Cunningham,

144 Wis. 2d 272, 423 N.W.2d 862 (1988), to the record to

determine whether the communication at issue is, for Fifth

Amendment purposes, an express question or the functional

equivalent that must be prefaced by Miranda warnings. I do not

reach the same conclusion as the majority opinion. ¶78 Cunningham, 144 Wis. 2d at 278-79, sets forth the

objective observer test to determine whether a law enforcement

14 See, e.g., the discussions in the majority opinion and in the State's brief in State v. Hebert, 82 P.3d 470 (Kan. 2004), and State v. Eli, 273 P.3d 1196 (Hawai'i 2012).

7 No. 2014AP1767-CR.ssa

officer's conduct or words constitutes interrogation of a

suspect. Cunningham directs courts to consider the following:15

• The Miranda procedures are designed to protect a suspect in custodial situations where the compulsion to confess may be present. When a custodial suspect is interrogated by law enforcement officers without Miranda warnings, there is a presumption that any ensuing statements of the suspect resulting from the unwarned interrogation were compelled and must be suppressed.16

• The focus is primarily upon the perception of the suspect to determine whether the officer's words or conduct was reasonably likely to elicit a response.

• The test is not directed at the subjective intent of the officer.

• The officer's communication is judged from the standpoint of an objective observer who has the same knowledge of the suspect as the police officer.

• The objective observer would have the officer's knowledge of a suspect's unusual susceptibility to a particular form of persuasion.17 15 Cunningham's objective observer foreseeability test involves a review of many fact-intensive factors: the suspect's perspective, the officer's intent, the length of the discussion, the officer's knowledge of the suspect's susceptibility, the suspect's emotional state, and the purpose behind the Miranda and Innis decisions. Cunningham, 144 Wis. 2d at 278-80. 16 Miranda, 384 U.S. at 471–72; Dickerson v. United States, 530 U.S. 428, 435 (2000); Oregon v. Elstad, 470 U.S. 298, 309, 310, (1985) ("Miranda requires that the unwarned admission must be suppressed . . . ." This is true even though "[t]he failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced, but only that courts will presume [that] the privilege against compulsory self-incrimination has not been intelligently exercised."). 17 Confinement might increase a suspect's anxiety and make him more likely to seek discourse with others and more susceptible to talking. See 2 Wayne R. LaFave et al., Criminal Procedure § 6.7(c), at 877 (4th ed. 2015).

8 No. 2014AP1767-CR.ssa

• The objective observer would determine whether the officer's conduct or words play on the suspect's unusual susceptibility.

• The objective observer could, on the sole basis of hearing the officer's remarks or observing the officer's conduct, conclude that the officer's conduct or words would have had the force of a question on the suspect.

• The objective observer could, on the sole basis of hearing the officer's remarks or observing the officer's conduct, conclude that the officer's conduct or words would be likely to elicit an incriminating response.

• Officers cannot be held accountable for the unforeseeable results of their words or actions. ¶79 The determination of whether the facts of a case

satisfy the legal standard articulated in Cunningham is a

question of law that this court determines independently of the

circuit court.18 I therefore apply the objective observer test

to the facts as a matter of law.

¶80 Before meeting Harris in a jail hallway outside of an

interrogation room, the Detective had read the reports on Harris

and was familiar with Harris's conduct of the previous night. The Detective was well aware that Harris was a very garrulous

repeat offender who had already made numerous admissions to the

arresting officer.

¶81 Thus, the objective observer was on alert that Harris

was "unusually susceptible" to the coercive nature of police

custody and questioning. The objective observer would have to

18 Cunningham, 144 Wis. 2d at 282.

9 No. 2014AP1767-CR.ssa

determine whether the Detective's conduct or words played on the

suspect's unusual susceptibility.

¶82 The objective observer could, on the sole basis of

hearing the Detective's remarks or observing the Detective's

conduct, conclude that the Detective's conduct or words would

have had the force of a question on the suspect or would be

likely to elicit an incriminating response.19 The objective

observer could have concluded that Harris would have perceived

the Detective's communication as having the force of a Fifth

Amendment interrogation.20 See majority op., ¶34 & n.12.

¶83 Informing my conclusions is the principle that the

Fifth Amendment's right against self-incrimination calls on

courts to be "unstinting in our protection of criminal

defendants' rights." Majority op., ¶10.

¶84 Accordingly, I conclude in this close case that the

Detective's words constituted interrogation that should have

been (but was not) preceded by Miranda warnings and should have

19 See Innis, 446 U.S. at 302 n.8 (recognizing that an officer's knowledge "concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the [officer] should have known that [his] words or actions were reasonably likely to elicit an incriminating response"). 20 I would not introduce the idea of a "diagnostic" question into Miranda law.

10 No. 2014AP1767-CR.ssa

¶85 Finally, I conclude that, had my view prevailed,

Harris would be entitled to a remand for a Harrison/Anson

hearing to fully assess harmless error.21

¶86 For the reasons set forth, I dissent.

21 Harrison v. United States, 392 U.S. 219 (1968); State v. Anson, 2005 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776.

11 No. 2014AP1767-CR.ssa