State v. Brian L. Halverson

2021 WI 7, 953 N.W.2d 847, 395 Wis. 2d 385

• Court: Wisconsin Supreme Court
• Decided: January 29, 2021
• Docket: 2018AP000858-CR
• Status: Published

Opinion

2021 WI 7

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP858-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Appellant, v. Brian L. Halverson, Defendant-Respondent-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 389 Wis. 2d 554,937 N.W.2d 74 PDC No:2019 WI App 66 - Published

OPINION FILED: January 29, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 14, 2020

SOURCE OF APPEAL: COURT: Circuit COUNTY: Chippewa JUDGE: Steven R. Cray

JUSTICES: HAGEDORN, J., delivered the majority opinion for a unanimous Court. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which ZIEGLER, J., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. NOT PARTICIPATING:

ATTORNEYS: For the defendant-respondent-petitioner, there were briefs filed by Megan Sanders-Drazen, assistant state public defender. There was an oral argument by Megan Sanders-Drazen.

For the plaintiff-appellant, there was a brief filed by Sarah L. Burgundy, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Sarah L. Burgundy. 2021 WI 7

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP858-CR (L.C. No. 2017CM83)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant, FILED v. JAN 29, 2021 Brian L. Halverson, Sheila T. Reiff Clerk of Supreme Court Defendant-Respondent-Petitioner.

HAGEDORN, J., delivered the majority opinion for a unanimous Court. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which ZIEGLER, J., joined. DALLET, J., filed a concurring opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

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

cause remanded to the circuit court with directions.

¶1 BRIAN HAGEDORN, J. You have "a right to remain

silent." Miranda v. Arizona, 384 U.S. 436, 444 (1966). So

begins the ubiquitous Miranda warnings, procedural safeguards

the United States Supreme Court has mandated must be

administered to suspects prior to any "custodial interrogation."

Id. If the warnings are not given, any statements made are inadmissible in court. Id. No. 2018AP858-CR

¶2 The question in this case concerns the scope of

"custody" for purposes of Miranda. The defendant, Brian L.

Halverson, was an inmate in jail when he returned a call from an

officer regarding an incident at Halverson's prior correctional

institution. During the short call, the officer asked Halverson

about an inmate's missing property, and Halverson admitted that

he took and destroyed the property. No Miranda warnings were

given. Halverson argues that his statements must be suppressed

because he was in custody as an inmate in jail, and therefore he

also was most assuredly "in custody" for purposes of Miranda.

¶3 In a 1999 case, this court agreed. State v.

Armstrong, 223 Wis. 2d 331, 588 N.W.2d 606 (1999). Relying on

United States Supreme Court precedent, we held "that a person

who is incarcerated is per se in custody for purposes of

Miranda." Id. at 355. In 2012, however, the United States

Supreme Court clarified this is not what federal law requires.

In Howes v. Fields, the Court concluded that the Constitution

contains no such per se rule. 565 U.S. 499, 508 (2012). The Court emphasized that "custody" for purposes of Miranda is a

term of art; it is not consonant with the inability to leave or

with incarceration generally. Id. at 508-09. Whether a suspect

was "in custody" depends on an inquiry of the totality of the

circumstances, looking to the degree of restraint and coercive

nature of the interrogation. Id. at 509.

¶4 Recognizing that the federal constitutional landscape

does not support his argument, Halverson asks this court to readopt the per se rule, this time relying on the Wisconsin 2 No. 2018AP858-CR

Constitution. We decline Halverson's request. While this court

need not always follow federal constitutional interpretation in

lockstep, we conclude that neither the Wisconsin Constitution

nor the purposes underlying the Miranda warnings support a

judicially-created rule treating all incarcerated individuals as

"in custody." In the alternative, Halverson contends that his

incriminating statements should be suppressed because he was "in

custody" under the traditional Miranda custody test. We

disagree and conclude that Halverson was not in custody for

purposes of Miranda.

I. BACKGROUND

¶5 Brian L. Halverson was an inmate in the Vernon County

Jail when Officer Matthew Danielson called and requested to

speak with him. Officer Danielson was investigating a claim of

theft and destruction of property at Stanley Correctional

Institution that occurred when Halverson was incarcerated there.

Halverson returned the call and admitted to the crimes. The State charged Halverson with one count of criminal damage to

property and one count of misdemeanor theft, both as a repeater.

Halverson filed a motion to suppress his statements in part on

the grounds that he was not read his Miranda warnings.

¶6 During the suppression hearing, Officer Danielson

testified that he called the Vernon County Jail the morning of

September 27, 2016, and requested to speak to Halverson. He

received a call back within ten minutes from a deputy at the jail who put Halverson on the phone. Officer Danielson began 3 No. 2018AP858-CR

the call by introducing himself, explaining the purpose of the

call, and asking if Halverson knew the individuals who were

involved in the incident at Stanley Correctional Institution.

When questioned initially, Halverson stated that he believed the

items were inadvertently placed in the garbage. But when asked

about two letters admitting his guilt that Halverson wrote to

the victim and another inmate, Halverson's tone shifted. While

calm at the outset, Halverson began yelling. He ultimately

admitted to Officer Danielson that he took and destroyed the

property. The entire phone call lasted no more than five

minutes. Officer Danielson testified that, for his part, his

tone was calm and normal throughout the call. Halverson was not

read his Miranda warnings, Officer Danielson explained, because

while "he was in custody somewhere else for something else,"

Halverson was not "in custody with me."

¶7 The circuit court relied on Officer Danielson's

uncontested testimony as factual background, but it granted

Halverson's motion to suppress.1 The circuit court concluded it was bound to apply Armstrong's per se rule that incarcerated

individuals are in custody for Miranda purposes. The State

moved for reconsideration.

1 The Honorable Steven R. Cray, Chippewa County Circuit Court, presiding.

4 No. 2018AP858-CR

¶8 At the reconsideration hearing, Vernon County

Sheriff's Deputy Matthew Hoff testified.2 Deputy Hoff did not

specifically remember the call. Instead, he testified regarding

the standard operating procedures at the Vernon County Jail,

testimony the circuit court accepted as credible.

¶9 When an inmate at the jail receives a phone call, the

inmate can choose whether to take or return the call. If an

inmate wishes to do so, a deputy escorts the inmate from his pod

to the jail's community room. The community room is

approximately 15-by-25-feet in size and doubles as the jail

library. The deputies visually monitor the inmate through

observation glass, but they cannot hear what occurs in the

community room and the calls are not recorded. Once the call is

complete, the inmate is escorted back to his pod. The inmate is

not handcuffed at any point during this process.

¶10 Following the hearing, the circuit court denied the

State's motion for reconsideration, once again concluding it was

bound to follow the per se rule in Armstrong and suppress Halverson's statements.

¶11 The State appealed and the court of appeals reversed.

The court of appeals held that the per se rule adopted by this

court in Armstrong was effectively overruled by the United

States Supreme Court in Howes, and it declined to readopt the

2 Deputy Hoff was subpoenaed to appear at the initial suppression hearing, but he did not appear. The circuit court reserved the right for the parties to provide Deputy Hoff's testimony at a reconsideration hearing.

5 No. 2018AP858-CR

per se rule under the Wisconsin Constitution. State v.

Halverson, 2019 WI App 66, ¶65, 389 Wis. 2d 554, 937 N.W.2d 74.

It further concluded that Halverson was not in custody for

purposes of Miranda under the totality of the circumstances.

Id., ¶66. We granted Halverson's petition for review and agree

with the court of appeals.

II. DISCUSSION

¶12 The issues in this case center on the nature of

"custody" for purposes of determining whether Miranda warnings

must be administered. Halverson contends he was in custody for

two independent reasons. First, Halverson argues all

incarcerated individuals should be deemed "in custody" for

purposes of Miranda solely due to their incarceration. Although

the United States Supreme Court rejected a per se rule to this

effect, he asks us to adopt this approach under the Wisconsin

Constitution. Second, if we decline that request (as we do),

Halverson asserts the totality of the circumstances nonetheless demonstrates he was in custody for purposes of Miranda. We

begin with the constitutional backdrop underlying these claims,

and then address the merits of each in turn.

A. The Law of Miranda

¶13 The Fifth Amendment of the United States Constitution

provides in relevant part: "No person . . . shall be compelled

in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V. In Miranda, the Supreme Court created a 6 No. 2018AP858-CR

set of procedural safeguards, enforced by the remedy of

exclusion, aimed at "protecting a defendant's Fifth Amendment

privilege against self-incrimination." Withrow v. Williams, 507

U.S. 680, 691 (1993). These safeguards were proposed in

response to four cases consolidated before the Court. Miranda,

384 U.S. at 491-99. All four concerned the questioning of a

defendant by a law enforcement officer, detective, or district

attorney in a police station where the defendant was isolated

from the outside world and eventually orally admitted to the

underlying crime after at least two hours of questioning.

Id. at 491-98.

¶14 The Court has explained that these warnings, and the

evidentiary penalty for failing to administer them, constitute a

prophylactic rule that extends beyond the requirements of the

constitutional text itself. See Oregon v. Elstad, 470 U.S. 298,

306 (1985) ("The Miranda exclusionary rule, however, serves the

Fifth Amendment and sweeps more broadly than the Fifth Amendment

itself. It may be triggered even in the absence of a Fifth Amendment violation."). Instead, Miranda is a judicially

instituted effort to protect against self-incrimination by

creating an unrebuttable legal presumption of coercion whenever

the warnings are not administered. Id. at 306 n.1 ("A Miranda

violation does not constitute coercion but rather affords a

bright-line, legal presumption of coercion, requiring

suppression of all unwarned statements.").

¶15 This anti-coercion objective is central to understanding the reach and limits of the Miranda requirements. 7 No. 2018AP858-CR

This goal explains why the Court established what it called

"custodial interrogation" as the trigger for administration of

these warnings. Miranda, 384 U.S. at 444 ("[T]he prosecution

may not use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination."). The issues

before us center on what makes an interrogation "custodial."

¶16 The United States Supreme Court has made clear that

"custody" for purposes of Miranda is not equivalent to a

dictionary definition of the term.3 Rather, "custody" in the

context of Miranda "is a term of art that specifies

circumstances that are thought generally to present a serious

danger of coercion." Howes, 565 U.S. at 508-09.

¶17 The Miranda custody analysis proceeds in two steps.

First, courts "ascertain whether, in light of 'the objective

circumstances of the interrogation,' a 'reasonable person

[would] have felt he or she was not at liberty to terminate the interrogation and leave.'" Id. at 509 (alteration in original)

(quoted sources omitted). This requires examining the totality

of the circumstances, including relevant factors such as "the

location of the questioning, its duration, statements made

during the interview, the presence or absence of physical

restraints during the questioning, and the release of the

3Colloquially, "custody" is defined as "[t]he state of being detained or held under guard, especially by the police." Heritage Dictionary of the English Language 462 (3d ed. 1992).

8 No. 2018AP858-CR

interviewee at the end of the questioning." Id. (citations

omitted). The inability to leave and terminate the

conversation, however, is not enough on its own to trigger the

need for Miranda warnings. Id. This inquiry "is simply the

first step in the analysis, not the last." Id. "[T]he freedom-

of-movement test identifies only a necessary and not a

sufficient condition for Miranda custody." Maryland v. Shatzer,

559 U.S. 98, 112 (2010). Instead, courts proceed to the second

step in the custody analysis where they ask "whether the

relevant environment presents the same inherently coercive

pressures as the type of station house questioning at issue in

Miranda." Howes, 565 U.S. at 509.

B. Incarceration and "Custody" Under Federal Law

¶18 Application of these principles in the context of

incarceration has not always been clear. In 1999, this court

addressed whether an inmate should have received Miranda

warnings when questioned for an offense unrelated to his incarceration. Armstrong, 223 Wis. 2d 331. We examined federal

cases and our cases interpreting federal precedent and held

"that a person who is incarcerated is per se in custody for

purposes of Miranda." Armstrong, 223 Wis. 2d at 355.

¶19 In 2012, however, the United States Supreme Court

reached the opposite conclusion. Howes, 565 U.S. at 508. In

that case, the defendant was in jail when escorted to a

conference room where two armed sheriff's deputies questioned him for between five and seven hours about allegations pre- 9 No. 2018AP858-CR

dating his time in prison. Id. at 503. Fields was uncuffed and

told several times that he could leave and return to his cell.

Id. The door to the conference room was open and shut at

different times during the questioning. Id. Fields ultimately

confessed. Id. At no point during the questioning, however,

was he read his Miranda warnings. Id. at 504.

¶20 On these facts, the Court expressly rejected a

categorical rule that questioning an inmate is custodial.

Id. at 505. Instead it reviewed and re-emphasized the two-step,

totality-of-the-circumstances custody inquiry established in

prior cases. Id. at 509. Using that analysis, it reasoned that

incarcerated individuals are not automatically in custody for

purposes of Miranda. Id. The Court offered three reasons to

support its conclusion——all centering on whether the environment

necessarily contains the same coercive pressures that animated

the Court's holding in Miranda. Id. at 511-12. First,

questioning an incarcerated person does not involve the same

kind of shock accompanying someone arrested in the first instance, and therefore the coercive pressures are substantially

diminished. Id. at 511. Second, incarcerated individuals have

far less pressure to speak with the hope of securing release.

Id. They know that when the questioning is finished, they will

remain incarcerated. Id. Finally, incarcerated individuals

know that their questioners "probably lack authority to affect

the duration of [their] sentence." Id. at 512. Therefore, the

Court held that incarceration alone does not necessarily

10 No. 2018AP858-CR

implicate the same anti-coercion interests that motivated the

Court's prophylactic efforts in Miranda. Id.4

¶21 In this case, the court of appeals correctly deduced

that it was bound to follow the United States Supreme Court's

decision in Howes rather than our earlier decision in Armstrong.

Halverson, 389 Wis. 2d 554, ¶34. As we explained in State v.

Jennings, "The court of appeals must not follow a decision of

this court on a matter of federal law if it conflicts with a

subsequent controlling decision of the United States Supreme

Court." 2002 WI 44, ¶19, 252 Wis. 2d 228, 647 N.W.2d 142.

Accordingly, we recognize that the Court's decision in Howes

functionally overruled Armstrong's per se rule.

C. Incarceration and "Custody" Under the Wisconsin Constitution

¶22 Bereft of a per se determination that incarceration

produces Miranda custody under federal law, Halverson asks us to

adopt a per se rule in reliance on the Wisconsin Constitution.

Constitutional interpretation is a question of law we review independently. Serv. Emp. Int'l Union, Loc. 1 v. Vos, 2020

WI 67, ¶28, 393 Wis. 2d 38, 946 N.W.2d 35. In interpreting the

4 Three justices dissented in part. The partial dissent did not object to the majority's analysis rejecting a per se rule. Howes v. Fields, 565 U.S. 499, 517 (2012) (Ginsburg, J., concurring in part and dissenting in part). Rather, it asserted that Miranda warnings should have been given to this particular suspect because he was "subjected to 'incommunicado interrogation . . . in a police-dominated atmosphere.'" Id. at 518. Thus, even the partial dissent aimed its analysis at honoring "the Fifth Amendment privilege Miranda was designed to safeguard." Id. at 519.

11 No. 2018AP858-CR

Wisconsin Constitution, we focus on the language of the adopted

text and historical evidence including "the practices at the

time the constitution was adopted, debates over adoption of a

given provision, and early legislative interpretation as

evidenced by the first laws passed following the adoption."

Id., ¶28 n.10.

¶23 While we must follow the United States Supreme Court

on matters of federal law, we have an independent responsibility

to interpret and apply the Wisconsin Constitution. Jennings,

252 Wis. 2d 228, ¶¶18, 38. Fulfilling our duty to uphold the

Wisconsin Constitution as written could yield conclusions

affording greater protections than those provided by the federal

Constitution. State v. Doe, 78 Wis. 2d 161, 171, 254 N.W.2d 210

(1977).

¶24 That said, this court has underscored that any

argument based on the Wisconsin Constitution must actually be

grounded in the Wisconsin Constitution. State v. Roberson, 2019

WI 102, ¶56, 389 Wis. 2d 190, 935 N.W.2d 813 ("[T]he question for a state court is whether its state constitution actually

affords greater protection."); Jennings, 252 Wis. 2d 228, ¶¶38-

39 (explaining that any upward departure from the standards

based on the federal Constitution announced by the Supreme Court

"must itself be grounded in requirements found in the state

constitution or laws"). "A state court does not have the power

to write into its state constitution additional protection that

is not supported by its text or historical meaning." Roberson, 389 Wis. 2d 190, ¶56. 12 No. 2018AP858-CR

¶25 Halverson recognizes that Miranda warnings are a

prophylactic tool fashioned to protect the privilege against

self-incrimination, a right independently protected in both

constitutions. Halverson therefore asks this court to create an

expanded prophylactic to protect a person's rights under the

Wisconsin Constitution.5

¶26 The self-incrimination clause of Article I, Section

8(1), adopted before incorporation of federal protections

against the states via the Fourteenth Amendment, is

substantively identical to the Fifth Amendment. It provides in

relevant part: "No person . . . may be compelled in any

criminal case to be a witness against himself or herself." Wis.

Const. art. I, § 8(1).6 We have generally interpreted Article I,

Section 8 consistent with the protections afforded by the Fifth

Amendment. State v. Bartelt, 2018 WI 16, ¶30, 379 Wis. 2d 588,

906 N.W.2d 684.7 Halverson provides no textual or historical

5 In support of this request to create an expanded prophylactic, Halverson points to our decision in State v. Knapp where we expanded the scope of the exclusionary rule beyond its federal corollary. 2005 WI 127, ¶2, 285 Wis. 2d 86, 700 N.W.2d 899. However, Knapp does not suggest anything about whether this court should adopt Halverson's proposed rule in this case. 6 Article I, Section 8, originally provided in relevant part: "No person . . . shall be compelled in any criminal case to be a witness against himself . . . ." Wis. Const. art. I, § 8 (1848). It was later amended to add "or herself." 7 See also State v. Edler, 2013 WI 73, ¶¶29-30, 350 Wis. 2d 1, 833 N.W.2d 564 (acknowledging an exception to this general rule yet nevertheless "declin[ing] to extend the meaning of Wisconsin Constitution Article I, Section 8 in this situation so as to provide different protection than the Fifth Amendment 13 No. 2018AP858-CR

basis to suggest any meaningful difference between the two

provisions meriting an expanded judicially-created prophylactic

rule. Nor do we see any basis in the Wisconsin Constitution for

Halverson's request.8

¶27 Instead, Halverson focuses chiefly on the argument

that incarceration inherently creates the kind of custodial

circumstances meriting Miranda warnings. We agree, however,

with the Supreme Court's determination in Howes that a per se

rule does not serve the anti-coercion purposes of Miranda.

Interrogation of incarcerated individuals does not always

present the "same inherently coercive pressures as the type of

station house questioning at issue in Miranda," nor would an

inmate always be unable to terminate questioning. Howes, 565

to the United States Constitution"); State v. Ward, 2009 WI 60, ¶55, 318 Wis. 2d 301, 767 N.W.2d 236 ("Article I, Section 8 of the Wisconsin Constitution provides the same protections prior to charging a suspect as does the Fifth Amendment to the United States Constitution."); Hoyer v. State, 180 Wis. 407, 411, 193 N.W. 89 (1923) ("Sec. 8 corresponds in substance with art. V and sec. 11 is identical with art. IV, respectively, of the amendments to the United States constitution."); Thornton v. State, 117 Wis. 338, 340, 93 N.W. 1107 (1903) ("This rule and practice of the common law was crystallized and expressed in the fifth amendment to the constitution of the United States in words identical with those above quoted from sec. 8, art. I of our own constitution.").

Certainly 8 nothing in the text of the Wisconsin Constitution supports Halverson's request. To the extent any historical evidence may assist Halverson's case, he has not presented those arguments here, nor will we develop them for him. See Serv. Emp. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24, 393 Wis. 2d 38, 946 N.W.2d 35 ("We do not step out of our neutral role to develop or construct arguments for parties; it is up to them to make their case.").

14 No. 2018AP858-CR

U.S. at 509. As we conclude below, Halverson's circumstances do

not even satisfy the standard requirements for custody under

Miranda's framework. Further, no facts in Halverson's case

indicate coercion or anything close to it. And that is the

whole point of requiring Miranda warnings in the first place.

In other words, Halverson's case exemplifies the problem with

his proposed rule. Officer Danielson's questioning of Halverson

simply does not raise the specter of coerced admissions. More

to the point, Halverson's relatively benign and distanced

interaction demonstrates that incarceration alone lacks the

inherent dangers of the station-house interrogation. This was

why the United States Supreme Court rejected the per se rule in

Howes, and Halverson offers no strong reasons to diverge from

this rationale.

¶28 In short, nothing in Article I, Section 8(1) of the

Wisconsin Constitution suggests this court should deem all

incarcerated individuals "in custody" for purposes of Miranda.

Neither the purposes of Miranda warnings nor the text and history of the Wisconsin Constitution support Halverson's

invitation to adopt his proposed per se rule.

D. Miranda "Custody" Applied to Halverson

¶29 Halverson has an alternative argument——namely, that he

was "in custody" for purposes of Miranda under the prevailing

two-step inquiry examining the totality of the circumstances.

In conducting this analysis, we accept the circuit court's factual findings unless they are clearly erroneous. State v. 15 No. 2018AP858-CR

Dobbs, 2020 WI 64, ¶28, 392 Wis. 2d 505, 945 N.W.2d 609.

Whether those facts support a determination of custody for

purposes of Miranda is a question of law we review de novo. Id.

¶30 As previously explained, custody for purposes of

Miranda first requires an objective determination of whether the

suspect was free to move and terminate the interview. Howes,

565 U.S. at 509; Bartelt, 379 Wis. 2d 588, ¶31. Relevant

factors include "the location of the questioning, its duration,

statements made during the interview, the presence or absence of

physical restraints during questioning, and the release of the

interviewee at the end of the questioning." Howes, 565 U.S. at

509 (citations omitted); see also Bartelt, 379 Wis. 2d 588, ¶32

("Such factors include: the degree of restraint; the purpose,

place, and length of the interrogation; and what has been

communicated by police officers."). Regarding the degree of

restraint, "we consider: whether the suspect is handcuffed,

whether a weapon is drawn, whether a frisk is performed, the

manner in which the suspect is restrained, whether the suspect is moved to another location, whether questioning took place in

a police vehicle, and the number of officers involved."

Bartelt, 379 Wis. 2d 588, ¶32.

¶31 Unlike Miranda challenges in most cases, Halverson's

interview occurred over the phone. The State argues, and we

agree, that interrogation by phone call is unlikely to rise to

the level of Miranda custody. This is so because a phone call

will rarely present objective circumstances where a reasonable person would believe he is not free to terminate the 16 No. 2018AP858-CR

interrogation. A suspect can end questioning at any time simply

by hanging up. To our knowledge, no court has concluded that a

telephonic interrogation triggered Miranda custody.9 The fact

that Officer Danielson's interview occurred by phone strongly

weighs against a determination of Miranda custody.

¶32 The length of the interview reinforces the same

conclusion. Officer Danielson testified that his conversation

with Halverson lasted "a few minutes, maybe three, four." This

is far afield from the five- to seven-hour questioning in Howes,

which the Supreme Court found did not trigger a determination of

custody for purposes of Miranda. Howes, 565 U.S. at 503.

Similarly, in State v. Lonkoski, we observed that a 30-minute

timeframe weighed against determining the defendant was in

Miranda custody. 2013 WI 30, ¶31, 346 Wis. 2d 523, 828

N.W.2d 552. The less-than-five-minute interview here similarly

supports the State's argument.

¶33 Halverson responds that unlike the defendant in Howes,

he was not informed that he could terminate the interview at any time. This failure, he contends, is fatal to the State's

9 See Pasdon v. City of Peabody, 417 F.3d 225, 227 (1st Cir. 2005) (holding the defendant was not "in custody" when he was asked questions over the phone); State v. Mills, 293 P.3d 1129, 1136 (Utah Ct. App. 2012) (concluding "[t]he overall length, form, and circumstances of the voluntary, transcontinental telephone interview simply do not rise to the level of being so long, so draining, or so fierce as to be problematic under Miranda"); State v. Denton, 792 P.2d 537, 540 (Wash. Ct. App. 1990) (determining the defendant who was in jail at the time of the phone call was not in custody for Miranda purposes because he was free to terminate the phone call at any time).

17 No. 2018AP858-CR

argument. Such a disclosure is certainly relevant to the

inquiry, but it is not mandatory. The question remains whether

a reasonable person in Halverson's situation would feel free to

terminate the interview. According to the unchallenged

testimony of Deputy Hoff, Halverson had the choice whether to

return Officer Danielson's call in the first place. Halverson

did so. Officer Danielson began the call by explaining why he

was calling, and Halverson chose to continue the conversation.

Officer Danielson testified that he kept his tone calm and

neutral during the interview, even after Halverson became more

animated. We observe nothing in the record suggesting the brief

phone interview was no longer optional after it began. Under

these circumstances, a reasonable person would have felt free to

terminate the interview by hanging up the phone at any time.

¶34 Halverson's physical environment also shows he was

free to terminate the call. When Halverson elected to return

Officer Danielson's call, the record suggests a deputy escorted

Halverson from his pod to the jail's community room, which doubled as a library. Then, although visually observed during

the interview, Halverson spoke to Officer Danielson alone and

without physical restraints. The record does not reveal any

restraint upon Halverson any more than in his daily life as an

inmate.

¶35 For many of the same reasons, proceeding to the second

step of the custody analysis, we conclude Halverson's

environment did not "present[] the same inherently coercive pressures as the type of station house questioning at issue in 18 No. 2018AP858-CR

Miranda." Howes, 565 U.S. at 509; see also Bartelt, 379

Wis. 2d 588, ¶33. He spoke to Officer Danielson over the phone

in the jail's community room where he was alone, without

physical restraints, and could sit or stand at will. The

interview lasted less than five minutes, and during that time

Officer Danielson kept his tone calm. These circumstances are

nowhere close to the kind of coercive pressures of station-house

questioning that sparked the Supreme Court's holding in Miranda.

¶36 In light of all of these factors, especially the fact

that this interview occurred over the phone, we conclude that

Halverson was not "in custody" for purposes of Miranda.

III. CONCLUSION

¶37 We decline Halverson's invitation to adopt a per se

rule that incarcerated individuals are necessarily "in custody"

for purposes of Miranda. Applying the standard two-part test,

we conclude Halverson was not "in custody" when Officer

Danielson interviewed him by phone regarding the missing property. Halverson's motion to suppress should have been

denied, and we remand with directions to the circuit court to do

so.

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

affirmed, and the cause is remanded to the circuit court with

directions.

19 No. 2018AP858-CR.rgb

¶38 REBECCA GRASSL BRADLEY, J. (concurring). I join the

majority opinion in full. I write separately to address the

petitioner's reliance on State v. Knapp, 2005 WI 127, 285

Wis. 2d 86, 700 N.W.2d 899. Because the Knapp court's

interpretation of Article I, Section 8 of the Wisconsin

Constitution lacks any mooring in text or history, this court

should restore the original meaning of this constitutional

provision.

¶39 The procedural posture of the Knapp case is somewhat

unusual, with this court having had two separate opportunities

to decide it. The defendant, Matthew Knapp, was suspected of

killing a woman with a baseball bat. Knapp, 285 Wis. 2d 86,

¶¶3-5. Following the incident, an officer visited Knapp at his

apartment to arrest him, and requested the clothes he was

wearing the night of the murder. Id., ¶8. Knapp pointed to a

sweatshirt containing human blood, which the officer seized.

Id., ¶9. During this exchange, the officer intentionally

withheld Miranda warnings in an effort to procure the physical evidence. Id., ¶¶14-15. The State charged Knapp with first-

degree intentional homicide, after which he filed a motion

seeking to suppress the physical evidence obtained at the scene

of the arrest. The circuit court denied the motion. On appeal,

this court reversed the circuit court's suppression ruling,

holding that physical evidence must be suppressed if it was

procured while intentionally violating Miranda. State v. Knapp,

2003 WI 121, ¶1, 265 Wis. 2d 278, 666 N.W.2d 881 (Knapp I).

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¶40 The State appealed the Knapp I decision to the United

States Supreme Court. The Court vacated the judgment and

remanded the case back to the Wisconsin Supreme Court in light

of the United States Supreme Court's decision in United States

v. Patane, 542 U.S. 630 (2004) (plurality opinion). Wisconsin

v. Knapp, 542 U.S. 952 (2004). In Patane, the Court held that

the failure to give Miranda warnings does not "require[]

suppression of the physical fruits of the suspect's unwarned but

voluntary statements." Patane, 542 U.S. at 633-34. The Court

explained that, within this context, "[t]here is simply no need

to extend (and therefore no justification for extending) the

prophylactic rule of Miranda." Id. at 643.

¶41 On remand, despite the United States Supreme Court

declining to create an expanded prophylactic under the Fifth

Amendment's privilege against self-incrimination, the Wisconsin

Supreme Court held that the Wisconsin Constitution's analog to

the Fifth Amendment——Article I, Section 8——affords greater

protections than the United States Constitution. In particular, using different reasoning than its first decision but arriving

at substantially the same conclusion, the second Knapp court

held that, "[w]here physical evidence is obtained as the direct

result of an intentional Miranda violation, . . . [Article I,

Section 8 of the Wisconsin Constitution] requires that the

evidence must be suppressed." Knapp, 285 Wis. 2d 86, ¶2 (Knapp

II). The Knapp II court articulated that, "[i]t is the

prerogative of the State of Wisconsin to afford greater protection to the liberties of persons within its boundaries

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under the Wisconsin Constitution than is mandated by the United

States Supreme Court." Id., ¶59 (quoting State v. Doe, 78

Wis. 2d 161, 171, 254 N.W.2d 210 (1977)). According to the

Knapp II court, although the text of Article I, Section 8 and

the Fifth Amendment are "virtually identical," other factors

weighed in favor of expanding state constitutional protections

beyond those afforded under the Fifth Amendment. Id., ¶62.

More specifically, the Knapp II court invented the sanction of

suppressing evidence because the officer's "conduct at issue was

particularly repugnant and require[d] deterrence." Id., ¶75.

The Knapp II court also invoked the "preservation of judicial

integrity" as a basis for contriving a different meaning for

Article I, Section 8 than the United States Supreme Court gives

the nearly identical Fifth Amendment. Id., ¶¶75-83.

¶42 Knapp II represents an unprecedented departure from

the traditional tools employed by this court in interpreting the

Wisconsin Constitution.1 Halverson's reliance on that case to

request an expanded prophylactic to protect the privilege against self-incrimination indicates it is time for this court

1"Before Knapp, the Wisconsin Supreme Court had repeatedly held that in the absence of a meaningful difference in language, intent, or history, the state constitution's Declaration of Rights should be interpreted in conformity with the United States Supreme Court's interpretation of parallel provisions in the Bill of Rights. The language of the state constitutional right against compulsory self-incrimination is virtually identical to the Self-Incrimination Clause of the Fifth Amendment; the court had declined many previous invitations to interpret the state right more expansively than its federal counterpart." The Honorable Diane S. Sykes, Reflections on the Wisconsin Supreme Court, Marq. Law., March 2006, at 59-60.

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to revisit Knapp II's holding. As we noted in Roberson, "states

have the power to afford greater protection to citizens under

their constitutions than the federal constitution does." State

v. Roberson, 2019 WI 102, ¶56, 389 Wis. 2d 190, 935 N.W.2d 813.

Critically, however, "[a] state court does not have the power to

write into its state constitution additional protection that is

not supported by its text or historical meaning." Id.

Restoring the proper method of interpreting Article I, Section 8

is imperative if this court takes seriously its oath to uphold

the Wisconsin Constitution. The question for this court is not

whether the Wisconsin Constitution should afford greater

protections, but whether it "actually affords greater

protection[s]." Id. (emphasis added). Rather than applying the

actual constitutional meaning of Article I, Section 8, the Knapp

II court instead breathed its policy preferences into this

provision. It was quite transparent about doing so. "[T]he

court accepted the defendant's invitation to——as the court put

it——'utilize . . . the Wisconsin Constitution to arrive at the same conclusion as in Knapp I.' This language is revealing for

its pure, unvarnished result-orientation." The Honorable Diane

S. Sykes, Reflections on the Wisconsin Supreme Court, Marq.

Law., March 2006, at 60.

¶43 Despite acknowledging that the text of Article I,

Section 8 and the Fifth Amendment are "virtually identical," the

Knapp II court nevertheless engaged in judicial gymnastics to

justify its disregard for these textual similarities. Knapp, 285 Wis. 2d 86, ¶¶58-62. The only permissible avenue for

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deviating from the United States Supreme Court's interpretation

of the Fifth Amendment would be uncovering a historical meaning

of Article I, Section 8 different from the original public

meaning of its federal counterpart. The Knapp II court failed

to do so.2 To be sure, the Knapp II court did note that,

"shortly after Wisconsin earned statehood," this court declared

that "no person is compelled to give evidence against himself,

or to testify to any matter tending to criminate himself." Id.,

¶63 (citing Schoeffler v. State, 3 Wis. 823, 733 (1854)). This

case, however, says nothing to suggest the historical meaning of

Article I, Section 8 is any different than its federal analog,

2Justice Rebecca Dallet's concurrence suffers from the same shortfalls as the court's decision in State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899 (Knapp II). Exposing the policy-making of the Knapp II court, Justice Dallet notes that the court "reached [the] conclusion [in Knapp II] for two important reasons: to deter bad police behavior and to preserve the integrity of the judiciary." Concurring op., ¶54. Overstepping the constitutional boundaries of the judicial role, Justice Dallet then charges that "[t]o abandon Knapp II is to abandon this court's long history of upholding the Wisconsin Constitution's protection against overbearing law-enforcement practices." Id., ¶57. While it is the court's responsibility to faithfully apply the protections constitutionally preserved for Wisconsin citizens, this court is confined to interpreting what the Wisconsin Constitution actually says rather than imposing particular justices' policy preferences. Whether or not this court thinks it is a good idea to "deter police behavior" or sanction "overbearing" police practices is simply irrelevant in ascertaining whether the Wisconsin Constitution actually affords heightened protections as compared to the United States Constitution. Only the text of the constitutional provision and its original meaning may resolve this question. State v. Roberson, 2019 WI 102, ¶56, 389 Wis. 2d 190, 935 N.W.2d 813. Imposing judicial policy preferences in the name of a constitutional provision that does not reflect them constitutes an exercise of judicial will and encroaches on a purely legislative prerogative.

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nor does the Knapp II court even attempt a historical analysis

to support such a theory. Instead, Knapp II pivots to declaring

that rights under Article I, Section 8 are "sacred" and

construed in favor of private citizens. Id. This analysis

falls far short of substantiating the Knapp II court's

conclusion that Article I, Section 8 embodies heightened

protections, especially for a provision that repeats the federal

text nearly verbatim.

¶44 Instead of exploring the meaning of the Wisconsin

Constitution's text, as Roberson instructs, Knapp II relied

heavily upon the view that the officer's conduct was "repugnant"

and "require[d] deterrence," and that this court needed to

"preserv[e] . . . judicial integrity." Knapp, 285 Wis. 2d 86,

¶¶75, 79. Judicial policy goals, however estimable, cannot

alter the meaning of the state constitution. "It is simply not

compatible with democratic theory that laws mean whatever they

ought to mean, and that unelected judges decide what that is."

Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the

Constitution and Laws, in A Matter of Interpretation: Federal

Courts and the Law 22 (Amy Gutmann ed., 1997). The judiciary

must exercise its judgment, not its will. These principles do

not reflect a novel approach to constitutional interpretation

but form the core of the Founders' conception for the judicial

role. See The Federalist No. 78 (Alexander Hamilton) ("The

judiciary . . . can take no active resolution whatever. It may truly be said to have neither force nor will, but merely

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judgment."). "It is, in other words, the judge's job to employ

not his own will but the traditional tools of legal analysis[.]"

Neil Gorsuch, A Republic, If You Can Keep It 195 (1st ed.,

2019).

¶45 The Knapp II court discarded these venerable

principles, impermissibly factoring into its analysis what a

majority of justices believed was "not tolera[ble]" and

importing a non-textual, ahistorical consequence in reaction to

"the police deliberately ignoring Miranda's rules as a means of

obtaining inculpatory physical evidence." Knapp, 285

Wis. 2d 86, ¶72. Neither "repugnant" facts nor intolerable

actions have anything to say about the meaning of the privilege

against self-incrimination set forth in the Wisconsin

Constitution or the remedies for its violation; they are solely

justifications for the exercise of judicial will.

¶46 In this case, the court correctly determines that

Halverson fails to provide a "textual or historical basis to

suggest any meaningful difference between the two provisions meriting an expanded judicially-created prophylactic rule."

Majority op., ¶26. The same was true in Knapp II. Article I,

Section 8 states, in part, that "[n]o person may be held to

answer for a criminal offense without due process of law, and no

person for the same offense may be put twice in jeopardy of

punishment, nor may be compelled in any criminal witness against

himself or herself." Wis. Const. art. I, § 8. Wisconsin's

clause mirrors the Fifth Amendment: "[no person] shall . . . be subject for the same offence to be twice put in jeopardy of life

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or limb; nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or

property, without due process of law." U.S. Const. amend. V.

During Wisconsin's constitutional ratification, the people

adopted many provisions that closely parallel their federal

counterparts, including——as relevant for Miranda——the right

against compulsory self-incrimination. See Ray A. Brown, The

Making of the Wisconsin Constitution: Part II, 1952 Wis. L. Rev.

23, 58 (1952).

¶47 With this understanding, Wisconsin courts have

repeatedly held that the clauses embodying the privilege against

self-incrimination in the state and federal constitutions are

interpreted in lock-step. In State v. Ward, for example, this

court held that, in regard to the waiver of Miranda rights prior

to criminal charging, "Article I, Section 8 of the Wisconsin

Constitution provides the same protections . . . as does the

Fifth Amendment to the United States Constitution." 2009 WI 60,

¶55, 318 Wis. 2d 301, 767 N.W.2d 236. See also State v. Edler, 2013 WI 73, ¶30, 350 Wis. 2d 1, 833 N.W.2d 564 ("We decline to

extend the meaning of Wisconsin Constitution Article I, Section

8 in this situation so as to provide different protection than

the Fifth Amendment to the United States Constitution."). Knapp

II is the only case to depart from Wisconsin's longstanding

approach to interpreting Article I, Section 8 and the Fifth

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Amendment in consonance.3 But Knapp II offered no foundation for

abandoning the court's well-established understanding of the

privilege against self-incrimination and the remedy for its

breach.

¶48 Knapp II's holding lacks any foundation in the text or

historical meaning of the constitutional language it construed.

It rests solely on judicial policy preferences rather than the

law and was rendered without any textual analysis or historical

examination of the controlling language of the constitution.

While state constitutional provisions may afford greater

protections than the United States Constitution, the

constitution itself must actually provide them. Although a

majority of this court may prefer certain constitutional

protections for criminal suspects, it remains the prerogative of

the people of Wisconsin to bestow them. Because Article I,

Section 8 does not require suppression of evidence obtained as

the result of voluntary statements made by a criminal suspect

from whom the reading of Miranda rights was withheld, only a constitutional amendment could create this remedy. The court in

3 In her concurrence, Justice Dallet maintains that to interpret Article I, Section 8 in consonance with the Fifth Amendment is "to ignor[e] [this court's] robust tradition of independently interpreting the Wisconsin Constitution." Concurring op., ¶57. Not so. Of course "states have the power to afford greater protections to citizens under their constitutions than the federal constitution does." Roberson, 389 Wis. 2d 190, ¶56. But the constitution must actually do so— —not because a justice desires such protections, but because the people do. Neither the Knapp II court nor Justice Dallet performed an analysis of the text or original understanding of Article I, Section 8 necessary to support their proffered interpretation of that constitutional provision.

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Knapp II acted beyond its authority in devising it. Its holding

should be overturned. I respectfully concur.

¶49 I am authorized to state that Justice ANNETTE

KINGSLAND ZIEGLER joins this concurrence.

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¶50 REBECCA FRANK DALLET, J. (concurring). As the

majority aptly recognizes, neither the United States nor the

Wisconsin Constitution supports a judicially created, per se

rule by which all incarcerated persons are in custody for

purposes of Miranda.1 I write separately to emphasize that the

Wisconsin Constitution was never intended to be interpreted in

lockstep with the United States Constitution. Indeed, when it

comes to certain individual liberties, particularly the right

against self-incrimination, this court has long held that the

Wisconsin Constitution provides greater protection than its

federal counterpart.

I

¶51 As long ago as 1855, we recognized that "[t]he people

of this state shaped our constitution, and it is our solemn

responsibility to interpret it." See Attorney Gen. ex rel.

Bashford v. Barstow, 4 Wis. 567 (*567), 786 (*757) (1855). In

order to protect individual liberties, this court "will not be

bound by the minimums . . . imposed by the [United States] Supreme Court." State v. Doe, 78 Wis. 2d 161, 172, 254

N.W.2d 210 (1977); see also State v. Roberson, 2019 WI 102,

¶¶99-101, 389 Wis. 2d 190, 935 N.W.2d 813 (Dallet, J.,

dissenting) (noting this court's 160-year history of

interpreting the Wisconsin Constitution as granting protections

over and above those recognized in the United States

Constitution). The individual liberties protected by the

Wisconsin Constitution, especially the right against self-

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

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incrimination, are fundamental to our liberty and must be

staunchly guarded by this court:

The rights intended to be protected by [Article I, Section 8 of the Wisconsin Constitution] are so sacred, and the pressure so great towards their relaxation in case where suspicion of guilt is strong and evidence obscure, that it is the duty of the courts to liberally construe the prohibition in favor of private rights, and to refuse to permit those first and doubtful steps which may invade it in any respect. Thornton v. State, 117 Wis. 338, 341, 93 N.W. 1107 (1903)

(emphasis added). Even before the exclusionary rule became obligatory upon the states pursuant to Mapp v. Ohio, 367

U.S. 643 (1961), we held that evidence seized in violation of

the right against self-incrimination must be excluded from

trial, thus elevating the right to one of substance rather than

a mere "form of words."2 See Hoyer v. State, 180

Wis. 407, 415-16, 193 N.W. 89 (1923). We explained that there

was "no reason in logic, justice, or in that innate sense of

fair play," that evidence obtained in violation of one's right

against self-incrimination should be treated any differently

than that obtained in violation of one's right to be free from

unreasonable searches and seizures. Id. at 417 (reasoning that

both constitutional guarantees were of "equal standing and

value").

¶52 It was therefore no surprise when, nearly a century

after Hoyer, we held in State v. Knapp (Knapp II), 2005

WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, that the Wisconsin

Silverthorne 2 Lumber Co. v. United States, 251 U.S. 385, 392 (1920).

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Constitution requires the suppression of physical evidence

obtained via an intentional Miranda violation. Id., ¶2. The

facts of Knapp II are particularly egregious. Detective Timothy

Roets arrived at Matthew Knapp's apartment ostensibly to arrest

him for consuming alcohol, a parole violation. But in reality,

the arrest was the start of Roets's investigation into Knapp for

a woman's murder the night before. When Knapp saw Roets, he

picked up the phone to call his attorney. Knapp eventually hung

up the phone and let Roets in; Knapp informed Roets that he had

been attempting to call his attorney. Without reading Knapp his

Miranda warnings, Roets asked Knapp about the clothes he had

been wearing the night before. Knapp pointed to a pile of

clothes on the floor, which contained a bloody sweatshirt.

Roets collected those clothes and formally placed Knapp under

arrest. During continued questioning by Roets, Knapp twice said

that an attorney told him not to talk to the police and that he

would not write or sign a statement without an attorney. Roets

never read Knapp the Miranda warnings. Id., ¶¶7-10. ¶53 At a Miranda-Goodchild hearing,3 Roets admitted that he

deliberately did not inform Knapp of his Miranda rights. Roets

testified he was concerned that Knapp, who had requested an

attorney, would refuse to make a statement once he learned of

his rights. So, "to keep the lines of communication open,"

3 At a Miranda-Goodchild hearing, the court adjudicates the admissibility of evidence obtained contrary to the right against self-incrimination. See State v. Jiles, 2003 WI 66, ¶25, 262 Wis. 2d 457, 663 N.W.2d 798; State ex rel. Goodchild v. Burke, 27 Wis. 2d 244, 133 N.W.2d 753 (1965).

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Roets purposefully withheld the Miranda warnings prior to

questioning Knapp about his clothing. Id., ¶¶13-14.

¶54 This court held that, under Article I, Section 8 of

the Wisconsin Constitution, the exclusionary rule bars the

prosecution from introducing at trial the "physical fruits"——in

Knapp II, the bloody sweatshirt——of a deliberate Miranda

violation. We reached this conclusion for two important

reasons: to deter bad police behavior and to preserve the

integrity of the judiciary. First, we reasoned that the

Constitution could not abide such repugnant police conduct.

Id., ¶75. We recognized that holding otherwise would send law

enforcement the wrong message; that it was "better to

interrogate a suspect without the Miranda warnings than to use

legitimate means to investigate crime." Id., ¶77 (quoted source

omitted). The Constitution, however, does not permit law

enforcement to intentionally disregard its personal-liberty

guarantees in order to obtain evidence.

¶55 Second, we noted that the judicial system maintains its reputation as a fair and neutral arbiter only if it holds

all parties to the same constitutional standards. Id., ¶79.

Safeguarding Wisconsinites' constitutional rights means ensuring

that those rights are protected throughout the entire

prosecutorial process. But that process would be

"systematically corrupted" if we were to allow into the

courtroom evidence obtained by unconstitutional "investigatory

shortcuts." Id., ¶81. Indeed, just as "[i]t is not too much to expect law enforcement to respect the law," it is not too much

4 No. 2018AP858-CR.rfd

to expect the same of this court. See id. ("[F]air play

requires the players to play by the rules, especially those

players who enforce the rules.").

II

¶56 Neither party has asked us to overturn Knapp II. In

fact, at oral argument, the State expressly told the court that

it was "not asking for Knapp II to be overturned."4 And, as the

majority rightly points out, "Knapp [II] does not suggest

anything" about how the court should resolve Halverson's case.

Majority op., ¶25 n.5.

¶57 Yet Justice Rebecca Grassl Bradley's concurrence calls

on the court to overturn Knapp II anyway, ignoring our robust

tradition of independently interpreting the Wisconsin

Constitution.5 But to do so would not only erode Wisconsinites'

4https://wiseye.org/2020/09/14/wisconsin-supreme-court- oral-argument-state-v-brian-l-halverson/, at 33:22. 5Justice Rebecca Grassl Bradley's concurrence charges that Knapp II is out of step with the United States Supreme Court's interpretation of the Fifth Amendment in United States v. Patane, 542 U.S. 630 (2004) (plurality op.). This assertion rests on a thin reed. See generally Yale Kamisar, Postscript: Another Look at Patane and Seibert, The 2004 Miranda "Poisoned Fruit" Cases, 2 Ohio St. J. Crim. L. 97, 97-107 (2004).

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constitutional protections by sanctioning flagrant and

deliberate due-process violations, it would also take a step

toward making our own Constitution redundant with the federal

one. See Lynn Adelman & Shelley Fite, Exercising Judicial

Power: A Response to the Wisconsin Supreme Court's Critics, 91

Patane is a plurality opinion with only three Justices concluding that, in the Fifth Amendment context, the exclusionary rule could never reach non-testimonial "fruits" obtained as the result of a Miranda violation. Patane, 542 U.S. at 633-34. That rationale was explicitly disavowed by the two concurring Justices. Id. at 645 (Kennedy, J., concurring). Instead, the concurrence applied a balancing test much like the one used in the Fourth Amendment context, counterbalancing "the concerns underlying" the Miranda rule against the "other objectives of the criminal justice system." Id. at 644. A majority of the Justices in Patane thus agreed that a balancing test, and not the plurality's absolute rule, was the proper approach. See 1 Robert P. Mosteller et al., McCormick on Evidence § 176 (8th ed. 2020) (noting that a majority of the Patane Court "agreed that whether the Miranda federal constitutional exclusionary requirement should and would extend to fruit of the poisonous tree depended on balancing the value of excluding fruit as a means of deterring conduct violating the constitutional provision against the costs of doing so").

As the Court did in Patane, we engaged in a balancing analysis in Knapp II; we just reached a different conclusion. See State v. Knapp (Knapp II), 2005 WI 127, ¶¶33-43, 72-81, 285 Wis. 2d 86, 700 N.W.2d 899. That result is justified by the stark contrast between the egregious violation in Knapp II and the excusable Miranda error in Patane. Compare Knapp II, 285 Wis. 2d 86, ¶¶7-10, with Patane, 542 U.S. at 635 (plurality op.) ("Detective Benner attempted to advise respondent of his Miranda rights but got no further than the right to remain silent. At that point, respondent interrupted, asserting that he knew his rights, and neither officer attempted to complete the warning."). Other states have also examined Patane but afforded broader protections under their state constitutions. See, e.g., State v. Vondehn, 236 P.3d 691 (Or. 2010) (en banc); State v. Peterson, 923 A.2d 585 (Vt. 2007); State v. Farris, 849 N.E.2d 985 (Ohio 2006); Commonwealth v. Martin, 827 N.E.2d 198 (Mass. 2005).

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Marq. L. Rev. 425, 443-44 (2007) (observing that the state

legislature has "historically failed to regulate the conduct of

law enforcement," leaving it to the courts to prevent

constitutional abuses); see also Jeffrey Sutton, 51 Imperfect

Solutions 47-83 (2018) (cautioning states to avoid

"lockstepping," particularly in the criminal-procedure context).

To abandon Knapp II is to abandon this court's long history of

upholding the Wisconsin Constitution's protection against

overbearing law-enforcement practices, even if those practices

meet the federally mandated minimum requirements. See Doe, 78

Wis. 2d 161, 171-72; Hoyer, 180 Wis. 407; see also Sutton, supra

at 47-83.

¶58 Federal courts interpret the federal constitution. We

have the final say on ours. Bashford, 4 Wis. at 786 (*757).

And for nearly a century, we have held that, in comparison to

those protected by the federal constitution, the individual

liberties enshrined in the Wisconsin Constitution are rights "of

substance rather than mere tinsel." See Hoyer, 180 Wis. at 415. We should keep it that way.

¶59 For the foregoing reasons, I respectfully concur.

¶60 I am authorized to state that Justices ANN WALSH

BRADLEY and JILL J. KAROFSKY join this concurrence.

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