State v. Daniel J. H. Bartelt

• Court: Wisconsin Supreme Court
• Decided: February 20, 2018
• Docket: 2015AP002506-CR
• Status: Published

Opinion

2018 WI 16

SUPREME COURT OF WISCONSIN CASE NO.: 2015AP2506-CR COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. Daniel J. H. Bartelt, Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 375 Wis. 2d 148, 895 N.W.2d 86 PDC No: 2017 WI App 23 - Published

OPINION FILED: February 20, 2018 SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 14, 2017

SOURCE OF APPEAL: COURT: Circuit COUNTY: Washington JUDGE: Todd K. Martens

JUSTICES: CONCURRED: DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. (opinion filed). NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs and an oral argument by Leon W. Todd, assistant state public defender.

For the plaintiff-respondent, there was a brief by Amy C. Miller, assistant solicitor general, Brad D. Schimel, attorney general, Misha Tseytlin, solicitor general, and Ryan J. Walsh, chief deputy solicitor general. There was an oral argument by Amy C. Miller. 2018 WI 16 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP2506-CR (L.C. No. 2013CF276)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent, FILED v. Feb 20, 2018

Daniel J.H. Bartelt, Sheila T. Reiff Clerk of Supreme Court

Defendant-Appellant-Petitioner

REVIEW of a published decision of the court of appeals.

Affirmed.

¶1 PATIENCE DRAKE ROGGENSACK, C.J. This review concerns

the point in time at which a person is "in custody" for purposes

of Miranda.1 Daniel J.H. Bartelt asks us to overturn a decision of the court of appeals, affirming the circuit court's2 judgment

entered in favor of the State regarding Bartelt's motion to

suppress incriminating statements, and concluding that Bartelt

was not in custody at the time the statements were made.

1 Miranda v. Arizona, 384 U.S. 436 (1966); cf. Edwards v. Arizona, 451 U.S. 477 (1981). 2 The Honorable Todd K. Martens of Washington County, presided. No. 2015AP2506-CR

¶2 Bartelt presents two issues: first, whether Bartelt's

confession to a serious crime transformed his custody status

from noncustodial to "in custody;" and second, whether Bartelt's

request for counsel was unequivocal such that police officers

violated his Fifth Amendment rights when they questioned him the

following day without counsel present.

¶3 On the first issue we conclude that, under the

totality of the circumstances attendant to his interview,

Bartelt's confession did not transform his custody status.

Rather, Bartelt was not in custody until Detectives Joel

Clausing and Aaron Walsh of the Washington County Sheriff's

Department took his cell phone, approximately ten minutes after

his confession, and instructed him to remain in the interview

room. Because we determine that Bartelt was not in custody

until this point, which was after his alleged request for

counsel, we need not and do not reach the issue of whether his

alleged request for counsel was unequivocal.

¶4 Accordingly, we affirm the court of appeals.

I. BACKGROUND

¶5 This case arises from two crimes committed in July

2013. On July 12, 2013, M.R. was assaulted by a male suspect

with a knife while walking her dog in Richfield Historical Park

in the Village of Richfield. M.R. was tackled to the ground and

suffered several knife wounds before disarming the suspect, who

fled the scene in a blue Dodge Caravan. Three days later, on

July 15, 2013, Jessie Blodgett, a friend and former girlfriend

2 No. 2015AP2506-CR

of Bartelt, was found dead in her home in the City of Hartford.

According to preliminary autopsy findings, the cause of death

was ligature strangulation.

¶6 As of July 16, 2013, Clausing and Detective Richard

Thickens of the Hartford Police Department had identified

Bartelt as a person of interest in the attack on M.R. Earlier

that month, a deputy had noticed a blue Dodge Caravan at the

same park and had run the license plate, which revealed that the

vehicle was registered to Bartelt's parents. Police learned

that the Bartelts had a son, and were then able to match

Bartelt's photograph from the Wisconsin Department of

Transportation with the composite sketch drawn at M.R.'s

direction. Clausing contacted Bartelt around 5:00 p.m. on July

16, and told him that the police were investigating an incident,

and that they needed to speak with him. Bartelt was "very

compliant," and agreed to meet with detectives at the Slinger

Police Department.

¶7 The Slinger Police Department is located inside a

municipal building that it shares with various other offices and

departments. There is one main entrance to the building. Once

inside, a separate entrance leads to the police department.

Neither the main door to the building nor the door to the police

department is secured during normal business hours, and there

are no metal detectors or other security screening devices.

Inside the police department, another door leads to the

"internal portion" of the department. This door is locked from

3 No. 2015AP2506-CR

the outside, but one can freely exit. The interview room is

located about twenty-five feet inside this secured area. The

room is thirteen and one-half feet by ten and one-half feet, and

contains a table, three chairs and a window. The room can be

accessed by either of two doors, neither of which can be locked.

¶8 Bartelt was dropped off by two friends at the Slinger

Police Department around 5:12 p.m. His friends waited outside.

Clausing testified that Bartelt was escorted to the interview

room but was not searched. Bartelt chose the seat on the far

side of the table, while Clausing sat at the end, and Walsh sat

opposite Bartelt. Clausing and Walsh were wearing civilian

clothes; however, they both had their badges displayed on their

belts, as well as their service weapons. Clausing testified

that one of the doors to the room was left open. Unbeknownst to

Bartelt, the interview was recorded by both audio and visual

means.

¶9 Clausing began the interview by telling Bartelt that

he was not in trouble, he was not under arrest, and he could

leave at any time. Clausing did not read Bartelt his Miranda

rights. Bartelt, who had just come from the Blodgett residence

to pay his respects to the family, believed the police were

meeting with him about Blodgett's murder. However, Clausing

explained that law enforcement was investigating an attack that

had occurred at Richfield Historic Park on the previous Friday.

Bartelt was asked a number of preliminary questions and

initially denied any involvement. Bartelt stated that he had

4 No. 2015AP2506-CR

been with his girlfriend on the day in question, although he

could not "remember any specifics." Clausing then explained

that cell phones "are kind of like GPS's," and told Bartelt, "I

don't want any lies."

¶10 Clausing then observed some scrapes and a cut on

Bartelt's hand and arm. Bartelt stated he did not remember how

he scraped his arm, but that he had stabbed his hand "with a

screw at work." The following exchange then occurred:

DET. CLAUSING: . . . So what do you think evidence is?

MR. BARTELT: Incriminating items, documents.

DET. CLAUSING: First -- but I'm more of a nuts- and-bolts type of guy. Like, what would you consider to be evidence?

MR. BARTELT: Well --

DET. CLAUSING: Fingerprints?

MR. BARTELT: Yeah.

DET. CLAUSING: Okay. Fibers? Hairs?

DET. CLAUSING: Any DNA? You know, footwear impressions?

DET. CLAUSING: Witness statements, right? Video surveillance, stuff like that, right?

DET. CLAUSING: Is there any evidence that we just talked about which would show that you would be in this park at the time of this incident that had occurred? Is there any evidence out there that would show that? 5 No. 2015AP2506-CR

MR. BARTELT: I don't think so . . . What is this about? ¶11 After reminding Bartelt that police were investigating

an incident at Richfield Historical Park, Clausing said, "What

if I were to tell you that there might be something that links

you there." Clausing then proceeded to explain "Locard's

exchange principle," which holds that the perpetrator of a crime

will bring something into the crime scene——such as fingerprints,

sweat, DNA, or clothing fibers——and leave it behind. The detectives added that they had found evidence "from the person

that was out there," which needed to be analyzed by the state

crime laboratory.

¶12 Clausing next told Bartelt that they had an

eyewitness, stating, "I would hate to put down your picture in

front of the eyewitness and have them say, that's the guy that

was out there." Further, Clausing stated, "I can prove that you

were out there. It's not just a tip. I can prove it. And all

I'm getting at is that if you were out there, just talk to us

about what happened or what you saw or what you observed or

whatever." Walsh told Bartelt they knew that his vehicle had

been spotted at the park on several occasions when Bartelt was

supposed to be at work. Bartelt admitted that he had been laid

off for several months, and that the injury was actually the

result of a cooking accident.

¶13 At this time Clausing moved his chair closer to

Bartelt. When Clausing's face was about two feet from Bartelt's, Clausing told him, "No more lies. It just makes

6 No. 2015AP2506-CR

things worse. It is spiraling out of control right now . . . .

Nobody in their right mind would lie about cutting themselves if

it happened at home cooking . . . . What happened? Just be

honest." Bartelt admitted that he had been to the park before

and that he had seen the sketch on television, but that "it

wasn't me."

¶14 Walsh then urged Bartelt to help bring closure to M.R.

"Daniel, the truth is going to help us bring some resolution to

this for everybody involved . . . . We have one scared person

out there right now . . . and the easiest way to put some

resolution to this is [for] the [ ] person that did this to take

responsibility." Walsh added that he could understand why

someone would do this, "especially if the person that did it

explains to us what they were thinking, where they were in their

life." For example, Bartelt had lost his job and hid that from

his parents, and he had dropped out of college after only one

semester. Walsh stated that "when things are not going well for

people, they do things that are very out of character." He

added, "I think you are a good person . . . [g]ood people can

explain things away and we can understand why they do things.

So tell us about the park."

¶15 Following a lengthy narrative from Clausing about the

two types of people in this situation——those who take

responsibility and those who say "prove it"——Bartelt admitted to

being at the park and going "after that girl" because he "wanted

to scare someone." Bartelt told the officers that he had been

7 No. 2015AP2506-CR

reading when he saw M.R., and in the "spur of the moment," he

decided to "run at her and knock her down and scare her."

Bartelt admitted there was no real explanation or motive for the

attack; he was "just numb" and scared because "life scares me."

Bartelt targeted M.R. because "[t]here was no one else there."

Following this admission, Clausing asked Bartelt if he would be

willing to provide a written statement of confession. Walsh

explained that the written statement would be Bartelt's chance

to apologize. When Bartelt asked what would happen after he

gave his statement, Clausing responded, "I can't say what

happens then. We'll probably have more questions for you, quite

honestly." Clausing later testified that, once Bartelt had

confessed, he "was going to be under arrest, and he probably

wasn't free to get up and leave."

¶16 It was at this point that Bartelt asked, "Should I or

can I speak to a lawyer or anything?" Clausing told him, "Sure,

yes. That is your option." Bartelt responded, "I think I'd

prefer that." At 5:45 p.m., roughly 33 minutes after Bartelt

arrived at the station for questioning, Clausing and Walsh

suspended the interview, took Bartelt's cell phone, and left the

room. When the detectives returned seven or eight minutes

later, Clausing told Bartelt he was under arrest, handcuffed

him, and searched him. Bartelt was then transported to the

Washington County Jail.

¶17 Clausing testified that, during the course of the

interview, both he and Walsh spoke in a conversational tone,

8 No. 2015AP2506-CR

which did not change even after Bartelt's admission. Neither

detective ever made reference to or unholstered their weapons.

Bartelt never asked to use the restroom or take a break. At one

point during the interview Clausing gave Bartelt permission to

answer his cell phone, which Bartelt declined to do.

¶18 The following day, on July 17, 2013, Bartelt was

brought to the interview room at the Washington County Sheriff's

Department to be questioned by Thickens and Detective James Wolf

regarding his relationship with Blodgett. Before commencing

with questioning, Thickens read Bartelt his Miranda rights,

which Bartelt knowingly and voluntarily waived.

¶19 Bartelt was questioned for approximately 90 minutes

about his relationship with Blodgett and his whereabouts on the

day of Blodgett's death. Bartelt denied being at the Blodgett

residence on July 15, 2013, or having any knowledge of

Blodgett's death. Bartelt stated that on the morning of July 15

he had left his house at 6:30 a.m. and drove "all over" before

spending a few hours at Woodlawn Union Park. Bartelt then asked

for an attorney, at which point the questioning stopped.

¶20 Thickens later drove to Woodlawn Union Park to

investigate, and in doing so he collected garbage from the

park's receptacles. In one container he found a Frosted Mini-

Wheats cereal box containing paper toweling, numerous types of

rope and tape, and antiseptic wipes with red stains. One of the

ropes later revealed DNA that belonged to both Bartelt and

Blodgett, and which matched the ligature marks on Blodgett's

9 No. 2015AP2506-CR

neck. Another rope matched the ligature marks on her wrists and

ankles. Based on this evidence and the confession Bartelt made

during his first interview, Bartelt was charged with attempted

first-degree intentional homicide, first-degree reckless

endangerment, and attempted false imprisonment for the attack on

M.R., as well as first-degree intentional homicide for the

murder of Blodgett.

¶21 Bartelt moved to suppress his statements, and any

evidence derived from them, on the grounds that the officers had

violated his Miranda rights when they questioned him. The

circuit court denied Bartelt's motion, concluding that at the

time of his July 16, 2013, interview, Bartelt had voluntarily

agreed to speak with police. The circuit court concluded that

Bartelt was not in custody until after he had requested an

attorney, roughly ten minutes after his confession. Therefore,

no Miranda warnings were necessary with respect to the July 16

interview, and police were free to initiate questioning on July

17 because "an assertion of Miranda . . . which a person makes

while they are not in custody, does not prospectively prohibit

law enforcement from attempting to interview an individual

later." Further, with respect to the July 17 interview, the

circuit court found that Bartelt was properly given his Miranda

warning, which he voluntarily waived.

¶22 Following the denial of Bartelt's suppression motion,

the circuit court ordered that the Blodgett homicide charge be

separated from the charges related to M.R. After a seven-day

10 No. 2015AP2506-CR

jury trial, Bartelt was found guilty of Blodgett's murder.

Consequently, he was sentenced to life imprisonment without the

possibility of release to extended supervision. Shortly

thereafter, the parties reached a plea agreement regarding the

attempted murder, reckless endangerment, and false imprisonment

charges. In exchange for Bartelt's guilty plea to first-degree

reckless endangerment, the State agreed to dismiss and read-in

the remaining counts, and Bartelt was sentenced to five years'

imprisonment and five years' extended supervision consecutive to

his life sentence.

¶23 Bartelt appealed his murder conviction on the grounds

that the circuit court improperly denied his suppression motion.

Specifically, Bartelt argued that once he confessed to attacking

M.R., a reasonable person in his circumstances would have

believed he was not free to leave the station, thereby

transforming the non-custodial interview into a custodial

interrogation. Bartelt therefore argued that all statements

made after his admissions about M.R. were inadmissible under the

principles of Miranda and Edwards. As a consequence, Bartelt

alleges that detectives violated his Fifth Amendment rights when

they approached him to question him about Blodgett's murder

without counsel being present. Under the exclusionary rule,3

3 The exclusionary rule was first adopted by the United States Supreme Court in Weeks v. United States, 232 U.S. 383 (1914), which held that evidence obtained in violation of the Fourth Amendment is inadmissible. This holding was expanded to include state court proceedings in Mapp v. Ohio, 367 U.S. 643 (1961). However, Wisconsin courts have aligned themselves with (continued) 11 No. 2015AP2506-CR

Bartelt alleged that all derivative evidence discovered as a

result of his statements should have been suppressed.4

¶24 The court of appeals rejected Bartelt's arguments and

affirmed the circuit court's judgment. Bartelt sought review,

which we granted. For the reasons explained below, we affirm

the court of appeals.

II. DISCUSSION

A. Standard of Review

¶25 A determination of when custody begins presents a

question of constitutional fact that we review under a two-part

standard. State v. Jennings, 2002 WI 44, ¶20, 252 Wis. 2d 228,

647 N.W.2d 142. The circuit court's findings of historical fact

will be upheld unless they are clearly erroneous. State v.

Henderson, 2001 WI 97, ¶16, 245 Wis. 2d 345, 629 N.W.2d 613.

Whether those findings support a determination of custody for

purposes of Miranda is a question of law that we independently

review. Id.

B. Miranda and Custody

¶26 The Fifth Amendment of the United States Constitution

states that "[no person] shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

the federal rule since long before the Mapp holding. See Hoyer v. State, 180 Wis. 407, 417, 193 N.W. 89 (1923). 4 See State v. Knapp, 2005 WI 127, ¶2, 285 Wis. 2d 86, 700 N.W.2d 899 ("Where physical evidence is obtained as the direct result of an intentional Miranda violation, we conclude that our constitution requires that the evidence must be suppressed.").

12 No. 2015AP2506-CR

liberty, or property, without due process of law . . . ." We

have interpreted Article I, Section 8(1)5 of the Wisconsin

Constitution consistent with the United States Supreme Court's

interpretation of the Fifth Amendment. State v. Ward, 2009 WI

60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236.

¶27 In 1966, the Supreme Court held that the Fifth

Amendment requires law enforcement to inform suspects of their

rights to remain silent and to have an attorney present during

custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 458

(1966).6 These warnings are required because "[t]he

circumstances surrounding in-custody interrogation can operate

very quickly to overbear the will of [the suspect]." Id. at

469; see also State v. Quigley, 2016 WI App 53, ¶31, 370

Wis. 2d 702, 883 N.W.2d 139 ("[W]hen a suspect is in police

custody, there is a heightened risk of obtaining statements that

'are not the product of the suspect's free choice.'" (internal

citation omitted)).

5 Article I, Section 8(1) reads: "[n]o person may be held to answer for a criminal offense without due process of law . . . ." 6 "[The 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. If the accused indicates that he or she wishes to remain silent, questioning must stop. If he or she requests counsel, questioning must stop until an attorney is present. Id. at 474.

13 No. 2015AP2506-CR

¶28 In Edwards, the Supreme Court added a second layer of

protection to the Miranda right to counsel by fashioning a

bright-line rule requiring law enforcement to immediately cease

questioning once a suspect has asserted his or her right to

counsel during a custodial interrogation. Further,

[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. Edwards v. Arizona, 451 U.S. 477, 484 (1981). Stated otherwise,

once a suspect has invoked his Fifth Amendment right to counsel,

the Miranda-Edwards rule prohibits police from engaging in

subsequent, uncounseled interrogations regarding the same or

separate investigations. Arizona v. Roberson, 486 U.S. 675,

677-78 (1988).7

¶29 Over the years, particular emphasis has been placed on

when a suspect may effectively invoke his or her Fifth Amendment

rights. Miranda stated that "[a]n individual need not make a

pre-interrogation request for a lawyer. While such request

affirmatively secures his right to have one, his failure to ask

for a lawyer does not constitute a waiver." Miranda, 384 U.S.

at 470. The Supreme Court later clarified this statement,

noting that the Court has "never held that a person can invoke

7 However, if it is the accused who initiates further communication with the police, courts typically will conclude that a valid waiver has been made. State v. Kramar, 149 Wis. 2d 767, 785-86, 440 N.W.2d 317 (1989).

14 No. 2015AP2506-CR

his Miranda rights anticipatorily, in a context other than

'custodial interrogation' . . . ." McNeil v. Wisconsin, 501

U.S. 171, 182 n.3 (1991). The Court continued:

If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect. Id.

¶30 These Supreme Court decisions explain that the right

to counsel may not be invoked until a suspect is "in custody."

Wisconsin courts interpret Article I, Section 8 of the Wisconsin

Constitution consistent with the Supreme Court's interpretation

of the Fifth Amendment. "Miranda and its progeny are aimed at

dispelling the compulsion inherent in custodial surroundings.

Thus, the Miranda safeguards apply only to custodial

interrogations" under both constitutions. State v. Pheil, 152

Wis. 2d 523, 530-31, 449 N.W.2d 858 (Ct. App. 1989) (citation

omitted).8 "[U]nless a defendant is in custody, he or she may

not invoke the right to counsel under Miranda." State v.

8 This exact language has been cited in numerous subsequent decisions. See, e.g., State v. Kramer, 2006 WI App 133, ¶9, 294 Wis. 2d 780, 720 N.W.2d 459 (quoting State v. Hassel, 2005 WI App 80, ¶9, 280 Wis. 2d 637, 696 N.W.2d 270).

15 No. 2015AP2506-CR

Kramer, 2006 WI App 133, ¶9, 294 Wis. 2d 780, 720 N.W.2d 459.

We therefore turn our attention to what "in custody" means such

that an invocation of the right to counsel becomes immediately

effective.

¶31 In Miranda, the Supreme Court defined custodial

interrogation as "questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise

deprived of his freedom of action in any significant way."

Miranda, 384 U.S. at 444. The test to determine whether a

person is in custody under Miranda is an objective test. State

v. Lonkoski, 2013 WI 30, ¶27, 346 Wis. 2d 523, 828 N.W.2d 552.

The inquiry is "whether there is a formal arrest or restraint on

freedom of movement of a degree associated with a formal

arrest." Id. (quoting State v. Leprich, 160 Wis. 2d 472, 477,

465 N.W.2d 844 (Ct. App. 1991)); see also California v. Beheler,

463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon v.

Mathiason, 429 U.S. 492, 495 (1977)). Looking at the totality

of the circumstances, courts will consider whether "a reasonable

person would not feel free to terminate the interview and leave

the scene." State v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278,

816 N.W.2d 270 (citing Thompson v. Keohane, 516 U.S. 99, 112

(1995)).

¶32 We consider a variety of factors to determine whether

under the totality of the circumstances a reasonable person

would feel at liberty to terminate an interview and leave. Such

factors include: the degree of restraint; the purpose, place,

16 No. 2015AP2506-CR

and length of the interrogation; and what has been communicated

by police officers. State v. Blatterman, 2015 WI 46, ¶¶30, 31,

362 Wis. 2d 138, 864 N.W.2d 26. "When considering 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." State

v. Morgan, 2002 WI App 124, ¶12, 254 Wis. 2d 602, 648 N.W.2d 23.

¶33 If we determine that a suspect's freedom of movement

is curtailed such that a reasonable person would not feel free

to leave, we must then consider whether "the relevant

environment presents the same inherently coercive pressures as

the type of station house questioning at issue in Miranda."

Howes v. Fields, 565 U.S. 499, 509 (2012). In other words, we

must consider whether the specific circumstances presented a

serious danger of coercion, because the "freedom-of-movement

test identifies only a necessary and not a sufficient condition

for Miranda custody." Id. (citation omitted). Importantly, a

noncustodial situation is not converted to one in which Miranda

applies simply because the environment in which the questioning

took place was coercive. Mathiason, 429 U.S. at 495. "Any

interview of one suspected of a crime by a police officer will

have coercive aspects to it . . . [b]ut police officers are not

required to administer Miranda warnings to everyone whom they

question." Id. Therefore, "Miranda warnings are not required

17 No. 2015AP2506-CR

'simply because the questioning takes place in the station

house, or because the questioned person is one whom the police

suspect.'" Beheler, 463 U.S. at 1125 (citing Mathiason, 429

U.S. at 495).9 And finally, "the initial determination of

custody depends on the objective circumstances of the

interrogation, not on the subjective views harbored by either

the interrogating officers or the person being questioned."

Stansbury v. California, 511 U.S. 318, 323 (1994).

C. Bartelt and Custody

¶34 We now turn to whether, under the totality of the

circumstances of this case, Bartelt was in custody at any time

prior to Clausing taking his cell phone and telling him to

remain in the interrogation room. Although the parties agree

that the interview was not initially custodial, Bartelt argues

that his confession to the attack on M.R. transformed his

custody status into one in which a reasonable person would not

have felt free to leave. As a result, all further questioning

should have ceased once Bartelt invoked his right to counsel.10

9 The oft-used example of a situation in which one is physically detained but not in custody is that of a Terry stop or roadside traffic stop. See Terry v. Ohio, 392 U.S. 1 (1968); Berkemer v. McCarty, 468 U.S. 420 (1984). In Berkemer, the Supreme Court analogized traffic stops to Terry stops, concluding that the "noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda." Berkemer, 468 U.S. at 440. 10 This argument assumes, although we do not decide, that Bartelt's request for counsel was unequivocal.

18 No. 2015AP2506-CR

Accordingly, Bartelt alleges his constitutional rights were

violated when detectives from the City of Hartford approached

him the following day about the murder of Blodgett without

counsel present. Bartelt therefore argues that, under the

exclusionary rule, all statements made during the July 17

interview and the evidence that was derived from those

statements must be suppressed.

¶35 First, we consider the circumstances surrounding

Clausing and Walsh's interrogation of Bartelt. Second, given

those circumstances, we consider whether a reasonable person in

Bartelt's position would have felt that he or she was at liberty

to terminate the interview and leave. "Once the scene is set

and the players' lines and actions are reconstructed, [we] must

apply an objective test to resolve 'the ultimate inquiry':

'[was] there a "formal arrest or restraint on freedom of

movement" of the degree associated with a formal arrest[?]'"

Keohane, 516 U.S. at 112 (quoting Beheler, 463 U.S. at 1125)

(quoting Mathiason, 429 U.S. at 495); see also Lonkoski, 346

Wis. 2d 523, ¶27.

¶36 As to Bartelt's custody status, the parties agree that

Bartelt was not in custody at the beginning of the interview and

up until the point that he confessed to attacking M.R. Bartelt

came to the Slinger Police Department voluntarily. He was

dropped off by two friends who waited for him in the parking

lot, indicating that a reasonable person in Bartelt's position

19 No. 2015AP2506-CR

would have believed he or she would be free to leave at the end

of the interview.

¶37 Once inside the building, Bartelt was taken through a

secured door, locked from the outside only, to the internal

portion of the police department. He was then led to an

interview room that had two doors, neither of which could be

locked, and one of which was left ajar during the interview

itself. See Lonkoski, 346 Wis. 2d 523, ¶¶30-32 (holding that

where defendant voluntarily came to police department, interview

room was locked for entry purposes only, and door was repeatedly

opened, defendant was not in custody). The detectives did not

search Bartelt, and he was not restrained in any way. All of

these circumstances imply he was not in custody. Id., ¶32

(holding that lack of handcuffs and failure to search indicates

lack of custody).

¶38 At the outset of the interview, Clausing told Bartelt

that he was "not in trouble" and that he was "not under arrest."

See Mathiason, 429 U.S. at 495 (considering that defendant came

to police department voluntarily and was immediately informed

that he was not under arrest were indicative of lack of

custody). Bartelt showed that he understood that when he nodded

and responded, "that's good." Clausing further advised Bartelt

that he could "get up and walk out of here any time [he]

want[ed]." See Quigley, 370 Wis. 2d 702, ¶¶40-41 (holding that

a police officer's advisements that an interviewee was not under

arrest and was free to leave are "of substantial importance,"

20 No. 2015AP2506-CR

and further concluding that a suspect's acknowledgement and lack

of objection are "highly significant"). Additionally, Clausing

testified that neither he nor Detective Walsh ever raised their

voice or made a show of authority, such as referencing or

removing their weapons.11 Lonkoski, 346 Wis. 2d 523, ¶32. When

Bartelt's phone rang, he was given the opportunity to answer it.

See United States v. LeBrun, 363 F.3d 715, 722 (8th Cir. 2004)

("While the mere possession of a cellular phone without more

will not transform a custodial interrogation into a noncustodial

one, it is relevant to the question of whether the interview was

coercive and whether a reasonable person in the same

circumstances would feel restrained."). And finally, the

interview lasted only thirty-five minutes. Lonkoski, 346

Wis. 2d 523, ¶31 (holding that a "relatively short" interview of

approximately thirty minutes indicated lack of custody). We

agree that these factors support the conclusion that, prior to

his confession, there was no restraint on Bartelt's freedom to

the degree associated with an arrest.

¶39 Nonetheless, Bartelt argues that, as the interview

progressed, he was increasingly treated as though he were the

target of a serious felony investigation. At the outset of the

interview, Clausing told Bartelt that he was investigating an

11 At one point, having caught Bartelt in a lie about his employment and the nature of the cut on his hand, Clausing moved his chair closer to Bartelt, from approximately four or five feet away to within two feet. The ambiance of the interview remained otherwise unchanged.

21 No. 2015AP2506-CR

"incident" that had occurred in Richfield Historical Park on the

previous Friday. He did not specify the nature of the incident,

nor did he accuse Bartelt of being involved. However, after

Bartelt's initial denials and hesitations, the detectives began

to insinuate that not only had Bartelt been at the park, but

that they suspected——and indeed had evidence——that Bartelt was

involved in an attack in the park. The detectives said they

knew what happened and just wanted to understand why. Clausing

testified that he and Walsh were attempting to minimize

Bartelt's moral liability by offering justifications for his

behavior. Bartelt argues that the inherently coercive nature of

the interview, coupled with the fact that the detectives

essentially told Bartelt they believed he was guilty, created an

environment such that from the moment Bartelt confessed, no

reasonable person would have felt free to leave.

¶40 The court of appeals acknowledged that the detectives

"applied some psychological pressures on Bartelt to persuade him

to confess . . . ." State v. Bartelt, 2017 WI App 23, ¶35, 375

Wis. 2d 148, 895 N.W.2d 86. We agree that this factor tends to

favor custody. However, when combined with all of the other

circumstances present here,12 neither the use of certain

interrogation techniques nor that the interview took place at a

police station is enough to conclude that Bartelt could not have

terminated the interview and left, even after his confession.

12 See supra ¶¶35-36.

22 No. 2015AP2506-CR

¶41 In support of this conclusion, the court of appeals

cited to an Eighth Circuit decision, United States v. LeBrun,

which itself relied heavily on both Mathiason and Beheler. In

LeBrun, the suspect in a felony murder voluntarily agreed to

accompany police to a nearby patrol office. As they arrived,

LeBrun was told that he was not under arrest, that he was free

to terminate the interview at any time, and that he was free to

leave at any time. LeBrun, 363 F.3d at 718. LeBrun was led to

a windowless interview room, where the police used psychological

ploys to facilitate a confession. For example, the agents told

LeBrun that he was the prime suspect, and that they had

significant evidence against him. However, at no point did the

officers shout or use physical force, and LeBrun was not

restrained in any way.

¶42 After thirty-three minutes of questioning, LeBrun

confessed to the crime. Id. In concluding that LeBrun was not

in custody before, during, or after his confession, the Eighth

Circuit reiterated that "[n]ot every confession obtained absent

the Miranda warnings is inadmissible." Id. at 720 (citing

Mathiason, 429 U.S. at 495). The critical inquiry, the court

concluded, "is not whether the interview took place in a

coercive or police dominated environment, but rather whether the

defendant's 'freedom to depart was restricted in any way.'" Id.

(citing Mathiason, 429 U.S. at 495).13 "In answering this

13 In Mathiason, a police officer contacted Mathiason after he had been identified as a potential suspect by a burglary victim. The officer asked Mathiason where it would be (continued) 23 No. 2015AP2506-CR

question, we look at the totality of the circumstances while

keeping in mind that the determination is based 'on the

objective circumstances of the interrogation, not on the

subjective views harbored by either the interrogating officers

or the person being questioned.'" Id. (citing Stansbury, 511

U.S. at 322-23). The Eighth Circuit concluded that "the

purportedly coercive aspects of [the] interview are largely

irrelevant to the custody determination and that the district

court erred in giving such great weight to certain

facts . . . ." Id. at 720-21.

¶43 This issue was similarly discussed in Beheler, where

the defendant, having been told he was not under arrest,

convenient to meet, and they agreed to meet at the state patrol office. Once Mathiason arrived, the officer led Mathiason to an office, where he was told that he was not under arrest. During the course of the interview, the officer told Mathiason that he was a suspect and falsely indicated that police had discovered his fingerprints at the scene of the crime. The Supreme Court of Oregon overturned Mathiason's conviction, holding that the interrogation took place in a coercive environment such that Mathiason was in custody. The Supreme Court of the United States reversed:

[T]here is no indication that the questioning took place in a context where respondent's freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a ½-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody "or otherwise deprived of his freedom of action in any significant way."

Oregon v. Mathiason, 429 U.S. 492, 495 (1977).

24 No. 2015AP2506-CR

accompanied police to the station for questioning. Beheler was

not provided a Miranda warning, and he ultimately confessed

during the course of the thirty-minute interview. The Supreme

Court concluded that, given the totality of the circumstances,

Beheler was neither taken into custody nor significantly

deprived of his freedom of action. In so holding, the Court

reiterated that a noncustodial situation is not converted to a

custodial situation simply because the questioning took place in

a coercive environment. Beheler, 463 U.S. at 1124 (citing

Mathiason, 429 U.S. at 495).

¶44 As the court in LeBrun aptly noted, "Mathiason and

Beheler teach us that some degree of coercion is part and parcel

of the interrogation process and that the coercive aspects of a

police interview are largely irrelevant to the custody

determination except where a reasonable person would perceive

the coercion as restricting his or her freedom to depart."

LeBrun, 363 F.3d at 721. Furthermore, presenting a suspect with

incriminating suggestions does not automatically convert an

interview into a custodial interrogation. United States v.

Jones, 523 F.3d 1235, 1241 (10th Cir. 2008).

¶45 Given the totality of the circumstances presented

herein, we conclude that Bartelt was not in custody at the time

of his confession.

¶46 We now turn to Bartelt's argument that from the moment

of his confession no reasonable person in his position would

have felt free to terminate the interview and leave. In

25 No. 2015AP2506-CR

answering this inquiry, the court of appeals focused on whether,

given the totality of the circumstances, the environment of the

interview after Bartelt's confession "present[ed] the same

inherently coercive pressures as the type of station house

questioning at issue in Miranda." Howes, 565 U.S. at 509. The

court of appeals concluded:

[A] defendant making an incriminating statement does not necessarily transform a noncustodial setting to a custodial one. Indeed, "no Supreme Court case supports [the] contention that admission to a crime transforms an interview by the police into a custodial interrogation." Bartelt, 375 Wis. 2d 148, ¶40 (citing Locke v. Cattell, 476 F.3d

46, 53 (1st Cir. 2007)).

¶47 As an issue of first impression in Wisconsin courts,

the court of appeals relied on several out-of-state and federal

court decisions, including LeBrun, supra. Ultimately, the court

concluded that while a confession is undoubtedly one of the

circumstances we must consider, Miranda is specifically

"concerned 'with a type of interrogation environment created by

the police' and it is this 'atmosphere created by the

authorities for questioning' that necessitates Miranda

warnings." Bartelt, 375 Wis. 2d 148, ¶46 (citing State v.

Clappes, 117 Wis. 2d 277, 283, 344 N.W.2d 141 (1984)). As the

court of appeals noted, Miranda itself stated that Miranda

warnings are required "when an individual is taken into custody

or otherwise deprived of his freedom by the authorities in any

significant way and is subjected to questioning." Bartelt, 375 Wis. 2d, ¶47 (citing Miranda, 384 U.S. at 478). Therefore, the

26 No. 2015AP2506-CR

court of appeals focused on whether the atmosphere of Bartelt's

interview changed after his confession such that a reasonable

person would not feel free to leave. Considering the totality

of the circumstances, Bartelt's confession was not immediately

associated with a restraint on freedom of movement of the degree

associated with an arrest.

¶48 First, we note that both before and after Bartelt's

confession, Clausing and Walsh spoke in a conversational tone.

United States v. Chee, 514 F.3d 1106 (10th Cir. 2008)

(concluding, in part, that tone of interview, unchanged even

after confession to a serious crime, indicates lack of custody).

Although Clausing moved his chair closer to Bartelt after

catching Bartelt in a series of lies, the discussion otherwise

was not aggressive or confrontational. Thomas v. State, 55 A.3d

680, 696 (Md. 2012) (holding that a confession does not per se

render a suspect in custody, especially where the atmosphere of

the room never changed); Commonwealth v. Hilton, 823 N.E.2d 383,

396 (Mass. 2005) ("[A]n interview does not automatically become

custodial at the instant a defendant starts to confess.").

Rather, following Bartelt's admission, the detectives simply

continued to ask for details about the attack, which Bartelt

continued to supply. United States v. Caiello, 420 F.2d 471,

473 (2d Cir. 1969) (stating that it is the presence or absence

of compelling pressures that renders an interview custodial);

State v. Lapointe, 678 A.2d 942, 958 (Conn. 1966) ("While we

agree that admissions of culpability may lead the police either

27 No. 2015AP2506-CR

to arrest a suspect or to place restraints on his freedom

approximating an arrest, the police in this case never altered

the circumstances of their interviews of the defendant in such a

way that his initial noncustodial status became custodial.").

¶49 Second, that Bartelt was arrested at the end of his

interview does not necessarily mean that he was in custody at

any point prior to his arrest. Thomas, 55 A.3d at 692 (noting

that when a suspect is arrested at the end of an interview that

does not demonstrate that he was in custody prior to the

arrest); Chee, 514 F.3d at 1114 (concluding that until a suspect

who has confessed to a crime is arrested, he is merely subject

to arrest). Stated otherwise, although Clausing and Walsh

clearly suspected Bartelt and had enough evidence to arrest him

when he confessed, that in itself did not restrain Bartelt's

freedom of movement. Indeed, the defendants in Chee, Beheler,

and Mathiason were permitted to go home following their

incriminating statements. See Stansbury, 511 U.S. at 325 ("Even

a clear statement from an officer that the person under

interrogation is a prime suspect is not, in itself, dispositive

of the custody issue, for some suspects are free to come and go

until the police decide to make an arrest.").

¶50 On review, Bartelt argues that the court of appeals

ignored the "many more cases" from other jurisdictions that have

gone the other way. Specifically, Bartelt points to several

cases indicating that, after confession to a serious crime, a

person should generally be considered to be in custody for

28 No. 2015AP2506-CR

Miranda purposes, regardless of whether the confession altered

the atmosphere of the interrogation. See State v. Pitts, 936

So. 2d 1111 (Fla. Dist. Ct. App. 2006); Jackson v. State, 528

S.E.2d 232 (Ga. 2000); People v. Ripic, 587 N.Y.S.2d 776 (N.Y.

App. Div. 1992); People v. Carroll, 742 N.E.2d 1247 (Ill. Ct.

App. 2001); Commonwealth v. Smith, 686 N.E.2d 983 (Mass. 1997);

Kolb v. State, 930 P.2d 1238 (Wyo. 1996); Ackerman v. State, 774

N.E.2d 970 (Ind. Ct. App. 2002).

¶51 Bartelt contends that the court of appeals erred in

relegating its discussion of these cases to a footnote, in which

it asserted that at least two of the cases are not persuasive

because they treat a defendant's confession as dispositive. We

disagree with Bartelt because the aforementioned cases are

readily distinguishable. Furthermore, it is law enforcement's

conduct that determines whether a suspect has been taken into

custody. As we have explained above, whether a suspect is in

custody is a fact-specific inquiry where the totality of the

circumstances must be evaluated in full. The totality of the

circumstances herein differ from those in the cases Bartelt

cites.

¶52 Although the specific question we address today——

whether confession to a serious crime transforms a noncustodial

interview into a custodial interrogation in these circumstances—

—is an issue of first impression in Wisconsin, Bartelt contends

that our decision in State v. Koput, 142 Wis. 2d 370, 418 N.W.2d

804 (1988), supports the conclusion that no reasonable person

29 No. 2015AP2506-CR

would have felt free to leave following his confession to a

serious, violent crime. In Koput, we considered whether a

defendant, who had arrived for questioning at 9:30 a.m., was in

custody by the time he gave an inculpatory statement at 4:15

p.m. Based on the totality of the circumstances, we concluded

that Koput was not in custody "until after his confession,

sometime after 4:15 PM." Id. at 380.14 As the court of appeals

correctly noted, Koput does not stand for the proposition that

it was the confession itself which transformed Koput's custody

status. Rather, it was the combination of circumstances after

the confession that amounted to custody.

¶53 We therefore conclude that although an admission of

guilt to a serious crime is a factor to consider in a custody

analysis, Bartelt's admission to attacking M.R. was not enough

to transform his status to that of "in custody" given the

totality of the circumstances. Because Bartelt was not in

custody when he asked about counsel, his Fifth Amendment right

to counsel did not attach.

14 Koput goes on to state, "It was only then that a reasonable person viewing the situation objectively would conclude that he was not free to leave but was in custody." State v. Koput, 142 Wis. 2d 370, 380, 418 N.W.2d 804 (1988). Bartelt argues that in omitting this language from its opinion, the court of appeals omitted Koput's indication that the defendant's custody status changed after (and because) of his confession. We disagree. Even with this language, Koput does not stand for the proposition that the confession, in and of itself, transformed his custody status.

30 No. 2015AP2506-CR

III. CONCLUSION

¶54 There were two issues on this appeal. First, we

considered whether Bartelt was in custody for the purposes of

Miranda once he confessed to attacking M.R. We concluded that,

in light of the totality of the circumstances, Bartelt's

confession did not transform his status to that of "in custody."

Rather, Bartelt was not in custody until Detectives Clausing and

Walsh took his cell phone, approximately ten minutes after his

confession, and instructed him to remain in the interview room.

Second, because we determine that Bartelt was not in custody

counsel, we need not and do not reach the issue of whether his

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

31 No. 2015AP2506-CR.awb

¶55 ANN WALSH BRADLEY, J. (dissenting). "I committed a

serious, violent felony." If suspects uttered these words,

would law enforcement let them walk out of the station? Would a

reasonable person feel free to simply get up and leave?

Engaging in a work of fantasy, the majority says yes. Mired to

the grips of reality, I say no.

¶56 Legal decisions regarding what the "reasonable person"

would do in a given situation do not always reflect the real

world. In reality, any reasonable person would not feel free to

leave a police interrogation room after confessing to a serious,

violent felony. Yet, the majority again finds "a perceived

freedom to depart in circumstances when only the most thick-

skinned of suspects would think such a choice was open to them."

See Wayne R. LaFave, Pinguitudinous Police, Pachydermatous Prey:

Whence Fourth Amendment "Seizures"?, 1991 U. Ill. L. Rev. 729,

739-40.1

¶57 To further the fantasy, the majority omits relevant

facts from its analysis that would lead to the conclusion that Bartelt was in custody after confessing to the attack on M.R.

As a result it does not reach a critical issue in this case——

whether the defendant clearly and unequivocally invoked his

right to counsel. Unlike the majority, I would reach that

issue.

1 See also Michelle R. Ghetti, Seizure Through the Looking Glass: Constitutional Analysis in Alice's Wonderland, 22 S.U. L. Rev. 231, 253 (1995); Thomas v. State, 55 A.3d 680, 702-03 (Md. 2012) (Bell, C.J., dissenting).

1 No. 2015AP2506-CR.awb

¶58 I conclude that a reasonable person in Bartelt's

position would not have felt free to leave the station house

interrogation room, and that Bartelt clearly and unequivocally

invoked his right to counsel. When considering the totality of

the circumstances (namely all of the facts of record), I

determine that Bartelt's Fifth Amendment rights were violated.

Accordingly, I respectfully dissent.

I

¶59 The majority engages in fantasy by determining that a

reasonable person would feel free to leave the police

interrogation room under the circumstances presented here.

Academic studies, the facts of this case, and common sense

support a conclusion contrary to that of the majority.

A

¶60 A suspect is in custody for Miranda purposes if, under

the totality of the circumstances, a reasonable person would not

feel free to terminate the interview and leave the scene. State

v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523, 828 N.W.2d 552 (citing State v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278, 816

N.W.2d 270).

¶61 Studies demonstrate that the "free to leave" standard

that courts apply does not generally reflect what reasonable

people actually think and how they act when interacting with law

enforcement. Cty. of Grant v. Vogt, 2014 WI 76, ¶71, 356

Wis. 2d 343, 850 N.W.2d 253 (Abrahamson, C.J., dissenting)

(citing David K. Kessler, Free To Leave: An Empirical Look at the Fourth Amendment's Seizure Standard, 99 J. Crim. L. &

2 No. 2015AP2506-CR.awb

Criminology 51 (2009); Edwin J. Butterfoss, Bright Line

Seizures: The Need for Clarity in Determining When Fourth

Amendment Activity Begins, 79 J. Crim. L. & Criminology 437,

439-42 (1988); Janice Nadler, No Need to Shout: Bus Sweeps and

the Psychology of Coercion, 2002 Sup. Ct. Rev. 153 (2002)).2

¶62 Indeed, one study concluded that the average person

does not feel free to leave even a simple interaction with law

enforcement on a bus or sidewalk. See Kessler, supra, at 74-75.

This result held true even among people who knew they had the

right to leave such an encounter. Id. at 78.

¶63 Our jurisprudence should reflect reality. It should

be based on true inclinations and thought processes rather than

pushing the mythical "reasonable person" even further from the

bounds of the real world. The majority in this case

accomplishes the latter.

B

¶64 Although the majority correctly invokes analysis of

the totality of the circumstances, it errs by ignoring relevant facts that, in the aggregate, support a determination that

Bartelt was in custody immediately after confessing to the

attack on M.R.

2 Although these studies address the "free to leave" standard with regard to a Fourth Amendment seizure, they are equally applicable to the same standard in relation to the Fifth Amendment. In both situations, a court must determine whether a reasonable person would feel free to leave. It defies logic to argue that a person being questioned in a police station under threat of custody would feel more free to leave than a person stopped pursuant to Terry v. Ohio, 392 U.S. 1 (1968).

3 No. 2015AP2506-CR.awb

¶65 First, the majority correctly sets the scene by

observing that "Bartelt chose the seat on the far side of the

table, while Clausing sat at the end, and Walsh sat opposite

Bartelt." Majority op., ¶8. The majority fails to mention,

however, that in order to leave the room (unless he went under

the table), Bartelt would have had to walk around either

detective. Thus, from the outset of the interview, he would

have had to squeeze by a detective in his path if he tried to

leave the room.

¶66 Second, the majority observes that at one point during

the interrogation, Detective Clausing "moved his chair closer to

Bartelt, from approximately four or five feet away to within two

feet." Id., ¶38 n.11. Yet, according to the majority, "[t]he

ambiance of the interview remained otherwise unchanged." Id.3 I

disagree. Under the totality of the circumstances, cutting the

distance by half and bringing the detective within arms reach of

the suspect changed the atmosphere of the room considerably.

3 The majority focuses its analysis on law enforcement's conduct, not the suspect's. See majority op., ¶48 (observing that "both before and after Bartelt's confession, Clausing and Walsh spoke in a conversational tone"); see also id. ("Although Clausing moved his chair closer to Bartelt after catching Bartelt in a series of lies, the discussion otherwise was not aggressive or confrontational").

To the extent that this line of analysis evinces a departure from the totality of the circumstances test in favor of a narrow focus on law enforcement conduct, this suggestion can be quickly dispatched. In the next sentence after stating that "it is law enforcement's conduct that determines whether a suspect has been taken into custody," the majority reaffirms that a custody determination is made with reference to the totality of the circumstances. See id., ¶51.

4 No. 2015AP2506-CR.awb

¶67 Detective Clausing's movement in effect shrunk the

size of the room and further blocked Bartelt's exit.4

Subsequently, in order to leave the room, Bartelt would have had

not only to walk past either detective, but also if he chose to

leave in Detective Clausing's direction, carefully maneuver

around Detective Clausing, who now sat a mere two feet away from

him.

¶68 Finally, the majority also fails to note an important

shift in the tone of the conversation: Detective Clausing's

language becomes coarser.5 In fact, Detective Clausing does not

utter a curse word over the course of the entire interview until

after he pulls his chair closer to Bartelt. The change in

language coupled with the close proximity of the detective to

4 A suspect's purported belief at the beginning of the interview that he would be free to leave at the end of the interview is irrelevant. See majority op., ¶36. During the course of the interview, circumstances can change. Indeed they did here. 5 Detective Clausing lectured Bartelt:

There is [sic] two different types of people that are in your chair at this time. Okay? There is a person that says, no, f--- this. F--- you. Prove it. And, okay, we will. But there is a person, you know, I f-- -ed up, I made a mistake, I screwed up, but here is the reason why. Okay? Maybe I have a problem with A, maybe I have a problem with B. I was out of character. I'm making bad decisions, and I regret it, and I will do everything in my power to reverse what I did and make things right.

5 No. 2015AP2506-CR.awb

the suspect enhances coercive pressure.6 In other words, it puts

more pressure on the suspect and weighs in favor of a custody

determination, even if the officer's comments otherwise remain

conversational.

¶69 To summarize: two detectives, one of them two feet

away and now swearing at him, block Bartelt's exit path. Yet

under the majority's analysis, Bartelt should have felt free to

stand up in the interrogation room, squeeze by a hovering

detective, and walk out of the police station.

¶70 Add to this atmosphere the fact that the suspect

confessed to a serious, violent felony——the assault of M.R.

Essentially, the majority determines that a suspect in Bartelt's

situation could state to the police, "I committed a serious,

violent felony. I'm leaving, see you later," and then march

past detectives on the way out of the interrogation room and the

police station. This stretches the bounds of credulity.

¶71 Additionally, Detective Clausing testified that he

subjectively believed that after Bartelt confessed, Bartelt would not have been free to leave.7 Is Detective Clausing not a

reasonable person?

6 Although neither the detective's word choice nor his positioning is by itself determinative of custody, each provides further weight in favor of a custody determination when analyzing the totality of the circumstances. 7 During an evidentiary hearing, Detective Clausing testified as follows:

COUNSEL FOR BARTELT: Okay. And when, from your perspective, did [Bartelt being able to walk out of the room] change during the course of this interview?

(continued) 6 No. 2015AP2506-CR.awb

¶72 I acknowledge that Detective Clausing's subjective

view of when Bartelt was in custody is not dispositive. See

Lonkoski, 346 Wis. 2d 523, ¶35. However, his view certainly

provides a window into the perspective of one reasonable person

with a front seat view of the situation. It further

demonstrates law enforcement's expected response if Bartelt had

simply walked out as the majority contends he could have done.

¶73 If even the interrogating detective testified that a

suspect was not free to leave, would a reasonable suspect in

such a position really think he could just get up and walk out?

Only in a fantasy world would a suspect act in this manner.

Common sense tells us that a real world suspect would do no such

thing.

¶74 In sum, I determine that the totality of the

circumstances clearly indicates that Bartelt was not free to

leave. Rather, he was in custody for Miranda purposes

immediately after confessing to the attack on M.R.

II ¶75 Finally, because the majority concludes that Bartelt

was not in custody until the detectives took his cell phone and

DET. CLAUSING: When he admitted to attacking [M.R.].

COUNSEL FOR BARTELT: So at that point in time, he was in trouble, he was going to be under arrest, and he probably wasn't free to get up and leave, true?

DET. CLAUSING: In my mind?

COUNSEL FOR BARTELT: Yes.

DET. CLAUSING: Yes.

7 No. 2015AP2506-CR.awb

instructed him to remain in the interview room, approximately

ten minutes after his confession, it does not reach the issue of

whether Bartelt unequivocally invoked his right to counsel. See

majority op., ¶¶3, 54. As explained above, because I determine

that Bartelt was in custody for Miranda purposes immediately

after confessing to the attack on M.R., I would reach the issue,

and determine that Bartelt's invocation of the right to counsel

was clear and unequivocal.

¶76 To successfully invoke the right to counsel, a suspect

must make a clear and unequivocal request. State v. Edler, 2013

WI 73, ¶34, 350 Wis. 2d 1, 833 N.W.2d 564. "Although a suspect

need not 'speak with the discrimination of an Oxford don,' he

must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an attorney."

Id. (quoting Davis v. United States, 512 U.S. 452, 459 (1994)).

Under this objective test, the court must examine the

circumstances surrounding the request. Edler, 350 Wis. 2d 1, ¶34.

¶77 The relevant circumstances here are as follows:

Bartelt stated, "Should I or can I speak to a lawyer or

anything?" Detective Clausing responded, "Sure, yes. That is

your option." Bartelt then told him, "I think I'd prefer that."

See majority op., ¶16.

¶78 "That" clearly refers to the option to speak to a

lawyer. The circumstances surrounding the statement present a question, an answer, and a subsequent follow-up. Given this

8 No. 2015AP2506-CR.awb

exchange, a reasonable officer would have understood that

Bartelt was accepting the "option" the officer had just

presented to him.

¶79 Bartelt's invocation of the right to counsel was

informal, but that does not make it ineffective. See Edler, 350

Wis. 2d 1, ¶36; State v. Dumas, 750 A.2d 420, 425 (R.I. 2000)

("A suspect asserting his or her right to counsel need not speak

with perfect formality, but may use any manner of colloquial

speech, so long as his or her statement would be reasonably

understood as a request for an attorney"). The most reasonable

interpretation is that Bartelt used the word "think" as

colloquial filler, not as an indication of ambiguity.

¶80 Conversely, ambiguous or equivocal statements not

invoking the protection, are those from which a reasonable

officer "would have understood only that the suspect might be

invoking the right to counsel." State v. Jennings, 2002 WI 44,

¶36, 252 Wis. 2d 228, 647 N.W.2d 142 (quoting Davis, 512 U.S. at

459). ¶81 In Jennings, the defendant stated, "I think maybe I

need to talk to a lawyer." Jennings, 252 Wis. 2d 228, ¶36. The

word "maybe" coupled with "think" in Jennings' statement adds

ambiguity not present here. Instead, Bartelt's response was

made in reply to the detective's statement that having counsel

was his "option." Bartelt clearly chose that option.

¶82 An analogy presented in Bartelt's brief further

illustrates that Bartelt's statement was an unambiguous invocation of the right to counsel: "if a customer went to a

9 No. 2015AP2506-CR.awb

restaurant and asked the waiter, 'What kind of light beers do

you have on tap?,' and the waiter responded, 'Miller Lite and

Bud Light.' If the customer then said, "Okay. I think I'd

prefer a Miller Lite,' no reasonable person would think this was

anything other than a clear request for a Miller Lite." Indeed,

this analogy clarifies that neither the word "think" nor the

word "prefer" necessarily demonstrates equivocation.

¶83 In sum, Bartelt was in custody for Miranda purposes

immediately after confessing to the attack on M.R., and he

invoked his right to counsel. Because a reasonable person in

Bartelt's position would not have felt free to leave the station

house interrogation room, and because Bartelt clearly and

unequivocally invoked his right to counsel, I determine that

Bartelt's Fifth Amendment rights were violated.

¶84 Accordingly, I respectfully dissent.

¶85 I am authorized to state that Justice SHIRLEY S.

ABRAHAMSON joins this dissent.

10 No. 2015AP2506-CR.awb