State v. Halverson
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The Supreme Court remanded this case to the circuit court with directions to deny Defendant's motion to dismiss, holding that Defendant was not in custody for purposes of Miranda v. Arizona, 384 U.S. 436 (1966), when he was interviewed by a police officer.
Defendant was an inmate in jail when he returned a call from an officer regarding an incident at Defendant's prior correctional institution. During the call, during which no Miranda warnings were given, Defendant admitted to the officer that he took and destroyed an inmate's missing property. The circuit court granted Defendant's motion to suppress, concluding that it was bound to apply the per se rule set forth in State v. Armstrong, 588 N.W.2d 606 (Wis. 1999), that incarcerated individuals are in custody for Miranda purposes. The court of appeals reversed, holding that the per se rule adopted in Armstrong was effectively overruled by the United States Supreme Court in Howes v. Fields, 565 U.S. 499 (2012). The Supreme Court affirmed, holding (1) the decision in Howes functionally overruled Armstrong's per se rule; and (2) Defendant's circumstances did not satisfy the standard requirements for custody under Miranda's framework.
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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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: January 29, 2021 September 14, 2020 Circuit Chippewa 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, FILED Plaintiff-Appellant, 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 silent." BRIAN HAGEDORN, You have "a right to remain Miranda v. Arizona, 384 U.S. 436, 444 (1966). begins the ubiquitous the J. United States So Miranda warnings, procedural safeguards 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. ¶2 The question in "custody" for purposes of this case Miranda. concerns 2018AP858-CR the scope of 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. given. No Miranda warnings were 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. Armstrong, 223 Wis. 2d 331, 588 N.W.2d 606 (1999). State v. Relying on United States Supreme Court precedent, we held "that a person who is incarcerated Miranda." is Id. at 355. per se in custody for purposes of 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. ¶4 Id. at 509. 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. Constitution. We decline Halverson's request. 2018AP858-CR 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. ¶5 Jail Brian L. Halverson was an inmate in the Vernon County when Officer speak with him. theft BACKGROUND and Matthew Danielson called and requested to Officer Danielson was investigating a claim of 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. 3 Officer Danielson began 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. calm at the outset, Halverson began yelling. While He ultimately admitted to Officer Danielson that he took and destroyed the property. minutes. The entire phone call lasted no more than five 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 uncontested circuit testimony court as relied factual Halverson's motion to suppress.1 on Officer background, but Danielson's it granted 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. The Honorable Court, presiding. 1 Steven R. Cray, 4 Chippewa County Circuit No. ¶8 At the reconsideration hearing, Sheriff's Deputy Matthew Hoff testified.2 specifically remember the call. 2018AP858-CR Vernon County Deputy Hoff did not 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 approximately library. room. 15-by-25-feet The observation community deputies glass, but in size visually they The and monitor cannot hear community doubles room as the is jail the inmate through what occurs in community room and the calls are not recorded. the 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 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. 2 5 No. per se rule under the Wisconsin 2018AP858-CR 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. ¶12 The issues in DISCUSSION this case center on the nature of "custody" for purposes of determining whether Miranda warnings must be administered. two independent incarcerated Halverson contends he was in custody for reasons. individuals First, should be Halverson deemed "in argues all 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. ¶13 The Law of Miranda 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. set of procedural safeguards, enforced by 2018AP858-CR the remedy of exclusion, aimed at "protecting a defendant's Fifth Amendment privilege against self-incrimination." U.S. 680, 691 (1993). These Withrow v. Williams, 507 safeguards were proposed response to four cases consolidated before the Court. 384 U.S. at 491-99. in Miranda, 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."). instituted effort to Instead, protect Miranda against is a judicially self-incrimination by creating an unrebuttable legal presumption of coercion whenever the warnings are not administered. violation does bright-line, not legal constitute Id. at 306 n.1 ("A Miranda coercion presumption but of rather coercion, affords a 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. may not use Miranda, 384 U.S. at 444 ("[T]he prosecution statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective secure the privilege against self-incrimination."). to 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 of Miranda "is a term art that specifies circumstances that are thought generally to present a serious danger of coercion." ¶17 Howes, 565 U.S. at 508-09. 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.'" (quoted sources omitted). Id. at 509 (alteration in original) This requires examining the totality of the circumstances, including relevant factors such as "the location during of the restraints the questioning, interview, during the the its duration, presence questioning, or and statements absence the of release made physical of the Colloquially, "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). 3 8 No. 2018AP858-CR interviewee at the end of the questioning." Id. (citations omitted). terminate The inability to leave and 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." of-movement test identifies only a Id. necessary sufficient condition for Miranda custody." 559 U.S. 98, 112 (2010). step in the relevant custody environment "[T]he freedomand not a Maryland v. Shatzer, Instead, courts proceed to the second analysis where presents the they same ask "whether inherently the coercive pressures as the type of station house questioning at issue in Miranda." Howes, 565 U.S. at 509. B. ¶18 Incarceration and "Custody" Under Federal Law Application of these principles in incarceration has not always been clear. addressed warnings whether when an inmate questioned should for an the context of In 1999, this court have offense received unrelated Miranda to his incarceration. Armstrong, 223 Wis. 2d 331. We examined federal cases cases precedent and our interpreting federal and held "that a person who is incarcerated is per se in custody for purposes of Miranda." ¶19 In 2012, Armstrong, 223 Wis. 2d at 355. however, the United reached the opposite conclusion. that case, the defendant was States Supreme Court Howes, 565 U.S. at 508. in jail when escorted to In a conference room where two armed sheriff's deputies questioned him for between five and seven hours about allegations pre9 No. dating his time in prison. Id. at 503. 2018AP858-CR 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. confessed. Id. On Fields ultimately At no point during the questioning, however, was he read his Miranda warnings. ¶20 Id. these facts, that the Id. at 504. Court questioning expressly rule Id. at 505. Instead it reviewed and re-emphasized the two-step, prior cases. Id. at 509. custody inmate inquiry is a categorical totality-of-the-circumstances an rejected custodial. established in 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." Court held that incarceration 10 Id. at 512. alone does Therefore, the not necessarily No. 2018AP858-CR implicate the same anti-coercion interests that motivated the Court's prophylactic efforts in Miranda. ¶21 Id.4 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 Court." controlling 2002 WI 44, decision ¶19, 252 of the United Wis. 2d 228, States 647 Supreme 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 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. 4 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, evidenced by the and early first laws legislative passed interpretation following the as 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 written Constitution as 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, ¶¶3839 (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." 389 Wis. 2d 190, ¶56. 12 Roberson, No. ¶25 Halverson prophylactic tool self-incrimination, constitutions. recognizes fashioned a right that to Miranda protect warnings the independently 2018AP858-CR privilege protected are a against in both Halverson therefore asks this court to create an expanded prophylactic to protect a person's rights under the Wisconsin Constitution.5 ¶26 8(1), The self-incrimination clause of Article I, Section adopted against the before states incorporation via the of federal Fourteenth substantively identical to the Fifth Amendment. relevant part: "No person . . . may be protections Amendment, It provides in compelled in criminal case to be a witness against himself or herself." Const. art. I, § 8(1).6 is any Wis. 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 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. 5 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." 6 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 7 13 No. basis to suggest any meaningful difference 2018AP858-CR 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 that Instead, incarceration circumstances Halverson focuses inherently meriting chiefly creates Miranda the warnings. on kind We the of argument custodial agree, however, with the Supreme Court's determination in Howes that a per se rule does not Interrogation serve of the anti-coercion incarcerated purposes individuals does of not Miranda. 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 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."). 8 14 No. U.S. at 509. 2018AP858-CR As we conclude below, Halverson's circumstances do not even satisfy the standard requirements for custody under Miranda's framework. Further, no facts in indicate coercion or anything close to it. Halverson's case 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. to the point, interaction Halverson's demonstrates relatively that benign incarceration and More distanced alone lacks inherent dangers of the station-house interrogation. the 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 history of the of Miranda Wisconsin warnings Constitution nor the support text and Halverson's invitation to adopt his proposed per se rule. D. ¶29 Miranda "Custody" Applied to Halverson 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 factual findings unless they are clearly erroneous. 15 court's State v. No. Dobbs, 2020 Whether WI 64, those ¶28, facts 392 support a Wis. 2d 505, 945 determination of 2018AP858-CR N.W.2d 609. custody purposes of Miranda is a question of law we review de novo. ¶30 As previously explained, custody for for Id. purposes of Miranda first requires an objective determination of whether the suspect was free to move and terminate the interview. 565 U.S. at 509; Bartelt, 379 Wis. 2d 588, ¶31. Howes, 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: place, and length of the degree of restraint; the purpose, the interrogation; communicated by police officers."). restraint, "we consider: and what has been Regarding the degree of 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 16 not free to terminate the 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 conclusion. length of the interview reinforces the same 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 Miranda weighed custody. N.W.2d 552. against 2013 determining WI 30, ¶31, the defendant 346 was Wis. 2d 523, in 828 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 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). 9 17 No. argument. Such a disclosure is inquiry, but it is not mandatory. certainly 2018AP858-CR relevant to the 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. did so. Halverson 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 free to terminate the call. environment also shows he was When Halverson elected to return Officer Danielson's call, the record suggests a deputy escorted Halverson from his pod doubled as a library. to the jail's community room, which 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 step For many of the same reasons, proceeding to the second of environment the did custody not analysis, "present[] the we same conclude Halverson's inherently coercive pressures as the type of station house questioning at issue in 18 No. Miranda." Howes, Wis. 2d 588, ¶33. in the jail's physical 565 U.S. at 509; see also 2018AP858-CR Bartelt, 379 He spoke to Officer Danielson over the phone community restraints, and room where could sit he or was stand alone, at without 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. ¶37 CONCLUSION We decline Halverson's invitation to adopt a per se rule that incarcerated individuals are necessarily "in custody" for purposes of Miranda. we conclude Danielson Halverson interviewed property. Halverson's Applying the standard two-part test, was him not by motion "in phone to custody" when Officer regarding the missing 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. ¶38 REBECCA GRASSL BRADLEY, J. majority opinion in full. petitioner's reliance Wis. 2d 86, 700 interpretation (concurring). I join the I write separately to address the on State v. N.W.2d 899. of 2018AP858-CR.rgb Article Knapp, Because I, Section 2005 the 8 WI 127, Knapp of the 285 court's 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. ¶¶3-5. Following the incident, an officer visited Knapp at his apartment to arrest him, and requested wearing the night of the murder. sweatshirt Id., Knapp, 285 Wis. 2d 86, ¶9. containing During human this the Id., ¶8. blood, which exchange, the clothes he was Knapp pointed to a the officer officer seized. intentionally withheld Miranda warnings in an effort to procure the physical evidence. degree Id., ¶¶14-15. intentional The State charged Knapp with first- homicide, after which he filed a motion seeking to suppress the physical evidence obtained at the scene of the arrest. this court The circuit court denied the motion. reversed the circuit court's On appeal, 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). 1 No. ¶40 States 2018AP858-CR.rgb The State appealed the Knapp I decision to the United 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 warnings failure to give Miranda 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." ¶41 On remand, despite Id. at 643. 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 protections than the United States Constitution. greater 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 Section 8 of the Miranda Wisconsin Constitution] evidence must be suppressed." II). The prerogative Knapp of II the court State violation, . . . [Article I, requires that the Knapp, 285 Wis. 2d 86, ¶2 (Knapp articulated of Wisconsin that, to "[i]t afford is the greater protection to the liberties of persons within its boundaries 2 No. 2018AP858-CR.rgb under the Wisconsin Constitution than is mandated by the United States Supreme Wis. 2d 161, Court." 171, Id., 254 ¶59 N.W.2d 210 (quoting (1977)). State v. Doe, According to 78 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. ¶42 Knapp II represents Id., ¶¶75-83. an unprecedented departure from the traditional tools employed by this court in interpreting the Wisconsin Constitution.1 request an expanded Halverson's reliance on that case to prophylactic to protect the privilege against self-incrimination indicates it is time for this court "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. 1 3 No. to revisit Knapp II's holding. 2018AP858-CR.rgb 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. whether the protections, Wisconsin but protection[s]." The question for this court is not Constitution whether it should "actually Id. (emphasis added). afford affords greater greater Rather than applying the actual constitutional meaning of Article I, Section 8, the Knapp II court provision. instead breathed its policy preferences into It was quite transparent about doing so. this "[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." S. Sykes, Reflections on the Wisconsin The Honorable Diane 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. 285 Wis. 2d 86, ¶¶58-62. The 4 only permissible Knapp, avenue for No. 2018AP858-CR.rgb 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 meaning of its federal counterpart. to do so.2 To be sure, the from the original public The Knapp II court failed 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, Justice 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. 2 5 No. 2018AP858-CR.rgb nor does the Knapp II court even attempt a historical analysis to support such a theory. that rights under Instead, Knapp II pivots to declaring Article I, Section 8 are construed in favor of private citizens. falls far conclusion short that of substantiating Article I, Section "sacred" Id. and This analysis the Knapp II 8 embodies court's heightened protections, especially for a provision that repeats the federal text nearly verbatim. ¶44 Instead Constitution's of text, exploring as the Roberson meaning instructs, of the Knapp Wisconsin II relied heavily upon the view that the officer's conduct was "repugnant" and "require[d] deterrence," and that "preserv[e] . . . judicial integrity." ¶¶75, 79. Judicial policy goals, this court needed to Knapp, 285 Wis. 2d 86, however alter the meaning of the state constitution. estimable, cannot "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 the of United States Federal Courts in Interpreting Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 22 (Amy Gutmann ed., 1997). must exercise its judgment, not its will. The judiciary 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 merely be said to have neither 6 force nor will, but No. judgment."). 2018AP858-CR.rgb "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 principles, majority Knapp II impermissibly of justices court discarded factoring believed into was these its "not venerable analysis what tolera[ble]" a and importing a non-textual, ahistorical consequence in reaction to "the police deliberately ignoring Miranda's rules as a means of obtaining inculpatory Wis. 2d 86, ¶72. physical Neither evidence." "repugnant" facts Knapp, nor 285 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 meriting any an meaningful expanded Majority op., ¶26. difference between judicially-created the two provisions prophylactic The same was true in Knapp II. rule." 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. clause mirrors the Fifth Amendment: Wisconsin's "[no person] shall . . . be subject for the same offence to be twice put in jeopardy of life 7 No. 2018AP858-CR.rgb 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." During Wisconsin's adopted many constitutional provisions counterparts, that including——as U.S. Const. amend. V. ratification, closely relevant against compulsory self-incrimination. parallel for the people their federal Miranda——the right 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 Fifth Amendment to the United States Constitution." ¶55, 318 Wis. 2d 301, 767 N.W.2d 236. does the 2009 WI 60, 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 8 No. Amendment in consonance.3 abandoning privilege the court's against 2018AP858-CR.rgb But Knapp II offered no foundation for well-established self-incrimination understanding and the remedy of the 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 While state of the controlling constitutional language provisions of the may constitution. afford greater protections than the United States Constitution, constitution itself must actually provide them. this court majority of may prefer certain the Although a 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 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. 3 9 No. 2018AP858-CR.rgb Knapp II acted beyond its authority in devising it. should be overturned. ¶49 I am Its holding I respectfully concur. authorized to state KINGSLAND ZIEGLER joins this concurrence. 10 that Justice ANNETTE No. ¶50 REBECCA FRANK DALLET, J. 2018AP858-CR.rfd (concurring). As the majority aptly recognizes, neither the United States nor the Wisconsin rule Constitution by which all supports a incarcerated purposes of Miranda.1 judicially persons created, are in per custody se for 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 Supreme the minimums . . . imposed Court." State N.W.2d 210 (1977); ¶¶99-101, 389 dissenting) v. see also Doe, this 78 the [United Wis. 2d 161, States] 172, 254 State v. Roberson, 2019 WI 102, Wis. 2d 190, 935 (noting by N.W.2d 813 court's 160-year (Dallet, J., history of interpreting the Wisconsin Constitution as granting protections over and above Constitution). Wisconsin 1 those The recognized individual Constitution, in the liberties especially the 1 protected right Miranda v. Arizona, 384 U.S. 436 (1966). United against States by the self- No. incrimination, are fundamental to our 2018AP858-CR.rfd 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. (emphasis State, 117 added). obligatory upon Wis. 338, Even the before states 341, the 93 N.W. 1107 exclusionary pursuant to Mapp rule v. (1903) became 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 Wis. 407, 415-16, 193 N.W. 89 (1923). Hoyer v. State, 180 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. both constitutional guarantees Id. at 417 (reasoning that were of "equal standing and value"). ¶52 after It was therefore no surprise when, nearly a century Hoyer, WI 127, 285 we held Wis. 2d 86, in 700 Silverthorne Lumber U.S. 385, 392 (1920). 2 State v. Knapp N.W.2d 899, Co. 2 v. (Knapp II), that United the 2005 Wisconsin States, 251 No. Constitution requires the suppression of 2018AP858-CR.rfd physical obtained via an intentional Miranda violation. facts of Knapp II are particularly egregious. evidence Id., ¶2. The 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. clothes on the floor, which Knapp pointed to a pile of 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. never read Knapp the Miranda warnings. ¶53 Roets Id., ¶¶7-10. 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," 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). 3 3 No. Roets purposefully withheld the Miranda questioning Knapp about his clothing. ¶54 the 2018AP858-CR.rfd warnings prior to Id., ¶¶13-14. This court held that, under Article I, Section 8 of Wisconsin Constitution, the exclusionary rule bars the prosecution from introducing at trial the "physical fruits"——in Knapp II, the violation. bloody We reached reasons: to deter integrity of the Constitution Id., ¶75. sweatshirt——of bad not deliberate this conclusion police behavior judiciary. could a First, abide such for and we two to important preserve reasoned repugnant Miranda that police the the conduct. 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." omitted). The enforcement to Constitution, intentionally Id., ¶77 (quoted source however, does disregard its not permit law 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 prosecutorial are process. "systematically protected But corrupted" if we throughout that were the process to allow entire would be 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. to expect the same of this court. See id. 2018AP858-CR.rfd ("[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 majority rightly points out, "Knapp [II] does And, as the 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 Constitution.5 independently interpreting the Wisconsin But to do so would not only erode Wisconsinites' https://wiseye.org/2020/09/14/wisconsin-supreme-courtoral-argument-state-v-brian-l-halverson/, at 33:22. 4 Justice 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). 5 5 No. constitutional protections by sanctioning 2018AP858-CR.rfd 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). 6 No. Marq. L. Rev. 425, 443-44 (2007) (observing 2018AP858-CR.rfd 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. have the final say on ours. We 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 BRADLEY and JILL J. KAROFSKY join this concurrence. 7 ANN WALSH No. 1 2018AP858-CR.rfd
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