State v. Matthew A. Lonkoski , 346 Wis. 2d 523 ( 2013 )

2013 WI 30SUPREME COURT OF WISCONSIN
CASE NO.: 2010AP2809-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Matthew A. Lonkoski,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 339 Wis. 2d 490, 809 N.W.2d 900(Ct. App. 2012 – Unpublished)
OPINION FILED: April 9, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 25, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Oneida
JUDGE: Mark Mangerson
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Andrew Hinkel, assistant state public defender, and oral
argument by Andrew Hinkel.
For the plaintiff-respondent, the cause was argued by
Warren D. Weinstein, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
2013 WI 30NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2010AP2809-CR
(L.C. No. 2009CF80)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
APR 9, 2013
Matthew A. Lonkoski,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 N. PATRICK CROOKS, J. This is a review of an
unpublished decision of the court of appeals that affirmed the
judgment of conviction entered by the circuit court for Oneida
County, the Honorable Mark Mangerson presiding.1
¶2 At issue in this case is the admissibility of
statements made to detectives in an interrogation. The
threshold question is whether Matthew A. Lonkoski was in police
1
State v. Lonkoski, No. 2010AP2809-CR, unpublished slip op.
(Wis. Ct. App. Jan. 18, 2012).
No. 2010AP2809-CR
custody for purposes of Miranda2 when he stated that he wanted an
attorney. Within moments of stating he wanted a lawyer,
Lonkoski clearly retracted his statement and thereafter
repeatedly and emphatically stated that he wanted to talk to the
officers without a lawyer. However, if he was already in
custody for Miranda purposes at the time he stated, "I want a
lawyer," he would receive the benefit of the Miranda rule
requiring interrogation to cease, and his subsequent statements
would be subject to the exclusionary rule if other exceptions to
Miranda did not apply. Where a person is not in custody, there
is no such requirement to cease interrogation.
¶3 The circuit court first granted Lonkoski's motion to
suppress all statements he made after he stated that he wanted
an attorney on the grounds that an Edwards3 violation had
occurred. On reconsideration, the circuit court denied the
motion to suppress, focusing its analysis on the fact that
Lonkoski was not in custody when he stated he wanted an attorney
and therefore found that no Edwards violation had occurred. The
court of appeals affirmed.
¶4 After the circuit court denied Lonkoski's motion to
suppress, he pleaded guilty and was convicted of child abuse—
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Edwards v. Arizona, 451 U.S. 477, 483-85 (1981) (holding
that further interrogation is permissible after an accused
invokes a right to counsel if the State can show that the
accused initiated the further communications, exchanges, or
conversations and that the accused knowingly, intelligently, and
voluntarily waived his right to counsel).
2
No. 2010AP2809-CR
recklessly causing great bodily harm in violation of Wis. Stat.
§ 948.03(3)(a)4 and neglecting a child resulting in the child's
death in violation of Wis. Stat. § 948.21(1)(d).
¶5 We hold that the circuit court properly denied the
motion to suppress because Lonkoski was not in custody when he
asked for an attorney, and therefore, Miranda did not bar
further interrogation by the officers.
¶6 A person is in "custody" if under the totality of the
circumstances "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. "[A] court
must examine all of the circumstances surrounding the
interrogation, but the ultimate inquiry is simply whether there
was a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest." Stansbury v.
California, 511 U.S. 318, 322 (1994) (per curiam) (citations
omitted) (internal quotation marks omitted). Several factors
have been considered relevant in the totality of the
circumstances such as "the defendant's freedom to leave; the
purpose, place, and length of the interrogation; and the degree
of restraint.” Martin, 343 Wis. 2d 278, ¶35.
¶7 Lonkoski came to the sheriff's department without
being asked and voluntarily submitted to questioning by law
enforcement officers. Although he was questioned in a small
4
All references to the Wisconsin Statutes are to the 2009-
10 version unless otherwise noted.
3
No. 2010AP2809-CR
room within a jail by two officers with the door closed, the
circuit court found that it was a typical interrogation setting
locked to ingress by individuals but not for egress; he was
never restrained in any way; and the door was opened more than
once by people entering or exiting. In fact, on one occasion
when the officers left the room, one of the officers asked
Lonkoski whether he preferred the door to the interrogation room
to be open or shut. Furthermore, Lonkoski was told that he was
not under arrest and that the officers were not accusing him.
In the totality of the circumstances, a reasonable person in
Lonkoski's position at the time he stated he wanted an attorney
would believe that he or she was "free to terminate the
interview and leave the scene." We decline to adopt Lonkoski's
argument that Miranda applies when custody is "imminent."5
Accordingly, although our analysis differs from that of the
court of appeals, we affirm its decision.
I.
¶8 Lonkoski's ten-month-old daughter, Peyton, was found
unresponsive by her parents, Lonkoski and Amanda Bodoh. The
medical personnel and law enforcement officers who responded to
a 911 call declared her dead at the scene. An autopsy showed
that Peyton's blood and urine contained deadly amounts of
morphine and hydromorphone.
5
The State argues that even if Lonkoski was in custody,
Lonkoski reinitiated the conversation with the officers under
Edwards such that his subsequent statements are admissible.
Because we decide that Lonkoski was not in custody, we need not
address this argument.
4
No. 2010AP2809-CR
¶9 After receiving the autopsy results, a detective from
the Oneida County Sheriff's Department requested that Bodoh come
in for an interview. Lonkoski drove her to the sheriff's
department for the interview. Officers spoke with Bodoh while
Lonkoski waited in the lobby. After some time, Bodoh was
escorted to a different part of the sheriff's department.
Lieutenant Jim Wood went to the lobby. Subsequently, Lonkoski
came to the interview room that Bodoh had recently vacated. To
get to the room, someone at the front desk would have needed to
push a button to release the door, and the room was located down
a hallway from the lobby. The door did not prevent a person
from exiting into the lobby from the interview area.
¶10 Detective Sara Gardner and Lieutenant Wood conducted
the interview of Lonkoski. The interview room was small, and
Lonkoski was seated furthest from the door. The entire
interrogation was video-recorded.
¶11 At the beginning of the interview, the following
occurred:
Wood: You want to have a seat over there? Do you know
Sara?
Lonkoski: Yes.
Gardner: Yeah very well. How are you?
Lonkoski: Very good. How have you been?
Gardner: Well, better than you from what I hear's been
going on.
Wood: Matt I'll, I'll close the door. You're not
under arrest. You understand that you guys came here
by yourself and we want to talk to you about Peyton
5
No. 2010AP2809-CR
and Peyton's death and, um, let you know about some of
the, ah, findings from the autopsy and everything. I
mean you're, you're the father, right?
Lonkoski: Mm hmm. (Affirmative).
Wood: Are you okay talking to us?
Lonkoski: Yeah.
Wood: Okay, I've got the door closed just cause I
don't want other people to hear and stuff okay? Um,
what what has gone on since Peyton's death with you?
How are you doin'?
¶12 The next 20 minutes or so of the interview consisted
of Lonkoski recounting the events in the days leading up to
Peyton's death. The tenor of the conversation changed when
Lieutenant Wood revealed the results of the autopsy to Lonkoski.
It was during this portion of the interrogation that Lonkoski
made the statement——"I want a lawyer"——that is at the center of
our analysis.
Wood: No, no. The autopsy shows that Peyton died of an
overdose.
Lonkoski: An overdose? Of what?
Wood: Now that's – I'd like for you to try and help me
out a little bit.
Lonkoski: All I know is when I got back to the
apartment, Amanda told me she gave, um, Peyton, baby
Tylenol. The bottle of baby Tylenol you guys seen
when you guys went into the apartment was on top of
the . . .
Wood: Not the baby Tylenol, I know. It's morphine.
Lonkoski: What?
Wood: Morphine.
Lonkoski: What?
6
No. 2010AP2809-CR
Wood: Morphine.
Lonkoski: Oh my god.
Wood: What did you say to Peyton when you said goodbye
to her that day out when I was out there and you went
to the truck before they took her away . . . what'd
you say to her?
Lonkoski: I said that I love her and I would be by her
soon.
Wood: And that you were sorry?
Lonkoski: Sorry for her passing away.
Wood: There's, there's more to it. And that's, and
again Matt, it this is a very hard thing. A hard
thing for you as a, as a pop, and, and, this is your
baby, but you gotta, you got to dig deep inside
yourself now. The autopsy knows what happened. We
know what happened. What I need from you is I need
you to look up and look in your heart and look up at
Peyton and say, say okay, I can deal with it, I can, I
can talk open . . . .
Lonkoski: Are you accusing me of giving my daughter
morphine?
Gardner: Matt, Matt, look at me. Every time you and I
have talked, okay, and we go back a long way, all
right, there's been some rough stuff that you and I
have dealt with . . . .
Lonkoski: I want a lawyer. I want a lawyer now. This
is bullshit.
Wood: Okay.
Lonkoski: I would never do that to my kid, ever. I
wasn't even at the apartment at all except at night.
Why are you guys accusing me?
Wood: I didn't accuse you.
Gardner: We were asking.
Lonkoski: There is this is is is is is is is is
insane.
7
No. 2010AP2809-CR
Wood: I have to stop talking to you though 'cause you
said you wanted a lawyer.
Lonkoski: Am I under arrest?
Wood: You are now.
Lonkoski: Then I'll talk to you without a lawyer . . .
I, I don't want to go to jail, I didn't do anything to
my daughter, I would not lie to you guys—this is in
fact life or death.
Wood: Well, now you, now you complicate things.
Lonkoski: I just, I just want to leave here and go by
my mom now because this is in – this is, this is
insane.
Gardner: Matt we can't, we can't talk to you just
because you don't want to go to jail okay some things
that we wanted to talk to you about were like Jim
said—we know what happened to Peyton—we need to know a
couple of the gaps to fill the gaps.
Lonkoski: All right....
Gardner: (Unintelligible).
Lonkoski: Ask those gaps.
Gardner: That's what we want you to talk to us about.
Lonkoski: Ask those gaps.
Gardner: But I don't want you to feel like we're
accusing you.
Lonkoski: All right. I will calm down.
Gardner: I don't—you don't have to talk to us—okay.
Lonkoski: Can can I can we go smoke a can I smoke a
cigarette when we do this?
Wood: What we're gonna do is—I'm gonna come back and,
and again you have to be careful what you say....
Lonkoski: (Unintelligible).
8
No. 2010AP2809-CR
Wood: If you want an attorney—you can have an
attorney—we're gonna quit—what I'll do is I'll come
back to you—go have a cigarette with Sara.
Lonkoski: Okay thank you.
Wood: Okay and I need to get more of the story.
Lonkoski: I will tell you everything I promise on my
dead daughter's life and my (unintelligible) right
now.
Wood: What I'm, what I'm gonna do is I'm gonna come
back and I'll read you a Miranda card which is I'll
read you your rights....
(Emphasis added).
¶13 Lonkoski's statement about wanting an attorney, made a
few moments before he was placed under arrest, is the focal
point of this case.
¶14 After the exchange excerpted above, Lonkoski was
escorted out of the room to smoke a cigarette and use the
bathroom. Meanwhile, a call between Wood and the district
attorney can be heard on the video recording, with Wood
apparently asking if he could continue talking to Lonkoski.
When Lonkoski returned to the room, Wood read Lonkoski his
Miranda rights, and Lonkoski agreed to additional questioning.6
6
No one disputes the adequacy of Lonkoski's waiver of his
Miranda rights after he was arrested.
9
No. 2010AP2809-CR
Lonkoski made several incriminating statements during that
interview and during two subsequent interviews in the following
days.
¶15 After being charged, Lonkoski moved to suppress the
incriminating statements he made to the officers after he had
asked for an attorney. The circuit court reviewed the video of
the interview, read briefs, and heard arguments from the parties
on the admissibility of the statements.
¶16 The circuit court originally granted the motion to
suppress on the grounds that the statements violated Edwards,
stating, "we never really had a ceasing of the interrogation
like Edwards requires . . . [It] wasn't a matter here of the
defendant not reinitiating as much as it was the interrogation
procedure never ending." At the circuit court's request,
Lonkoski drafted an order for the court to sign. The order
drafted included a finding that Lonkoski was "in custody" when
he invoked his right to counsel. The State objected because no
findings to that effect had been made by the circuit court. The
After Lonkoski returned from his cigarette break, Lonkoski
inquired as to whether Wood had been able to talk to the
district attorney. Wood said that he had and asked Lonkoski if
he wished to talk to the officers further. Lonkoski said he
did. Wood subsequently read the Miranda rights to Lonkoski.
According to statements made by Wood and Lonkoski, Lonkoski was
also given a written copy that he read. Wood asked Lonkoski if
he understood; Lonkoski stated, "I understand everything." Wood
then asked if he understood each of the rights; Lonkoski said,
"Yes." Wood then stated, "Realizing that you have these Rights
you are now willing to answer questions or make a statement?"
and Lonkoski said, "Yes."
10
No. 2010AP2809-CR
State moved for reconsideration, which the circuit court
granted.
¶17 On reconsideration, the circuit court focused its
analysis on the question of custody and found that Lonkoski was
not in custody at the time he stated he wanted an attorney. In
determining that Lonkoski was not in custody, the circuit court
made the following findings of fact. First, it found that
Lonkoski had been questioned by Detective Gardner for prior
infractions, had a prior relationship with the officer, and was
familiar with the Oneida County Sheriff's Department building.7
Second, the door to the interview room was locked to prohibit
ingress from the hallway but not egress to the hallway. Third,
the officers’ early questions were open-ended rather than
accusatory. The questions were also largely related to
establishing a cause of death rather than to identifying a
homicide suspect. Fourth, after Lonkoski was arrested, he asked
for and received both a cigarette break and a bathroom break.
Fifth, Lonkoski was not physically restrained during the
interrogation. Finally, Lonkoski arrived at the sheriff's
department voluntarily. The circuit court held that because
Lonkoski was not in custody when he stated that he wanted an
attorney, Edwards v. Arizona did not apply. Therefore, the
circuit court denied the suppression motion.
7
We note that a suspect's history with law enforcement is
not a factor in the objective determination of whether a suspect
is in custody for Miranda purposes. Yarborough v. Alvarado, 541
U.S. 652, 668 (2004).
11
No. 2010AP2809-CR
¶18 After the motion to suppress was denied, Lonkoski
pleaded guilty to child abuse—recklessly causing great bodily
harm in violation of Wis. Stat. § 948.03(3)(a) and neglecting a
child resulting in the child's death in violation of Wis. Stat.
§ 948.21(1)(d). He was sentenced to five years of initial
confinement and five years of extended supervision for count
one, to be served concurrently with the sentence on count two,
which was twelve years of initial confinement and five years of
extended supervision. Lonkoski appealed the order denying his
suppression motion.
¶19 In an unpublished per curiam decision, the court of
appeals affirmed the conviction on different grounds than the
circuit court. State v. Lonkoski, No. 2010AP2809-CR,
unpublished slip op. (Wis. Ct. App. Jan. 18, 2012). The court
of appeals assumed that Lonkoski was in custody at the point in
question and focused on whether he reinitiated the conversation
with the law enforcement officers. Id., ¶4. It found that
Lonkoski validly reinitiated conversation, and therefore, the
interrogation complied with Edwards. Id., ¶10.
¶20 Lonkoski petitioned this court for review, which we
granted. We now affirm on the grounds that Lonkoski was not in
custody when he initially stated he wanted an attorney, and
therefore, Miranda and Edwards do not apply.
II.
¶21 When reviewing a circuit court's denial of a motion to
suppress evidence, we apply a two-step standard. State v.
Martin, 343 Wis. 2d 278, ¶28. We uphold the circuit court's
12
No. 2010AP2809-CR
findings of fact unless they are clearly erroneous. Id. We
then review de novo the application of the facts to the
constitutional principles. Id.III.
¶22 The question we must answer in this case is whether
the statements obtained from Lonkoski in the interviews were
obtained in violation of his constitutional rights and must
therefore be suppressed. First, we must determine whether the
statements were obtained in violation of Miranda because they
were obtained after Lonkoski invoked his right to an attorney
during a custodial interrogation. If that is the case we must
then consider whether Lonkoski reinitiated conversation with the
detective such that those statements are admissible under
Edwards notwithstanding the Miranda violation. The threshold
question to both of these arguments is whether Lonkoski was in
custody when he stated that he wanted an attorney.
¶23 The Fifth Amendment to the United States Constitution
states in relevant part: "No person . . . shall be compelled in
any criminal case to be a witness against himself."8 Courts have
implemented procedural safeguards consistent with the Fifth
Amendment. One such safeguard, grounded in the United States
Constitution, is found in Miranda. Dickerson v. United States,
530 U.S. 428, 432 (2000) (holding that Miranda is a
8
The Fifth Amendment has been applied to the states through
the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964)
("We hold today that the Fifth Amendment's exception from
compulsory self-incrimination is also protected by the
Fourteenth Amendment against abridgment by the States.").
13
No. 2010AP2809-CR
constitutional decision which applies to both federal and state
courts and cannot be overruled by legislative action). Miranda
held that no one should be subjected to custodial interrogation
until he or she is “warned that he has a right to remain silent,
that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney,
either retained or appointed.” Miranda v. Arizona, 384 U.S.
436, 444 (1966). If someone is subjected to custodial
interrogation without these warnings and makes incriminating
statements, then those statements constitute a Miranda violation
and cannot be used by the prosecution. Id. Custody is a
necessary prerequisite to Miranda protections. State v.
Armstrong, 223 Wis. 2d 331, 344–45; Montejo v. Louisiana, 556
U.S. 778, 795 (2009) ("If the defendant is not in custody then
[Miranda and Edwards] do not apply; nor do they govern other,
noninterrogative types of interactions between the defendant and
the State.")
¶24 No one disputes that Lonkoski was interrogated, so the
issue is whether he was in custody. If he was not in custody,
then Lonkoski is not entitled to have his subsequent statements
suppressed under the Miranda rule. See, e.g., State v. Hassel,
2005 WI App 80, ¶9, 280 Wis. 2d 637, 696 N.W.2d 270; see also,
McNeil v. Wisconsin, 501 U.S. 171, n. 3 (1991) (stating, "We
have in fact never held that a person can invoke his Miranda
rights anticipatorily, in a context other than 'custodial
interrogation' . . . Most rights must be asserted when the
government seeks to take the action they protect against.").
14
No. 2010AP2809-CR
¶25 Lonkoski argues that because the interrogation had
gotten to the point that the officers knew and could prove he
was responsible for his child's death, no one would believe he
was free to leave, and therefore, he was in custody. He further
argues that even if he was not actually in custody, a person may
invoke rights under Miranda "when custodial interrogation is
imminent or impending."9 Pet'r Br. at 13.
¶26 The State argues that Lonkoski was not in custody when
he asked for an attorney because he came to the sheriff's
department without being asked, the length of time from the
beginning of the interview to when the circuit court found that
he was arrested totaled about thirty minutes, and the detectives
told Lonkoski several times that he was not under arrest. The
State further disagrees with Lonkoski's argument that Miranda
9
Lonkoski also argues that no valid reinitiation occurred
under Edwards because the officers, not Lonkoski, reinitiated
the conversation by failing to cease the interrogation.
Lonkoski believes that Wood's response to Lonkoski's request for
an attorney and question about whether he was under arrest, "You
are now," was likely to elicit an incriminating response and was
thereby the functional equivalent to questioning under Rhode
Island v. Innis, 446 U.S. 291, 301 (1980) and State v. Hambly,
2008 WI 10, ¶46, 307 Wis. 2d 98, 745 N.W.2d 48.
The State argues that even if Lonkoski was in custody when
he asked for an attorney, he reinitiated further conversation
with the detectives consistent with Edwards, and therefore, his
statements should not be suppressed.
As noted previously, because we hold that Lonkoski was not
in custody, we need not reach the parties' arguments on whether
he reinitiated conversation with the detectives such that his
statements could be admitted under Edwards.
15
No. 2010AP2809-CR
protections should apply when custody is "imminent," finding the
premise unsupported by case law.
¶27 The important threshold determination we must make is
whether Lonkoski was in custody when he stated he wanted an
attorney. The test to determine custody is an objective one.
State v. Koput, 142 Wis. 2d 370, 378-79, 418 N.W.2d 804 (1988).
The inquiry is "whether there is a formal arrest or restraint on
freedom of movement of a degree associated with a formal
arrest." State v. Leprich, 160 Wis. 2d 472, 477, 465 N.W.2d 844(Ct. App. 1991) (citing New York v. Quarles, 467 U.S. 649, 655
(1984)). Stated another way, if "a reasonable person would not
feel free to terminate the interview and leave the scene," then
that person is in custody for Miranda purposes. State v.
Martin, 343 Wis. 2d 278, ¶33. Courts also formulate the test as
"whether a reasonable person in the suspect's position would
have considered himself or herself to be in custody." State v.
Goetz, 2001 WI App 294, ¶11, 249 Wis.2d 380, 638 N.W.2d 386.
¶28 The custody determination is made in the totality of
the circumstances considering many factors. Martin, 343 Wis. 2d
278, ¶35. The factors include "the defendant's freedom to
leave; the purpose, place, and length of the interrogation; and
the degree of restraint" used by law enforcement. Id. As one
factor in the totality of the circumstances, an interview that
takes place in a law enforcement facility such as a sheriff's
department, a police station, or a jail, may weigh toward the
encounter being custodial, but that fact is not dispositive.
See, e.g., State v. Grady, 2009 WI 47, ¶4-5, 317 Wis. 2d 344,
16
No. 2010AP2809-CR
766 N.W.2d 729 (examining an undisputedly non-custodial
interrogation that took place at a police station). When
determining the degree of restraint, courts consider factors
like "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.
¶29 The parties agree that Lonkoski was not in custody at
the beginning of the interview. Because we are determining
whether Lonkoski was in custody at the point when he stated he
wanted an attorney, we look at the circumstances surrounding the
interview to determine if he was in custody when he made that
statement.
¶30 We will begin by looking at the totality of the
circumstances, examining the facts surrounding the defendant's
freedom to leave. The circuit court found that the area that
Lonkoski was in was a "typical interrogation setting." The
court stated that the area was "locked to ingress by
individuals, but there [was] no indication that it was locked
for egress. That is, that the defendant could simply walk out."
The circuit court also found that although the door was closed
during most the interview, "there were clearly times when the
door was opened and he could in fact have walked out." Finally,
the officers stated that Lonkoski was not under arrest and that
they were not accusing him.
17
No. 2010AP2809-CR
¶31 The purpose, place, and length of the interrogation
also support the conclusion that Lonkoski was not in custody.
Lonkoski came to the sheriff's department on his own volition,
providing transportation for the child's mother, Bodoh. The
location of the interview being the sheriff's department weighs
toward a custodial situation, but that fact is not dispositive.
Grady, 317 Wis. 2d 344, ¶4-5. An officer went to the waiting
room where Lonkoski waited for Bodoh, and Lonkoski went to an
interview room. The circuit court found that the officers asked
Lonkoski "open ended questions" that "called for a narrative by
him. They were not accusatory. They were not leading
questions." The circuit court found that the length of the
interrogation was "relatively short" before he asked for an
attorney, after about 30 minutes. These facts indicate that
Lonkoski was not in custody.
¶32 Like the other factors, the degree of restraint
Lonkoski experienced also does not indicate a custodial
situation. Two officers questioned Lonkoski. The door to the
interview room was repeatedly used by the officers throughout
the interview without a key. At one point when both officers
were leaving the room, Gardner asked Lonkoski if he preferred
the door open or closed to which Lonkoski responded, "Don't
bother me." During the relevant portion of the interview,
Lonkoski was not handcuffed, no weapons were drawn by the
officers, and no frisk was performed. Morgan, 254 Wis. 2d 602,
¶12. The circuit court found that Lonkoski was not physically
18
No. 2010AP2809-CR
restrained in any way. These factors indicate a lack of
custody.
¶33 Lonkoski argues that once the officers zeroed in on
him as a suspect, there was no way any reasonable person would
have felt free to leave. He cites several cases from other
jurisdictions that he believes support the proposition that a
person's knowledge that officers suspect the person of a serious
crime is a significant factor that weighs in favor of finding
that the person was in custody.
¶34 Statements officers make to a suspect can be an
indication of the presence or absence of custody. Stansbury v.
California, 511 U.S. at 325 (finding relevant the views of the
officers manifested to an individual that would affect how a
reasonable person would perceive his or her situation).
However, a suspect's belief that he or she is the main focus of
an investigation is not determinative of custody. Id. The
United States Supreme Court has rejected this theory. For
example, the United States Supreme Court in Beckwith v. United
States, 425 U.S. 341 (1976), dismissed a similar argument about
the circumstances of a non-custodial interrogation transforming
into custodial interrogation after the investigation focused on
the suspect, stating, "[W]e are not impressed with this
argument." Id. at 345 (citation omitted) (internal quotation
marks omitted). The Court quoted from United States v. Caiello,
420 F.2d 471, 473 (2d Cir. 1969) which stated: "It was the
compulsive aspect of custodial interrogation, and not the
strength or content of the government's suspicions at the time
19
No. 2010AP2809-CR
the questioning was conducted, which led the court to impose the
Miranda requirements with regard to custodial questioning." Id.
at 346-47 (emphasis added).
¶35 In addition, we note that Lonkoski's standard would
necessarily focus on the subjective beliefs of both police and
the suspect. This is inconsistent with the objective test
created for custody. See, e.g., Koput, 142 Wis. 2d 370, 378-80,
(explaining the objective standard used to determine custody as
not considering the "unarticulated plan" of police or the
subjective beliefs of the suspect who may know he was guilty and
should be in custody); see also, Stansbury v. California, 511
U.S. at 326 (rejecting a California Supreme Court custody-
analysis because it "regarded the officers' subjective beliefs
regarding Stansbury's status as a suspect (or nonsuspect) as
significant in and of themselves, rather than as relevant only
to the extent they influenced the objective conditions
surrounding his interrogation."). The totality of the
circumstances test applied in our opinion today provides the
appropriate framework to protect suspects in interrogations and
to determine whether a suspect is in custody for purposes of
Miranda. Lonkoski's argument to the contrary is unsupported by
the controlling case law and the purpose behind Miranda
protections.
¶36 Lonkoski also argues that even if he was not in
custody when he asked for an attorney, he was undisputedly in
custody a few seconds later when he was arrested, so Miranda
protections should apply. He states that the policy
20
No. 2010AP2809-CR
justification for the "imminent interrogation" rule in State v.
Hambly, 2008 WI 10, ¶3, 307 Wis. 2d 98, 745 N.W.2d 48, "applies
with equal force whether the missing element [of custodial
interrogation] is interrogation or custody." Pet'r Br. at 21.
He also argues that if this were not the rule, then officers
could overcome an assertion of rights by immediately arresting a
person and continuing the interrogation. We disagree.
¶37 The policy justification in Hambly does not apply
here. In State v. Hambly, we held that Miranda was properly
invoked before a suspect was interrogated when the suspect had
been formally arrested and asked for an attorney. 307 Wis. 2d
98. The suspect in Hambly had repeatedly refused to speak with
law enforcement voluntarily; after his refusal, the officers
formally arrested him and placed him in the back of the squad
car; as he was escorted to the car, he stated that he wanted an
attorney. Id., ¶7-9. The suspect was not being interrogated at
the time he asked for an attorney. Id., ¶3. This court held:
"a suspect in custody may request counsel and effectively invoke
the Fifth Amendment Miranda right to counsel when faced with
'impending interrogation' or when interrogation is 'imminent'
and the request for counsel is for the assistance of counsel
during interrogation." Id., ¶24.10 The court reasoned that the
10
In Hambly, the court was divided on "whether to adopt a
temporal standard to determine whether a suspect in custody has
effectively invoked his or her Fifth Amendment Miranda right to
counsel." State v. Hambly, 307 Wis. 2d 98, ¶4. The question of
whether to adopt a temporal standard is not relevant to the
analysis of Hambly set forth in this opinion and therefore is
not discussed.
21
No. 2010AP2809-CR
case illustrated the "type of coercive atmosphere that generates
the need for application of the Edwards rule." Id., ¶44
(quoting United States v. Kelsey, 951 F.2d 1196, 1199 (10th Cir.
1991)).
¶38 Lonkoski believes that "imminent interrogation" and
"imminent custody" are equally coercive and that this court
should extend its holding in Hambly to the inverse situation
where a suspect is being interrogated but is not yet in custody.
This argument ignores the differences in the circumstances in
each situation. In Hambly, the suspect was enduring a much more
coercive environment than Lonkoski, who was talking to law
enforcement officers while he was not yet in custody. Before a
suspect is in custody, the coerciveness is substantially
lessened because a reasonable person in the suspect's position
would believe that he or she could end the conversation and
leave at any time. See, Martin, 343 Wis. 2d 278, ¶33 (holding
that custody exists when a reasonable person would believe that
he could not end the conversation and leave).
¶39 Another reason the "imminent custody" rule that
Lonkoski proposes is unnecessary is that the current definition
of "custody" encompasses both formal arrest and situations in
which a reasonable person would consider himself or herself in
custody. See, e.g., Stansbury v. California, 511 U.S. at 322.
By contemplating both, the current test prevents law enforcement
from gaming the system by placing a suspect in a custodial-like
situation without formally arresting the person to avoid Miranda
22
No. 2010AP2809-CR
protections. We therefore see no reason to adopt a new test to
fit the facts of this case.
¶40 We also reject Lonkoski's implication that the
officers can override an assertion of Fifth Amendment rights by
immediately arresting a suspect. First, warrantless arrests
require probable cause so law enforcement officers can arrest
only suspects they have probable cause to arrest. See, e.g.,
State v. Lange, 2009 WI 49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551("A warrantless arrest is not lawful except when supported by
probable cause."). Law enforcement officers do not necessarily
have probable cause to arrest everyone who agrees to talk with
them. Second, upon arrest, law enforcement must give the
warnings described in Miranda. Lonkoski dismisses this
important step by stating, "the person could hardly be expected
to believe that he or she truly had the right to counsel at this
point; after all, he or she has just asked for a lawyer and had
the request denied."11 Pet'r Br. at 22. We disagree that
providing Miranda warnings to suspects provides them no
protection. The contents of Miranda warnings provide
significant information about a person's rights and require the
person to waive those rights before admissible statements can be
11
We note that there is no evidence Lonkoski ever "asked
for a lawyer and had that request denied"——as explained above,
within moments of stating he wanted a lawyer, Lonkoski made
clear that he no longer wanted a lawyer and he wished to speak
with the officers.
23
No. 2010AP2809-CR
elicited by law enforcement.12 Therefore, our decision does not,
as Lonkoski's argument suggests, give law enforcement free rein
to ignore valid assertions of the right to counsel.
¶41 We conclude that Lonkoski was not in custody when he
asked for an attorney. Because his statement about wanting an
attorney was not made during a custodial interrogation,
Miranda's rule requiring that the interrogation cease upon a
request for an attorney does not apply, and there is no
constitutional violation and no bar to using his subsequent
statements. As noted previously, this holding makes it
unnecessary for us to reach the issue of reinitiation under
Edwards because "[i]n every case involving Edwards, the courts
must determine whether the suspect was in custody when he
requested counsel and when he later made the statements he seeks
to suppress." Maryland v. Shatzer, 559 U.S. __, 130 S. Ct.
1213, 1223 (2010) (emphasis added).
IV.
¶42 We hold that the motion to suppress was properly
denied because Lonkoski was not in custody when he asked for an
attorney, and therefore, Miranda did not bar further
interrogation by the officers.
¶43 A person is in "custody" if under the totality of the
circumstances "a reasonable person would not feel free to
12
To be adequate Miranda warnings, "the person must be
warned that he has a right to remain silent, that any statement
he does make may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained or
appointed." Miranda v. Arizona, 384 U.S. at 445.
24
No. 2010AP2809-CR
terminate the interview and leave the scene." State v. Martin,
343 Wis. 2d 278, ¶33. "[A] court must examine all of the
circumstances surrounding the interrogation, but the ultimate
inquiry is simply whether there was a formal arrest or restraint
on freedom of movement of the degree associated with a formal
arrest." Stansbury v. California, 511 U.S. at 322 (citations
omitted) (internal quotation marks omitted). Several factors
have been considered relevant in the totality of the
circumstances such as "the defendant's freedom to leave; the
purpose, place, and length of the interrogation; and the degree
of restraint.” Martin, 343 Wis. 2d 278, ¶35.
¶44 Lonkoski came to the sheriff's department without
being asked and voluntarily submitted to questioning by law
enforcement officers. Although he was questioned in a small
room within a jail by two officers with the door closed, the
circuit court found that it was a typical interrogation setting
locked to ingress by individuals but not for egress; he was
never restrained in any way; and the door was opened more than
once by people entering or exiting. In fact, on one occasion
when the officers left the room, one of the officers asked
Lonkoski whether he preferred the door to the interrogation room
to be open or shut. Furthermore, Lonkoski was told that he was
not under arrest and that the officers were not accusing him.
In the totality of the circumstances, a reasonable person in
Lonkoski's position at the time he stated he wanted an attorney
would believe that he or she was "free to terminate the
interview and leave the scene." We decline to adopt Lonkoski's
25
No. 2010AP2809-CR
argument that Miranda applies when custody is "imminent."
Accordingly, although our analysis differs from that of the
court of appeals, we affirm its decision.
By the Court.—The decision of the court of appeals is
affirmed.
26
No. 2010AP2809-CR
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