State v. Daniel J. H. Bartelt

2018 WI 16
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2506-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Daniel J. H. Bartelt,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 375 Wis. 2d 148, 895 N.W.2d 86
PDC No: 2017 WI App 23 - Published
OPINION FILED: February 20, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 14, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Washington
JUDGE: Todd K. Martens
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
and an oral argument by Leon W. Todd, assistant state public
defender.
For the plaintiff-respondent, there was a brief by Amy C.
Miller, assistant solicitor general, Brad D. Schimel, attorney
general, Misha Tseytlin, solicitor general, and Ryan J. Walsh,
chief deputy solicitor general. There was an oral argument by
Amy C. Miller.
2018 WI 16
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2506-CR
(L.C. No. 2013CF276)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. Feb 20, 2018
Daniel J.H. Bartelt, Sheila Reiff
Clerk of Supreme Court
Defendant-Appellant-Petitioner
REVIEW of a published decision of the court of appeals.
Affirmed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This review concerns
the point in time at which a person is "in custody" for purposes
of Miranda.1 Daniel J.H. Bartelt asks us to overturn a decision
of the court of appeals, affirming the circuit court's2 judgment
entered in favor of the State regarding Bartelt's motion to
suppress incriminating statements, and concluding that Bartelt
was not in custody at the time the statements were made.
1
Miranda v. Arizona, 384 U.S. 436 (1966); cf. Edwards v.
Arizona, 451 U.S. 477 (1981).
2
The Honorable Todd K. Martens of Washington County,
presided.
No. 2015AP2506-CR
¶2 Bartelt presents two issues: first, whether Bartelt's
confession to a serious crime transformed his custody status
from noncustodial to "in custody;" and second, whether Bartelt's
request for counsel was unequivocal such that police officers
violated his Fifth Amendment rights when they questioned him the
following day without counsel present.
¶3 On the first issue we conclude that, under the
totality of the circumstances attendant to his interview,
Bartelt's confession did not transform his custody status.
Rather, Bartelt was not in custody until Detectives Joel
Clausing and Aaron Walsh of the Washington County Sheriff's
Department took his cell phone, approximately ten minutes after
his confession, and instructed him to remain in the interview
room. Because we determine that Bartelt was not in custody
until this point, which was after his alleged request for
counsel, we need not and do not reach the issue of whether his
alleged request for counsel was unequivocal.
¶4 Accordingly, we affirm the court of appeals.
I. BACKGROUND
¶5 This case arises from two crimes committed in July
2013. On July 12, 2013, M.R. was assaulted by a male suspect
with a knife while walking her dog in Richfield Historical Park
in the Village of Richfield. M.R. was tackled to the ground and
suffered several knife wounds before disarming the suspect, who
fled the scene in a blue Dodge Caravan. Three days later, on
July 15, 2013, Jessie Blodgett, a friend and former girlfriend
2
No. 2015AP2506-CR
of Bartelt, was found dead in her home in the City of Hartford.
According to preliminary autopsy findings, the cause of death
was ligature strangulation.
¶6 As of July 16, 2013, Clausing and Detective Richard
Thickens of the Hartford Police Department had identified
Bartelt as a person of interest in the attack on M.R. Earlier
that month, a deputy had noticed a blue Dodge Caravan at the
same park and had run the license plate, which revealed that the
vehicle was registered to Bartelt's parents. Police learned
that the Bartelts had a son, and were then able to match
Bartelt's photograph from the Wisconsin Department of
Transportation with the composite sketch drawn at M.R.'s
direction. Clausing contacted Bartelt around 5:00 p.m. on July
16, and told him that the police were investigating an incident,
and that they needed to speak with him. Bartelt was "very
compliant," and agreed to meet with detectives at the Slinger
Police Department.
¶7 The Slinger Police Department is located inside a
municipal building that it shares with various other offices and
departments. There is one main entrance to the building. Once
inside, a separate entrance leads to the police department.
Neither the main door to the building nor the door to the police
department is secured during normal business hours, and there
are no metal detectors or other security screening devices.
Inside the police department, another door leads to the
"internal portion" of the department. This door is locked from
3
No. 2015AP2506-CR
the outside, but one can freely exit. The interview room is
located about twenty-five feet inside this secured area. The
room is thirteen and one-half feet by ten and one-half feet, and
contains a table, three chairs and a window. The room can be
accessed by either of two doors, neither of which can be locked.
¶8 Bartelt was dropped off by two friends at the Slinger
Police Department around 5:12 p.m. His friends waited outside.
Clausing testified that Bartelt was escorted to the interview
room but was not searched. Bartelt chose the seat on the far
side of the table, while Clausing sat at the end, and Walsh sat
opposite Bartelt. Clausing and Walsh were wearing civilian
clothes; however, they both had their badges displayed on their
belts, as well as their service weapons. Clausing testified
that one of the doors to the room was left open. Unbeknownst to
Bartelt, the interview was recorded by both audio and visual
means.
¶9 Clausing began the interview by telling Bartelt that
he was not in trouble, he was not under arrest, and he could
leave at any time. Clausing did not read Bartelt his Miranda
rights. Bartelt, who had just come from the Blodgett residence
to pay his respects to the family, believed the police were
meeting with him about Blodgett's murder. However, Clausing
explained that law enforcement was investigating an attack that
had occurred at Richfield Historic Park on the previous Friday.
Bartelt was asked a number of preliminary questions and
initially denied any involvement. Bartelt stated that he had
4
No. 2015AP2506-CR
been with his girlfriend on the day in question, although he
could not "remember any specifics." Clausing then explained
that cell phones "are kind of like GPS's," and told Bartelt, "I
don't want any lies."
¶10 Clausing then observed some scrapes and a cut on
Bartelt's hand and arm. Bartelt stated he did not remember how
he scraped his arm, but that he had stabbed his hand "with a
screw at work." The following exchange then occurred:
DET. CLAUSING: . . . So what do you think
evidence is?
MR. BARTELT: Incriminating items, documents.
DET. CLAUSING: First -- but I'm more of a nuts-
and-bolts type of guy. Like, what would you consider
to be evidence?
MR. BARTELT: Well --
DET. CLAUSING: Fingerprints?
MR. BARTELT: Yeah.
DET. CLAUSING: Okay. Fibers? Hairs?
MR. BARTELT: Yeah.
DET. CLAUSING: Any DNA? You know, footwear
impressions?
MR. BARTELT: Yeah.
DET. CLAUSING: Witness statements, right? Video
surveillance, stuff like that, right?
MR. BARTELT: Yeah.
DET. CLAUSING: Is there any evidence that we
just talked about which would show that you would be
in this park at the time of this incident that had
occurred? Is there any evidence out there that would
show that?
5
No. 2015AP2506-CR
MR. BARTELT: I don't think so . . . What is this
about?
¶11 After reminding Bartelt that police were investigating
an incident at Richfield Historical Park, Clausing said, "What
if I were to tell you that there might be something that links
you there." Clausing then proceeded to explain "Locard's
exchange principle," which holds that the perpetrator of a crime
will bring something into the crime scene——such as fingerprints,
sweat, DNA, or clothing fibers——and leave it behind. The
detectives added that they had found evidence "from the person
that was out there," which needed to be analyzed by the state
crime laboratory.
¶12 Clausing next told Bartelt that they had an
eyewitness, stating, "I would hate to put down your picture in
front of the eyewitness and have them say, that's the guy that
was out there." Further, Clausing stated, "I can prove that you
were out there. It's not just a tip. I can prove it. And all
I'm getting at is that if you were out there, just talk to us
about what happened or what you saw or what you observed or
whatever." Walsh told Bartelt they knew that his vehicle had
been spotted at the park on several occasions when Bartelt was
supposed to be at work. Bartelt admitted that he had been laid
off for several months, and that the injury was actually the
result of a cooking accident.
¶13 At this time Clausing moved his chair closer to
Bartelt. When Clausing's face was about two feet from
Bartelt's, Clausing told him, "No more lies. It just makes
6
No. 2015AP2506-CR
things worse. It is spiraling out of control right now . . . .
Nobody in their right mind would lie about cutting themselves if
it happened at home cooking . . . . What happened? Just be
honest." Bartelt admitted that he had been to the park before
and that he had seen the sketch on television, but that "it
wasn't me."
¶14 Walsh then urged Bartelt to help bring closure to M.R.
"Daniel, the truth is going to help us bring some resolution to
this for everybody involved . . . . We have one scared person
out there right now . . . and the easiest way to put some
resolution to this is [for] the [ ] person that did this to take
responsibility." Walsh added that he could understand why
someone would do this, "especially if the person that did it
explains to us what they were thinking, where they were in their
life." For example, Bartelt had lost his job and hid that from
his parents, and he had dropped out of college after only one
semester. Walsh stated that "when things are not going well for
people, they do things that are very out of character." He
added, "I think you are a good person . . . [g]ood people can
explain things away and we can understand why they do things.
So tell us about the park."
¶15 Following a lengthy narrative from Clausing about the
two types of people in this situation——those who take
responsibility and those who say "prove it"——Bartelt admitted to
being at the park and going "after that girl" because he "wanted
to scare someone." Bartelt told the officers that he had been
7
No. 2015AP2506-CR
reading when he saw M.R., and in the "spur of the moment," he
decided to "run at her and knock her down and scare her."
Bartelt admitted there was no real explanation or motive for the
attack; he was "just numb" and scared because "life scares me."
Bartelt targeted M.R. because "[t]here was no one else there."
Following this admission, Clausing asked Bartelt if he would be
willing to provide a written statement of confession. Walsh
explained that the written statement would be Bartelt's chance
to apologize. When Bartelt asked what would happen after he
gave his statement, Clausing responded, "I can't say what
happens then. We'll probably have more questions for you, quite
honestly." Clausing later testified that, once Bartelt had
confessed, he "was going to be under arrest, and he probably
wasn't free to get up and leave."
¶16 It was at this point that Bartelt asked, "Should I or
can I speak to a lawyer or anything?" Clausing told him, "Sure,
yes. That is your option." Bartelt responded, "I think I'd
prefer that." At 5:45 p.m., roughly 33 minutes after Bartelt
arrived at the station for questioning, Clausing and Walsh
suspended the interview, took Bartelt's cell phone, and left the
room. When the detectives returned seven or eight minutes
later, Clausing told Bartelt he was under arrest, handcuffed
him, and searched him. Bartelt was then transported to the
Washington County Jail.
¶17 Clausing testified that, during the course of the
interview, both he and Walsh spoke in a conversational tone,
8
No. 2015AP2506-CR
which did not change even after Bartelt's admission. Neither
detective ever made reference to or unholstered their weapons.
Bartelt never asked to use the restroom or take a break. At one
point during the interview Clausing gave Bartelt permission to
answer his cell phone, which Bartelt declined to do.
¶18 The following day, on July 17, 2013, Bartelt was
brought to the interview room at the Washington County Sheriff's
Department to be questioned by Thickens and Detective James Wolf
regarding his relationship with Blodgett. Before commencing
with questioning, Thickens read Bartelt his Miranda rights,
which Bartelt knowingly and voluntarily waived.
¶19 Bartelt was questioned for approximately 90 minutes
about his relationship with Blodgett and his whereabouts on the
day of Blodgett's death. Bartelt denied being at the Blodgett
residence on July 15, 2013, or having any knowledge of
Blodgett's death. Bartelt stated that on the morning of July 15
he had left his house at 6:30 a.m. and drove "all over" before
spending a few hours at Woodlawn Union Park. Bartelt then asked
for an attorney, at which point the questioning stopped.
¶20 Thickens later drove to Woodlawn Union Park to
investigate, and in doing so he collected garbage from the
park's receptacles. In one container he found a Frosted Mini-
Wheats cereal box containing paper toweling, numerous types of
rope and tape, and antiseptic wipes with red stains. One of the
ropes later revealed DNA that belonged to both Bartelt and
Blodgett, and which matched the ligature marks on Blodgett's
9
No. 2015AP2506-CR
neck. Another rope matched the ligature marks on her wrists and
ankles. Based on this evidence and the confession Bartelt made
during his first interview, Bartelt was charged with attempted
first-degree intentional homicide, first-degree reckless
endangerment, and attempted false imprisonment for the attack on
M.R., as well as first-degree intentional homicide for the
murder of Blodgett.
¶21 Bartelt moved to suppress his statements, and any
evidence derived from them, on the grounds that the officers had
violated his Miranda rights when they questioned him. The
circuit court denied Bartelt's motion, concluding that at the
time of his July 16, 2013, interview, Bartelt had voluntarily
agreed to speak with police. The circuit court concluded that
Bartelt was not in custody until after he had requested an
attorney, roughly ten minutes after his confession. Therefore,
no Miranda warnings were necessary with respect to the July 16
interview, and police were free to initiate questioning on July
17 because "an assertion of Miranda . . . which a person makes
while they are not in custody, does not prospectively prohibit
law enforcement from attempting to interview an individual
later." Further, with respect to the July 17 interview, the
circuit court found that Bartelt was properly given his Miranda
warning, which he voluntarily waived.
¶22 Following the denial of Bartelt's suppression motion,
the circuit court ordered that the Blodgett homicide charge be
separated from the charges related to M.R. After a seven-day
10
No. 2015AP2506-CR
jury trial, Bartelt was found guilty of Blodgett's murder.
Consequently, he was sentenced to life imprisonment without the
possibility of release to extended supervision. Shortly
thereafter, the parties reached a plea agreement regarding the
attempted murder, reckless endangerment, and false imprisonment
charges. In exchange for Bartelt's guilty plea to first-degree
reckless endangerment, the State agreed to dismiss and read-in
the remaining counts, and Bartelt was sentenced to five years'
imprisonment and five years' extended supervision consecutive to
his life sentence.
¶23 Bartelt appealed his murder conviction on the grounds
that the circuit court improperly denied his suppression motion.
Specifically, Bartelt argued that once he confessed to attacking
M.R., a reasonable person in his circumstances would have
believed he was not free to leave the station, thereby
transforming the non-custodial interview into a custodial
interrogation. Bartelt therefore argued that all statements
made after his admissions about M.R. were inadmissible under the
principles of Miranda and Edwards. As a consequence, Bartelt
alleges that detectives violated his Fifth Amendment rights when
they approached him to question him about Blodgett's murder
without counsel being present. Under the exclusionary rule,3
3
The exclusionary rule was first adopted by the United
States Supreme Court in Weeks v. United States, 232 U.S. 383
(1914), which held that evidence obtained in violation of the
Fourth Amendment is inadmissible. This holding was expanded to
include state court proceedings in Mapp v. Ohio, 367 U.S. 643
(1961). However, Wisconsin courts have aligned themselves with
(continued)
11
No. 2015AP2506-CR
Bartelt alleged that all derivative evidence discovered as a
result of his statements should have been suppressed.4
¶24 The court of appeals rejected Bartelt's arguments and
affirmed the circuit court's judgment. Bartelt sought review,
which we granted. For the reasons explained below, we affirm
the court of appeals.
II. DISCUSSION
A. Standard of Review
¶25 A determination of when custody begins presents a
question of constitutional fact that we review under a two-part
standard. State v. Jennings, 2002 WI 44, ¶20, 252 Wis. 2d 228,
647 N.W.2d 142. The circuit court's findings of historical fact
will be upheld unless they are clearly erroneous. State v.
Henderson, 2001 WI 97, ¶16, 245 Wis. 2d 345, 629 N.W.2d 613.
Whether those findings support a determination of custody for
purposes of Miranda is a question of law that we independently
review. Id.
B. Miranda and Custody
¶26 The Fifth Amendment of the United States Constitution
states that "[no person] shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
the federal rule since long before the Mapp holding. See Hoyer
v. State, 180 Wis. 407, 417, 193 N.W. 89 (1923).
4
See State v. Knapp, 2005 WI 127, ¶2, 285 Wis. 2d 86, 700
N.W.2d 899 ("Where physical evidence is obtained as the direct
result of an intentional Miranda violation, we conclude that our
constitution requires that the evidence must be suppressed.").
12
No. 2015AP2506-CR
liberty, or property, without due process of law . . . ." We
have interpreted Article I, Section 8(1)5 of the Wisconsin
Constitution consistent with the United States Supreme Court's
interpretation of the Fifth Amendment. State v. Ward, 2009 WI
60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236.
¶27 In 1966, the Supreme Court held that the Fifth
Amendment requires law enforcement to inform suspects of their
rights to remain silent and to have an attorney present during
custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 458
(1966).6 These warnings are required because "[t]he
circumstances surrounding in-custody interrogation can operate
very quickly to overbear the will of [the suspect]." Id. at
469; see also State v. Quigley, 2016 WI App 53, ¶31, 370
Wis. 2d 702, 883 N.W.2d 139 ("[W]hen a suspect is in police
custody, there is a heightened risk of obtaining statements that
'are not the product of the suspect's free choice.'" (internal
citation omitted)).
5
Article I, Section 8(1) reads: "[n]o person may be held
to answer for a criminal offense without due process of
law . . . ."
6
"[The suspect] must be warned prior to any questioning
that he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the right
to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning
if he so desires." Miranda, 384 U.S. at 479. If the accused
indicates that he or she wishes to remain silent, questioning
must stop. If he or she requests counsel, questioning must stop
until an attorney is present. Id. at 474.
13
No. 2015AP2506-CR
¶28 In Edwards, the Supreme Court added a second layer of
protection to the Miranda right to counsel by fashioning a
bright-line rule requiring law enforcement to immediately cease
questioning once a suspect has asserted his or her right to
counsel during a custodial interrogation. Further,
[W]e now hold that when an accused has invoked his
right to have counsel present during custodial
interrogation, a valid waiver of that right cannot be
established by showing only that he responded to
further police-initiated custodial interrogation even
if he has been advised of his rights.
Edwards v. Arizona, 451 U.S. 477, 484 (1981). Stated otherwise,
once a suspect has invoked his Fifth Amendment right to counsel,
the Miranda-Edwards rule prohibits police from engaging in
subsequent, uncounseled interrogations regarding the same or
separate investigations. Arizona v. Roberson, 486 U.S. 675,
677-78 (1988).7
¶29 Over the years, particular emphasis has been placed on
when a suspect may effectively invoke his or her Fifth Amendment
rights. Miranda stated that "[a]n individual need not make a
pre-interrogation request for a lawyer. While such request
affirmatively secures his right to have one, his failure to ask
for a lawyer does not constitute a waiver." Miranda, 384 U.S.
at 470. The Supreme Court later clarified this statement,
noting that the Court has "never held that a person can invoke
7
However, if it is the accused who initiates further
communication with the police, courts typically will conclude
that a valid waiver has been made. State v. Kramar, 149
Wis. 2d 767, 785-86, 440 N.W.2d 317 (1989).
14
No. 2015AP2506-CR
his Miranda rights anticipatorily, in a context other than
'custodial interrogation' . . . ." McNeil v. Wisconsin, 501
U.S. 171, 182 n.3 (1991). The Court continued:
If the Miranda right to counsel can be invoked at a
preliminary hearing, it could be argued, there is no
logical reason why it could not be invoked by a letter
prior to arrest, or indeed even prior to
identification as a suspect. Most rights must be
asserted when the government seeks to take the action
they protect against. The fact that we have allowed
the Miranda right to counsel, once asserted, to be
effective with respect to future custodial
interrogation does not necessarily mean that we will
allow it to be asserted initially outside the context
of custodial interrogation, with similar future
effect.
Id.
¶30 These Supreme Court decisions explain that the right
to counsel may not be invoked until a suspect is "in custody."
Wisconsin courts interpret Article I, Section 8 of the Wisconsin
Constitution consistent with the Supreme Court's interpretation
of the Fifth Amendment. "Miranda and its progeny are aimed at
dispelling the compulsion inherent in custodial surroundings.
Thus, the Miranda safeguards apply only to custodial
interrogations" under both constitutions. State v. Pheil, 152
Wis. 2d 523, 530-31, 449 N.W.2d 858 (Ct. App. 1989) (citation
omitted).8 "[U]nless a defendant is in custody, he or she may
not invoke the right to counsel under Miranda." State v.
8
This exact language has been cited in numerous subsequent
decisions. See, e.g., State v. Kramer, 2006 WI App 133, ¶9, 294
Wis. 2d 780, 720 N.W.2d 459 (quoting State v. Hassel, 2005 WI
App 80, ¶9, 280 Wis. 2d 637, 696 N.W.2d 270).
15
No. 2015AP2506-CR
Kramer, 2006 WI App 133, ¶9, 294 Wis. 2d 780, 720 N.W.2d 459.
We therefore turn our attention to what "in custody" means such
that an invocation of the right to counsel becomes immediately
effective.
¶31 In Miranda, the Supreme Court defined custodial
interrogation as "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way."
Miranda, 384 U.S. at 444. The test to determine whether a
person is in custody under Miranda is an objective test. State
v. Lonkoski, 2013 WI 30, ¶27, 346 Wis. 2d 523, 828 N.W.2d 552.
The inquiry is "whether there is a formal arrest or restraint on
freedom of movement of a degree associated with a formal
arrest." Id. (quoting State v. Leprich, 160 Wis. 2d 472, 477,
465 N.W.2d 844 (Ct. App. 1991)); see also California v. Beheler,
463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon v.
Mathiason, 429 U.S. 492, 495 (1977)). Looking at the totality
of the circumstances, courts will consider whether "a reasonable
person would not feel free to terminate the interview and leave
the scene." State v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278,
816 N.W.2d 270 (citing Thompson v. Keohane, 516 U.S. 99, 112
(1995)).
¶32 We consider a variety of factors to determine whether
under the totality of the circumstances a reasonable person
would feel at liberty to terminate an interview and leave. Such
factors include: the degree of restraint; the purpose, place,
16
No. 2015AP2506-CR
and length of the interrogation; and what has been communicated
by police officers. State v. Blatterman, 2015 WI 46, ¶¶30, 31,
362 Wis. 2d 138, 864 N.W.2d 26. "When considering the degree of
restraint, we consider: whether the suspect is handcuffed,
whether a weapon is drawn, whether a frisk is performed, the
manner in which the suspect is restrained, whether the suspect
is moved to another location, whether questioning took place in
a police vehicle, and the number of officers involved." State
v. Morgan, 2002 WI App 124, ¶12, 254 Wis. 2d 602, 648 N.W.2d 23.
¶33 If we determine that a suspect's freedom of movement
is curtailed such that a reasonable person would not feel free
to leave, we must then consider whether "the relevant
environment presents the same inherently coercive pressures as
the type of station house questioning at issue in Miranda."
Howes v. Fields, 565 U.S. 499, 509 (2012). In other words, we
must consider whether the specific circumstances presented a
serious danger of coercion, because the "freedom-of-movement
test identifies only a necessary and not a sufficient condition
for Miranda custody." Id. (citation omitted). Importantly, a
noncustodial situation is not converted to one in which Miranda
applies simply because the environment in which the questioning
took place was coercive. Mathiason, 429 U.S. at 495. "Any
interview of one suspected of a crime by a police officer will
have coercive aspects to it . . . [b]ut police officers are not
required to administer Miranda warnings to everyone whom they
question." Id. Therefore, "Miranda warnings are not required
17
No. 2015AP2506-CR
'simply because the questioning takes place in the station
house, or because the questioned person is one whom the police
suspect.'" Beheler, 463 U.S. at 1125 (citing Mathiason, 429
U.S. at 495).9 And finally, "the initial determination of
custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either
the interrogating officers or the person being questioned."
Stansbury v. California, 511 U.S. 318, 323 (1994).
C. Bartelt and Custody
¶34 We now turn to whether, under the totality of the
circumstances of this case, Bartelt was in custody at any time
prior to Clausing taking his cell phone and telling him to
remain in the interrogation room. Although the parties agree
that the interview was not initially custodial, Bartelt argues
that his confession to the attack on M.R. transformed his
custody status into one in which a reasonable person would not
have felt free to leave. As a result, all further questioning
should have ceased once Bartelt invoked his right to counsel.10
9
The oft-used example of a situation in which one is
physically detained but not in custody is that of a Terry stop
or roadside traffic stop. See Terry v. Ohio, 392 U.S. 1 (1968);
Berkemer v. McCarty, 468 U.S. 420 (1984). In Berkemer, the
Supreme Court analogized traffic stops to Terry stops,
concluding that the "noncoercive aspect of ordinary traffic
stops prompts us to hold that persons temporarily detained
pursuant to such stops are not 'in custody' for the purposes of
Miranda." Berkemer, 468 U.S. at 440.
10
This argument assumes, although we do not decide, that
Bartelt's request for counsel was unequivocal.
18
No. 2015AP2506-CR
Accordingly, Bartelt alleges his constitutional rights were
violated when detectives from the City of Hartford approached
him the following day about the murder of Blodgett without
counsel present. Bartelt therefore argues that, under the
exclusionary rule, all statements made during the July 17
interview and the evidence that was derived from those
statements must be suppressed.
¶35 First, we consider the circumstances surrounding
Clausing and Walsh's interrogation of Bartelt. Second, given
those circumstances, we consider whether a reasonable person in
Bartelt's position would have felt that he or she was at liberty
to terminate the interview and leave. "Once the scene is set
and the players' lines and actions are reconstructed, [we] must
apply an objective test to resolve 'the ultimate inquiry':
'[was] there a "formal arrest or restraint on freedom of
movement" of the degree associated with a formal arrest[?]'"
Keohane, 516 U.S. at 112 (quoting Beheler, 463 U.S. at 1125)
(quoting Mathiason, 429 U.S. at 495); see also Lonkoski, 346
Wis. 2d 523, ¶27.
¶36 As to Bartelt's custody status, the parties agree that
Bartelt was not in custody at the beginning of the interview and
up until the point that he confessed to attacking M.R. Bartelt
came to the Slinger Police Department voluntarily. He was
dropped off by two friends who waited for him in the parking
lot, indicating that a reasonable person in Bartelt's position
19
No. 2015AP2506-CR
would have believed he or she would be free to leave at the end
of the interview.
¶37 Once inside the building, Bartelt was taken through a
secured door, locked from the outside only, to the internal
portion of the police department. He was then led to an
interview room that had two doors, neither of which could be
locked, and one of which was left ajar during the interview
itself. See Lonkoski, 346 Wis. 2d 523, ¶¶30-32 (holding that
where defendant voluntarily came to police department, interview
room was locked for entry purposes only, and door was repeatedly
opened, defendant was not in custody). The detectives did not
search Bartelt, and he was not restrained in any way. All of
these circumstances imply he was not in custody. Id., ¶32
(holding that lack of handcuffs and failure to search indicates
lack of custody).
¶38 At the outset of the interview, Clausing told Bartelt
that he was "not in trouble" and that he was "not under arrest."
See Mathiason, 429 U.S. at 495 (considering that defendant came
to police department voluntarily and was immediately informed
that he was not under arrest were indicative of lack of
custody). Bartelt showed that he understood that when he nodded
and responded, "that's good." Clausing further advised Bartelt
that he could "get up and walk out of here any time [he]
want[ed]." See Quigley, 370 Wis. 2d 702, ¶¶40-41 (holding that
a police officer's advisements that an interviewee was not under
arrest and was free to leave are "of substantial importance,"
20
No. 2015AP2506-CR
and further concluding that a suspect's acknowledgement and lack
of objection are "highly significant"). Additionally, Clausing
testified that neither he nor Detective Walsh ever raised their
voice or made a show of authority, such as referencing or
removing their weapons.11 Lonkoski, 346 Wis. 2d 523, ¶32. When
Bartelt's phone rang, he was given the opportunity to answer it.
See United States v. LeBrun, 363 F.3d 715, 722 (8th Cir. 2004)
("While the mere possession of a cellular phone without more
will not transform a custodial interrogation into a noncustodial
one, it is relevant to the question of whether the interview was
coercive and whether a reasonable person in the same
circumstances would feel restrained."). And finally, the
interview lasted only thirty-five minutes. Lonkoski, 346
Wis. 2d 523, ¶31 (holding that a "relatively short" interview of
approximately thirty minutes indicated lack of custody). We
agree that these factors support the conclusion that, prior to
his confession, there was no restraint on Bartelt's freedom to
the degree associated with an arrest.
¶39 Nonetheless, Bartelt argues that, as the interview
progressed, he was increasingly treated as though he were the
target of a serious felony investigation. At the outset of the
interview, Clausing told Bartelt that he was investigating an
11
At one point, having caught Bartelt in a lie about his
employment and the nature of the cut on his hand, Clausing moved
his chair closer to Bartelt, from approximately four or five
feet away to within two feet. The ambiance of the interview
remained otherwise unchanged.
21
No. 2015AP2506-CR
"incident" that had occurred in Richfield Historical Park on the
previous Friday. He did not specify the nature of the incident,
nor did he accuse Bartelt of being involved. However, after
Bartelt's initial denials and hesitations, the detectives began
to insinuate that not only had Bartelt been at the park, but
that they suspected——and indeed had evidence——that Bartelt was
involved in an attack in the park. The detectives said they
knew what happened and just wanted to understand why. Clausing
testified that he and Walsh were attempting to minimize
Bartelt's moral liability by offering justifications for his
behavior. Bartelt argues that the inherently coercive nature of
the interview, coupled with the fact that the detectives
essentially told Bartelt they believed he was guilty, created an
environment such that from the moment Bartelt confessed, no
reasonable person would have felt free to leave.
¶40 The court of appeals acknowledged that the detectives
"applied some psychological pressures on Bartelt to persuade him
to confess . . . ." State v. Bartelt, 2017 WI App 23, ¶35, 375
Wis. 2d 148, 895 N.W.2d 86. We agree that this factor tends to
favor custody. However, when combined with all of the other
circumstances present here,12 neither the use of certain
interrogation techniques nor that the interview took place at a
police station is enough to conclude that Bartelt could not have
terminated the interview and left, even after his confession.
12
See supra ¶¶35-36.
22
No. 2015AP2506-CR
¶41 In support of this conclusion, the court of appeals
cited to an Eighth Circuit decision, United States v. LeBrun,
which itself relied heavily on both Mathiason and Beheler. In
LeBrun, the suspect in a felony murder voluntarily agreed to
accompany police to a nearby patrol office. As they arrived,
LeBrun was told that he was not under arrest, that he was free
to terminate the interview at any time, and that he was free to
leave at any time. LeBrun, 363 F.3d at 718. LeBrun was led to
a windowless interview room, where the police used psychological
ploys to facilitate a confession. For example, the agents told
LeBrun that he was the prime suspect, and that they had
significant evidence against him. However, at no point did the
officers shout or use physical force, and LeBrun was not
restrained in any way.
¶42 After thirty-three minutes of questioning, LeBrun
confessed to the crime. Id. In concluding that LeBrun was not
in custody before, during, or after his confession, the Eighth
Circuit reiterated that "[n]ot every confession obtained absent
the Miranda warnings is inadmissible." Id. at 720 (citing
Mathiason, 429 U.S. at 495). The critical inquiry, the court
concluded, "is not whether the interview took place in a
coercive or police dominated environment, but rather whether the
defendant's 'freedom to depart was restricted in any way.'" Id.
(citing Mathiason, 429 U.S. at 495).13 "In answering this
13
In Mathiason, a police officer contacted Mathiason after
he had been identified as a potential suspect by a burglary
victim. The officer asked Mathiason where it would be
(continued)
23
No. 2015AP2506-CR
question, we look at the totality of the circumstances while
keeping in mind that the determination is based 'on the
objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers
or the person being questioned.'" Id. (citing Stansbury, 511
U.S. at 322-23). The Eighth Circuit concluded that "the
purportedly coercive aspects of [the] interview are largely
irrelevant to the custody determination and that the district
court erred in giving such great weight to certain
facts . . . ." Id. at 720-21.
¶43 This issue was similarly discussed in Beheler, where
the defendant, having been told he was not under arrest,
convenient to meet, and they agreed to meet at the state patrol
office. Once Mathiason arrived, the officer led Mathiason to an
office, where he was told that he was not under arrest. During
the course of the interview, the officer told Mathiason that he
was a suspect and falsely indicated that police had discovered
his fingerprints at the scene of the crime. The Supreme Court
of Oregon overturned Mathiason's conviction, holding that the
interrogation took place in a coercive environment such that
Mathiason was in custody. The Supreme Court of the United
States reversed:
[T]here is no indication that the questioning took
place in a context where respondent's freedom to
depart was restricted in any way. He came voluntarily
to the police station, where he was immediately
informed that he was not under arrest. At the close
of a ½-hour interview respondent did in fact leave the
police station without hindrance. It is clear from
these facts that Mathiason was not in custody "or
otherwise deprived of his freedom of action in any
significant way."
Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
24
No. 2015AP2506-CR
accompanied police to the station for questioning. Beheler was
not provided a Miranda warning, and he ultimately confessed
during the course of the thirty-minute interview. The Supreme
Court concluded that, given the totality of the circumstances,
Beheler was neither taken into custody nor significantly
deprived of his freedom of action. In so holding, the Court
reiterated that a noncustodial situation is not converted to a
custodial situation simply because the questioning took place in
a coercive environment. Beheler, 463 U.S. at 1124 (citing
Mathiason, 429 U.S. at 495).
¶44 As the court in LeBrun aptly noted, "Mathiason and
Beheler teach us that some degree of coercion is part and parcel
of the interrogation process and that the coercive aspects of a
police interview are largely irrelevant to the custody
determination except where a reasonable person would perceive
the coercion as restricting his or her freedom to depart."
LeBrun, 363 F.3d at 721. Furthermore, presenting a suspect with
incriminating suggestions does not automatically convert an
interview into a custodial interrogation. United States v.
Jones, 523 F.3d 1235, 1241 (10th Cir. 2008).
¶45 Given the totality of the circumstances presented
herein, we conclude that Bartelt was not in custody at the time
of his confession.
¶46 We now turn to Bartelt's argument that from the moment
of his confession no reasonable person in his position would
have felt free to terminate the interview and leave. In
25
No. 2015AP2506-CR
answering this inquiry, the court of appeals focused on whether,
given the totality of the circumstances, the environment of the
interview after Bartelt's confession "present[ed] the same
inherently coercive pressures as the type of station house
questioning at issue in Miranda." Howes, 565 U.S. at 509. The
court of appeals concluded:
[A] defendant making an incriminating statement does
not necessarily transform a noncustodial setting to a
custodial one. Indeed, "no Supreme Court case
supports [the] contention that admission to a crime
transforms an interview by the police into a custodial
interrogation."
Bartelt, 375 Wis. 2d 148, ¶40 (citing Locke v. Cattell, 476 F.3d
46, 53 (1st Cir. 2007)).
¶47 As an issue of first impression in Wisconsin courts,
the court of appeals relied on several out-of-state and federal
court decisions, including LeBrun, supra. Ultimately, the court
concluded that while a confession is undoubtedly one of the
circumstances we must consider, Miranda is specifically
"concerned 'with a type of interrogation environment created by
the police' and it is this 'atmosphere created by the
authorities for questioning' that necessitates Miranda
warnings." Bartelt, 375 Wis. 2d 148, ¶46 (citing State v.
Clappes, 117 Wis. 2d 277, 283, 344 N.W.2d 141 (1984)). As the
court of appeals noted, Miranda itself stated that Miranda
warnings are required "when an individual is taken into custody
or otherwise deprived of his freedom by the authorities in any
significant way and is subjected to questioning." Bartelt, 375
Wis. 2d, ¶47 (citing Miranda, 384 U.S. at 478). Therefore, the
26
No. 2015AP2506-CR
court of appeals focused on whether the atmosphere of Bartelt's
interview changed after his confession such that a reasonable
person would not feel free to leave. Considering the totality
of the circumstances, Bartelt's confession was not immediately
associated with a restraint on freedom of movement of the degree
associated with an arrest.
¶48 First, we note that both before and after Bartelt's
confession, Clausing and Walsh spoke in a conversational tone.
United States v. Chee, 514 F.3d 1106 (10th Cir. 2008)
(concluding, in part, that tone of interview, unchanged even
after confession to a serious crime, indicates lack of custody).
Although Clausing moved his chair closer to Bartelt after
catching Bartelt in a series of lies, the discussion otherwise
was not aggressive or confrontational. Thomas v. State, 55 A.3d
680, 696 (Md. 2012) (holding that a confession does not per se
render a suspect in custody, especially where the atmosphere of
the room never changed); Commonwealth v. Hilton, 823 N.E.2d 383,
396 (Mass. 2005) ("[A]n interview does not automatically become
custodial at the instant a defendant starts to confess.").
Rather, following Bartelt's admission, the detectives simply
continued to ask for details about the attack, which Bartelt
continued to supply. United States v. Caiello, 420 F.2d 471,
473 (2d Cir. 1969) (stating that it is the presence or absence
of compelling pressures that renders an interview custodial);
State v. Lapointe, 678 A.2d 942, 958 (Conn. 1966) ("While we
agree that admissions of culpability may lead the police either
27
No. 2015AP2506-CR
to arrest a suspect or to place restraints on his freedom
approximating an arrest, the police in this case never altered
the circumstances of their interviews of the defendant in such a
way that his initial noncustodial status became custodial.").
¶49 Second, that Bartelt was arrested at the end of his
interview does not necessarily mean that he was in custody at
any point prior to his arrest. Thomas, 55 A.3d at 692 (noting
that when a suspect is arrested at the end of an interview that
does not demonstrate that he was in custody prior to the
arrest); Chee, 514 F.3d at 1114 (concluding that until a suspect
who has confessed to a crime is arrested, he is merely subject
to arrest). Stated otherwise, although Clausing and Walsh
clearly suspected Bartelt and had enough evidence to arrest him
when he confessed, that in itself did not restrain Bartelt's
freedom of movement. Indeed, the defendants in Chee, Beheler,
and Mathiason were permitted to go home following their
incriminating statements. See Stansbury, 511 U.S. at 325 ("Even
a clear statement from an officer that the person under
interrogation is a prime suspect is not, in itself, dispositive
of the custody issue, for some suspects are free to come and go
until the police decide to make an arrest.").
¶50 On review, Bartelt argues that the court of appeals
ignored the "many more cases" from other jurisdictions that have
gone the other way. Specifically, Bartelt points to several
cases indicating that, after confession to a serious crime, a
person should generally be considered to be in custody for
28
No. 2015AP2506-CR
Miranda purposes, regardless of whether the confession altered
the atmosphere of the interrogation. See State v. Pitts, 936
So. 2d 1111 (Fla. Dist. Ct. App. 2006); Jackson v. State, 528
S.E.2d 232 (Ga. 2000); People v. Ripic, 587 N.Y.S.2d 776 (N.Y.
App. Div. 1992); People v. Carroll, 742 N.E.2d 1247 (Ill. Ct.
App. 2001); Commonwealth v. Smith, 686 N.E.2d 983 (Mass. 1997);
Kolb v. State, 930 P.2d 1238 (Wyo. 1996); Ackerman v. State, 774
N.E.2d 970 (Ind. Ct. App. 2002).
¶51 Bartelt contends that the court of appeals erred in
relegating its discussion of these cases to a footnote, in which
it asserted that at least two of the cases are not persuasive
because they treat a defendant's confession as dispositive. We
disagree with Bartelt because the aforementioned cases are
readily distinguishable. Furthermore, it is law enforcement's
conduct that determines whether a suspect has been taken into
custody. As we have explained above, whether a suspect is in
custody is a fact-specific inquiry where the totality of the
circumstances must be evaluated in full. The totality of the
circumstances herein differ from those in the cases Bartelt
cites.
¶52 Although the specific question we address today——
whether confession to a serious crime transforms a noncustodial
interview into a custodial interrogation in these circumstances—
—is an issue of first impression in Wisconsin, Bartelt contends
that our decision in State v. Koput, 142 Wis. 2d 370, 418 N.W.2d
804 (1988), supports the conclusion that no reasonable person
29
No. 2015AP2506-CR
would have felt free to leave following his confession to a
serious, violent crime. In Koput, we considered whether a
defendant, who had arrived for questioning at 9:30 a.m., was in
custody by the time he gave an inculpatory statement at 4:15
p.m. Based on the totality of the circumstances, we concluded
that Koput was not in custody "until after his confession,
sometime after 4:15 PM." Id. at 380.14 As the court of appeals
correctly noted, Koput does not stand for the proposition that
it was the confession itself which transformed Koput's custody
status. Rather, it was the combination of circumstances after
the confession that amounted to custody.
¶53 We therefore conclude that although an admission of
guilt to a serious crime is a factor to consider in a custody
analysis, Bartelt's admission to attacking M.R. was not enough
to transform his status to that of "in custody" given the
totality of the circumstances. Because Bartelt was not in
custody when he asked about counsel, his Fifth Amendment right
to counsel did not attach.
14
Koput goes on to state, "It was only then that a
reasonable person viewing the situation objectively would
conclude that he was not free to leave but was in custody."
State v. Koput, 142 Wis. 2d 370, 380, 418 N.W.2d 804 (1988).
Bartelt argues that in omitting this language from its opinion,
the court of appeals omitted Koput's indication that the
defendant's custody status changed after (and because) of his
confession. We disagree. Even with this language, Koput does
not stand for the proposition that the confession, in and of
itself, transformed his custody status.
30
No. 2015AP2506-CR
III. CONCLUSION
¶54 There were two issues on this appeal. First, we
considered whether Bartelt was in custody for the purposes of
Miranda once he confessed to attacking M.R. We concluded that,
in light of the totality of the circumstances, Bartelt's
confession did not transform his status to that of "in custody."
Rather, Bartelt was not in custody until Detectives Clausing and
Walsh took his cell phone, approximately ten minutes after his
confession, and instructed him to remain in the interview room.
Second, because we determine that Bartelt was not in custody
until this point, which was after his alleged request for
counsel, we need not and do not reach the issue of whether his
alleged request for counsel was unequivocal.
By the Court.—The decision of the court of appeals is
affirmed.
31
No. 2015AP2506-CR.awb
¶55 ANN WALSH BRADLEY, J. (dissenting). "I committed a
serious, violent felony." If suspects uttered these words,
would law enforcement let them walk out of the station? Would a
reasonable person feel free to simply get up and leave?
Engaging in a work of fantasy, the majority says yes. Mired to
the grips of reality, I say no.
¶56 Legal decisions regarding what the "reasonable person"
would do in a given situation do not always reflect the real
world. In reality, any reasonable person would not feel free to
leave a police interrogation room after confessing to a serious,
violent felony. Yet, the majority again finds "a perceived
freedom to depart in circumstances when only the most thick-
skinned of suspects would think such a choice was open to them."
See Wayne R. LaFave, Pinguitudinous Police, Pachydermatous Prey:
Whence Fourth Amendment "Seizures"?, 1991 U. Ill. L. Rev. 729,
739-40.1
¶57 To further the fantasy, the majority omits relevant
facts from its analysis that would lead to the conclusion that
Bartelt was in custody after confessing to the attack on M.R.
As a result it does not reach a critical issue in this case——
whether the defendant clearly and unequivocally invoked his
right to counsel. Unlike the majority, I would reach that
issue.
1
See also Michelle R. Ghetti, Seizure Through the Looking
Glass: Constitutional Analysis in Alice's Wonderland, 22 S.U.
L. Rev. 231, 253 (1995); Thomas v. State, 55 A.3d 680, 702-03
(Md. 2012) (Bell, C.J., dissenting).
1
No. 2015AP2506-CR.awb
¶58 I conclude that a reasonable person in Bartelt's
position would not have felt free to leave the station house
interrogation room, and that Bartelt clearly and unequivocally
invoked his right to counsel. When considering the totality of
the circumstances (namely all of the facts of record), I
determine that Bartelt's Fifth Amendment rights were violated.
Accordingly, I respectfully dissent.
I
¶59 The majority engages in fantasy by determining that a
reasonable person would feel free to leave the police
interrogation room under the circumstances presented here.
Academic studies, the facts of this case, and common sense
support a conclusion contrary to that of the majority.
A
¶60 A suspect is in custody for Miranda purposes if, under
the totality of the circumstances, a reasonable person would not
feel free to terminate the interview and leave the scene. State
v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523, 828 N.W.2d 552
(citing State v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278, 816
N.W.2d 270).
¶61 Studies demonstrate that the "free to leave" standard
that courts apply does not generally reflect what reasonable
people actually think and how they act when interacting with law
enforcement. Cty. of Grant v. Vogt, 2014 WI 76, ¶71, 356
Wis. 2d 343, 850 N.W.2d 253 (Abrahamson, C.J., dissenting)
(citing David K. Kessler, Free To Leave: An Empirical Look at
the Fourth Amendment's Seizure Standard, 99 J. Crim. L. &
2
No. 2015AP2506-CR.awb
Criminology 51 (2009); Edwin J. Butterfoss, Bright Line
Seizures: The Need for Clarity in Determining When Fourth
Amendment Activity Begins, 79 J. Crim. L. & Criminology 437,
439-42 (1988); Janice Nadler, No Need to Shout: Bus Sweeps and
the Psychology of Coercion, 2002 Sup. Ct. Rev. 153 (2002)).2
¶62 Indeed, one study concluded that the average person
does not feel free to leave even a simple interaction with law
enforcement on a bus or sidewalk. See Kessler, supra, at 74-75.
This result held true even among people who knew they had the
right to leave such an encounter. Id. at 78.
¶63 Our jurisprudence should reflect reality. It should
be based on true inclinations and thought processes rather than
pushing the mythical "reasonable person" even further from the
bounds of the real world. The majority in this case
accomplishes the latter.
B
¶64 Although the majority correctly invokes analysis of
the totality of the circumstances, it errs by ignoring relevant
facts that, in the aggregate, support a determination that
Bartelt was in custody immediately after confessing to the
attack on M.R.
2
Although these studies address the "free to leave"
standard with regard to a Fourth Amendment seizure, they are
equally applicable to the same standard in relation to the Fifth
Amendment. In both situations, a court must determine whether a
reasonable person would feel free to leave. It defies logic to
argue that a person being questioned in a police station under
threat of custody would feel more free to leave than a person
stopped pursuant to Terry v. Ohio, 392 U.S. 1 (1968).
3
No. 2015AP2506-CR.awb
¶65 First, the majority correctly sets the scene by
observing that "Bartelt chose the seat on the far side of the
table, while Clausing sat at the end, and Walsh sat opposite
Bartelt." Majority op., ¶8. The majority fails to mention,
however, that in order to leave the room (unless he went under
the table), Bartelt would have had to walk around either
detective. Thus, from the outset of the interview, he would
have had to squeeze by a detective in his path if he tried to
leave the room.
¶66 Second, the majority observes that at one point during
the interrogation, Detective Clausing "moved his chair closer to
Bartelt, from approximately four or five feet away to within two
feet." Id., ¶38 n.11. Yet, according to the majority, "[t]he
ambiance of the interview remained otherwise unchanged." Id.3 I
disagree. Under the totality of the circumstances, cutting the
distance by half and bringing the detective within arms reach of
the suspect changed the atmosphere of the room considerably.
3
The majority focuses its analysis on law enforcement's
conduct, not the suspect's. See majority op., ¶48 (observing
that "both before and after Bartelt's confession, Clausing and
Walsh spoke in a conversational tone"); see also id. ("Although
Clausing moved his chair closer to Bartelt after catching
Bartelt in a series of lies, the discussion otherwise was not
aggressive or confrontational").
To the extent that this line of analysis evinces a
departure from the totality of the circumstances test in favor
of a narrow focus on law enforcement conduct, this suggestion
can be quickly dispatched. In the next sentence after stating
that "it is law enforcement's conduct that determines whether a
suspect has been taken into custody," the majority reaffirms
that a custody determination is made with reference to the
totality of the circumstances. See id., ¶51.
4
 No. 2015AP2506-CR.awb
¶67 Detective Clausing's movement in effect shrunk the
size of the room and further blocked Bartelt's exit.4
Subsequently, in order to leave the room, Bartelt would have had
not only to walk past either detective, but also if he chose to
leave in Detective Clausing's direction, carefully maneuver
around Detective Clausing, who now sat a mere two feet away from
him.
¶68 Finally, the majority also fails to note an important
shift in the tone of the conversation: Detective Clausing's
language becomes coarser.5 In fact, Detective Clausing does not
utter a curse word over the course of the entire interview until
after he pulls his chair closer to Bartelt. The change in
language coupled with the close proximity of the detective to
4
A suspect's purported belief at the beginning of the
interview that he would be free to leave at the end of the
interview is irrelevant. See majority op., ¶36. During the
course of the interview, circumstances can change. Indeed they
did here.
5
Detective Clausing lectured Bartelt:
There is [sic] two different types of people that are
in your chair at this time. Okay? There is a person
that says, no, f--- this. F--- you. Prove it. And,
okay, we will. But there is a person, you know, I f--
-ed up, I made a mistake, I screwed up, but here is
the reason why. Okay? Maybe I have a problem with A,
maybe I have a problem with B. I was out of
character. I'm making bad decisions, and I regret it,
and I will do everything in my power to reverse what I
did and make things right.
5
No. 2015AP2506-CR.awb
the suspect enhances coercive pressure.6 In other words, it puts
more pressure on the suspect and weighs in favor of a custody
determination, even if the officer's comments otherwise remain
conversational.
¶69 To summarize: two detectives, one of them two feet
away and now swearing at him, block Bartelt's exit path. Yet
under the majority's analysis, Bartelt should have felt free to
stand up in the interrogation room, squeeze by a hovering
detective, and walk out of the police station.
¶70 Add to this atmosphere the fact that the suspect
confessed to a serious, violent felony——the assault of M.R.
Essentially, the majority determines that a suspect in Bartelt's
situation could state to the police, "I committed a serious,
violent felony. I'm leaving, see you later," and then march
past detectives on the way out of the interrogation room and the
police station. This stretches the bounds of credulity.
¶71 Additionally, Detective Clausing testified that he
subjectively believed that after Bartelt confessed, Bartelt
would not have been free to leave.7 Is Detective Clausing not a
reasonable person?
6
Although neither the detective's word choice nor his
positioning is by itself determinative of custody, each provides
further weight in favor of a custody determination when
analyzing the totality of the circumstances.
7
During an evidentiary hearing, Detective Clausing
testified as follows:
COUNSEL FOR BARTELT: Okay. And when, from your
perspective, did [Bartelt being able to walk out of
the room] change during the course of this interview?
(continued)
6
No. 2015AP2506-CR.awb
¶72 I acknowledge that Detective Clausing's subjective
view of when Bartelt was in custody is not dispositive. See
Lonkoski, 346 Wis. 2d 523, ¶35. However, his view certainly
provides a window into the perspective of one reasonable person
with a front seat view of the situation. It further
demonstrates law enforcement's expected response if Bartelt had
simply walked out as the majority contends he could have done.
¶73 If even the interrogating detective testified that a
suspect was not free to leave, would a reasonable suspect in
such a position really think he could just get up and walk out?
Only in a fantasy world would a suspect act in this manner.
Common sense tells us that a real world suspect would do no such
thing.
¶74 In sum, I determine that the totality of the
circumstances clearly indicates that Bartelt was not free to
leave. Rather, he was in custody for Miranda purposes
immediately after confessing to the attack on M.R.
II
¶75 Finally, because the majority concludes that Bartelt
was not in custody until the detectives took his cell phone and
DET. CLAUSING: When he admitted to attacking [M.R.].
COUNSEL FOR BARTELT: So at that point in time, he was
in trouble, he was going to be under arrest, and he
probably wasn't free to get up and leave, true?
DET. CLAUSING: In my mind?
COUNSEL FOR BARTELT: Yes.
DET. CLAUSING: Yes.
7
No. 2015AP2506-CR.awb
instructed him to remain in the interview room, approximately
ten minutes after his confession, it does not reach the issue of
whether Bartelt unequivocally invoked his right to counsel. See
majority op., ¶¶3, 54. As explained above, because I determine
that Bartelt was in custody for Miranda purposes immediately
after confessing to the attack on M.R., I would reach the issue,
and determine that Bartelt's invocation of the right to counsel
was clear and unequivocal.
¶76 To successfully invoke the right to counsel, a suspect
must make a clear and unequivocal request. State v. Edler, 2013
WI 73, ¶34, 350 Wis. 2d 1, 833 N.W.2d 564. "Although a suspect
need not 'speak with the discrimination of an Oxford don,' he
must articulate his desire to have counsel present sufficiently
clearly that a reasonable police officer in the circumstances
would understand the statement to be a request for an attorney."
Id. (quoting Davis v. United States, 512 U.S. 452, 459 (1994)).
Under this objective test, the court must examine the
circumstances surrounding the request. Edler, 350 Wis. 2d 1,
¶34.
¶77 The relevant circumstances here are as follows:
Bartelt stated, "Should I or can I speak to a lawyer or
anything?" Detective Clausing responded, "Sure, yes. That is
your option." Bartelt then told him, "I think I'd prefer that."
See majority op., ¶16.
¶78 "That" clearly refers to the option to speak to a
lawyer. The circumstances surrounding the statement present a
question, an answer, and a subsequent follow-up. Given this
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exchange, a reasonable officer would have understood that
Bartelt was accepting the "option" the officer had just
presented to him.
¶79 Bartelt's invocation of the right to counsel was
informal, but that does not make it ineffective. See Edler, 350
Wis. 2d 1, ¶36; State v. Dumas, 750 A.2d 420, 425 (R.I. 2000)
("A suspect asserting his or her right to counsel need not speak
with perfect formality, but may use any manner of colloquial
speech, so long as his or her statement would be reasonably
understood as a request for an attorney"). The most reasonable
interpretation is that Bartelt used the word "think" as
colloquial filler, not as an indication of ambiguity.
¶80 Conversely, ambiguous or equivocal statements not
invoking the protection, are those from which a reasonable
officer "would have understood only that the suspect might be
invoking the right to counsel." State v. Jennings, 2002 WI 44,
¶36, 252 Wis. 2d 228, 647 N.W.2d 142 (quoting Davis, 512 U.S. at
459).
¶81 In Jennings, the defendant stated, "I think maybe I
need to talk to a lawyer." Jennings, 252 Wis. 2d 228, ¶36. The
word "maybe" coupled with "think" in Jennings' statement adds
ambiguity not present here. Instead, Bartelt's response was
made in reply to the detective's statement that having counsel
was his "option." Bartelt clearly chose that option.
¶82 An analogy presented in Bartelt's brief further
illustrates that Bartelt's statement was an unambiguous
invocation of the right to counsel: "if a customer went to a
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No. 2015AP2506-CR.awb
restaurant and asked the waiter, 'What kind of light beers do
you have on tap?,' and the waiter responded, 'Miller Lite and
Bud Light.' If the customer then said, "Okay. I think I'd
prefer a Miller Lite,' no reasonable person would think this was
anything other than a clear request for a Miller Lite." Indeed,
this analogy clarifies that neither the word "think" nor the
word "prefer" necessarily demonstrates equivocation.
¶83 In sum, Bartelt was in custody for Miranda purposes
immediately after confessing to the attack on M.R., and he
invoked his right to counsel. Because a reasonable person in
Bartelt's position would not have felt free to leave the station
house interrogation room, and because Bartelt clearly and
unequivocally invoked his right to counsel, I determine that
Bartelt's Fifth Amendment rights were violated.
¶84 Accordingly, I respectfully dissent.
¶85 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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