During a police interview about an attempted homicide, Bartelt made incriminating statements and then unequivocally invoked his right to counsel. A few minutes later, police arrested him. The next day, different officers advised Bartelt of his Miranda rights, which he waived before confessing to a murder. The issue is whether Bartelt was in custody when he invoked his right to counsel during the first interview. If not, then police could continue questioning him despite his request for counsel, per State v. Lonkoski. If Bartelt was in custody, then police should have stopped questioning until an attorney was present, and his confession to murder should have been suppressed.
Bartelt argued that his confession to attempted murder during the first interview, combined with the fact that police treated him as the target of a serious felony, applied psychological pressures, confronted him with incriminating evidence and so forth, created a custodial environment. The court of appeals disagrees:
¶27 A suspect is in custody when that suspect is “deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. In other words, custody is the equivalent of “a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” Thompson v. Keohane, 516 U.S. 99, 112 (1995) (citation omitted); Lonkoski, 346 Wis. 2d 523, ¶6.
¶34 [C]ontrary to Bartelt’s contention, the fact the detectives essentially communicated to him that he was the focus of their investigation did not transform the interview into a custodial interrogation. See Stansbury v. California, 511 U.S. 318, 325 (1994) (parenthetical omitted).
¶35 Certainly the detectives applied some psychological pressures on Bartelt to persuade him to confess, but, unlike custodial interrogations, the other circumstances present here—coming voluntarily to the police department, being told he could leave anytime he wanted, keeping his cell phone and being permitted to answer it, and the door to the interview room being kept open, among other circumstances—did not suggest that Bartelt could not have terminated the interview and left. See LeBrun, 363 F.3d at 718, 720-21 (parenthetical omitted).
¶39 . . . [Oregon v. Mathiason, 429 U.S. 492 (1977)] teaches that confronting a suspect with incriminating evidence, does not automatically convert the interview into a custodial interrogation. See United States v. Jones, 523 F.3d 1235, 1241 (10th Cir. 2008) (holding that defendant was not in custody even though agents told her that they had sufficient evidence to arrest her).
¶40 Just as the police telling a suspect that they have sufficient evidence to arrest that suspect, and even identifying potentially incriminating evidence that they possess to the suspect, does not necessarily convert a noncustodial setting to a custodial one, 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.” Locke v. Cattell, 476 F.3d 46, 53 (1st Cir. 2007).
The court of appeals rejected the suggestion that the moment a person makes an incriminating statement the police must stop questioning and administer Miranda warnings. Rather, a confession is just one of the circumstances to consider when deciding whether a reasonable person would believe he was free to leave. ¶¶45-46.
The court held: “In this relatively brief interview of just over thirty-five minutes, Bartelt was not physically restrained in any way, was not frisked, was told he was free to leave and not under arrest, had access to an unlocked and slightly open door, and was permitted to keep and check his cell phone. We conclude, therefore, that under the totality of the circumstances, Bartelt was not in custody at the time he asked about counsel. ” ¶51.
The court of appeals acknowledges that some courts outside Wisconsin have held that a suspect’s incriminating admission is dispositive on the custody issue. ¶47 n.10. See e.g. Jackson v. State, 528 S.E.2d 232, 235 (Ga. 2000); State v. Ripic, 587 N.Y.S.2d 776, 782 (N.Y. App. Div. 1992). Others courts view an incriminating statement as a significant factor in the analysis. See e.g. Ackerman v. State, 774 N.E.2d 970, 978-79 (Ind. Ct. App. 2002). Bartelts briefs cite additional cases on this point.
Re whether a person would reasonably feel free to leave once police questioning convey that he is a suspect of a serious crime, see U.S. v. Jacobs, 431 F.3d 99, 105-105 (3rd Cir. 2005), which relies on Stansbury v. California, holds “no.” For more analysis on these issues see our post on State v. Lonkoski.