The execution of the search warrant at Kilgore’s home started with a heavily armed officers, including a SWAT team, entering and putting Kilgore down on the floor at gunpoint; but once the home was “cleared” and weapons were secured and the SWAT team left, Kilgore was not in custody for Miranda purposes. Thus, the statements he made to police while they searched his home were admissible despite the lack of a Miranda warning.
¶21 The Fifth Amendment does not prohibit the police from asking questions during execution of a search warrant, even though the suspect is not free to leave during the temporary detention, nor does it prohibit the suspect from volunteering an incriminating statement. What the Fifth Amendment does prohibit is the use of practices or tactics that compel a person to incriminate himself or herself: tactics which create a coercive custodial environment that is the functional equivalent of a formal arrest in which “the behavior of … law enforcement officials is such as to overbear the [individual’s] will to resist and bring about confessions not freely self-determined.” Beckwith v. United States, 425 U.S. 341, 347-48 (1976) (citation omitted); see Miranda [v. Arizona], 384 U.S. [436,] 457-58 [1966)]. Here, the circuit court credited the testimony of [Detective] Remington at the suppression hearing to find that, after the SWAT team left the premises and Kilgore was moved to the living room, the element of compulsion associated with a formal arrest during the ensuing conversation between Kilgore and the two officers was lacking. The court, looking at the totality of the circumstances, found that after the SWAT team secured the residence and left, “things changed,” to the point where “this was not a situation where a reasonable person would think this was more than a temporary situation.” We agree.
Detention during execution of a search warrant is reasonable under the Fourth Amendment, Muehler v. Mena, 544 U.S. 93, 98-99 (2005), and does not automatically amount to “custody” under the Fifth Amendment, State v. Goetz, 2001 WI App 294, ¶17, 249 Wis. 2d 380, 638 N.W.2d 386. Whether a person is in custody depends on the totality of the circumstances, so the inquiry is necessarily very fact-specific. We won’t detail here all the circumstances recited in the decision, but will simply note that the court emphasized that Kilgore wasn’t handcuffed; that the interrogation took place in his home, which is not an inherently coercive setting; and that, at least according to the lead detective, Kilgore wasn’t a suspect when the search was conducted (his housemate, Peters, was the target). (¶¶22-34).
The court also rejects Kilgore’s argument that the police lacked probable cause to take a cheek swab to collect his DNA. The police were searching for evidence of an alleged sexual assault of a drugged person, and while the complainant’s allegations pointed more strongly to Kilgore’s housemate Peters, the allegations showed one or both of the men had means and opportunity to drug and assault the complainant and thus allowed the inference that one or both of the men were involved in the offense. (¶40).
One judge concurs with the majority’s probable cause holding but dissents on the question of whether Kilgore was in custody. The dissent takes a dim view of the suppression hearing testimony of the detective who, after having obtained a warrant for Kilgore’s DNA, “changed her tune from Kilgore being a suspect, as she averred in the search warrant, to Kilgore being a ‘potential witness.’” (¶59). The dissent points out “it is illogical for the majority to agree that probable cause existed that Kilgore had drugged and raped K.A.B., … while at the same time accepting [Detective] Remington’s revisionist testimony that Kilgore was never a suspect, only a ‘potential witness.’” (¶61). Looking at the objective facts in light of Kilgore being a target of a SWAT-led raid of his home, the dissent “see[s] the picture of a police dominated atmosphere, in which a reasonable person would not have felt at liberty to terminate the interrogation and leave.” (¶60).