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Incarceration is no longer custody per se under Miranda

State v. Brian L. Halverson, 2018AP858-CR, 11/13/19, District 3 (recommended for publication); case activity (including briefs)

Until now, Wisconsin held that a person who is interviewed by law enforcement while incarcerated is per se in custody and thus must receive a Miranda warning. State v. Armstrong, 223 Wis. 2d 331, 588 N.W. 2d 606 (1999). This published court of appeals’ decision holds that the SCOTUS effectively overturned Armstrong in Howes v. Fields, 565 U.S. 499 (2012). Going forward, courts must determine whether an inmate is in custody by analyzing the totality of the circumstances surrounding his interrogation.

Armstrong and Howes both relied on 5th Amendment jurisprudence to reach opposite results. Armstrong established the categorical rule noted above. Thirteen years later, Howes held that imprisonment in and of itself is not enough to constitute Miranda custody. Opinion,¶32. (Tyroler predicted Armstrong‘s demise here).

To decide whether an incarcerated person is in custody, a court must now determine whether, in light of the objective circumstances of the interrogation, a reasonable person would have felt at that he was not at liberty to terminate the interrogation and leave. This requires consideration of the degree of restraint (handcuffs, drawn weapons, number of officers), the purpose, place, and length of the interrogation, and what law enforcement officers communicated to the person. Opinion, ¶50.

Assuming that the person’s movement was curtailed, then the court must determine whether the relevant environment presents the same inherently coercive pressures that the station house questioning at issue in Miranda.  Opinion, ¶51.

Halverson was in the Vernon County Jail when an officer interrogated him. You might ask how he could possibly be free to leave an interrogation, if he was incarcerated. In this case, the court of appeals repeatedly noted that he was interrogated by phone rather than in person. Other jurisdictions have held that interrogations by phone are less likely to be custodial. Opinion, ¶51.

Applying the two-part test above, the court of appeals held that a reasonable person in Halverson’s situation would have felt free to terminate the interrogation and end the call, which lasted only 3-4 minutes. The officer never raised his voice. Halverson never asked for a lawyer or tried to end the call. Halverson was locked in a program room when he spoke to the officer, but he was alone and unrestrained. He was not forced to take the call or prevented from disconnecting it. Due to his freedom to make these choices, he was free to end the call and to ask to be returned to his cell. Thus, he was not in custody for Miranda purposes. Opinion, ¶¶60-61.

Halverson argued that the court of appeals should maintain Armstrong‘s rule based on the Wis. Const. Art. I §8(1), which SCOW has said affords Wisconsinites greater protection than the Fifth Amendment. See State v. Knapp, 2005 WI 127, ¶59, 285 Wis. 2d 86, 700 N.W.2d 899. The court of appeals declined to do so. Opinion, ¶¶40-47.  In general, the conservative justices on SCOW see Wisconsin’s constitution as co-extensive with the federal constitution (which kind of makes the Wisconsin Constitution a nothing burger). But recently Justice Rebecca Bradley seemed open the possibility that at least Article I §11 of the Wisconsin’s constitution could be read to prove greater protection that its federal counterpart. Click here.

 

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