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No Miranda warning, no problem, thanks to attenuation doctrine, lack of interrogation

State v. Brian I. Harris, 2016 WI App 2, petition for review granted 4/6/16, affirmed 2017 WI 31; case activity (including briefs)

Incriminating statements Harris made while he was in custody were admissible despite the lack of Miranda warnings because the statements were either sufficiently attenuated from the taint of police questioning or were not made in response to police interrogation.

Two officers found Harris in the basement of a vacant townhouse, surrounded by copper piping extracted from the ceiling and various tools (e.g., hack saw, blades, bolt-cutting implement). The officers handcuffed Harris, asked him who he was and what he was doing, and then put him in the back of one of the officer’s squad car. While the officer sat in the squad completing “paperwork” on the incident Harris started talking, saying he was homeless, went into vacant buildings to sleep, and was taking the copper pipe to get money for food. (¶¶3-6). The court accepts the State’s concession that Harris was in custody and should have been given Miranda warnings when questioned in the basement. (¶¶10-12). It holds, however, that Harris’s statements in the squad car were sufficiently attenuated from the tainted basement questioning.

Attenuation is determined based on “the temporal proximity of the official misconduct and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct.” State v. Anderson, 165 Wis. 2d 441, 448, 477 N.W.2d 277 (1991). The first factor militates against attenuation, as only a few minutes passed between the questioning and Harris’s statements and his statements were responsive to the questions. (¶¶14-15). The second factor favors attenuation, as the officer was engaged in other activities and wasn’t questioning Harris anymore, providing “a meaningful break—a discontinuity—between the questioning and Harris’s inculpatory statements.” (¶16). The third factor, which is particularly important because it goes to the heart of the exclusionary rule’s objective of deterring unlawful police conduct (¶17), strongly favors attenuation:

18     …. [Officer Niebuhr’s] questions to Harris were routine—essentially to the effect of inquiring “who he was and, … if he lived there, why he was in the building”—and appear to have been more focused on assessing whether Harris could possibly have any legal right to be where he was and to be doing what he was doing than on procuring an inculpatory statement as part of a criminal investigation. Significantly, when Harris remained silent following Niebuhr’s initial inquiry, except at some point possibly providing his name, Niebuhr asked no more questions. Further, the record is undisputed that at no time did Niebuhr make any threats or promises to Harris in order to induce him to make the inculpatory comments he made in the squad car. Indeed, as noted, it is undisputed that Niebuhr was not even paying attention to Harris when Harris began making his inculpatory comments. Neither Niebuhr’s initial questioning of Harris nor any actions Niebuhr took thereafter could fairly be considered “bad faith exploitation of the situation.” See [State v.] Artic, [2010 WI 83,] 327 Wis. 2d 392, ¶105[, 786 N.W.2d 430]. ….

Harris also sought to suppress a statement he made to a detective once he was in jail. The detective asked Harris if he would agree to be interviewed, and Harris replied, essentially, “I got caught, man, there’s nothing else to say.” (¶¶7, 21). The detective’s question was not “words or actions … police officers … should have known were reasonably likely to elicit an incriminating response,” Rhode Island v. Innis, 446 U.S. 291, 301 (1980), and so did not constitute interrogation:

23     …[T]he circuit court ultimately, if implicitly, found that the message [Detective] Buchanan conveyed to Harris was a procedural one that an objective listener would have interpreted as an invitation for a simple “yes”/“no”-type response indicating Harris’s willingness or lack thereof to cooperate with Buchanan by providing a formal statement—not an invitation for Harris to blurt out a substantively incriminating response right then and there…. In so finding, the court had the opportunity to directly observe Buchanan’s demeanor, tone of voice, inflection, etc., and the finding is supported by Buchanan’s testimony. Accordingly, even if Buchanan had uttered the words “would you like to give a statement,” in this particular context, the ultimate message Buchanan conveyed to Harris would not have amounted to an “interrogation.”

24     As the court observed, without some latitude to inquire as to whether a defendant would be willing to cooperate in providing a formal statement—“there would be no way to initiate the whole concept of giving a statement.” While one could argue, from a practical standpoint, Buchanan should have just “played it safe” and provided Harris the Miranda warnings prior to saying a single word to him, Buchanan’s actual approach is understandable. If Harris rejected Buchanan’s overture to cooperate and provide a formal statement—as Harris essentially did when he responded to the effect of “I got caught, man, that is there’s nothing else to say”—there would be no subsequent interrogation requiring the Miranda warnings. Of his own volition, Harris chose to communicate “no” to Buchanan in a foolish manner—leading “there’s nothing else to say” with “I got caught”—that provided the State with additional evidence to use against him at trial.

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