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SCOW: Confession to violent felony doesn’t transform interrogation room interview into custodial interrogation

State v. Daniel J.H. Bartelt, 2018 WI 16, 2/20/18, affirming a published court of appeals opinion, case activity (including briefs)

Suppose you confessed to attempted homicide while sitting in a police station interrogation room with 2 officers who are positioned between you and the exit. Would you feel free to leave? The majority says a reasonable person would. The dissent by A.W. Bradley (joined by Abrahamson) says a reasonable person would not.  

A person is in “custody” for Miranda purposes when he is arrested or his freedom of movement is restrained to the degree associated with a formal arrest. Opinion, ¶31 (citing State v. Lonkoski, WI 30, ¶27, 346 Wis. 2d 523, 828 N.W.2d 552). Courts look at the totality of the circumstances to determine whether “a reasonable person would not feel free to terminate the interview and leave the scene.” Id. (quoting State v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278, 816 N.W.2d 270 and citing Thomson v. Keohane, 516 U.S. 99, 112 (1995)). Specifically, courts consider the degree of restraint the defendant is subject to. Is he handcuffed? Have police drawn their weapons? Have they frisked the suspect or moved him to new location, questioned him in the squad car? How many officers were involved? What was the purpose of the interrogation and how long was it?

Bartelt went to the Slinger Police Department voluntarily to be interviewed about an assault that occurred in Richfield Historical Park. During the interview, police employed coercive tactics, and he confessed. Then Bartelt asked: “Should I or can I speak to a lawyer or anything?” The cops responded, “Sure, yes. That is your option.” And Bartelt replied “I’d prefer that.” According to the majority, Bartelt was not in custody at this point, so his request for counsel did not count. Opinion ¶53. Ten minutes after his confession, the cops took his cell phone and told him not to leave the interview. That’s when custody occurred. The cops arrested him and put him in jail. The next day police questioned him about a murder without counsel present. He again made incriminating statements. Bartelt argued that he was in custody during the first interview and that his request for counsel precluded all further interrogation.

The majority held that Bartelt’s confession to the attack was a circumstance that a court should consider when deciding whether he was in custody for Miranda purposes but it was not dispositve. Instead, the question is whether the atmosphere of the interview changed after the confession. The majority held that it did not because the officers spoke in a conversational tone before and after. While one officer pulled his chair within 2 feet of Bartelt after catching him in a lie, “the discussion otherwise was not aggressive or confrontational.” Opinion ¶48. The fact that Bartelt was arrested at the end of the interview did not mean he was in custody prior to that point. Opinion ¶49.

Justice A.W. Bradley filed this dissent:

¶55 “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.

Justice Bradley also criticized the majority for omitting relevant facts from its analysis.

¶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?

As for Bartelt’s request for counsel, Justice Bradley invoked an analogy from his lawyer’s brief to prove the request was unequivocal.

¶82 [Suppose] a customer went to a 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.

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