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SCOW to address Miranda custody during a Terry stop

State v. Brian v. Rotolo, 2019AP2061-CR, petition for review granted 12/28/20; case activity

Issue presented (adapted from the petition for review):

In State v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523, 828 N.W.2d 552, SCOW held that the test for Fifth Amendment Miranda custody is whether “a reasonable person would not feel free to terminate the interview and leave the scene.” Does this test for determining Miranda custody also apply when police legally detain a suspect under Terry?

This case asks SCOW to address the confusion caused by its messy decision in State v. Dobbs, 2020 WI 64, ¶¶56-58, ___ Wis. 2d ___, ___ N.W.2d ___. See our post on Dobbs here.  Dobbs held that the 4th Amendment inquiry for determining the validity of a Terry stop is distinct from the 5th Amendment inquiry for determining whether a person is in custody for Miranda purposes.

Dobbs, which involved a Terry stop, held that a suspect is in custody for Miranda purposes when there is a formal arrest or restraint on freedom of movement of a degree associated with a formal arrest. Id., ¶53.  As noted above, Lonkoski, which did not involve a Terry stop, states the Miranda custody test differently.  See our post on Lonkoski here. Thus, in this case, Rotolo asks SCOW to clarify either:

(1) that the language about feeling free to leave is not relevant for purposes of determining Miranda custody when there is a Terry stop and therefore is not the ultimate question guiding the Miranda custody inquiry, despite language to the contrary in Lonkoski; or (2) that the language about feeling free to leave is relevant to the Miranda custody analysis, even in Terry stop cases, and a subject is in Miranda custody when there is a legal police detention. Petition at 3.

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