1. After confessing to an attempted homicide or other serious crimes, would a reasonable person feel free to terminate a police interview and leave an interrogation room, such that the person in not “in custody” for Miranda purposes?
2. After confessing, did Bartelt make a clear and unequivocal request for counsel when he asked one of the detectives, “Should I or can I speak to a lawyer or anything?” the detective replied, Sure, yes, that is your option.” And Bartelt replied, “Okay, I think I’d prefer that.”
Language from State v. Koput, 142 Wis. 2d 370, 380, 416 N.W.2d 804 (1988) suggests that a reasonable person would not feel free to leave a police station after confessing to a crime. However, no Wisconsin appellate court has squarely addressed this issue.
Courts from other jurisdictions are split on the issue. Some hold that a confession alone does not transform a noncustodial interview into a custodial interrogation. They require some proof that the confession changed the atmosphere of the interrogation. See e.g. United States v. Chee, 514 F.3d 1106, 1110 (10th Cir 2008). Others simply ask whether a reasonable person in the defendant’s position would have felt free to terminate the interview and leave the interrogation room after making the confession. See e.g. State v. Pitts, 936 So.2d 1111, 1134 (Fla. Dist. Ct. App. 2006).
The docket entry regarding the grant of review contains an interesting notation. Apparently, Abrahamson and Bradley thought that SCOW should order the DOJ to respond to Bartelt’s petition for review before granting it but the other justice did not think this was necessary.