Probationer’s statement, compelled by rules of his supervision, is covered by derivative as well as use immunity in a criminal prosecution.
¶3 We hold that the statement that Spaeth made to Oshkosh police was derived from the compelled, incriminating, testimonial statement that he made to his probation agent. Thus, Spaeth’s statement to police was not derived from a source “wholly independent” from his compelled testimony, as required by Kastigar and State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977), even though the statement was preceded by a valid Miranda warning. Consequently, Spaeth’s statement to officers is subject to derivative use immunity and may not be used in any subsequent criminal trial. Therefore, we reverse the convictions of Joseph Spaeth and determine that his compelled statement to his probation agent, his subsequent statement to Oshkosh police, and any evidence derived from either statement must be suppressed in any criminal trial. This rule does not apply to a revocation hearing.
Briefly: Spaeth, on probation for a sex offense, was required under statute, admin code rules and local practice, to take a polygraph test at least once a year. He thus faced possible sanction, including revocation of probation, for failure to submit to the test. During the course of such a test, he made incriminating statements, which his agent reported to the police. Arrested and Mirandized, Spaeth made statements that were used in an ensuing prosecution and conviction.
It’s long settled that statements made by a probationer (or other supervisee) under threat of sanction are involuntary, thus entitled to immunity. Evans (supervising agent may compel statements, but only if immunized from use in criminal case); State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987) (extending bar on use to impeachment). The parties agreed here that Spaeth’s statements during the polygraph test were covered by the Evans-Thompson immunity rule – the question is whether immunity extended to subsequent, and otherwise voluntary, statements made to the police; whether, that is, this immunity rule may be overcome by the “independent source” or “attenuation” doctrine. Discussing at some length Kastigar v. United States, 406 U.S. 441 (1972) (the state may compel incriminating testimony if accompanied by use and derivative use immunity) and related authority, the court answers with a resounding no.
Immunity for a compelled statement applies equally to derivative use, which itself bars use “as an ‘investigatory lead,'” ¶37, quoting Kastigar, 406 U.S. at 460. That’s essentially what happened here; the State can’t satisfy its burden of showing that Spaeth’s statements to the police were “derived from a legitimate source wholly independent of the compelled testimony,” id. Nor is the attenuation doctrine avaialble to save the statements:
¶59 In short, it makes no difference on the facts of this case that Spaeth did not invoke the privilege against self-incrimination. We see this case as one involving compelled, incriminating, testimonial evidence, making it subject to the principles of Kastigar, Portash, and Evans. This case falls within one of the stated exceptions to the “invocation” rule in Minnesota v. Murphy. As a result, Spaeth’s statement to police may not be used in any criminal proceeding because the statement was not derived from a source wholly independent from the compelled testimony. It was derived from compelled testimonial evidence.
¶64 The attenuation doctrine——as normally understood to include such factors as the passage of time between improper police conduct and, say, a confession——is simply inapplicable when police are following up compelled, incriminating, testimonial statements. The attenuation doctrine has application in certain other situations where the police ultimately obtain a voluntary admission. However, we see no indication that the Supreme Court has applied or hinted at applying the attenuation doctrine to compelled, incriminating, testimonial statements subject to Kastigar-Portash-Evans immunity. Opening this door would invite the government to compel admissions from probationers and parolees, use the information to secure their revocations in noncriminal revocation proceedings, and then wait long enough to use the information again as the basis to investigate the suspects or obtain new admissions from them. The passage of time does not sever a clear linkage to compelled, incriminating, testimonial evidence. Such application of the attenuation doctrine would be inconsistent with the principles of Kastigar and Portash and cannot be entertained by a state court that is bound to follow the Supreme Court in interpreting the Fifth Amendment.
¶65 We are equally skeptical that Montejo v. Louisiana, 556 U.S. 778 (2009), which recognizes “the prophylactic protection” afforded to a suspect by Miranda, will ever be said to override the derivative immunity that attaches to compelled incriminating testimony. If this ever happens, it must come in a directive from the Supreme Court. Thus, the circuit court’s finding that Spaeth made a voluntary statement to police, after a valid Miranda warning, is not relevant.
¶66 This brings us to the question posed in the certification, namely, whether “a statement made to law enforcement following a probationer’s honest accounting to an agent may become a ‘wholly independent source’ under Kastigar . . . and, if so, under what parameters.”
¶70 The State cannot compel a probationer to provide this kind of incriminating testimonial evidence, which may be used against him in the noncriminal revocation proceeding, Murphy, 465 U.S. at 435 n.7; see also State ex rel. Cramer v. Schwarz, 2000 WI 86, ¶28, 236 Wis. 2d 473, 613 N.W.2d 591, and then use that information again, directly or indirectly, to prosecute the probationer criminally. The State must decide whether to take the “impermissible step” of forcing a probationer “to choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent,” Murphy, 461 U.S. at 436, because forcing that choice will bar future use of the incriminating evidence in a criminal prosecution.
Note that Spaeth didn’t have to assert his 5th A privilege, because the threat of administrative sanction such as revocation made it self-executing (thus distinguishing this case from Minnesota v. Murphy, where the probationer was under no compulsion to talk), ¶¶48-49. More interestingly, perhaps, is the absence of anything in the decision requiring an explicit showing that Spaeth knew his non-cooperation would be consequential. Instead, the court stresses “the law of Wisconsin embodied in statutes, rules, and case law,” as reinforced by the agent’s testimony, ¶¶49, 58. But as to any requirement that Spaeth had been so informed, the court is silent. To the contrary, Spaeth was actually informed he could “stop the (polygraph) examination at anytime,” remain silent, “not make any statement at all,” and obtain a lawyer at state expense, ¶5. The court dismisses this misadvice with the simple observation that it “was not an accurate statement of the law for this probationer,” ¶6. All of which suggests that because compulsion to talk to an agent is so deeply embedded in statutes, rules and caselaw, the court will assume the supervisee’s knowledge – so much so, it won’t be overriden by erroneous advice. Still, extreme caution is warranted, and the careful practitioner will want to consider how to make a record on this point.
UPDATE (6/20/13): Clarifying that merely being on supervision is not enough, and validating the above suggestion that a record should be made about the supervisee’s knowledge of the potential for revocation, State v. Sahs, 2013 WI 51, held that the defendant failed to prove his statement was compelled because the record did not establish he knew he had to provide information to his agent or face revocation. For guidance on what might make for adequate proof, see the decision in Sahs, particularly ¶¶60-82, which discuss Spaeth and State v. Peelbles, 2010 WI 156, 330 Wis. 2d 243, 792 N.W.2d 212.