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Wisconsin Supreme Court rejects argument that Miranda protections apply when custody is “imminent”

State v. Matthew A. Lonkoski, 2013 WI 30, affirming unpublished court of appeals decision; case activity

About 30 minutes into being questioned by police about the death of his daughter, Matthew Lonkoski said he wanted a lawyer. (¶12). Under Edwards v. Arizona, 451 U.S. 477 (1981), the invocation of the right to counsel would mean the police had to cease interrogation unless Lonkoski reinitiated the interview. But the Edwards rule applies only if the suspect is in custody. The court of appeals assumed Lonkoski was in custody, but held that he had reinitiated the conversation. (¶19). The supreme court now holds that Lonkoski was not in custody; therefore, the Edwards rule doesn’t apply, and his subsequent statements should not be suppressed.

Lonkoski argued both that he was in “custody” or, alternatively, that custody was “imminent” when he asked for a lawyer, so Miranda (and Edwards) should apply. (¶25). Applying the standard test for custody–whether, under the totality of the circumstances, a reasonable person would not feel free to terminate the interview and leave (¶¶6, 27)–the court first concludes Lonkoski was not in custody, as summarized here:

¶7   Lonkoski came to the sheriff’s department without being asked and voluntarily submitted to questioning by law enforcement officers.  Although he was questioned in a small room within a jail by two officers with the door closed, the circuit court found that it was a typical interrogation setting locked to ingress by individuals but not for egress; he was never restrained in any way; and the door was opened more than once by people entering or exiting.  In fact, on one occasion when the officers left the room, one of the officers asked Lonkoski whether he preferred the door to the interrogation room to be open or shut.  Furthermore, Lonkoski was told that he was not under arrest and that the officers were not accusing him.  In the totality of the circumstances, a reasonable person in Lonkoski’s position at the time he stated he wanted an attorney would believe that he or she was “free to terminate the interview and leave the scene.”  ….

The court then rejects Lonkoski’s argument that because he was about to be placed in custody and interrogated further, custodial interrogation was “imminent” and his assertion of the right to counsel should be given effect. In making this argument Lonkoski relied on State v. Hambly, 2008 WI 10, ¶¶3, 24, 307 Wis. 2d 98, 745 N.W.2d 48 (see our post here). That case held that a suspect who was in custody but not yet being interrogated could effectively assert his right to have counsel present if interrogation was imminent or impending. (¶36). The supreme court holds Hambly does not apply here:

¶38  Lonkoski believes that “imminent interrogation” and “imminent custody” are equally coercive and that this court should extend its holding in Hambly to the inverse situation where a suspect is being interrogated but is not yet in custody.  This argument ignores the differences in the circumstances in each situation.  In Hambly, the suspect was enduring a much more coercive environment than Lonkoski, who was talking to law enforcement officers while he was not yet in custody.  Before a suspect is in custody, the coerciveness is substantially lessened because a reasonable person in the suspect’s position would believe that he or she could end the conversation and leave at any time.  See Martin, 343 Wis. 2d 278, ¶33 (holding that custody exists when a reasonable person would believe that he could not end the conversation and leave).

¶39 Another reason the “imminent custody” rule that Lonkoski proposes is unnecessary is that the current definition of “custody” encompasses both formal arrest and situations in which a reasonable person would consider himself or herself in custody.  See, e.g.Stansbury v. California, 511 U.S. at 322.  By contemplating both, the current test prevents law enforcement from gaming the system by placing a suspect in a custodial-like situation without formally arresting the person to avoid Miranda protections.  We therefore see no reason to adopt a new test to fit the facts of this case.

The court’s recitation of the custody test is unobjectionable, but its application is problematic. First, Lonkoski pointed out in his briefs (available here) that he was being questioned about a serious matter–the death of his child–and that the questioning got sharper and more accusatory, culminating in his realization the police suspected he caused the death. If the police convey to a person being questioned that they have evidence leading them to suspect the person committed a serious crime, the person would reasonably believe the police are not going to simply let the person leave when he wants to–and so other courts have held, as Lonkoski pointed out, e.g., U.S. v. Jacobs, 431 F.3d 99, 105-06 (3rd Cir. 2005), which in turn relies on Stansbury, 511 U.S. at 325. The court, however, unjustifiably treats this as an argument based on the subjective beliefs of the suspect and the officers, which are irrelevant to the objective custody test. (¶¶34-35).

Second, the court largely ignores the evolution of Lonkoski’s interrogation. Everyone agrees Lonkoski was not in custody at the start (¶29), but as it proceeded the questioning made the officers’ suspicions clearer and clearer, leading to Lonkoski’s demand for a lawyer and, within seconds, his arrest. In fact, shortly after saying he wanted a lawyer, it occurred to Lonkoski to ask: “Am I under arrest?” Reply: “You are now.” (¶12). That raises  a question: Since when was he in custody? The precise moment the officer uttered those words, probably; but could it have been a few moments before? A totality of the circumstances test means the line between non-custody and custody is not always bright, but the court’s analysis doesn’t address the changes over the course of the questioning, especially in the last few moments before the police told him he was now in custody.

Which brings us to the court’s distinguishing of Hambly based on differences in the “coercive environment.” (¶38). The court says Hambly’s situation was “much more” coercive because he was in custody and couldn’t walk away. But the “coercive environment” is not just being in custody; it is being subjected to custodial interrogation–questioning aimed to get an incriminating statement. While Hambly was in custody, he wasn’t being interrogated yet; Lonkoski, on the other hand, had been questioned for 30 minutes in increasingly accusatory fashion and, within moments of asking for a lawyer, placed under arrest–at which point he was just like Hambly. In short, Lonkoski was seconds away from the same situation Hambly was in, and was being interrogated to boot. Those two “coercive environments” look a lot closer than the court admits. 

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