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Defense Win! COA suppresses statements obtained while trying to ascertain what defendant threw into garbage after having been arrested

State v. Kale K. Keding, 2022AP1373-CR & 2022AP1374-CR, District IV, 8/31/23, 1-judge decision ineligible for publication; case activity (briefs not available)

In an eminently readable and refreshing opinion, COA methodically works through a battery of counterarguments to hold that police could not use statements Keding made after having been asked about a tissue he discarded into a wastebasket while in police custody.

Following a “routine” traffic stop, police ultimately discovered a small quantity of cocaine in the front passenger-side door. (¶6). The driver blamed the cocaine on Keding, who was riding in the backseat. (¶7). Following further questioning (which the State conceded, during the trial court proceedings, to be improper), Keding was arrested and transported to the police station. (¶8). Police never got a chance to administer Miranda warnings, however, as Keding immediately invoked his right to counsel and his right to refuse to answer questions. (¶9). Although police honored his invocation by ceasing to question him, one of the officers re-initiated contact with Keding after witnessing him throw a Kleenex into a garbage can. (¶11). Two exchanges, separated by a brief break, occurred:

[Officer]:     What did you toss in there?

Keding:        A Kleenex. It might have some residue for you.

[Officer]:     Alright.


[Officer]:     So, you were saying some residue might be on the Kleenex or what?

Keding:       In the snot. There’s going to be a little cocaine in there.

[Officer]:     Some cocaine?

Keding:       Yeah, I did some at the bar. I forgot about it because I like had drinks                          and like drinking impairs your–so that’s all I’m going to give you.

(¶¶11-12). The circuit court denied Keding’s motion to suppress these statements. (¶17).

Because it is “undisputed that Keding was in custody and had not received Miranda warnings at the the time” the officer questioned him, COA assesses whether an “interrogation” occurred. (¶24). As to the first question–seeking to identify what Keding had thrown away–COA concedes this is a close call. (¶29). However, it ultimately accepts Keding’s argument that the question was “investigatory in nature and that the factual response elicited by the question was likely to be incriminating.” (¶30). It therefore rejects the State’s arguments about a “routine booking exception” as that exception is limited to “questions that seek biographical data, such as a suspect’s name, address, height, weight, eye color, date of birth, and age.” (¶32). COA also rejects a potential argument that Keding’s statement was “volunteered or nonresponsive.” (¶35). While an “overshare,” it was nonetheless “elicited” by the officer’s query and “directly responsive” to it. (¶35). As to the other two questions, they are “not close calls” and easily classed as interrogation or the functional equivalent thereof. (¶39).

As to harmless error, COA notes that the State bears the burden of proving harmlessness and, in this case, the State did not address that issue in its brief. (¶43). Accordingly, COA treats that silence as a concession and finds the error not harmless. (Id.). It therefore reverses Keding’s conviction for possession of a controlled substance. (¶44). However, because Keding does not develop an argument as to why an associated conviction for bail jumping should also be reversed, it affirms that judgment. (Id.).

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