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Court of Appeals drains more meaning from the word “exigency”

State v. Joel I.-N., 2014 WI App 119; case activity

The unrecorded statement Joel I.N., a juvenile, gave to the police was admissible despite the fact the police failed to record the statement as required by §§ 983.195(2)(b) and 938.31(3)(b) because “exigent public safety circumstances” rendered recording his statement infeasible under § 938.31(3)(c)5. Joel also knowingly, intelligently, and voluntarily waived his right to remain silent.

Police were called to the scene of a robbery at about 2:25 a.m., and told to search for four suspects “wearing dark colored clothing, last seen running westbound” from the scene of a robbery. An hour later, at 3:30 a.m., a police dog alerted on a structure in the back yard of a nearby residence. When the suspect did not respond to police orders to come out of the tent, police sent the dog to get the suspect. The dog bit fourteen-year-old Joel I.-N. in the knee and dragged him out of the structure. Joel, now bleeding and in pain, was arrested, handcuffed, and walked to the curb to wait for an ambulance to take him to the hospital. In the ambulance, he was handcuffed to a cot and questioned by an officer who knew that other suspects had been detained and that the victim was robbed at knife point, wanted to ask Joel questions about who the other suspects were. The officer told Joel that “being honest and truthful is what’s going to help you in the long run,” then read him his Miranda rights. The officer did not record the interrogation and did not offer to call Joel’s parents. After being treated for the dog bite, Joel was moved to the police station, taken to a room with audio and visual recording, and again given his Miranda rights. He declined to make a statement without speaking to an attorney. (¶¶2-9).

First, the court concludes that the interrogation in the ambulance was exempt from the recording requirement under §§ 938.195(2)(b) and 938.31(3)(b) because of § 938.31(3)(c)5., which states: “A juvenile’s statement is not inadmissible in evidence under par. (b) if … [e]xigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.”

¶15    Neither Wis. Stat. § 938.31(3)(c)5. nor our case law has defined the contours of what exigent-public-safety circumstances are within the meaning of the juvenile-recording statute. Therefore, we seek guidance from New York v. Quarles, 467 U.S. 649 (1984), in which the United States Supreme Court set forth a public-safety exception to the requirement that Miranda warnings be given before a suspect’s statements may be admitted into evidence. See Quarles, 467 U.S. at 655-60. Under that exception, the Court held that police are not required to give Miranda warnings before asking questions “reasonably prompted by a concern for the public safety.” Id. at 656.

¶16 We conclude that Officer French’s decision to question Joel in the back of the ambulance was reasonably prompted by a concern for the public safety here. Officer French testified that he decided to question Joel because he believed that there could be other armed robbers still at large. He had been told that there were three to four teenagers involved in the robbery, at least one of whom had a knife and had used it in a dangerous and threatening manner. Only an hour had passed since Joel and his friends had robbed Megan by placing a knife to her neck, and at least one of the robbers—Joel—had recently been found running through backyards in the community. The knife used in the robbery had not been recovered.

¶17   Given the exigent-public-safety circumstances that existed, we conclude that recording Joel’s statement in the ambulance was not feasible. In the context of recording juvenile statements, we have defined “feasible” as meaning “‘capable of being done or carried out.’” State v. Dionicia M., 2010 WI App 134, ¶12, 329 Wis. 2d 524, 791 N.W.2d 236 …. It does not, however, mean “‘effortless.’” Id., ¶14.

¶18     At the time he was questioned by Officer French, Joel was not at the police station where his statement could easily be recorded. Rather, he was in the back of an ambulance on the way to the hospital for treatment. Officer French testified that “[b]ased on [his] previous experience in ambulances,” he did not believe they were equipped with recording equipment. And the hospital is not a place that would logically have police recording equipment available. Officer French testified that, at the time he questioned Joel, he believed it would be a “lengthy amount of time” before Joel would be taken to the police station where recording equipment was available. Given the urgency of apprehending the armed robbers potentially still at large in the community, Officer French reasonably concluded that there was no time to wait hours for recording equipment; in other words, the circumstances made recording the statement infeasible.

The citation to Quarles is apt, but the court engages in no analysis whatever of the facts or holding in that case and so fails to appropriately apply it. Quarles was arrested after a woman told police that she had just been sexually assaulted, her assailant was carrying a gun, and he had just entered a nearby supermarket. The officer spotted the suspect, stopped and frisked him, discovered an empty shoulder holster, and handcuffed him. The officer then asked Quarles where the gun was. 467 U.S. at 651-52. On these facts, the Court held Quarles’s answer was admissible despite the lack of Miranda warnings, fashioning an explicitly “narrow” exception limited to situations in which officers must make a decision “often in a matter of seconds” to “neutralize the volatile situation confronting them.” Id. at 657-658. It was this “immediacy” that Quarles cited to distinguish the case from Orozco v. Texas, 394 U.S. 324 (1969), where police entered a boardinghouse and awakened the sleeping defendant to question him about his ownership of a gun used in a murder four hours earlier. These questions, the Quarles Court said, “were clearly investigatory” and unrelated to “an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon,” and the only exigency in Orozco was the “normal need expeditiously to solve a serious crime.” 467 U.S. at 659 n.8.

This case is like Orozco, not Quarles. When Joel was arrested police had been investigating the robbery for more than an hour. They knew that a knife, not a more dangerous weapon, was involved, and they had no information linking Joel to the knife. They had detained a number of possible suspects (though one had been released (¶20 n.5)) and they had no reports of other robberies in the area. There’s no indication Joel was questioned about the knife and only the knife (compare Quarles, 467 U.S. at 659, where the officer asked only the question necessary to locate the missing gun before advising the defendant of his rights and then continuing with investigatory questions). And the police had time to call an ambulance and send an officer with Joel and give Joel Miranda warnings and to encourage him to tell the truth. There was nothing “volatile” about the situation here, no “immediate” danger. As for the fact that  “other dangerous suspects [are] still at large” (¶20), if police investigating violent crimes are allowed to interrogate suspects without recording or giving Miranda warnings whenever that is true, the exception swallows the rule. After all, many violent crimes are not solved until hours, days, weeks or months later, during which time suspects are “still at large.” The court’s conception of “exigency” in this case goes a long way toward making the word meaningless.

The court also rejects Joel’s argument that he didn’t knowingly, intelligently, and voluntarily waive his right against self-incrimination. Joel’s argument cited his age (fourteen); his third-grade reading level; the fact that Officer French spoke to him in English, while Joel’s preferred language is Spanish; his physical condition, in that he had recently been bitten by a police dog and was handcuffed; the failure of police to call his parents; and the confined and private setting of the interview. The court says the totality of the circumstances shows a valid waiver:

¶31    Weighing Joel’s personal characteristics against the pressures and tactics used by the police, we determine that the State has met its burden of proving that Joel’s confession was “‘the product of a free and unconstrained will, reflecting deliberateness of choice.’” See [State v. Jerrell C.J., 2005 WI 105], ¶36[, 283 Wis. 2d 145, 699 N.W.2d 110] (citation omitted). While Joel is young and has some intellectual struggles, his prior experience with the police and the juvenile justice system for an identical offense, suggest that he was well-aware of his rights when he agreed to speak with Officer French. His injury was not serious, requiring only two sti[t]ches, and Joel has not alleged that police used any coercive tactics or strategies to obtain his statement. Officer French read Joel the Miranda warnings, and Joel said he understood them before he gave a statement to Officer French, and in fact, when back at the police station, refused to give a statement after again being read the warnings again. His later refusal indicates further that he indeed understood his rights in the first instance.

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