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Defense win on Miranda and consent to search

State v. Omar Quinton Triggs, 2015AP2533, 6/13/17, District 1 (not recommended for publication); case activity (including briefs)

A patrolling officer saw Triggs “close a garage door and quickly run to the driver’s door” and get into his car, which was parked nearby in an alley. Five officers in three vehicles converged, forcibly removed Triggs from his car, and handcuffed him. After several minutes in cuffs, Triggs agreed to let the officers search the garage. He was uncuffed and opened the door, revealing marijuana, a scale, and many plastic bags. Triggs’s suppression motion was denied, and he pled to a reduced count and appealed.

On appeal, Triggs argues that he was in custody for Miranda purposes when he was handcuffed, requiring suppression of his answers to the officers’s questions during that period (he had not been read his rights). The state argues that there was no custody because police could have done more to restrict Triggs’s movement (like tackle him, or “use guns, electric weapons, or batons.”) The court of appeals rejects the state’s argument (“Our focus is not on what the police did not do, but rather, what the police did do,” (¶12)), and agrees with Triggs:

Case law both from the United States Supreme Court and Wisconsin compels the conclusion that Triggs was in custody from the moment he was forcibly removed from the car. See New York v. Quarles, 467 U.S. 649 (1984) (suspect was in custody for purposes of Miranda when he was surrounded by at least four police officers and was handcuffed when the questioning took place. The Court observed that, during the questioning, there was nothing to suggest that the officers were concerned for their physical safety); Martin, 343 Wis. 2d 278 (where officer witnessed defendant retrieve object from defendant’s jacket pocket while walking towards parked car and officer proceeded to immediately handcuff, frisk, and arrest defendant as other officers arrived on the scene, defendant was in custody for Miranda purposes); Morgan, 254 Wis. 2d 602 (where officers handcuffed and frisked defendant outside of defendant’s car, while surrounding defendant with four officers and two squad cars, and then placed defendant in the back of a squad car, defendant was in custody for Miranda purposes); State v. Uhlenberg, 2013 WI App 59, 348 Wis. 2d 44, 831 N.W.2d 799 (location and degree of restraint are relevant to custody determination even if defendant is told he is not under arrest).

Under the totality of the circumstances, we conclude that the degree of restraint the police used against Triggs created a situation in which a reasonable person in Triggs’s position would not feel free to leave. Indeed, Schlachter even admitted that once the officers removed Triggs from his car, Triggs was not free to leave the premises. The testimony also indicates that at least three police officers removed Triggs from the car, that Triggs was handcuffed within seconds of his removal, that Triggs was handcuffed between five and ten minutes, and that three police cars surrounded his BMW. The dashcam video confirms those portions of the officers’ testimony. We conclude, based on the dashcam video and the officers’ testimony, that the degree of restraint and the manner in which officers interacted with Triggs was an exercise of dominion over Triggs and an assertion of custody over him from the time he was removed from his car.


The court also concludes that Triggs’s “consent” to the search of the garage was involuntary, applying the factors enunciated in State v. Artic, 2010 WI 83, ¶32, 327 Wis. 2d 392, 786 N.W.2d 430:

Our conclusion is based upon an evaluation of the totality of the undisputed circumstances. It is undisputed that Triggs was in handcuffs and surrounded by officers. It is undisputed that Triggs was physically unable to leave the premises while officers asked multiple times for consent to search the garage. Triggs had been handcuffed for approximately eight minutes, but was not formally arrested until after the officers searched the garage—about a half hour after the initial stop. It is undisputed that immediately after officers removed Triggs’s handcuffs, Triggs—still surrounded by officers and still unable to move his car out of the alley—opened the garage. Opening the garage was not voluntary, but was a condition of handcuff removal imposed by the police. The conditions created by the police were far from “congenial, non-threatening, and cooperative.” See id. Rather, the police created an intimidating environment by immediately surrounding Triggs with five officers, restricting Triggs’s movements, and blocking Triggs’s car in the alley.


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