State v. Gregory M. Sahs, 2013 WI 51, on review of unpublished court of appeals decision; case activity
Sahs, on probation for child pornography, admitted to his probation agent that he again possessed child pornography. He was charged based on evidence seized as a result of his admission. He sought to suppress the evidence, claiming his admissions were compelled by the threat of revocation if he didn’t give his agent a true and accurate account of his activities. Like the court of appeals, the supreme court rejects the claim because it is not supported by evidence in the record.
First, the court rejects Sahs’s reliance on a standard DOC written statement form that includes a warning that failure to make a statement could result in revocation:
¶50 The Department of Corrections form upon which the defendant relies is not part of the circuit court record or part of the record before this court. The well-established rule is that appellate review is limited to the record presented. The burden is on the appellant, here the defendant, to ensure that the record is sufficient to address issues raised on appeal.
¶51 No undisputed, agreed-upon facts by the parties or other evidence appears in the record to prove that the defendant signed the form or that the defendant was informed or knew of the contents of the form before he gave oral incriminating statements to his probation agent.
¶52 The circuit court made no findings of fact regarding the existence of the Department form or the conversation that occurred between the defendant and Agent Krause when the form was allegedly completed and signed.
 Schimke v. Milwaukee & Suburban Transport Co., 34 Wis. 2d 317, 320-21, 149 N.W.2d 659 (1967).
 State v. Marks, 2010 WI App 172, ¶20, 330 Wis. 2d 693, 794 N.W.2d 547; State Bank of Hartland v. Arndt, 129 Wis. 2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986).
In addition, as case law has established, the mere fact Sahs was required to “appear and report truthfully” to his agent is insufficient by itself to establish compulsion:
¶56 The seminal case regarding probationers and self-incrimination is Minnesota v. Murphy, 465 U.S. 420 (1984). The United States Supreme Court recognized that requiring Murphy, a probationer, to appear and answer questions truthfully was insufficient to establish compulsion. The Court declared that if Murphy was in a situation that gave rise to a self-executing privilege against self-incrimination——such that “the State, either expressly or by implication, assert[ed] that invocation of the privilege would lead to revocation of probation”——then “the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution,” even though the privilege was not affirmatively invoked. See ¶¶41-44, supra.
¶58 In the present case, there is no evidence that the State, either expressly or by implication, told the defendant that his refusal to speak to his probation agent or his invocation of his privilege against self-incrimination would lead to the revocation of his probation. The defendant claims that he believed his probation would be revoked if he failed to tell his probation agent the truth, but there is no evidence in the record indicating that the defendant was informed of such potential revocation. The parties did not agree that revocation was a consequence or that the defendant believed his probation would have been revoked if he chose to remain silent.
¶59 Nothing in the record supports the defendant’s claim that there was an explicit consequence of revocation for failing to tell the truth or that the defendant believed that probation would be revoked if he did not tell the truth. Thus, the probationer in the present case, like the probationer in Minnesota v. Murphy, has not proved his claim of compulsion.
Murphy, 465 U.S. at 427. See also Commitment of Mark, [2006 WI 78,] 292 Wis. 2d 1, ¶25[, 718 N.W.2d 90].
Murphy, 465 U.S. at 435.
As Mark and Murphy (among other cases) make clear, the privilege against self-incrimination is generally not self-executing, but must be invoked. (Salinas v. Texas reiterated this rule earlier this week.) One exception to that general rule is that a probationer being compelled by his or her agent to make a statement by the threat of revocation doesn’t have to assert the privilege; the threat of sanction makes the privilege self-executing–and the statement immunized, under the rule originating in State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977), and State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987), and applied most recently in State v. Spaeth, 2012 WI 95, 343 Wis. 2d 220, 819 N.W.2d 769.
This decision doesn’t alter that basic rule. Rather, it’s importance lies in demonstrating that compulsion to talk must be proven; it is not so embedded in the statutes and rules that supervisees will be assumed to know about the potential for revocation. For cases where the record did establish the requisite compulsion–by virtue of testimony, documentary evidence, stipulation, concession by the state, or some combination of those–take a look at Spaeth and State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, both of which the majority discuss and compare to this case. (¶¶60-82). Note, too, that in addition to the lack of the DOC form and testimony from Sahs, the circuit court found Sahs initiated the meeting with the agent and volunteered the incriminating information (¶35), facts that create another hurdle given that responding to directions or questions from the agent is a necessary element of compulsion. Spaeth, 343 Wis. 2d 220, ¶¶49, 53, 58; Peebles, 330 Wis. 2d 243, ¶20; Thompson, 142 Wis. 2d at 826-29; Murphy, 465 U.S. at 435.
Justice Roggensack filed a concurrence (¶¶87-126), agreeing there was insufficient proof Sahs’s statements were compelled. However, as in her dissent in Spaeth, 343 Wis. 2d 220, ¶¶96-153, she takes issue with the interpretation of Murphy in this and other cases, particularly Peebles, which she believes was wrongly decided. (¶117).
A probationer is no different than any ordinary witness subpoenaed to trial? Tell that to Mr. Sahs, who was looking at revocation of an already imposed, but stayed 3 1/2 year sentence, and then later ended up facing charges on 2 new Class D Felony counts as well. Ordinary witnesses would surely be compelled to testify more truthfully for us, if they were to be facing a similar type sanction for being untruthful.