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State v. Gregory M. Sahs, 2009AP2916-CR, WSC review granted 11/14/12

on review of unpublished decisioncase activity

Issue (composed by On Point) 

Whether Sahs’ statements to his probation agent, along with evidence derived from those statements, were suppressible under the “Evans-Thompson” rule, which holds that a probationer’s statements which are compelled by the terms of probation – provide information to an agent when requested or face revocation – are covered by use- and derivative-immunity.

Sahs, on probation for child pornography, admitted to his agent that he had violated the terms and conditions of probation by accessing child pornography. He was then charged with new offenses based on evidence seized as a result of this admission. As indicated in the prior post, the court of appeals held that Sahs hadn’t shown that his statement was compelled; the mere fact of supervision isn’t enough. Sahs had argued that he had been given “a standard Department of Corrections form” which informed him that he must “account in a true and accurate manner” for all his activities, else his probation could be revoked (Br., p. 7). This form, however, wasn’t made part of the court record, therefore nothing in the record indicated that the statements were compelled. Further, “Sahs does not argue that he saw the form prior to his discussion with his probation agent. Nothing on the record indicates that Sahs was even aware of the notification’s existence at the time of his voluntary admissions. Because Sahs was not compelled to incriminate himself, he could not successfully invoke the privilege to prevent the information he volunteered to his probation agent from being used against him in a criminal prosecution unless he made a prior valid claim of privilege,” slip op., ¶9. The supreme court discussed the Evans-Thompson rule at some length just last Term, State v. Spaeth, 2012 WI 95 (clarifying that the immunity covers derivative as well as use immunity). And, as the discussion in the post indicates, the court granted relief despite Spaeth’s seeming failure to make any greater showing than Sahs as to the consequences of not being forthcoming. Perhaps, then, that is the hinge on which the case will turn: whether the probationer (any supervisee, really) must adduce a specific warning of potential revocation in order to trigger Evans-Thompson.

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