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Right to Silence During Custodial Interrogation; Voluntariness – Police Promises

State v. Phillip K. Saeger, 2009AP2133-CR, District 2, 8/11/10

court of appeals decision (3-judge, not recommended for publication); for Saeger: Michael J. Burr; BiC; Resp.

Right to Silence During Custodial Interrogation

Invocation of the right to silence during custodial interrogation must be clearly articulated, holding to that effect in State v. Ross, 203 Wis. 2d 66, 552 N.W.2d 428 (Ct. App. 1996) deemed ratified by Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). Saeger’s statement (“I’m done. This is over.”) wasn’t sufficiently clear to require cessation of interrogation.

¶10 In Wisconsin, a statement is equivocal as a matter of law when there are reasonable competing inferences to be drawn from it. State v. Markwardt, 2007 WI App 242, ¶36 ….

¶11 … One detective interviewing Saeger testified that he was uncooperative and lied often. He also testified that his interviewing technique involved calling the suspect on his or her lies. Further, the detectives knew that Saeger was an excitable person, and just before his outburst, Saeger and the detectives were arguing about if he could be charged federally. It was during this argument that Saeger stated, “I’m done.  This is over.” Taken in context, it was reasonable for the detectives to conclude that his statement was merely a fencing mechanism to get a better deal—one that would free him of exposure to federal charges. We acknowledge that a reasonable person could also read his statement to mean that he actually wanted to invoke his right to remain silent. Under Ross, Berghuis and Marquardt, however, since there are reasonable competing inferences that could be drawn from the statement, the statement is equivocal as a matter of law and is therefore insufficient to invoke the right to remain silent. Saeger’s first issue fails.

Voluntariness – Police Promises

Police promises that Saeger wouldn’t be prosecuted federally didn’t coerce his resultant statement.

¶14 … Saeger was bargaining to receive a deal that would free him of exposure to federal charges and he received what he bargained for. While the detectives did not have the authority to decide whether to charge Saeger federally, they did have the option to refrain from referring his case to federal authorities. They did not refer the matter to the U.S. Attorney and Saeger was never charged with federal gun violations. The fact that the detectives kept their promise shows that there is no affirmative proof of improper police conduct, and therefore we conclude that the statement was voluntary. We affirm the circuit court’s denial of the motion to suppress the statement.

A potentially vexing problem. True, as the court indicates, involuntariness requires “improper police practices,” ¶13, and at least seemingly nothing improper occurred. But this principle is true only up to a point, as suggested by the idea “that in Wisconsin a probationer’s answers to a probation agent’s question prompted by accusations of criminal activity are ‘compelled,'” State v. Thompson, 142 Wis.2d 821, 831, 419 N.W.2d 564 (1987). And: New Jersey v. Portash, 440 U.S. 450, 459 (1979) (“Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant’s will; the witness is told to talk or face the government’s coercive sanctions, notably, a conviction for contempt.”) In other words, a probationer may not be “required to choose between giving answers which will incriminate him in a pending or subsequent criminal prosecution and losing his conditional liberty as a price for exercising his fifth amendment right to remain silent,” id. at 833. In effect, there’s a grant of use-immunity in the criminal case, but the statement can be used administratively to support revocation, see generally, State v. Evans, 77 Wis.2d 225, 252 N.W.2d 664 (1977). A Hobson’s choice, to be sure, and though not constitutionally coercive in the administrative proceeding, the statement certainly is involuntary for criminal case purposes. The grant of use-immunity saves the practice from 5th amendment taint. Police “misconduct” simply isn’t relevant; the person is “compelled” to talk within the meaning of the 5th A because of the threatened loss of liberty if he doesn’t talk, not because of improper police practice. Returning to Saeger: the police threatened him with 25 years in the federal pen, but then promised to make that go away if he talked. How different is that, really, from an Evans-Thompson problem? True, Saeger ended up with transactional immunity from federal prosecution — the cops kept their end of the deal, as the court of appeals stresses — but the use-immunity enjoyed by a probationer doesn’t make his statement voluntary. There’s an argument, then, that the transactional immunity promised Saeger was indeed coercive, no matter that the deal was kept. Don’t talk and you’ll get 25 years, talk and you won’t. But analogizing Sager’s transactional immunity to an Evans-type use immunity is admittedly a bit strained: a probationer must talk to his agent, else he will lose his freedom; Saeger wasn’t necessarily under quite that type of compulsion to talk. He was genuinely fearful of federal prosecution and, perhaps, he willingly undertook to bargain his way out. You can certainly see the court’s point. On the other other hand, if you do require impropriety, it might be in the police doing precisely what they were not empowered to do, bargain on behalf of the U.S. Attorney. And when you get down to it, what the cops said in so many words was, Talk and you’ll shave 25 years off your sentence (“negotiating took place and the detectives agreed that they would not bring federal charges against him or his girlfriend. This agreement culminated in a written statement … that neither county would charge him federally,” ¶3). That’s an awfully strong inducement to loosen your tongue. Too much of one to countenance? You be the judge.

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