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Interrogation – Scrupulously Honoring Right to Silence

State v. Zachary Ryan Wiegand, 2011AP939-CR, District 3, 2/7/12

court of appeals decision (not recommended for publication); for Wiegand: Brian C. Findley; case activity

Despite initially waiving his Miranda rights, Wiegand later unequivocally asserted his right to silence (“I don’t want to say anything more”); nonetheless, the interrogating officer did not scrupulously honor this invocation, and the ensuing statement along with all derivative evidence is therefore suppressed.

¶7        “Once the right to remain silent … is invoked, all police questioning must cease[.]”  Ross, 203 Wis. 2d at 74.  An invocation of the right precludes further questioning on any offense, not just the one that was the subject of the interrogation.  Arizona v. Roberson, 486 U.S. 675, 685 (1988).  Where an individual in custody invokes the right to remain silent, subsequent statements will be admissible only where the individual’s “right to cut off questioning” was “scrupulously honored.”  Michigan v. Mosley, 423 U.S. 96, 104 (1975).  Determining whether the right to silence was unambiguously invoked and whether it was scrupulously honored requires the application of constitutional principles and is subject to independent appellate review.  See Berghuis, 130 S. Ct. at 2260, 2264; Ross, 203 Wis. 2d at 79.  However, we defer to the circuit court’s factual determinations unless clearly erroneous.  Ross, 203 Wis. 2d at 79. 

¶8        This is a straightforward case.  During the course of a custodial interrogation, Knopps asked Wiegand a question meant to elicit an incriminating response.  Wiegand responded, “I don’t want to say anything more.”  We discern no ambiguity in the meaning of that statement.  …

¶10      The State nonetheless argues we should affirm because the circuit court’s “finding that Wiegand’s remark was equivocal was not clearly erroneous.” We must reject the State’s argument for two reasons.  First, the argument applies the wrong standard of review.  The determination of what Wiegand said presents a question of fact subject to the clearly erroneous standard.  However, whether that statement was an unambiguous invocation of Wiegand’s right to remain silent is a question subject to independent appellate review.  See Berghuis, 130 S. Ct. at 2260, 2264; Ross, 203 Wis. 2d at 79.  Second, the circuit court never concluded Wiegand’s statement was equivocal as to whether he was invoking his right to remain silent.  In fact, the court’s analysis in its written decision never addresses or resolves whether Wiegand’s right to silence was unambiguously invoked or, if so, scrupulously honored. …

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