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Wisconsin Supreme Court adopts rule that assertion of right to counsel expires after a 14 day break in custody

State v. Andrew M. Edler, 2013 WI 73, on certification of the court of appeals; majority opinion by Justice Crooks; case activity

Maryland v. Shatzer, 559 U.S. 98 (2010), allows police to reinitiate interrogation of a defendant who invoked his right to counsel if the defendant has been released from custody for at least 14 days. The Wisconsin Supreme Court now adopts the Shatzer rule, and holds police were not barred from questioning Andrew Edler again 19 days after he was released from custody. But the court also concludes Edler reasserted his right to counsel at the second interrogation; because the officer’s failed to cease the interrogation at that point, Edler’s statements must be suppressed.

Shatzer limited the application of Edwards v. Arizona, 451 U.S. 477 (1981), which held that when a person subject to custodial interrogation invokes the right to counsel, interrogation must cease and may not recommence unless the person reinitiates the interview or is given a lawyer. Edler argued that Shatzer limits the rights of suspects by allowing police to disregard the suspect’s wishes after an arbitrary period of time. Relying on State v. Knapp, 2005 WI 127, ¶¶79-83, 285 Wis. 2d 86, 700 N.W.2d 899, he claimed the state constitution provides greater protection than the federal constitution on this issue, so in Wisconsin the invocation of counsel does not expire no matter how long the break in custody. The court disagrees:

¶28  We adopt the 14-day rule of Shatzer. The break in custody was more than 14 days, and therefore, we hold that interrogating Edler after a 19-day break in custody did not itself violate Edwards. We agree with the court in Shatzer that predictability is important when creating prophylactic rules so police have clear guidance on what they can do and when…. See Shatzer, 559 U.S. at 110. We also agree that setting the two-week rule spares courts the inquiry of whether a suspect being asked to waive Miranda rights has ever asserted a Miranda right to counsel at an earlier date. Id. at 111-12.

¶29  This holding is consistent with the fact that we often interpret both the United States and Wisconsin constitutions the same way. See, e.g.State v. Jennings, 2002 WI 44, 252 Wis. 2d 228, 647 N.W.2d 142. There are exceptions to this rule. For example, in Knapp, this court looked to the Wisconsin Constitution to provide protection beyond that described by the United States Supreme Court. 285 Wis. 2d 86. In Knapp, a police officer testified that he had intentionally failed to provide Miranda warnings to a suspect so as to “keep the lines of communication open.” Id., ¶¶13-14. The police officer acknowledged that he was aware that the suspect was attempting to contact counsel before the police brought the suspect in for custodial interrogation. Id., ¶14. Additionally, “the State ha[d] conceded that the physical evidence was seized as a direct result of an intentional Miranda violation.”  Id., ¶20. This court held that “the exclusionary rule bars physical fruits obtained from a deliberate Miranda violation under Article I, Section 8.” Id., ¶73 (footnote omitted).

¶30  The case at hand does not present the same kind of constitutional issues as the intentional violation of Miranda in Knapp. We decline to extend the meaning of Wisconsin Constitution Article I, Section 8 in this situation so as to provide different protection than the Fifth Amendment to the United States Constitution.

The 14-day rule has the benefit of clarity, though Edwards itself provides an equally clear rule, without the arbitrariness: Once an in-custody defendant invokes the right to counsel, police must honor it, indefinitely, unless the suspect restarts the conversation or gets a lawyer. Chief Justice Abrahamson’s concurrence critiques Shatzer (¶¶48-56) and notes it is not even necessary to adopt its rule because there is a separate basis for suppressing Edler’s statements. (¶¶44). These salient objections do not prevail, however, so Wisconsin now follows Shatzer .

While the police did not violate Edwards by renewing interrogation of Edler 19 days after his release, Edler’s statements must be suppressed because he reasserted the right to counsel again at the second interrogation. He was arrested, handcuffed, put in a police car, and driven to the police station. (¶¶11-12). During the drive Edler asked, “Can my attorney be present for this?” (¶12). At the station Edler was given Miranda warnings, which he waived; he then made incriminating statements. (¶13). Under the objective test adopted in Davis v. United States, 512 U.S. 452, 459 (1994), and Jennings, 252 Wis. 2d 228, ¶¶30, 36,  Edler’s statement invoked the right to counsel:

¶35  The relevant circumstances support the holding that Elder’s statement was an unequivocal, unambiguous request for counsel. Urban had interrogated Edler on March 30, at which time Edler had requested an attorney on the arsons, stating, “From this point on, I’d like a lawyer here,” and the request had been complied with. Urban had been present on March 31 and tried to ask Edler about the arsons, to which Edler responded, “I honestly don’t have anything to say about that.” Urban had talked to Edler’s father, and Edler’s father had encouraged Edler to be honest with the detectives. At the time Edler invoked his right to counsel he had been arrested, and no one disputes that the word “this” related to the forthcoming interrogation. Urban knew Edler had been charged with burglary and had an attorney on that charge. An officer in Urban’s position would have known that Edler had on previous occasions requested counsel to deal with this matter, which would make the officer more likely to understand that Edler was asking for his attorney again. In light of the circumstances, Edler’s statement, “can my attorney be present for this,” was sufficiently clear to a reasonable officer in Urban’s position to understand the statement to be a request for an attorney.

The court also cites cases from other jurisdictions that have found similar statements to be unequivocal assertions of the right to counsel. (¶36). Justice Ziegler dissents from the conclusion Edler unequivocally invoked the right to counsel (though she concurs in adoption of Shatzer)She thinks Edler’s statement could be an unambiguous request for counsel, but she cites precedent from here and there supporting the contrary conclusion. (¶¶69-75). And she thinks the majority relies too heavily on the fact the same detective was involved in both interrogations, which weakens the “clean break” approach of Shatzer and limits the applicability of the holding. (¶¶76-86). Overall, she suggests, the decision is a ticket good for this day and train only. (¶75). Expect similar arguments from the state if you rely on this decision when litigating this issue.

Finally: Edler was in custody when he made his statement, but he wasn’t yet being interrogated. (¶¶12, 32, 84). Miranda and Edwards, of course, applies only to custodial interrogation. The court dodges the question whether Edler was precluded from invoking counsel because he was not being interrogated; instead, it accepted the state’s concession Edler had the right to invoke because interrogation was “forthcoming.” (¶32 n.11). The court split on whether “imminent or impending” interrogation is basis enough to trigger the right to counsel in State v. Hambly, 2008 WI 10, ¶33, 307 Wis. 2d 98, 745 N.W.2d 48, and earlier this term the court rejected an argument that imminent custody is not enough. See State v. Lonkoski, 2013 WI 30, ¶41, 346 Wis. 2d 523, 828 N.W.2d 552. The point being: Don’t expect similar concessions as a matter of course.

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