On Point

State v. Michael L. Popke, 2009 WI 37, reversing unpublished opinion
For Popke: John Miller Carroll, Aaron W. Schenk

Issue / Holding:

¶26      In the case at hand, the officer had reasonable suspicion that the defendant was operating a motor vehicle while intoxicated. Similar to the specific and articulable facts observed by the officer in Post, the officer in this case made the following observations over the course of approximately one block at 1:30 a.m.: The defendant was driving with three-quarters of the vehicle left of the center of the road; the vehicle then moved back into the proper lane but almost hit the curb; the defendant’s vehicle then faded back towards the middle of the road and nearly struck the median. Under the totality of the circumstances, we conclude that the accumulation of these facts gives rise to a reasonable suspicion that the defendant was operating a motor vehicle while intoxicated.

¶27      The defendant, relying on Post, argues that the officer’s observations did not support reasonable suspicion because the observations were too few and not detailed enough. The defendant’s argument is unpersuasive because under our totality of the circumstances approach, there was ample proof adduced to justify reasonable suspicion. Therefore, the potential inadequacies set forth by the defendant do not undermine the totality of the other facts that support reasonable suspicion. Moreover, the facts of this case support a reasonable suspicion determination even more than those facts from Post, given that in this case the officer observed a traffic code violation, the events took place at 1:30 a.m., the events occurred within one block, and there was erratic driving. As a result, the defendant’s assertions and his reliance on Post do not support his argument.

 “Qualified Expert Witnesses” Requirement

Issue: Whether the social worker expertise “beyond the normal” is required to qualify as an expert within the meaning of the ICWA, 25 U.S.C. § 1912(f).

Holding:

¶37 Because in D.S.P. the court affirmed an exercise of the circuit court’s discretion, we do not read D.S.P. to hold that 25 U.S.C. § 1912(f) requires that social workers must have qualifications comparable to those of the two testifying there. However we do read D.S.P. to construe subsec. (f) to mean, consistent with the House Report, that a social worker must have expertise beyond the normal social worker qualifications.

¶38 Turning to Mahan’s qualifications, we first observe that, while she no doubt has specialized knowledge as a result of her bachelor’s and master’s degrees in criminal justice, that knowledge does not relate to the showing required by 25 U.S.C. § 1912(f)—assessing the likelihood of serious emotional or physical damage to Vaughn if he is returned to his father. Second, while she is an experienced social worker, her experience in monitoring the conditions imposed on parents for the return of their children does not suggest something beyond normal social work qualifications or functions.

¶39 We next consider paragraph D.4(b) of the BIA guidelines recognizing that they are not binding. Mahan’s qualifications do not fall within D.4(b)(i) or (ii). As for D.4(b)(iii), “a professional person having substantial education and experience in the area of his or her specialty,” this is a general description and the intended scope is not clear. However, to read it to include social workers with normal qualifications would be inconsistent with the clear statement of Congressional intent. [16] See H.R. Rep. No. 95-1386 at 22.

Burden of Proof

Issue/Holding:

¶51      We conclude that Congress plainly did not intend to mandate a particular burden of proof for the showing required in 25 U.S.C. § 1912(d). The trial court here instructed the jury that it must be convinced by clear and convincing evidence that the requirements of subsec. (d) were met. That is the burden of proof applied for finding grounds for termination of parental rights under Wisconsin law. See Wis. Stat. §§ 48.31, 48.424(2). Luis does not develop an argument that, if the ICWA does not mandate the beyond a reasonable doubt standard for the § 1912(d) showing in TPR cases, we should nonetheless apply that heightened standard. Accordingly, we conclude the circuit court properly instructed the jury on the burden of proof for special verdict questions 5 and 6, which incorporated the requirements of subsec. (d).

Monroe County DHS v. Luis R., 2009 WI App 109

Issue: Whether ICWA, 25 U.S.C. § 1912(f), which requires likely serious emotional or physical damage to the child from continued parental custody, applies to placement outside the parental home when the TPR proceeding is initiated.
Holding:

¶18 The ICWA does not preempt the Wisconsin Children’s Code, and Wisconsin statutes can be harmonized with the federal law by applying any state law safeguards beyond those mandated by the ICWA. I.P. v. State (In re Interest of D.S.P.), 166 Wis. 2d 464, 472-73, 480 N.W.2d 234 (1992). Thus, in a TPR proceeding involving an Indian child, the County must meet the substantive and procedural requirements of the ICWA as well as proving grounds for termination of parental rights as required by state law. See id. at 473-74.

¶19 The parties’ dispute over the application of 25 U.S.C. § 1912(f) arises out of the meaning of the italicized words in the phrase “that the continued custody of the child by the parent … is likely to result in serious emotional or physical damage to the child.” The County, as we understand it, construes “custody” to mean “physical custody” and “continued custody” to mean that the parent must have physical custody when the TPR petition is filed. Luis asserts that the court in In re Interest of D.S.P. approved the application of subsec. (f) in a situation where the child had not been in the care of a parent for a significant amount of time and that the D.S.P. court’s reasoning supports the application of subsec. (f) here.

…

¶23 We agree with Luis that the supreme court in D.S.P. apparently construed “custody” to mean physical custody, while also implicitly construing “continued custody” not to require that the parent have physical custody at the time of the TPR proceeding. We also agree with Luis that we may not modify the supreme court’s analysis on this point by altering the meaning of “custody.” This argument must be addressed to the supreme court.

…

¶29 We conclude that 25 U.S.C. § 1912(f) applies in this case even though Vaughn was placed with a foster family at the time this action was filed and had been living there for at least three years.

State v. Colin G. Schloegel, 2009 WI App 85
For Schloegel: Sarvan Singh

Issue/Holding: High school student Schloegel was not in custody for Miranda purposes, notwithstanding that he was frisked by police officer, compelled under school policy to consent to search of his car and asked, prior to formal arrest, incriminatory questions; analogy to State v. Dale Gruen, 218 Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998) deemed “compelling”:

¶10      The State agrees with two aspects of Schloegel’s argument. First, it concedes that Rudolph’s questioning of Schloegel in the parking lot was interrogation forMiranda purposes. Second, it acknowledges that Schloegel was not free to leave while Wilson conducted her investigation. Nonetheless, the State disputes that the level of restraint was “of the degree associated with a formal arrest.” See Goetz, 249 Wis. 2d 380, ¶11. Because Schloegel was not in custody, the argument goes, Mirandawarnings were not yet required. The State emphasizes that Wilson was in control of the investigation up to and including the search of the vehicle. Although Thoenes and Rudolph were present at Wilson’s request, Schloegel’s summons to the school office and his cooperation in the subsequent search of his car were at Wilson’s direction. Rudolph’s role was described as “stand by,” in case things “got out of control.” Thoenes, a male, was present to conduct the frisk of Schloegel in the office because Wilson and Rudolph are female. Further, the State observes, the place and length of Schloegel’s detention were not consistent with being placed in custody. Rudolph estimated that no more than fifteen minutes passed between the time she met Schloegel in the school office and the discovery of the drugs in the car. She asked only a few questions after the drugs were found. The questions were asked in the school parking lot, not in a squad car or police station, which would be more intimidating. Schloegel was not cuffed, and Rudolph was known to Schloegel as the school liaison officer.

¶11      The State directs us to the circumstances in Gruen, 218 Wis. 2d at 598, where we concluded that Gruen was not in custody for Miranda purposes. There, Gruen was detained in a police van for about fifteen minutes, during which he was asked only a few questions. Id. Only two officers were present, and although Gruen was frisked, no guns were drawn. Id. We held that a reasonable person in Gruen’s position would not have considered himself to be in custody. Id.

¶12      The analogy is compelling. Here, the degree of restraint was even less than that seen in Gruen. Schloegel was not placed in a police vehicle when questioned and the investigation was being conducted primarily by Wilson. The circuit court phrased it well, stating that Schloegel, “if in custody at all, was in custody of the school and was not being detained by the police at that time.” We agree. Without custody, there is noMiranda violation. ^[2]

To some extent, this is an old story: if the only justification for seizing evidence is a search-incident rationale then, mirabile dictu!, the court stresses how of course the coercive atmosphere was tantamount to arrest. Net result is not merely inconsistent results over time, but an increasingly indecipherable border between stops and arrests. As Judge Posner astutely observed, in United States v. Burton, 441 F.3d 509, 511-512 (7th Cir. 2006): “Pigeonholing is no boon for defendants: it has put considerable pressure on the limits of the Terry doctrine. Both the permissible reasons for a stop and search and the permissible scope of the intrusion have expanded beyond their original contours, in order to permit reasonable police action when probable cause is arguably lacking.”

Start at the very beginning, the test for custody, which asks whether “a reasonable person in the suspect’s position would have understood the situation,” ¶7. OK, so start with the crucial fact that Schloegel was a high school student compelled to submit to authority on school property during school hours. Moreover, he was (according to his dob listed on CCAP) 17 at the time; a minor, in other words. Now consider the cast of characters: “School liaison officer, Mandy Rudolph, and Officer Thoenes of the Mequon police department were called to the office to assist in the matter. Assistant principals Matt Joynt and Carrie Wilson called Schloegel to the office,” ¶2. Though the court doesn’t mention Rudolph’s function beyond the bland “liaison” descriptor, she would have been, according to the Mequon school handbook, a “juvenile officer[] from the Mequon Police Department … assigned during part of the day to work in the high school.” A police officer, in other words. And the assistant principals? Those of you familiar with public schools will recognize the role of the AP as somewhat like that of ramrod (if you’re of a certain age, think, Rowdy Yates): someone responsible for order and discipline. Thus, Schloegel was in the company of no fewer than four officials, including two police officers, with all having some manner of coercive authority over him. He was frisked, his book bag and locker searched, required to give up his car key, grilled about contraband, and taken into the parking lot where the car was to be searched. Bit more than the usual “frisk” activity associated with a Terry stop, no? Don’t you think deeper analysis than facile analogy to Gruen is required?

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding: Defendant’s request to call parents so they could call attorney for him was an insufficiently unequivocal assertion of his right to counsel:

¶36      We agree with the trial court’s conclusion that even if we assume that the defendant made requests to call his parents so that they could call an attorney for him, prior to when he was questioned, his vague statements were insufficient to invoke Berggren’s right to counsel. See State v. Ernst, 2005 WI 107, ¶10, 283 Wis. 2d 300, 699 N.W.2d 92 (noting that even though our review is de novo, we benefit from trial court’s analysis). The trial court specifically concluded:

The evidence clearly demonstrates that Todd Berggren wanted to talk to the detective. If he truly did not want to make a statement without an attorney present, he would not have signed the waiver form and agreed to make a statement on multiple occasions. Berggren, as a police officer himself, knew what he had to do to invoke his right to an[] attorney. In fact, he did precisely this at the end of the 5^th interview segment.

We conclude, as the trial court did, that any statements prior to that time were not unequivocal requests for counsel, particularly when they were immediately followed by Berggren signing another waiver of rights form and agreeing to talk. As such, there would have been no constitutional barrier to the admission of Berggren’s statements.

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding: Where Miranda rights were properly given at the outset of the “first segment” of interrogation, re-administration of rights wasn’t necessary for “second segment,” several hours later, ¶¶24-28.

State v. Todd W. Berggren, 2009 WI App 82, PFR filed 6/24/09
For Berggren: Robert G. LeBell

Issue/Holding:

¶29      Berggren also argues that his statements were induced by promises of probation and treatment. This amounts to an argument that his statements were not voluntarily given. He contends that the detective questioning him conveyed: “the belief that simple possession of child pornography photos would result in a probation disposition”; “the idea that if [Berggren] confessed he would get treatment and help and his confession would have a large impact on the district attorney’s position”; “if [Berggren] confessed the confession would have a lot to do with how he was received in the district attorney’s office[, however, i]f he persisted in a denial[,] the district attorney would not like to hear that version,” and it would affect how the district attorney viewed the case; and finally, if Berggren admitted his guilt, he would get help.

…

¶32      Here, the statements Berggren relies on to support his argument do not amount to coercion or improper police practices. We agree with the State that “there is no affirmative evidence in the record of [improper] police practices deliberately used to procure Berggren’s confession.” See Clappes, 136 Wis. 2d at 239. As Berggren should know after sixteen years as a police officer, it is not coercive conduct for an officer to invite a defendant’s cooperation by informing the defendant of potential benefits of cooperation or to offer a prediction as to what the prosecutor will do. The statements Berggren references do not constitute promises of leniency. Under the totality of the circumstances, we conclude that Berggren was properly advised of his rights under Miranda and he voluntarily gave his statements.

Hard to tell precisely what was said, but it is surely one thing to promise that if only you fess up the DA will smile on you and quite another to promise you’ll get “treatment and help.” If the latter was indeed expressly said, it probably shouldn’t have been waved off so dismissively. Not that the result necessarily would have been different, just that the question seems a lot closer.