On Point: A. In-Custody, 5th Amendment

Berghuis v. Thompkins, USSC No. 08-1470, 6/1/10

Thompkins’ acknowledgment that he prayed for God’s forgiveness for the shooting was admissible as valid waiver of Miranda rights, despite being preceded by nearly 3 hours of silence during custodial interrogation. Rights must be invoked unequivocally, or not at all:

The Court has not yet stated whether an invocation of the right to remain silent can be ambiguous or equivocal, but there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis.

decision below: 2010 WI App 11; for Forbush: Craig Mastantuono; Rebecca M. Coffee

Issues:

Whether the right to counsel under the Wisconsin Constitution prohibits the state from interrogating a represented individual once the state is aware of the representation

Whether a suspect made an equivocal request for counsel during police questioning, thereby invoking his right to counsel under the Wisconsin Constitution and requiring suppression of his confession at trial

Whether the circuit court’s suppression order should be affirmed without reaching the viability of State v.

court of appeals decision (1-judge; not for publication); BiC; Resp. Br.; Reply Br.

Miranda – Suppressed Statement and Probable Cause

¶7        First, we will address the State’s argument that Kohel’s statement “[w]e just smoked an hour ago” was voluntary and should not be suppressed. The trial court found, and we agree, that Kohel’s statement was the result of a custodial interrogation and should be suppressed.

court of appeals decision (3-judge; not recommended for publication); BiC; Resp. Br.

“Booking Exception” to Miranda
Questioning to determine Pugh’s “true identity” fell within “booking exception.”

Sentencing Discretion
Sentence upheld where “well within maximum” and addressed “the three primary factors.”

ussc decision

“Edwards” Rule – 14-Day Expiry
A “break in custody” ends the presumptive involuntariness of a statement following invocation of right to counsel; reinterrogation permitted after 14-day lapse.

… The protections offered by Miranda, which we have deemed sufficient to ensure that the police respect the suspect’s desire to have an attorney present the first time police interrogate him, adequately ensure that result when a suspect who initially requested counsel is reinterrogated after a break in custody that is of sufficient duration to dissipate its coercive effects.

USSC decision

In a pathmarking decision, Miranda v. Arizona , 384 U. S. 436, 471 (1966) , the Court held that an individual must be “clearly informed,” prior to custodial questioning, that he has, among other rights, “the right to consult with a lawyer and to have the lawyer with him during interrogation.” The question presented in this case is whether advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time … during th[e] interview,” satisfies Miranda .

court of appeals decision, review granted 3/16/10; for Forbush: Craig A. Mastantuono, Rebecca M. Coffee

Post-Charge Assertion of Right to Counsel during Interrogation
The mere fact that an attorney represents a defendant formally charged with a crime doesn’t bar the police from questioning the defendant; State v. Todd Dagnall, 2000 WI 82 (“Dagnall was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge,” ¶4),

State v. Jennifer L. Ward, 2009 WI 60, affirming unpublished opinion
For Ward: T. Christopher Kelly

Issue/Holding: Taken individually and collectively, Ward’s 3 statements were voluntary, weighing personal characteristics against police conduct.

Personal characteristics, ¶23. Ward was: “relatively sophisticated and intelligent”; 35 years old; a high school graduate; prior conviction; the daughter of a police chief. Her “unprompted understanding of her rights” indicated lack of vulnerability to police questioning.

State v. Marchand Grady, 2009 WI 47, affirming summary order
For Grady: Carl W. Chessir

Issue: Whether administration of Miranda rights in a noncustodial setting obviated the need for re-administration of rights when the interview became custodial about 2 and one-half hours later.

Holding:

¶15      Grady advances a creative, but not heretofore unheard of argument. He asks us to adopt a bright-line rule requiring the administration of Miranda warnings after a person is placed in official custody,

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.