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?
