SCOW boasts of “generous buffer zone” around 5th Amendment right against self-incrimination

State v. Brian Harris, 2017 WI 31, 4/7/17, affirming a published court of appeals opinion, 2016 WI App 2; case activity (including briefs)

“This freedom from compelled self-incrimination is one of the nation’s ‘most cherished principles.’ Miranda, 384 U.S. at 458. We are sufficiently solicitous of this protection that we guard it by patrolling a generous buffer zone around the central prohibition.” Majority Op. ¶12. That’s the principle in theory. Here’s how it applies in practice.

Harris was drunk and had been homeless for 7 years when police found him in the basement of an abandoned building apparently trying to steal copper piping to sell. He was taken to jail, where in a common area outside of an interview room, a detective asked him something like “Would you like to give me a statement?” The precise words are unknown. But Harris, who was not Mirandized, responded: “They caught me man, I got nothing else to say.”  Harris moved unsuccessfully to suppress his statement. The State introduced it against him at trial.

The parties agree that Harris was in custody when the detective asked him to give a statement. So the issue for review is whether the detective’s question qualifies as an interrogation under either the “express questioning” or “functional equivalent” tests. The majority says “no”.

¶18 Detective Buchanan’s question did not constitute express questioning because it sought nothing that could be potentially incriminating. Although his question was certainly designed to obtain a response, the only information it sought was whether Mr. Harris would like to make a statement; it did not seek the statement itself. The response to such a question is either “yes” or “no,” and neither would have any testimonial significance whatsoever.

State v. Cunningham, 144 Wis. 2d 272, 278-279, 423 N.W.2d 862 (1988) sets forth Wisconsin’s “functional equivalent” test:

[I]f an objective observer (with the same knowledge of the suspect as the police officer) could, on the sole basis of hearing the officer’s remarks or observing the officer’s conduct, conclude that the officer’s conduct or words would be likely to elicit an incriminating response, that is, could reasonably have had the force of a question on the suspect, then the conduct or words would constitute interrogation.

Applying this test, the majority holds:

¶33  . . .[W]e have no difficulty finding that Detective Buchanan’s question was not the functional equivalent of an interrogation under the Cunningham formulation. There is no indication Detective Buchanan intended his question to elicit an incriminating statement, nor is there anything to suggest that asking a suspect whether he would like to make a statement is a police practice designed to surreptitiously cause the suspect to divulge incriminating evidence.

¶34 Further, the context in which he asked the question conveyed a non-inquisitorial purpose. Mr. Harris and Detective Buchanan were standing in a common area outside the interview rooms. A reasonable observer would conclude that Detective Buchanan’s question was diagnostic in nature: Should he conduct Mr. Harris into the interview room where he would then give his statement, or should he instead return Mr. Harris to his cell? Incidentally, Mr. Harris’ response strongly suggests this is how he understood it, too. He said: “They caught me man, I got nothing else to say.” The latter part of his statement indicates he believed there was no point in proceeding to the interview room, and so he gave what amounted to a functional “no” to the Detective’s invitation. The initial clause of his statement simply (and, perhaps, unwisely) explained why he was declining the invitation. But even if he subjectively understood it otherwise, a reasonable observer would not expect this question, presented in this setting, to convey to Mr. Harris that he was being asked to immediately provide incriminating information.

Justice Ziegler and Gableman concur with the majority but only if  “it is read to answer only the issue presented and does not alter, change, or affect existing case law concerning Miranda, 384 U.S. 436 (1966), or an issue not present here, Goodchild (voluntariness).” ¶49.  Their concern is understandable given that that the majority strays from Miranda. See e.g. ¶¶11, 35-37.

Justice Abrahamson dissents:

¶56 It is easy to use soaring rhetoric promising a court’s “unstinting” protection of a criminal defendant’s constitutional right not to be compelled to be a witness against himself, “one of the nation’s ‘most cherished principles.'” It’s harder to make the promise ring true, however, when a court stints in protecting the defendant’s constitutional rights.

Seriously, who remembers the last time SCOW suppressed an incriminating statement? Feel free to post your guess in the comment section below.Ultimately, Abrahamson asks whether SCOW should even decide this case given that the record does not contain the precise words Detective Buchanan used to prompt Harris’s incriminating statement. ¶¶66-76.   She also argues that this is a close case, but under a straightforward application of Cunningham, the detective’s supposed words were an interrogation and should have been preceded by a Miranda warning. ¶¶80-84.