SCOW holds imprisonment isn’t necessarily Miranda custody

State v. Brian L. Halverson, 2021 WI 7, affirming a published court of appeals opinion, 2018AP858CR; case activity (including briefs)

Halverson was interrogated over the phone by a police officer while he was in jail on an unrelated matter. Wisconsin courts once treated incarceration as per se Miranda custody, believing that was the law SCOTUS had established. But Howes v. Fields, 565 U.S. 499 (2012), held that it’s not. Halverson argued the Wisconsin Supreme Court should adopt the per se rule under our state’s Constitution, but SCOW now declines. It also holds that the particular circumstances here didn’t amount to custody in the absence of such a rule.

Of all those circumstances, the decision particularly relies on the fact that the interrogation was over the telephone; this will likely supply a useful distinction for defense lawyers in future cases:

Unlike Miranda challenges in most cases, Halverson’s interview occurred over the phone. The State argues, and we agree, that interrogation by phone call is unlikely to rise to the level of Miranda custody. This is so because a phone call will rarely present objective circumstances where a reasonable person would believe he is not free to terminate the interrogation. A suspect can end questioning at any time simply by hanging up. To our knowledge, no court has concluded that a telephonic interrogation triggered Miranda custody. The fact that Officer Danielson’s interview occurred by phone strongly weighs against a determination of Miranda custody.

(¶31).

The two substantive holdings–rejecting a per se rule under the state Constitution and finding a lack of custody under the circumstances–are unanimous. Nevertheless we have dueling concurrences.

Justice R.G. Bradley, writing for herself and Justice Ziegler, calls for a return to the purported “original meaning” of our state Constitution’s article I, § 8 (which protects, as does the Fifth Amendment, against compelled self-incrimination). To that end she’d overturn State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899 (Knapp II), in which the state supreme court (contrary to the federal one, see United States v. Patane, 542 U.S. 630 (2004)) held that an intentional Miranda violation could call for suppression of derivative evidence.

Justice Dallet, joined by Justices A.W. Bradley and Karofsky, responds. She says that the validity of Knapp II is in no way implicated by this case and is not before the court. She adds a defense of what was once called “new federalism”–the notion that a state supreme court, as the expounder of a separate Constitution, should not feel compelled to march in lockstep with the federal Court’s fallible interpetations of the federal one. They may interpret their own documents to provide greater protections.

One other notable aspect of this decision is that it repeats the error of the concurrence in State v. Dobbs: it grafts a third step onto the familiar two-step Miranda inquiry. Miranda ordinarily applies where there is (1) custody, defined as either arrest or its equivalent and (2) interrogation or its equivalent. There are circumstances in which more is required and they are, in fact, the circumstances of this case: where a person’s freedom is “restrained” for some reason other than arrest–as when that person is already in jail or prison–Howes holds that courts should ask whether “the relevant environment present[ed] . . . inherently coercive pressures.” Unfortunately the unanimous opinion enunciates the special-purpose Howes test as if it were the general Miranda test. There is no basis in Howes or any other case for this dramatic contraction of Miranda‘s protections–and of course, new federalism aside, our state’s high court is not free to provide Wisconsin’s citizenry with lesser federal Constitutional rights than those enjoyed in other states.