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Criminal; Criminal Procedure; Right to counsel

Criminal; Criminal Procedure; Right to counsel

The statement, “can my attorney be present for this,” is an unequivocal, unambiguous invocation of the right to counsel.

“We first examine Edler’s March 30 invocation in light of the recent United States Supreme Court case Shatzer. In Shatzer the United States Supreme Court examined the presumption in Edwards, that after a suspect validly invokes the right to counsel, any subsequent waiver is invalid unless an attorney is present or the suspect ‘initiates further communication, exchanges, or conversations with the police.’ Edwards, 451 U.S. at 484-85. The Court in Shatzer explained that the Edwards presumption ends when the suspect has been outside police custody for 14 days. Shatzer, 559 U.S. at 110. Edler asks this court not to adopt Shatzer and instead interpret the Wisconsin Constitution to require a permanent bar on subsequent interrogation, or in the alternative, adopt a different test. We see no need in this case to interpret the Wisconsin Constitution to provide different protection than that provided by the United States Supreme Court’s interpretation of the United States Constitution. We therefore adopt the rule created in Shatzer and, because 19 days had passed between when Edler was released from custody and when he was reinterrogated, the March 30 invocation does not bar the interrogation on April 20.”

“A separate basis for suppressing the statements may exist even if the Edwards presumption no longer applied. If Edler’s statement in the police car on April 20 was an unequivocal, unambiguous invocation of the right to counsel, the Edwards presumption would begin again. Given the circumstances surrounding the invocation and the understanding that statements beginning with the word ‘can’ often constitute a request, we hold that Edler’s statement, ‘can my attorney be present for this,’ was a valid invocation of the right to counsel. The invocation re-starts the Edwards presumption, barring Edler’s waiver of rights later that day because Edler was not provided with counsel and did not “initiate[] further communication, exchanges, or conversations with the police.” After Edler’s request for an attorney, police should have ceased questioning him. Because they did not, Edler’s statements made after that request must be suppressed. His request was an unequivocal, unambiguous invocation of his right to counsel.”

Affirmed and Remanded.

2011AP2916-CR State v. Edler

Crooks, J.

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