Poisonous fruit doctrine applies to confessions

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“If we do not suppress physical evidence in situations of intentional violations of Miranda, we, in essence, undermine the deterrent effect upon which such a decision was based.” Justice N. Patrick Crooks Wisconsin Supreme Court

The Wisconsin Supreme Court held on July 22 that the poisonous fruit doctrine applies when physical evidence is obtained as the direct result of a Miranda violation, and the evidence must be suppressed, at least when the violation was an intentional attempt to prevent the suspect from exercising his Fifth Amendment rights.

On Dec. 12, 1987, Resa Brunner was murdered in her home. At about 2 p.m. that day, her husband, Ervin J. Brunner (Brunner), found Resa lying in their bedroom beaten to death by a baseball bat, and called the Watertown Police. The autopsy established Resa’s time of death as being between 2:15 and 4:30 a.m.

Brunner was with another woman, Sharon Maas, and Brunner told police they were in a bar in Sullivan until 2 a.m., and then drove directly to his parents’ house in Clyman to spend the night, without stopping in Watertown.

Maas was living at the home of Richard Borchardt, Sr. (Borchardt) in Watertown. Borchardt is now deceased and was never interviewed by police. Patricia Farrell, a friend of Borchardt’s, told Watertown police during an Aug. 4, 2000, interview that sometime after Resa’s murder, Borchardt told Farrell that on the night of the murder Maas arrived at the house very late and, after a short time inside the house, left with a brown paper bag. Borchardt told Farrell that he looked out the window and saw a truck he recognized as Brunner’s sitting in the driveway with its lights turned off. Maas got into the truck and it backed out of the driveway and departed.

The last person seen with Resa that night was Matthew J. Knapp. They were seen drinking together in a Watertown bar, and then eating together in a Watertown restaurant after the bar closed.

Knapp lived with his brother, George, and George’s fiance, Helen, in the second floor apartment of a house in Watertown. Knapp paid George to live in a spare bedroom, and George and Helen were the nominal tenants. His bedroom had a lock on it, which he used when he was not home.

The day after the murder, Detective Timothy Roets of the Watertown Police Department went to Knapp’s and told him he had a warrant for Knapp’s arrest on a parole violation.

Knapp let Roets in, and told Roets he was trying to call his attorney. Roets informed Knapp that he had to go to the police station. Knapp and Roets went to Knapp’s bedroom so Knapp could put on some shoes, and Roets asked Knapp what he had been wearing the prior evening.

Knapp pointed to a pile of clothing on the floor. Roets seized the pile of clothing and transported Knapp to the police station. In the pile of clothing was a blue sweatshirt that DNA tests later determined contained Resa’s blood on one sleeve. Roets did not give Knapp his Miranda warnings prior to asking him what he had been wearing.

At the station, Roets questioned Knapp further but still did not give him Miranda warnings. Knapp believed that he was assisting Roets as a witness, not as a suspect to Resa’s murder. Knapp provided Roets with information about the prior evening, including the fact that he witnessed Resa fighting with another woman.

Knapp stated that Resa got a bloody nose from the encounter and that he helped her wipe the blood on his sleeve. When it occurred to Knapp that he was not being questioned as a witness, but rather as a suspect, he asserted his right to counsel and stopped the questioning.

While Knapp was at the station Roets obtained consent to search the apartment from George.

No one was charged with the murder for 12 years. Besides Knapp, Brunner was a suspect. Prior to the murder Resa and Brunner told various witnesses that they were having marital problems. They had only been married for six months at the time. The night of Resa’s murder, Brunner slept with Maas.

The week before the murder Brunner found Resa sitting with another man in his truck, dragged Resa out of the truck, and told police officers he would “knock her out” if he ever caught Resa cheating on him again. Additionally, Brunner told his stepdaughter the night of the murder that he and Resa were fighting. Earlier that evening Resa called her daughter and told her to go to their home and take the key off of the porch. Brunner admitted he might not have had a key to his home that evening.

During a fight with a girlfriend a few years later, Brunner stated that he wished he “had a bat.” Brunner also stated during a polygraph examination that he killed his wife.

In 1999, the Department of Criminal Investigation (DCI) got involved and located new witnesses who stated that Knapp either had directly admitted or implied that he had committed the crime. The DCI also interviewed Knapp while he was in custody on another matter, without giving him Miranda warnings.

Knapp was charged with the murder, and moved to suppress his statements and the physical evidence against him. Jefferson County Circuit Court Judge Randy R. Koschnick granted some motions and denied others.

Koschnick denied the motion to suppress items seized during the search conducted at the time of Knapp’s arrest, granted the motion to suppress evidence seized during the second search, and granted the motion to suppress Knapp’s statements during the State’s case-in-chief, because of the violation of Miranda, but ruled that the statements could be used for impeachment purposes because they were voluntary.

The court also held that Knapp could present some evidence of the possible guilt of Brunner. The court of appeals granted the State’s petition for leave to appeal, and certified the case to the Supreme Court, which affirmed in part, and reversed in part, in a decision by Justice N. Patrick Crooks.

Both Chief Justice Shirley S. Abrahamson and Justice Diane S. Sykes wrote separate opinions, concurring in part, and dissenting in part, and Justice Ann Walsh Bradley joined Abrahamson’s opinion.

Poisonous Fruit

The State conceded that Knapp’s statements to Roets were inadmissible, because he was in custody and had not been Mirandized. However, the State argued that the bloodstained sweatshirt was admissible because physical evidence need not be suppressed, even if it was the fruit of an unlawful confession, citing State v. Yang, 2000 WI App 63, 233 Wis.2d 545, 608 N.W.2d 703.

The court disagreed, concluding that, in light of the U.S. Supreme Court’s holding in Dickerson v. United States, 530 U.S. 428 (2000), Miranda warnings are constitutionally required, and not merely a “prophylactic standard.” Accordingly, the court overruled Yang, and held the physical evidence must be suppressed.

The court acknowledged that, on two occasions since Miranda, the U.S. Supreme Court has held that derivative evidence need not be suppressed.

In the first, however, Michigan v. Tucker, 417 U.S. 433 (1974), the Miranda violation pre-dated the Miranda decision, and thus, suppression would not have any deterrent effect.

In the second case, Oregon v. Elstad, 470 U.S. 298 (1985), the court held that a second Mirandized statement need not be suppressed as the fruit of an earlier statement made prior to Miranda warnings.

Further distinguishing the two cases, the Wisconsin Supreme Court noted that both decisions “were predicated upon the premise that the Miranda rule was a prophylactic rule, rather than a constitutional one.” The court stated, “the foundation upon which Tucker and Elstad were based has been fundamentally altered by Dickerson. Dickerson declared, unequivocally, that Miranda expressed a constitutional rule, rather than a mere prophylactic protection. Dickerson, 530 U.S. at 444.”

Finding a split in other jurisdictions since Dickerson on the proper application of the suppression rule to physical evidence resulting from a Miranda violation, the court found two decisions suppressing the evidence to be persuasive: U.S. v. Faulkingham, 295 F.3d 85 (1st Cir. 2002); and U.S. v. Patane, 304 F.3d 1013 (10th Cir. 2002), cert. granted, 123 S.Ct. 1788.

In Faulkingham, the First Circuit held that physical fruits must be suppressed in certain circumstances, depending on the need for deterrence of police misconduct, in light of the circumstances of each case.

In Patane, the Tenth Circuit went further, holding that physical evidence must be suppressed, regardless of whether the police conduct was intentional or negligent.

In the case at bar, the Wisconsin Supreme Court found it undisputed that Roets intentionally violated Knapp’s Miranda rights in an attempt to procure physical evidence, and concluded, “If we do not suppress physical evidence in situations of intentional violations of Miranda, we, in essence, undermine the deterrent effect upon which such a decision was based.”

The court added, “The rule argued for by the State would minimize the seriousness of the police misconduct producing the evidentiary fruits, breed contempt for the law, and encourage the type of conduct that Miranda was designed to prevent, especially where the police conduct is intentional, as it was here.”

The court held, “We accept much of the reasoning in Faulkingham and in Patane, and as such, hold that Dickerson requires us to overrule Yang where the violation of Miranda was intentional. We hold that the policy considerations related to deterrent effect and judicial integrity, which are the underpinnings of the exclusionary rule, support the suppression of physical evidence in situations where there was an intentional Miranda violation. We do not have to, and do not, decide whether a negligent Miranda violation would result in the same holding.”

Accordingly, the court reversed the circuit court’s admission of the evidence from the first search at the time of Knapp’s arrest.

Second Interrogation

The court then held that an interrogation of Knapp by DCI that occurred while he was in custody on other charges, was voluntary, even though no Miranda warnings were given, and even though the police used “intentional deception and trickery.” Accordingly, the court held that, while the statements to DCI could not be used in the State’s case-in-chief, they could be used to impeach Knapp should he testify.

Second Search

The court then held that the fruits of the second search, to which Knapp’s brother, George, consented, were admissible, because, even though George did not have actual authority, he did have apparent authority.

The court found, “the police officers that obtained the consent and conducted the second search acted upon a reasonable belief that George and Knapp had at least common authority over the room, and they proceeded with the consensual search on the basis of the consent given by George. Here the officers determined that George and his fiance were the persons who rented the apartment from the landlord, and they paid the rent. They certainly had access to the bedroom since they kept personal property there, including two hunting rifles, two shotguns, a couch, a bed, and a dresser.”

The court acknowledged it was “somewhat unclear as to whether the officers learned all of this information before, during, or after the consent search,” but nevertheless concluded that, based on these facts, George had apparent authority, and the evidence was admissible.

Third Party Suspect

Finally, the court held that Knapp could present evidence that Brunner may have committed the crime, pursuant to State v. Denny, 120 Wis.2d 614, 357 N.W.2d 12 (Ct.App.1984).

The State conceded that Brunner had motive and opportunity to commit the crime. The court concluded that the third Denny element, “connection,” was also established by the evidence, in several ways: “(1) It establishes that Brunner lied to investigators about his whereabouts at the time of the murder; (2) Maas was with Brunner at the time his wife was murdered, and Maas was observed a short time after Mrs. Brunner’s death carrying a paper bag and getting into Brunner’s waiting truck; and (3) most importantly, the evidence puts Brunner in Watertown in relative proximity to the location where the homicide occurred and near the time of the murder.”

The court also held that the circuit court did not error in holding Farrell’s st
atements as to what Borchardt had told her admissible under the recent perception exception to the hearsay rule, sec. 908.045(2). Even though Farrell was unable to state, 12 years after the fact, exactly when Borchardt made the statements, this was the fault of the State in not interviewing Borchardt before he died, and in failing to prosecute the case earlier.

Accordingly, the court held that Knapp could present evidence that Brunner may have been the one who actually committed the crime.

Concurrences/Dissents

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Abrahamson dissented from two of the court’s holdings: that George had apparent authority to consent to the search of Knapp’s room; and that Farrell’s hearsay testimony is admissible.

Abrahamson rejected the majority’s determination that it was “somewhat unclear” when the officers learned various information, and then using that information to justify the search. Abrahamson concluded that the testimony made clear the officers did not learn much of the information until later, and that what they knew before the search was insufficient.

As for Farrell’s testimony, Abrahamson concluded, “because the timing of the conversation between Borchardt and Farrell is uncertain, it is impossible to determine if the statement was made recently after the event. I therefore conclude that because Knapp failed to demonstrate that Borchardt’s statement describes a recent perception, it was an erroneous exercise of discretion for the circuit court to admit the hearsay testimony.”

Sykes also dissented in part, rejecting the majority’s conclusion that Dickerson requires suppression of the evidence from the first search that occurred when Knapp was arrested, concluding, “While Miranda is a constitutional rule and not a mere judicial ‘prophylactic,’ suppression of derivative evidence that flows from a Miranda violation does little to deter violations of the underlying constitutional right in question, the right against compulsory selfincrimination.”

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David Ziemer can be reached by email.