The facts of this particular case make it a poor vehicle for further review in the Supreme Court, but the holding is sufficiently problematic that ultimate review of the issue would be beneficial.
First, it is not even certain that Hassel’s invocation of the right to remain silent on May 7 was unequivocal. Hassel stated, "I can’t talk to you," but according to the officer, "he asked us questions and we asked him." The court assumed without deciding that the statement was sufficient, but the assumption is debatable.
Second, Hassel’s incriminating statements did not occur during the May 7 questioning, but during questioning the next day, after he had been arrested and Mirandized.
Thus, the court concluded that, even if the May 7 questioning was improper, the May 8 statements are attenuated from any Fifth Amendment violation and thus admissible, applying the factors set forth in Michigan v. Mosley, 423 U.S. 96, 104 (1975), and State v. Hartwig, 123 Wis.2d 278, 284, 366 N.W.2d 866 (1985).
This conclusion by the court is questionable, however, because in State v. Pheil, 152 Wis.2d 523, 449 N.W.2d 858, 862 (Ct.App.1989), the court stated that Mosley only applies when the police resume a custodial interrogation after Miranda rights are invoked. Here, the first interrogation was noncustodial, so Mosley’s relevance is suspect.
At some point, however, a case will present the following facts: the police will engage in noncustodial questioning of a suspect; the suspect will unequivocally tell the officers that he refuses to talk to them without counsel; the officers will disregard the statement and continue (noncustodial) interrogation; the suspect will make incriminating statements, notwithstanding his invocation of Miranda; and the officers will then arrest him and read him his Miranda rights.
Given the holding in this case, the pre-arrest statements are admissible.
Another scenario that ultimately will arise is this: at some point prior to formal arrest and Miranda warnings, the level of interrogation will reach the point that the suspect is deprived of freedom in some significant way, and the encounter will cross the line into "custodial" interrogation. The court will then have to decide at what point that happened, for statements made after that line is crossed are inadmissible, while those made prior to it need not be suppressed.
When such a case arises, the issue in this case will be more squarely presented, and will raise important questions about the fundamental nature of the Fifth Amendment rights. While the case may not require resolution of conflicting precedents, it will require resolution of conflicting principles.
Two of the virtues of Miranda are that it creates a bright line rule for police officers and courts alike, that is easy to apply, Berkemer v. McCarty, 468 U.S. 420, 433 (1984), and it has become universally familiar in the national culture. Dickerson v. U.S. 530 U.S. 428, 443 (2000).
The holding in the case at bar undermines both those virtues. It requires courts to scrutinize individual circumstances for voluntariness. And second, it fails to comport with citizens’ understanding of the Fifth Amendment that police must cease questioning when Miranda’s right to remain silent, or right to counsel, is invoked. See State v. Ross, 203 Wis.2d 66, 74, 552 N.W.2d 428 (Ct.App.1986).
At the same time, however, the decision must be deemed "technically" correct. If the circumstances of police questioning are insufficient even to rise to the level of "custody," then those circumstances can never be considered so coercive that the suspect’s statements would be involuntary. Ultimately, the Fifth Amendment is about protecting citizens from police compelling self-incrimination involuntarily, and not about the Miranda warnings themselves.
Furthermore, courts already must frequently determine the point at which a noncustodial encounter becomes custodial.
However, given the U.S. Supreme Court’s recent holding in Dickerson that Miranda warnings are of a constitutional dimension, and its finding that the warnings are part of the national culture, it is arguable that police should not be permitted to interrogate a suspect who has unequivocally asserted his Miranda right to remain silent or have counsel present, even if the suspect is not technically "in custody."
– David Ziemer
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David Ziemer can be reached by email.