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Suspect can't invoke Miranda before arrest

Hoover

“A noncustodial interrogation normally fails to create circumstances that compel self-incrimination which is why Miranda does not apply in those situations.”

Hon. Michael W. Hoover
Wisconsin Court of Appeals

A suspect’s invocation of Miranda does not render his subsequent statements inadmissible, if he was not in custody at the time of the invocation, the Wisconsin Court of Appeals held on March 15.

On May 7, 2002, sheriff’s investigator David Hake and New Richmond Police Chief Mark Samelstad spoke to Richard Allen Hassel at his home about recent fires.

Several times, Hassel told the officers "I can’t talk to you."

According to Hake, he did not consider this an invocation of Hassel’s Miranda rights, since the parties mutually continued conversing. "He asked us questions and we asked him," Hake testified. Hake further testified that he did not read Hassel his Miranda rights since Hassel was not in custody at that time.

At the conclusion of the conversation, Hake and Samelstad arrested Hassel, taking him to jail. Hake told him that they would be back to talk to him the next morning.

At 9 a.m. on May 8, Hake and Samelstad returned with special agent Michael Van Keuren from the Wisconsin Department of Justice to interview Hassel. The officers indicated they wanted to speak to Hassel about his chemical dependencies and his problem of starting fires. At 9:20 a.m., Hake read Hassel his Miranda rights, and Hassel signed an acknowledgement and waiver form.

He also stated something to the effect of "I don’t know if I should talk to you," but during the subsequent three-hour interview, he never asked to stop the questioning. During the interview, he made incriminating statements.

Hassel was charged with ten counts of arson. Hassel moved to suppress his statements, contending he had invoked his right to silence on May 7 and that this right was violated by the continued questioning on May 8. St. Croix County Circuit Court Judge Eric J. Lundell denied the motion.

Hassel then entered a plea pursuant to an agreement with the State. Hassell appealed the denial of his suppression motion, but the court of appeals affirmed in a decision by Judge Michael W. Hoover.

The court held that Hassel did not invoke his Miranda rights by saying, "I can’t talk to you" when police interrogated him at his home on May 7.

What the court held

Case: State of Wisconsin v. Richard Allen Hassel, No. 04-1824-CR.

Issues: Must police cease questioning a suspect who asserts his Miranda rights pre-arrest?

Holding: No. Noncustodial interrogation fails to create circumstances that compel self-incrimination, and Miranda does not apply in that situation.

Counsel: Charles B. Vetzner, Madison, for appellant; Eric G. Johnson, Hudson; James M. Freimuth, Madison, for respondent.

The court acknowledged that police must cease questioning a suspect when Miranda’s right to remain silent — or right to counsel — is invoked. Nevertheless, the court found no invocation of the right, because Hassel was not in custody at the time, citing State v. Pheil, 152 Wis. 2d 523, 530-31, 449 N.W.2d 858 (Ct.App.1989): "Miranda and its progeny are aimed at dispelling the compulsion inherent in custodial surroundings. … Thus, the Miranda safeguards apply only to custodial interrogations."

The court added, "The United States Supreme Court has previously noted that it has ‘in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than "custodial interrogation" …’ McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991). Therefore, Hassel was not entitled to invoke Miranda during the May 7 interview."

Hassel argued that the reasoning in State v. Fencl, 109 Wis. 2d 224, 325 N.W.2d 703 (1982), applies, and requires suppression of the statements. The court in Fencl wrote, "The Fifth Amendment protects a person from compelled self-incrimination at all times, not just upon arrest or during a custodial interrogation." Id. at 237.

The court distinguished Fencl, however. Fencl was suspected of first-degree murder and the police had several meetings with him. Fencl refused to speak to the police without an attorney.

At trial, the State referred several times to Fencl’s silence. Holding that a suspect is entitled to the protection of the Fifth Amendment even prior to arrest or custodial interrogation, the court wrote: "The state contends that, unless silence is compelled by arrest or a custodial interrogation, it is not protected by the Fifth Amendment.

We disagree. The Fifth Amendment protects a person from compelled self-incrimination at all times, not just upon arrest or during a custodial interrogation. Any time an individual is questioned by the police, that individual is compelled to do one of two things — either speak or remain silent. If both a person’s prearrest speech and silence may be used against that person, as the state suggests, that person has no choice that will prevent self-incrimination. This is a veritable ‘Catch-22.’ Thus the state’s theory places an impermissible burden on the exercise of Fifth Amendment rights. We hold that a person is entitled to the protection of the Fifth Amendment even prior to arrest or a custodial interrogation." Id., at 237-
38.

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Case Analysis

Notwithstanding the reasoning in Fencl, the court rejected Hassel’s argument that the officers’ disregard of his invocation of Miranda during his precustodial, prearrest discussion offended the Fifth Amendment in the same way as the State’s affirmative use of the defendant’s prearrest silence at trial in Fencl.

The court reasoned, "Hassel has not suggested the State used his recalcitrance as evidence of his guilt — the sort of compelled self-incrimination present in Fencl.

Indeed, our jurisprudence tells us that a noncustodial interrogation normally fails to create circumstances that compel self-incrimination which is why Miranda does not apply in those situations. See Pheil, 152 Wis. 2d at 530-31. Fencl does not protect an anticipatory invocation of the right to remain silent from further investigative inquiry. It prevents the State from using someone’s prearrest, precustodial silence as proof of guilt."

The court also held that the May 8 statements were admissible, because, "I don’t know if I should speak to you," is not an unequivocal invocation of the right to counsel. Accordingly, the court affirmed.

Click here for Case Analysis.

David Ziemer can be reached by email.

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