Actions speak louder than words in custodial interrogation case

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The West Bend Police Department recently found out that it is not what is said, but what is done that determines if a defendant feels free to leave during a custodial interrogation.

In a recent decision issued by the District II Appellate Court in the State of Wisconsin v. Corey J. Uhlenberg, 2012 AP 827, the court decided the suspect in the case would not feel “free to leave” the interrogation even if the West Bend detective said again and again the suspect was not under arrest.

Uhlenberg was picked up at his house, searched and taken to the station in handcuffs in the back seat of a squad car. He was kept in a secured interrogation room, leaving only with a police escort to get a drink, and at first was denied the chance to call his wife.

According to an opinion from the appellate court, “there is no reason a person in these circumstances would feel free to end questioning and leave.”

Consequently, the court concluded Uhlenberg was in custodial interrogation, and a detective’s failure to stop questioning when the defendant asked for an attorney rendered certain incriminating statements inadmissible.

On Feb. 27, 2011, Uhlenberg’s children had guests over for a sleepover. The next day, a 5-year-old girl told her mom that Uhlenberg had touched her inappropriately at the gathering, prompting the mother to immediately call West Bend Police.

The police first spoke with the 5-year-old and her mother.

Later that day, two officers interrupted Uhlenberg at his home while he was washing dishes and asked him to go to the station to straighten things out without telling him the exact nature of the investigation, according to the defendant.

They searched and cuffed Uhlenberg and put him in the back seat of the police car. At the station, Uhlenberg was taken into a locked interview room in a secure area. His handcuffs were removed, and he was left waiting for a detective for 10 to 15 minutes.

Detective Eric Grinwald entered the room and told Uhlenberg he was not under arrest.

After a few questions, Uhlenberg asked to call his wife. His request was ignored.

The defendant inquired if his house was being searched. The West Bend detective continued to ask questions about the evening before.

At some point, Grinwald started to give Uhlenberg a Miranda warning.

“I am not going to say another word,” Uhlenberg interrupted. The comment was picked up clearly on the interview room recording device. “I want an attorney and I am really afraid.”

Grinwald responded, saying, “I simply want to talk with you about that happened last night.”

Grinwald then completed the Miranda warning, and Uhlenberg signed the written form.

The interview lasted an hour, and Uhlenberg made several incriminating statements, which were all recorded. When the interview was over, Grinwald left the room.

Five minutes later, Uhlenberg was seen on camera taking the laces out of his shoes. Sgt. Daniel Van Beek rushed into the interview room, interrupting Uhlenberg, who had the laces extended in “a lateral position,” as if he was going to put them around his neck to kill himself.

Van Beek asked Uhlenberg what he was doing. Uhlenberg responded that he was trying to kill himself. He then asked Van Beek to shoot him.

After being transferred to another room, Uhlenberg again asked to talk to his wife but didn’t request any particular privacy for the call.

Minutes later, Van Beek overheard Uhlenberg make several incriminating statements on the nearby phone, including: “I did some things, but I didn’t hurt her. I mean, the only reason is she said her father did things to her too. … In a moment of weakness, I did some things.”

Uhlenberg was charged with first-degree sexual assault of a child under the age of 13. He later moved to have all of his statements suppressed, including statements made during interrogation after he allegedly asked for an attorney, statements involving the shoelace incident, statements overheard during his phone call to his wife and statements he made in the police vehicle.

Circuit Court Judge Todd K. Martens denied the motion to suppress, in part saying the police were not required to tell Uhlenberg he was free to go, and also saying Grinwald never told the defendant he was not free to go.

After his motion to suppress was denied, Uhlenberg pleaded guilty to second-degree sexual assault. Martens sentenced him to 27 years — 12 years of initial confinement and 15 years of extended supervision.

Uhlenberg appealed, suggesting the circuit court had failed to fully incorporate all custodial interrogation factors that went into a determination of “the totality of the circumstances.”

The court described a two-part standard of review for these matters. Though the circuit court’s findings of historical fact would be upheld unless clearly erroneous, the nature of the interrogation itself would be reviewed de novo by the appellate court.

The court acknowledged the state’s assertion that Uhlenberg had been told repeatedly he was not under arrest. However, the mere fact that the defendant was not arrested “does not end the inquiry,” according to the court.

The core of the Miranda rule, according to the court, requires police advise suspects of these rights before the start of a custodial interrogation.

“The analysis asks if a reasonable person would feel free to end questioning and leave,” according to the court’s conclusion. “In this case, the totality of the circumstances leaves a reasonable person in defendant’s position to conclude he’s in custody.”

The court also found Uhlenberg’s statements made around the shoelace incident were admissible under Miranda’s “private safety” exception. There, questioning that takes place when an effort is made to save a life falls outside of the broader Miranda ban, and the court concluded West Bend police were indeed trying to stop Uhlenberg from killing himself.

The appellate court reversed and remanded the decision of the trial court, with instructions to suppress Uhlenberg’s statements after his attorney request during interrogation. But the appellate court confirmed his statements made after the shoelace incident, during the phone call to his wife and in a police vehicle were all otherwise admissible.