June 18, 2013 – A defendant convicted on charges of child pornography recently lost his bid to suppress incriminating statements made to a probation officer, under a decision issued by the Wisconsin Supreme Court.
Gregory Sahs, on probation for possessing child pornography, made statements to his probation officer that he was again possessing illegal photos of children on a computer. These statements triggered his arrest and subsequent conviction.
In circuit court, Sahs moved to suppress the statements as compelled in violation of his federal constitutional right against self-incrimination. The motion was denied.
In State v. Sahs, 2013 WI 51 (June 18, 2013), a Wisconsin Supreme Court unanimously affirmed the conviction, despite Sahs’ argument that conditions of his probation required him to be truthful about his conduct and thus his statements were “compelled.”
Probationers have a privilege against self-incrimination, the majority noted, and the privilege is self-executing when a probationer is forced to choose “between making incriminating statements and jeopardizing his conditional liberty by remaining silent.”
Sahs said he signed a form indicating that any statements he made could not be used against him in criminal proceedings. He also argued that his statements were compelled because he was required to report his activities truthfully or risk revocation.
The supreme court was not persuaded. The court explained that probation conditions requiring truthful communications do not always amount to compelled testimony, and Sahs failed to set forth sufficient evidence that his testimony was compelled.
“The defendant claims that he believed his probation would be revoked if he failed to tell his probation agent the truth, but there is no evidence in the record indicating that the defendant was informed of such potential revocation,” Chief Justice Shirley Abrahamson wrote.
Sahs also argued that he was required to take polygraph tests, and failure to admit wrongdoing would ultimately come to light and his probation would be revoked. Again, the court noted that the rules of Sahs’ probation were not in the record.
“The record in the instant case does not include the probation rules, the polygraph requirements, or a finding about what the defendant knew or believed regarding the possible consequences of his incriminating statements,” the majority explained.
Justice Patience Roggensack wrote a concurring opinion. Roggensack argued that Sahs was not entitled to Fifth Amendment protection because he made the statements voluntarily. Thus, they were not compelled.
“If Sahs’ statement was voluntarily made, no self-executing Fifth Amendment privilege arises that precludes the statement’s use in a subsequent criminal case,” she wrote.