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  • WisBar News
    August 07, 2013

    Wisconsin Supreme Court Adopts Time Limit on Suspect’s Asserted Right to Counsel

    Aug. 7, 2013 – Andrew Edler, a suspected arsonist, invoked his right to counsel before making incriminating statements to police. Recently, the state supreme court ruled that Edler’s incriminating statements were rightfully suppressed.

    But in State v. Edler, 2013 WI 73 (July 12, 2013), a Wisconsin Supreme Court majority (5-1) rejected Edler’s argument that a suspect’s right to counsel, once invoked, should permanently bar all subsequent interrogations by police after the suspect’s release.

    Instead, the majority adopted a rule – first announced in Maryland v. Shatzer, 559 U.S. 98 (2010) – that shield’s the suspect from police questioning for 14 days if the suspect invokes a right to counsel before his or her release from custody.

    In adopting the Shatzer “break-in-custody rule,” the state supreme court declined to give suspected criminals more protections under the Wisconsin Constitution than what is provided under the U.S. Constitution.

    “We decline to extend the meaning of Wisconsin Constitution Article I, Section 8 in this situation so as to provide different protection than the Fifth Amendment to the United States Constitution,” wrote Justice Patrick Crooks.

    Although police did not violate the break-in-custody rule when questioning Edler a second time, the supreme court ruled that Edler re-invoked his right to counsel. Thus, the supreme court agreed that his statements to police were properly suppressed.

    Right to Counsel 

    Under the U.S. and Wisconsin constitutions, criminal suspects have a right against self-incrimination. Under Miranda v. Arizona, police must warn suspects of the right to remain silent or have any attorney present for questioning. Once a suspect invokes the right to counsel, police must stop questioning a suspect until counsel is present.

    Under Edwards v. Arizona, 451 U.S. 477 (1981), a suspect who invokes the right to counsel can later waive the right by initiating communications with police. Courts must presume that a subsequent waiver is invalid unless the state proves otherwise.

    Edler, a 17-year-old firefighter in Waldo, became a suspect in two arsons, as well as a burglary. Police brought him in for questioning in 2011. He admitted the burglary. But when asked about the arsons, Edler clearly stated that he wanted a lawyer.

    Shortly after an initial appearance on the burglary charge, Edler was released from jail. About 17 days later, police convinced Edler’s friend to wear a discrete recording device, and Edler made damaging statements about his involvement in the arsons.

    Two days later, police arrested Edler. While in the squad car, Edler asked, “Can my attorney be present for this?” The detective told Edler that his attorney could be there.

    But at the police station, Edler waived his right to counsel and made incriminating statements about the arsons. A trial court granted Edler’s motion to suppress these statements, ruling that Edler’s waiver was not valid because he initially invoked his right to counsel in the squad car and did not initiate further communications with police.

    The state appealed on the ground that Edler was merely asking about his right to counsel – “Can I have a lawyer for this?” – and not affirmatively asserting the right.

    The supreme court disagreed. It said that Edler’s question was an “unequivocal, unambiguous invocation of the right to counsel,” despite the state’s argument.

    The court noted that the same detective, Gerald Urban, questioned Edler 19 days earlier, and Edler asked for a lawyer then.

    “An officer in Urban’s position would have known that Edler had on previous occasions requested counsel to deal with this matter, which would make the officer more likely to understand that Edler was asking for his attorney again,” Justice Crooks wrote.

    But the court also held that asking – “Can my attorney be present for this? – would constitute an unambiguous, unequivocal invocation of the right to counsel in other circumstances as well, regardless of the detective’s previous knowledge.

    “Our holding is consistent with the approaches of other courts that have looked at similar statements,” explained Crooks, including “can I have a lawyer?”

    Concurrences and Dissent 

    Chief Justice Shirley Abrahamson wrote a concurring opinion. She agreed that Edler’s statements were properly suppressed, but argued that Wisconsin should not fully adopt the Shatzer break-in-custody rule, which cuts off a suspect’s rights after 14 days.

    “[T]he court should hold that after the 14-day period ends, the presumption established by Edwards continues and the State has the burden of proving by clear and convincing evidence that time has dissipated the coercive effects of the prior interrogation in that case,” wrote Chief Justice Abrahamson, arguing that 14 days is an arbitrary number.

    Justice Annette Ziegler concurred in part and dissented in part. She agreed with the majority’s adoption of the Shatzer rule. But she dissented to point out that Edler asked, “Can my attorney be present for this?” under circumstances that could undermine the view that he invoked his right to counsel.

    That is, Edler asked the question pre-Miranda warnings, pre-interrogation, and pre-waiver of Miranda rights, and he waived the right after being Mirandized. Further, he was aware of his right to counsel, because he invoked the right three weeks earlier and police complied.

    “While I do not quarrel with the majority’s determination that a question such as ‘Can my lawyer be present for this?’ could be an unambiguous request for counsel under certain circumstances, another court could come to the opposite conclusion just as easily in different circumstances,” Justice Ziegler noted.

    She said the majority opinion did not set the legal standard in such circumstances, and it should to provide guidance to law enforcement, litigants, and courts. 

    “Precedent does not require the cessation of interrogation when a reasonable law enforcement officer believes the suspect might be invoking the right to counsel,” Ziegler wrote. “[T]he majority opinion leaves open questions that are likely to recur.”

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