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  • WisBar News
    January 19, 2016

    No Miranda Warning but Appeals Court Upholds Use of Incriminating Statements

    Joe Forward

    Jan. 19, 2016 – Brian Harris argued it was a violation of his Fifth Amendment right against self-incrimination to allow statements he made to police to be used at trial, even though he made the statements without receiving any Miranda warnings.

    But in State v. Harris, 2014AP1767-CR (Dec. 30, 2015), a three-judge panel for the District II Court of Appeals disagreed, concluding the statements “were sufficiently attenuated from the officer’s questioning so as to purge any potential taint. …”

    A Kenosha police officer was responding to possible burglary report based on noises inside a townhouse that was supposed to be vacant. The officer saw a cracked window and requested backup. Two officers entered and found Harris in the basement.

    They handcuffed Harris and started asking him questions in the basement – who he was and why he was there. The officers also found tools, evidence that Harris may have been attempting to cut and steal copper piping from the vacant townhouse.

    Then they walked Harris up the stairs and out of the house and placed him in a squad car. While inside the squad car, Harris told police he was homeless and often commits misdemeanor crimes to get food, and he was going to steal the piping to sell for food.

    The officers testified that they weren’t asking Harris any questions when he made the statements. They were doing paperwork and attempting to contact the owner of the townhouse. At the county jail, a detective made contact with Harris to be interviewed. But Harris didn’t see the point and said something to the effect of: “they caught me.”

    At no time did officers or the detective issue Miranda warnings to Harris. However, the circuit court denied Harris’s motion to suppress his statements. Ultimately, a jury found that Harris was guilty of burglary and three other charges related to the burglary.

    Harris appealed. He said the statements should have been suppressed because it violated his constitutional rights to be interrogated while in custody unless police gave a Miranda warning to ensure he was aware of his right to remain silent and to an attorney.

    The state conceded that the officers’ initial questioning in the basement amounted to custodial interrogation that required a Miranda warning, but said he was no longer being interrogated when he started chattering in the squad car. He started talking voluntarily.

    As the appeals panel noted, suspects have constitutional protection from un-Mirandized custodial interrogations. But questioning can be “sufficiently attenuated” from the incriminating statement “so as to be purged from the taint” of the illegal questioning.

    “In answering the attenuation question, we are to consider ‘the temporal proximity of the official misconduct and the confession, the presence of intervening circumstances, and the purpose of flagrancy of the official misconduct,’” wrote Judge Mark Gundrum.

    The panel said the temporal proximity factor weighed in favor of Harris, because police had asked questions only minutes before and they could have been on Harris’s mind.

    But the panel noted the intervening circumstances. Police took him to a different location from where the questioning occurred, took his photo, and were engaged in other activities when Harris began to incriminate himself with statements.

    The panel also ruled that police officers asked him routine questions and did not engage in “bad faith exploitation of the situation.” Based on all the circumstances, the panel ruled that illegal police questioning was “sufficiently attenuated” from his confession.

    The panel also ruled that Harris was not being “interrogated” when the detective came to the jail to pursue an interview and Harris suggested an interview would be pointless.

    “[T]he message in fact conveyed to Harris was not reasonably likely to lead to an incriminating response and did not constitute interrogation,” Judge Gundrum wrote.

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