Feb. 4, 2021 – The Wisconsin Supreme Court has ruled that a jail inmate who admitted stealing another inmate’s property in a telephone call with police was not “in custody,” which would have required the officer to give a Miranda warning before questioning him.

The defendant, Brian Halverson, returned a call from an officer investigating an incident at a correctional facility at which Halverson was previously housed.

The officer did not give Halverson any Miranda warnings prior to initiating the conversation. Miranda warnings, such as the “right to remain silent,” are required prior to a “custodial interrogation” of someone suspected of committing a crime, under the U.S. Constitution’s Fifth Amendment right against self-incrimination.

Halverson admitted that he took and destroyed another inmate’s property, and he was charged with criminal damage to property and misdemeanor theft as a repeat offender.

Halverson moved to suppress his admissions because the officer did not give Miranda rights before questioning him, rights guaranteed by the the Wisconsin Constitution.

The circuit court agreed with Halverson and suppressed the admissions, concluding that incarcerated individuals are always “in custody” for purposes of Miranda.

A state appeals court reversed, concluding the circuit relied on a per se “in custody” rule for incarcerated persons that was subsequently overruled by the U.S. Supreme Court.

In State v. Halverson, 2021 WI 7 (Jan. 29, 2021), a Wisconsin Supreme Court unanimously affirmed the appeals court, declining to readopt a per se rule that incarcerated individuals are always considered “in custody” under Miranda.

“While this court need not always follow federal constitutional interpretation in lockstep, we conclude that neither the Wisconsin Constitution nor the purposes underlying the Miranda warnings support a judicially-created rule treating all incarcerated individuals as ‘in custody,’” wrote Justice Brian Hagedorn.

“Applying the standard two-part test, we conclude Halverson was not ‘in custody’ when Officer Danielson interviewed him by phone regarding the missing property.”

Two-Part Test

The Miranda custody analysis has two steps, the supreme court noted. First, the court determines whether, based on the totality of the circumstances, a reasonable person would have felt free to terminate the interrogation and leave.

Under the second step, courts examine whether the situation presented “inherently coercive pressures” upon the individual questioned.

In 2012, the U.S. Supreme Court ruled that a jailed defendant who was questioned for five to seven hours by sheriff’s deputies was not “in custody” for Miranda purposes.

In that case, Howes v. Fields, 565 U.S. 499, 517 (2012), the defendant he was not handcuffed and was told several times he could leave before confessing to a crime.

The U.S. Supreme Court rejected a per se rule that all inmates are “in custody” for Miranda purposes, largely because the fear factors that may be present when a person is initially arrested are diminished when someone is already incarcerated.

For instance, “they know that when the questioning is finished, they will remain incarcerated,” Hagedorn noted, and anything they say will not secure their release.

The Wisconsin Supreme Court concluded that the appeals court was correct to reject the per se rule and follow Howes, which overturned the per se rule in Wisconsin.

The justices also declined to readopt the per se rule under the state constitution. “Neither the purposes of Miranda warnings nor the text and history of the Wisconsin Constitution support Halverson's invitation to adopt his proposed per se rule,” Justice Hagedorn wrote.

Halverson Not In-Custody

With no per se rule, Halverson had to show he was “in custody” based on the totality of the circumstances. The unanimous court ruled that he failed to do so.

The court noted Halverson’s interview occurred over the phone.  “A suspect can end questioning at any time simply by hanging up,” Hagedorn wrote. “To our knowledge, no court has concluded that a telephonic interrogation triggered Miranda custody.

Justice Hagedorn, writing for the unanimous court, also noted that Halverson’s phone conversation with the officer only lasted a few minutes. “This is far afield from the five- to seven-hour questioning in Howes, which the Supreme Court found did not trigger a determination of custody for purposes of Miranda,” he wrote.

Halverson argued that the officer did not tell him he could terminate the interview, but the court did not find that argument persuasive, noting it was Halverson’s choice to return the officer’s phone call in the first place.

“We observe nothing in the record suggesting the brief phone interview was no longer optional after it began. Under these circumstances, a reasonable person would have felt free to terminate the interview by hanging up the phone at any time,” Hagedorn wrote.

Concurrences

Justice Rebecca Bradley wrote a concurring opinion, joined by Justice Annette Ziegler, to address State v. Knapp, 285 Wis. 2d 86 (2005) as an improper expansion of state constitutional protections beyond those afforded under the Fifth Amendment.

“Halverson's reliance on that case to request an expanded prophylactic to protect the privilege against self-incrimination indicates it is time for this court to revisit Knapp II's holding,” Justice R. Bradley wrote.

“Because the Knapp court's interpretation of Article I, Section 8 of the Wisconsin Constitution lacks any mooring in text or history, this court should restore the original meaning of this constitutional provision.”

Justice Rebecca Dallet wrote a concurring opinion, joined by Justice Ann Walsh Bradley and Justice Jill Karofsky, to rebut R. Bradley’s stance on the Knapp decision.

“I write separately to emphasize that the Wisconsin Constitution was never intended to be interpreted in lockstep with the United States Constitution,” Dallet wrote.

“Indeed, when it comes to certain individual liberties, particularly the right against self-incrimination, this court has long held that the Wisconsin Constitution provides greater protection than its federal counterpart.”

Justice Dallet said Justice R. Bradley’s call to overturn Knapp II, which the parties did not ask the court to do, “would not only erode Wisconsinites' constitutional protections by sanctioning flagrant and deliberate due-process violations, it would also take a step toward making our own Constitution redundant with the federal one.”