Appeals Court Sends Miranda Case to Supreme Court for Review

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 14, 2012 – Police arrested and were transporting a 17-year-old to the police station for arson when he asked, “Can my attorney be present for this?” Police subsequently read the minor his Miranda rights, and he made incriminating statements without his lawyer there.

Now the Wisconsin Supreme Court may decide whether those incriminating statements should be suppressed, as the Wisconsin Court of Appeals has certified the case for review.

“When the defendant asked, in the squad car on the way to the second interrogation, ‘can I have my attorney present for this?’ did he unambiguously invoke his right to counsel,” the court of appeals asks in its certification. “No similar case has been published in Wisconsin and other jurisdictions are split with regard to substantially similar statements.”

Andrew Edler joined the Waldo Fire Department near Sheboygan in 2011. Shortly after, he was suspected of starting two fires because he arrived on the scene so quickly.

When questioned by police, Edler asked for a lawyer, and police stopped questioning him. However, he was booked and jailed on an unrelated burglary charge.

After his release, police were able to get Edler on tape talking about the arsons and took him into custody. On transport, Edler asked whether his lawyer could be present. Police said yes. However, Edler waived his Miranda rights at the station and made incriminating statements.

His attorney moved to suppress the statements based on an alleged violation of Edler’s Fifth Amendment right to counsel. The circuit court granted the motion.

On appeal, the state argued that Edler was asking about his rights and not asserting them. “[A]sking if his lawyer could attend an interrogation is a different matter than requesting that his lawyer be present,” the state argued in its appeal.

Edler argues that he invoked the right to counsel during the first interrogation, which remained in force for the second, and in any event, he invoked the right again on transport.

In its certification, the appeals court notes that in Maryland v. Shatzer, 130 S. Ct. 1213 (2010), the U.S. Supreme Court ruled that a defendant’s right to counsel did not remain in force where his was released from custody for at least 14 days and police reread his Miranda rights.

The appeals court asks the supreme court to decide whether Shatzer controls in Wisconsin, and whether Edler’s statement unambiguously invoked his right to counsel. If ambiguous, the appeals court asks whether police should have followed up to ensure whether he was invoking the right to counsel before they gave him the Miranda warning.

“If the court holds that it is ambiguous whether Edler invoked his right to counsel, we ask the court to resolve the question for Wisconsin: must police clarify a suspect’s statement about obtaining counsel before interrogation, if that statement is made prewarning and prewaiver of the Miranda rights,” the appeals court wrote asks its certification.