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State v. Kilgore

Court of Appeals of Wisconsin, District II

May 18, 2016

State of Wisconsin, Plaintiff-Respondent,
Bradley L. Kilgore, Defendant-Appellant.

         APPEAL from a judgment of the circuit court for Sheboygan County: No. 2013CF475, TERENCE T. BOURKE, Judge.

          Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

          NEUBAUER, C.J.

         ¶1 Bradley L. Kilgore appeals from a judgment convicting him of second-degree sexual assault after a jury found him guilty. During the execution of a search warrant at a residence Kilgore shared with David Peters where the suspected sexual assault of K.A.B. took place, Kilgore made multiple statements. He contends that the circuit court should have suppressed these statements, which were not preceded by Miranda[1] warnings, because he was in custody. Kilgore also contends that probable cause to obtain a buccal swab of his cheek for DNA testing was lacking. We reject both these contentions and, thus, affirm.


         K.A.B.'s Report of Rape

         ¶2 On April 12, 2013, City of Sheboygan police responded to Sheboygan Memorial Medical Center to interview K.A.B. who had reported that she had been sexually assaulted earlier that morning. K.A.B. recounted that after midnight, she and some friends had gone to a bar. K.A.B. consumed two drinks, which she did not leave unattended. She did not feel intoxicated. While at the bar, she saw Peters, someone she had met several years before, but had not seen in a long time. Peters introduced K.A.B. to his roommate, Kilgore. Peters asked K.A.B. for her phone number, and she gave it to him. K.A.B. left the bar and drove a friend home.

         ¶3 While K.A.B. was on her way home, Peters called her and asked her to come to his home where he lived with Kilgore. She agreed. There, Kilgore gave K.A.B. a drink containing orange juice; she did not see him make the drink. K.A.B. asked Peters for Tylenol for her back pain. He gave her two pills, and she took them without looking to see if they were Tylenol. Toxicology would later show that K.A.B. had benzodiazepines and zolpidem in her system, the latter which is a sleeping aid comparable to Ambien and could significantly sedate a person unfamiliar with it. The last thing K.A.B. remembered was taking a photo of herself and Peters sitting together on a blue chair in the living room.

         ¶4 At 1:00 p.m., K.A.B. woke up in Peters' bedroom wearing only an undershirt. She went to leave and started vomiting. Her vomit was orange and foamy. She felt dazed and confused. K.A.B. started driving home but was having double vision. She pulled over and called a friend who took her to the hospital.

         ¶5 At the hospital, a rape kit was taken. K.A.B. said she had pain in her genitals and numerous bruises were observed on her buttocks, inner thighs, neck, and chest. K.A.B. told the police that Peters showed her needles he used for heroin, and he mentioned that he had cocaine and heroin at his residence.

         The Execution of the Search Warrant

         ¶6 As a result of K.A.B.'s report, a City of Sheboygan police detective, Tamara Remington, applied for a warrant to search the Peters/Kilgore residence. Among the things the police sought to recover were a comforter, drugs, and DNA samples from Peters and Kilgore.

         ¶7 On April 16, 2013, at approximately 2:00 p.m., the police executed the search warrant. According to the suppression hearing testimony of Remington, she was assisted by a captain, a detective, an officer, and members of the SWAT team. The target of the warrant was Peters, Remington said, because K.A.B. knew him and woke up naked in his bed. The only information the police had that Kilgore might have raped K.A.B was a text message Peters sent her asking if Kilgore had raped her. Remington denied that Kilgore was a suspect, rather, the police were seeking his DNA only to rule him out, including when testing the evidence they recovered, such as bedding. In fact, when Remington first drafted the warrant application, she "hadn't even thought of [Kilgore] personally." Someone else had "brought [Kilgore] to [her] attention, " that he should be included in the warrant in order "to rule him out." Remington explained that the police always obtained DNA from the residents who lived there in order to rule them out. DNA would clear Kilgore, Remington thought. She considered Kilgore as a "potential witness."

         ¶8 During the execution of the search warrant, the SWAT team, who was heavily armored, surrounded the house. There was a voice at the door, Kilgore, who let the SWAT team inside. The SWAT team placed Kilgore facedown in the kitchen and held him at gunpoint. Meanwhile, the rest of the officers cleared the residence looking for any type of imminent danger. Once the residence was secured, the SWAT team vacated it.

         ¶9 Remington and the captain searched a seat in the living room and then directed Kilgore to that seat. Three or four other officers, meanwhile, searched the residence. Remington explained that while the detectives were heavily armed upon their entry into the residence, those weapons were secured by the time the residence had been cleared. The detectives had only handguns on their persons. No longer were any weapons drawn on Kilgore. Kilgore was not in handcuffs. However, Kilgore was not free to leave the residence. In other words, the police "would not let him just walk out, " but, this was never conveyed to him. Kilgore was given a copy of the warrant and told that the police would be taking a buccal swab from the inside of his cheek. Kilgore said, "no problem, " that he had never touched K.A.B., and that "his DNA would not be on her or in her."

         ¶10 Before the swab was taken, "[t]here was a great deal of conversation." In talking with Kilgore, Remington testified that she was "trying to find out about David Peters, our primary target, his location." Peters was well known by the police, he was a frequent criminal suspect, and considered "[v]ery dangerous." Remington testified that the police did not have the same concerns with Kilgore. In response, Kilgore was "very talkative, " "very cooperative, helpful, " and "cordial, " even offering things "spontaneously."

         ¶11 For example, they discussed Kilgore's landlord, and how Kilgore was scared that he was going to be evicted because of Peters' "antics, " meaning people "coming for drugs and things like that." They talked "about things [Kilgore] liked, games he liked to play, " and his daughter. Remington asked Kilgore about Peters' whereabouts, and Kilgore said that he had some disease and was probably at the doctor. In fact, Peters called the house a couple of times, and Remington spoke with him briefly.

         ¶12 Remington asked Kilgore about Peters' involvement, and Kilgore said that on the prior evening Peters had brought a "nice white girl home." Remington asked him who made drinks for the victim, and Kilgore said that she did. Kilgore was pointing out different alcohols in the kitchen, and Remington would go into the kitchen to look while the captain stayed in the living room with Kilgore. Kilgore talked about pills that Peters supplied and crushed and snorted with K.A.B., identifying where that took place. He said that he was unable to hear what went on when Peters and K.A.B. went into Peters' bedroom, because he had on headphones while playing a video or computer game.

         ¶13 Kilgore talked about how Peters ate "pills like candy" and used heroin because he took too many prescription pills. Kilgore said he had to keep the drugs in his room to keep Peters from overusing them. Kilgore offered to help find Peters' drugs, but he was told to stay seated, and that the police would find them. Kilgore also talked about Peters' "escapades." Kilgore said that "girls are attracted" to Peters and "act like [his] slaves."

         ¶14 During the discussion, Remington was standing several feet from Kilgore and not over him. The police never read Miranda warnings to Kilgore. No threats or promises of leniency were made to Kilgore.

         The Circuit Court Denies Kilgore's Motion to Suppress the Statements He Made During the Execution of the Search Warrant

         ¶15 At the end of the suppression hearing, defense counsel argued that Kilgore was in custody at the time of the execution of the search warrant and since he was not afforded the benefit of Miranda warnings, the statements he made to the police should be suppressed.

         ¶16 The circuit court denied Kilgore's motion, reasoning as follows:

I'm satisfied by the rationale in the [State v.] Goetz, [2001 WI App. 294, 249 Wis.2d 380, 638 N.W.2d 386] case that as a matter of law [a detention during the execution of a search warrant is] not an in-custody situation that would call for Miranda in and of itself. So you got to look at the particular situation and the facts in a particular situation.
And here you got a search warrant that was executed about ten minutes to two in the afternoon. And that in and of itself is really fairly neutral….
When officers went in they did direct Mr. Kilgore to the ground, and they did hold a gun on him. And the SWAT unit did a sweep of the residence to secure it. And once it was secured things changed. And I agree with [the assistant district attorney] that things did change.
And Mr. Kilgore was released from his handcuffs. He was allowed to sit down in a chair in the living room. The SWAT unit left. The detectives stayed, and they did not have any weapons that were unholstered. They did not threaten him in any way that I can see or as I recall from the testimony of Detective Remington.
The questioning concerned primarily Mr. Peters. That's how I recall her testimony. It wasn't about Mr. Kilgore, it was about Mr. Peters because Mr. Peters was the subject of the search warrant. And Mr. Kilgore's conduct was, in the words of Detective Remington, very cooperative. He was very cooperative. So it doesn't appear that he was intimidated by the situation.
So as I look at all the factors, I believe that he was not in custody. This was not a situation where a reasonable person would think that this was more than a temporary detention….

         The court also denied Kilgore's challenge based on a lack of probable cause to support the warrant. Kilgore appeals.


         The Law of Custodial Interrogation

         ¶17 The Fifth Amendment to the United States Constitution and article I, section 8(1) of the Wisconsin Constitution protect a criminal defendant's right against self-incrimination.[2] In Miranda v. Arizona, 384 U.S. 486 (1966), the United States Supreme Court held that a defendant is entitled to certain warnings when being interrogated while "in custody." See Stansbury v. California, 511 U.S. 318, 322 (1994). This is because, when a suspect is in police custody, there is a heightened risk of obtaining statements that "are not the product of the suspect's free choice." J.D.B. v. North Carolina, 564 U.S. 261, 268-69 (2011).[3]

         ¶18 In Miranda, the Court described "custody" as when a suspect has been "deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. "[T]he ultimate inquiry, " the Court later said, was whether there was "a formal arrest or restraint on freedom of movement of the degree associated with formal arrest." Thompson v. Keohane, 516 U.S. 99, 112 (1995) (citation omitted). In order to make that determination, a court will look at the totality of the circumstances. State v Lonkoski, 2013 WI 30, ¶28, 346 Wis.2d 523, 828 N.W.2d 552.

         ¶19 Among the factors a court may consider are "the defendant's freedom to leave; the purpose, place, and length of the interrogation; and the degree of restraint." Id. (citation omitted). On the latter, a court will consider whether the defendant was handcuffed, whether a gun was drawn on the defendant, whether a Terry[4] frisk was performed, the manner in which the defendant was restrained, whether the defendant was moved to another location, and the number of police officers involved. Lonkoski, 346 Wis.2d 523, ΒΆ28. The test "is an objective one, " that is, "whether a ...

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