from a judgment of the circuit court for Sheboygan County:
No. 2013CF475, TERENCE T. BOURKE, Judge.
Neubauer, C.J., Reilly, P.J., and Gundrum, J.
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 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.
Report of Rape
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.
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.
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.
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.
Execution of the Search Warrant
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.
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."
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.
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."
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
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.
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.
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."
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.
Circuit Court Denies Kilgore's Motion to Suppress the
Statements He Made During the Execution of the Search
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.
The circuit court denied Kilgore's motion, reasoning as
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
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
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
court also denied Kilgore's challenge based on a lack of
probable cause to support the warrant. Kilgore appeals.
Law of Custodial Interrogation
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. 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
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.
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 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, ¶28. The
test "is an objective one, " that is, "whether