Submitted on Briefs: oral argument: October 18, 2016
of Appeal: court Circuit county Kenosha Michael S. Wilk
of a decision of the Court of Appeals. Affirmed.
the defendants-appellant-petitioners, there was a brief by
Kathleen M. Quinn and Kathleen M Quinn Attorney at Law,
Milwaukee, and oral argument by Kathleen M. Quinn.
the plaintiff-respondent the cause was argued by David H.
Perlman, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
ZIEGLER, J. joined by GABLEMAN, J. concurs (opinion filed).
ABRAHAMSON, J. dissents (opinion filed).
The question before the court is whether the State compelled
Petitioner, Brian Harris, to be a witness against himself in
violation of the Fifth Amendment to the United States
Constitution and article I, section 8 of the Wisconsin
In the early morning hours of August 13, 2011, a Kenosha
resident awoke to loud, metallic-sounding noises coming from
an adjacent residence. When the noises persisted for several
minutes, a neighbor called the police.
Officer Justin Niebuhr of the Kenosha Police Department
responded and met with the caller. Both could hear the sound
of metal clanging coming from inside the neighboring
residence. Officer Niebuhr approached the front door of the
supposedly-vacant residence and found it locked, and upon
looking through a window saw only darkness. In the process of
examining the exterior of the residence, Officer Niebuhr
noticed the screen was off the unlatched kitchen window.
After backup arrived, Officers Niebuhr and Arturo Gonzalez
entered the residence and traced the noises to the basement.
Two additional officers responded to the scene and
"cleared" the main and upstairs floors of the
residence. Officers Niebuhr and Gonzalez went down to the
basement where they found Mr. Harris secreted in a crawl
space under the stairs. Strewn about him were copper piping,
a flashlight with a red lens, and a duffle bag containing a
saw and replacement blades, a bolt-cutter type instrument,
and some crowbars. Mr. Harris' outfit included a pair of
black work gloves. The officers took Mr. Harris into custody
and eventually placed him in Officer Niebuhr's squad car.
While still in the squad car in front of the residence, Mr.
Harris commenced an unprompted narrative of his criminal
activities. Mr. Harris told Office Niebuhr he had been
homeless for approximately seven years, he frequently went
into vacant homes to sleep, and he often committed
misdemeanor crimes to get items to sell. He said this was his
plan for the copper piping. Neither Officer Niebuhr, nor any
of the other officers present, were questioning Mr. Harris
when he made these statements. Officer Niebuhr confirmed he
neither said nor did anything of a threatening nature to
prize out Mr. Harris' statements, nor did he promise Mr.
Harris anything in exchange for them. Officer Niebuhr did not
give Mr. Harris a Mirandawarning before he made these
Later that morning, Detective Chad Buchanan of the Kenosha
Police Department went to the Kenosha County Jail to
interview Mr. Harris. He met Mr. Harris at about 9:00 a.m. in
the common area, just outside the interview rooms. What
occurred next is not entirely clear, but Detective Buchanan
asked a question to the effect of "Would you like to
give me a statement?" Mr. Harris responded: "They caught
me man, I got nothing else to say." Detective Buchanan
did not inform Mr. Harris of his Miranda rights
prior to speaking with him.
The State charged Mr. Harris with burglary, possession of
burglarious tools, criminal damage to property, and criminal
trespass, each as a repeater. Mr. Harris brought a
suppression motion to prevent the State from using his
"they caught me" statement at trial. The circuit court
found that "Detective Buchanan's intent was to ask
the defendant to come to the interview rooms for an interview
and . . . the question was, would you like to give a
statement?" The circuit court said the expected response
to this question would have been "yes, I'll give a
statement or, no, I won't give a statement."
Consequently, the circuit court found no violation of Mr.
Harris's right to be free from self-incrimination, and so
denied the suppression motion. The State used his statement
at trial, following which the jury found Mr. Harris guilty on
all four counts.
Mr. Harris timely appealed his conviction. In a published
decision, the court of appeals affirmed. It noted the
confusion over the precise wording of the question that
preceded Mr. Harris's "they caught me"
statement, but found it unimportant to the outcome. The court
of appeals concluded that, whatever the exact wording, it was
"not reasonably likely to elicit an incriminating
response; [and] thus, the communication did not constitute
interrogation and Miranda warnings were not
STANDARD OF REVIEW
We employ a two-step process in reviewing a circuit
court's denial of a motion to suppress. State v.
Eason, 2001 WI 98, ¶9, 245 Wis.2d 206, 629 N.W.2d
625. First, we review the circuit court's factual
findings and uphold them unless they are clearly erroneous.
Second, we apply constitutional principles to those facts
de novo, without deference to the courts initially
considering the question, but benefitting from their
analyses. In re Commitment of Mark, 2006 WI 78,
¶12, 292 Wis.2d 1, 718 N.W.2d 90 ("We also review,
de novo, the application of constitutional principles to
established facts."); State v. Hansford, 219
Wis.2d 226, 234, 580 N.W.2d 171 (1998) ("Although we
review questions of law de novo, we benefit from the analyses
of the circuit court and the court of appeals . ").
Mr. Harris presents a single question for our consideration:
Whether the State compelled him to be a witness against
himself by using his answer to Detective Buchanan's
question at trial. A simple question like "Would you
like to give me a statement?" may seem an unlikely
candidate for a constitutional violation, but as our analysis
here demonstrates, we are unstinting in our protection of
criminal defendants' rights.
There is history behind the protection against
self-incrimination, history that reminds us of why that
barrier is so important. It is born of experience, and
responds to the dangers inherent in the inquisitorial method
of questioning suspects:
The maxim 'Nemo tenetur seipsum accusare, '
its origin in a protest against the inquisitorial and
manifestly unjust methods of interrogating accused persons,
which [have] long obtained in the continental system, and,
until the expulsion of the Stuarts from the British throne in
1688, and the erection of additional barriers for the
protection of the people against the exercise of arbitrary
power, [were] not uncommon even in England. While the
admissions or confessions of the prisoner, when voluntarily
and freely made, have always ranked high in the scale of
incriminating evidence, if an accused person be asked to
explain his apparent connection with a crime under
investigation, the ease with which the questions put to him
may assume an inquisitorial character, the temptation to
press the witness unduly, to browbeat him if he be timid or
reluctant, to push him into a corner, and to entrap him into
fatal contradictions, which is so painfully evident in many
of the earlier state trials, . . . made the system so odious
as to give rise to a demand for its total abolition.
Brown v. Walker, 161 U.S. 591, 596-97 (1896)
The ease with which innocent questions can become
inquisitorial requires that this protection apply to criminal
suspects whether they are inside or outside of the courtroom:
"[T]he privilege against self-incrimination protects
individuals not only from legal compulsion to testify in a
criminal courtroom but also from 'informal compulsion
exerted by law-enforcement officers during in-custody
questioning.'" Pennsylvania v. Muniz, 496
U.S. 582, 589 (1990) (quoting Miranda v. Arizona,
384 U.S. 436, 461 (1966)) . Thus, our constitutional
protection against self- incrimination is called to duty
whenever the State interrogates a suspect in police custody.
See Miranda, 384 U.S. 436; see also State v.
Armstrong, 223 Wis.2d 331, ¶29, 588 N.W.2d 606');">588 N.W.2d 606
This freedom from compelled self-incrimination is one of the
nation's "most cherished principles."
Miranda, 384 U.S. at 458. We are sufficiently
solicitous of this protection that we guard it by patrolling
a generous buffer zone around the central prohibition.
The most important aspect of that buffer is the right to
remain silent while in police custody. We actualize the right
by requiring the State's agents, before conducting an
in-custody interrogation, to formally instruct the suspect of
his constitutional rights and then conduct themselves
according to how he elects to preserve or waive them. Thus, a
be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him
in a court of law, that he has the right to the presence of
an attorney, and that if he cannot afford an attorney one
will be appointed for him prior to any questioning if he so
Miranda, 384 U.S. at 479.
This procedural safeguard arose out of an understanding that
custodial interrogations present a uniquely intimidating
atmosphere that can interfere with a suspect's exercise
of his rights: "The concern of the Court in
Miranda was that the 'interrogation
environment' created by the interplay of interrogation
and custody would 'subjugate the individual to the will
of his examiner' and thereby undermine the privilege
against compulsory self-incrimination." Rhode Island
v. Innis, 446 U.S. 291, 299 (1980) (quoting
Miranda, 384 U.S. at 457-58) . Requiring this
warning, and scrupulous adherence to the suspect's
decisions thereafter, give us assurance that his decision to
remain silent has not been overborne. The consequence of
failing to honor this safeguard is loss of the evidence:
"[U]nless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against [a
suspect]." Miranda, 384 U.S. at 479.
There is no doubt Mr. Harris was in police custody when
Detective Buchanan asked whether he would like to make a
statement (he was in jail), so our inquiry focuses on whether
that question qualifies as an interrogation. As we discuss
below, custodial interrogation can take the form of either
express questioning or its functional
equivalent. We will analyze Detective Buchanan's
question and Mr. Harris' response under each rubric. If
either analysis reveals the question to be an interrogation,
then we must suppress Mr. Harris' response because it was
not preceded by a Miranda warning.
"Express questioning" does not encompass every
inquiry directed to the suspect. It covers only those
questions "designed to elicit incriminatory
admissions." Pennsylvania v. Muniz, 496 U.S.
582, 602 n.14 (1990). See also Doe v. U.S., 487 U.S.
201, 211 (1988) ("Unless some attempt is made to secure
a communication-written, oral or otherwise-upon which
reliance is to be placed as involving [the accused's]
consciousness of the facts and the operations of his mind in
expressing it, the demand made upon him is not a testimonial
one." (quoting J.H. Wigmore, 8 Wigmore on
Evidence, § 2265 (4th ed. 1988))) .
It is the nature of the information the question is trying to
reach, therefore, that determines whether it is
inquisitorial. If that information has no potential to
incriminate the suspect, the question requires no
Miranda warnings. I_d. at 211 n.10 ("In order
to be privileged, it is not enough that the compelled
communication is sought for its content. The content itself
must have testimonial significance.").
Detective Buchanan's question did not constitute express
questioning because it sought nothing that could be
potentially incriminating. Although his question was
certainly designed to obtain a response, the only information
it sought was whether Mr. Harris would like to make a
statement; it did not seek the statement itself. The response
to such a question is either "yes" or "no,
" and neither would have any testimonial significance
whatsoever. Thus, Detective Buchanan's question did not
constitute "express questioning" because the
constitutional privilege applies only to the search for
There are more ways than one to obtain incriminating evidence
from a suspect. Miranda addressed itself to the most
obvious-express questioning. But there are techniques of
persuasion that, in a custodial setting, can create the same
potential for self-incrimination even in the absence of an
express question. So the Innis Court expanded the
prophylactic buffer by applying Miranda's
procedural safeguards to the "functional
equivalent" of an interrogation. Innis, 446
U.S. at 300-01. Such an equivalent includes "any words
or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating
response from the suspect." Id. at 301.
The test for determining what words or behavior might
constitute the functional equivalent of an interrogation is
not as straightforward as it first appears. The test (as
stated above) inquires into what the police officer should
know, implying the test might be conducted from his
perspective. However, Innis requires that we account
for the suspect's perception of events for the
specific purpose of broadening the buffer: "This focus
reflects the fact that the Miranda safeguards were
designed to vest a suspect in custody with an added measure
of protection against coercive police practices, without
regard to objective proof of the underlying intent of the
This means that, even where an officer's action had a
purpose other than interrogation, the action "must be
viewed from the suspect's perspective to determine
whether such conduct was reasonably likely to elicit a
response." State v. Cunningham, 144 Wis.2d 272,
280, 423 N.W.2d 862');">423 N.W.2d 862 (1988) . Further, Innis noted
that the police may need to be mindful of the ease with which
a given suspect might be persuaded to make an incriminating
statement: "Any knowledge the police may have had
concerning the unusual susceptibility of a defendant to a
particular form of persuasion might be an important factor in
determining whether the police should have known that their
words or actions were reasonably likely to elicit an
incriminating response from the suspect."
Innis, 446 U.S. at 302 n.8.
In Wisconsin, we implement the "functional
equivalency" standard by positing a reasonable
third-person observer and inquiring into how such a person
would expect the suspect to react to the officer's words
[I]f an objective observer (with the same knowledge of the
suspect as the police officer) could, on the sole basis of
hearing the officer's remarks or observing the
officer's conduct, conclude that the officer's
conduct or words would be likely to elicit an incriminating
response, that is, could reasonably have had the force of a
question on the suspect, then the conduct or words would
Cunningham, 144 Wis.2d at 278-79. This test is
objective with respect to each of the participants in the
interaction. That is to say, we do not consider what any of
the participants actually intended or understood. We consider
only what the objective third-party observer would conclude
from the available information.
In determining whether Detective Buchanan's dialogue with
Mr. Harris is the functional equivalent of an interrogation,
we consider more than just the bare words with which he
formed his question. We must reconstruct-as near to
verisimilitude as possible-the entire context within which
the dialogue took place. Then, as described above, we ask
whether a reasonable observer would conclude that the suspect
in the vignette would understand the officer's words and
actions as reasonably likely to elicit an incriminating
Here is what we know about the circumstances in which
Detective Buchanan had his brief conversation with Mr.
Harris. In the very early hours of a morning in 2011, the
police found Mr. Harris secreted away in the basement of a
house in which he did not belong, with copper piping and
burglarious tools arrayed about him. After taking him into
custody, he was placed in the back seat of Officer
Niebuhr's patrol car, whereupon he commenced divulging a
great deal of information, much of it incriminating. For
example, he said he had been homeless for seven years and
frequently sleeps in vacant houses. He also said he often
commits misdemeanor crimes to obtain things to sell "to
get by, " and that is what he intended to do with the
Mr. Harris offered all of this information without prompting.
Officer Niebuhr made no threats or promises to obtain the
statements, and in fact asked no questions of Mr. Harris at
all (while he was in the patrol car) before he provided this
information. Officer Niebuhr said Mr. Harris did not appear
to be intoxicated, overly tired, or otherwise not in control
of his faculties. He also appeared to be clean and decently
The police then transported Mr. Harris to the Kenosha County
Jail. Later in the morning, at about 9:00 a.m., Detective
Buchanan (who had not been present for Mr. Harris'
arrest), went to the jail to interview him. A guard brought
Mr. Harris (who was not handcuffed) to the main floor of the
jail. Detective Buchanan met him in a common area just
outside the interview rooms. He did not smell alcohol on Mr.
Harris or observe any behavior that would indicate he was
intoxicated. Detective Buchanan then asked Mr. Harris the
question at issue in this case.
As all such scenarios must be, this vignette is fact-bound,
which does not make it especially amenable to fixed rules of
interpretation. However, past cases help sketch the boundary
between "functional equivalents of interrogation"
and constitutionally-innocent questions and acts. We
collected a sampling of such cases in State v.
Hambly, 2008 WI 10, 307 Wis.2d 98, 745 N.W.2d 48, some
of which we address below.
Our evaluation of Detective Buchanan's question accounts
for the following principles useful in identifying the
"functional equivalent" of an interrogation. As we
consider and apply those principles, we keep firmly in mind
that the ultimate purpose of our analysis is to protect
against coerced confessions by respecting a suspect's
decision to remain silent: "In deciding whether
particular police conduct is interrogation, we must remember
the purpose behind our decisions in Miranda and
Edwards [v. Arizona, 451 U.S. 477 (1981)]:
preventing government officials from using the coercive
nature of confinement to extract confessions that would not
be given in an unrestrained environment." Arizona v.
Mauro, 481 U.S. 520, 529-30 (1987). Although the effect
of that coercion may differ from suspect to suspect, a
specific individual's special susceptibility enters the
equation only if the State's agents should know of it.
See, e.g., Innis, 446 U.S. at 303 n.10 (the
"subtle compulsion" associated with an unknowing
appeal to the suspect's conscience is not an
From our cases addressing police statements made to a
suspect, as opposed to questions asked of him, we confirm
that our primary point of focus is on the reasonably likely
effect of the officer's words on the suspect, not their
grammatical format. Seemingly innocuous statements, when
freighted with subtext or inquisitorial design, can become an
interrogation. Thus, a dialogue with a suspect can constitute
an interrogation even when law enforcement officers ask no
questions. Hambly, 307 Wis.2d 98, ¶46 ("A
law enforcement officer may thus be viewed as interrogating a
suspect by a statement, without asking a single question, if
the law enforcement officer's conduct or speech could
have had the force of a question on the suspect.").
However, to rise to the level of an interrogation, the
officer's statements (or, in this case, question) must
exert a compulsive force on the suspect: "Interrogation
must reflect a measure of compulsion above and beyond that
inherent in custody itself." Id. (quoting
Innis, 446 U.S. at 300) (internal marks omitted).
For example, an officer's cryptic comment about
information only the perpetrator of the crime would recognize
may be considered functionally equivalent to an interrogation
because of the effect the comment causes. State v.
Bond, 2000 WI.App. 118, 237 Wis.2d 633, 614 N.W.2d 552.
Similarly, giving unresponsive answers to questions posed by
a suspect with the intent of provoking an incriminating
response, and using interrogation techniques during the
conversation, can serve as the functional equivalent of an
interrogation. Hambly, 307 Wis.2d 98,
¶¶63-65 (citing Hill v. United States, 858
A.2d 435 (D.C. Ct. App. 2004) (finding that an officer
telling a suspect that "he told us what happened"
was unresponsive to the defendant's question regarding
another person in custody and, when coupled with other common
interrogation techniques designed to elicit a response, met
the functional equivalency test)).
But police interactions with a suspect do not amount to
interrogations so long as they are not reasonably likely to
elicit an incriminating response. That is why law enforcement
officials may make context-appropriate, and accurate,
comments to a suspect without running afoul of
Miranda and Innis. They can, for example,
provide information responsive to questions posed by
defendants. Hambly, 307 Wis.2d 98, ¶¶65-66
(finding no functional equivalence where defendant made an
incriminating statement after the police officer, prior to
giving him the Miranda warnings, informed the
defendant of why he was under arrest). Similarly, if a
suspect volunteers incriminating information following an
officer's non-leading, direct responses to the
suspect's questions about possible charges against him,
there has been no functional equivalent of an interrogation.
State v. Fischer, 2003 WI.App. 5, 259 Wis.2d 799,
656 N.W.2d 503');">656 N.W.2d 503 (finding that "an objective observer
would not, on the sole basis of hearing [defendant's]
words and observing his conduct, conclude that [an
officer's] answers to [defendant's] direct questions
about the evidence against him would be likely to elicit an
incriminating response . . . .") . Nor ...