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State v. Halverson

Court of Appeals of Wisconsin, District III

November 13, 2019

State of Wisconsin, Plaintiff-Appellant,
Brian L. Halverson, Defendant-Respondent.

          APPEAL from orders of the circuit court for Chippewa County No. 2017CM83: STEVEN R. CRAY, Judge.

          Before Stark, P.J., Hruz and Seidl, JJ.

          HRUZ, J.

         ¶1 The State of Wisconsin appeals both an order granting Brian Halverson's motion to suppress evidence and an order denying its motion for reconsideration. Halverson argues that his admission to a crime made during a telephone call with a police officer while Halverson was incarcerated should be suppressed because the officer's failure to provide Miranda[1] warnings violated his constitutional rights. Halverson relies upon a case from our supreme court, State v. Armstrong, 223 Wis.2d 331, 588 N.W.2d 606');">588 N.W.2d 606 (1999), which held that an incarcerated person is per se in custody for purposes of Miranda. The State, however, contends that a subsequent United States Supreme Court case, Howes v. Fields, 565 U.S. 499 (2012), effectively overruled Armstrong's per se custody rule.

         ¶2 We hold that Howes effectively overruled Armstrong. Armstrong relied solely upon federal case law interpreting the Fifth Amendment to the United States Constitution when it created the per se custody rule; it did not rely on any unique rights or protections afforded under the Wisconsin Constitution. Howes now teaches that the cases upon which Armstrong relied do not establish that a person who is incarcerated is always in custody for purposes of Miranda when he or she is isolated from the general prison population and questioned about conduct that occurred outside of the prison. Instead, custody is determined by analyzing the totality of the circumstances surrounding the interrogation in question.

         ¶3 We also reject Halverson's invitation to interpret the Wisconsin Constitution-specifically, article I, section 8-as "more fully protect[ing] the right against compelled self-incrimination" than the rights afforded to individuals under the Fifth Amendment, so as to retain Armstrong's per se custody rule as a matter of state constitutional law. Consequently, we conclude the circuit court erred by applying Armstrong's per se custody rule instead of the totality-of-the-circumstances analysis outlined in Howes.

         ¶4 Assessing the totality of the circumstances surrounding Halverson's telephone interrogation, we conclude he was not in custody for Miranda purposes. Accordingly, the officer's failure to provide Halverson with Miranda warnings did not violate Halverson's constitutional rights. We therefore reverse the circuit court's orders granting Halverson's motion to suppress and denying the State's motion for reconsideration, and we remand with directions to deny Halverson's suppression motion.


         ¶5 In July 2016, Stanley Police Department officer Matthew Danielson read a letter from an inmate at the Stanley Correctional Institution in which the inmate accused Halverson of stealing and destroying several of the inmate's valuable documents. During Danielson's subsequent visit with the inmate at Stanley Correctional, the inmate informed Danielson that he possessed two letters in which Halverson admitted to the theft and destruction of the inmate's property.

         ¶6 Danielson subsequently sought to speak with Halverson and eventually discovered that Halverson was being held in the Vernon County Jail, where he was on a probation hold. When Danielson called the jail, he spoke to an individual who told Danielson that jail staff would contact Halverson and have him return Danielson's call. Halverson returned Danielson's phone call less than ten minutes later.

         ¶7 Danielson began the conversation by introducing himself, explaining why he was calling, and asking Halverson if he knew the inmate at Stanley Correctional. Halverson replied that he did know the inmate. Upon Danielson asking Halverson what he knew about the inmate's missing documents, Halverson first responded that he had helped the inmate clean his cell and the documents may have "happened to go in the garbage." Danielson then asked Halverson "what he would say" if Danielson said he possessed two letters in which Halverson acknowledged the theft and destruction of the documents. Halverson then admitted that he had destroyed the documents. Halverson was subsequently charged with criminal damage to property and misdemeanor theft, both as repeat offenses.

         ¶8 Halverson moved to suppress all evidence obtained and derived from his phone call with Danielson. Halverson asserted that his conversation with Danielson was a custodial interrogation and that Danielson was required to inform Halverson of his Miranda rights before Danielson questioned him. Halverson contended that Danielson failed to do so.

         ¶9 Danielson was the sole witness to testify at the suppression hearing. In addition to explaining why he sought to speak with Halverson, Danielson described the circumstances surrounding the phone call. The return call occurred at approximately 10:00 a.m. The call lasted only three to four minutes. Danielson's tone of voice throughout the call was "just as it was" during his testimony at the suppression hearing; Danielson never raised his voice, threatened or made any promises to Halverson. Danielson also never heard any individual yell or threaten Halverson on the other end of the phone. Further, at no point did Halverson ever refuse to talk with Danielson or request an attorney.

         ¶10 Danielson acknowledged that he did not provide Halverson with the Miranda warnings. When asked why, Danielson responded, "I don't know…. I didn't think of him [as] being … in custody. He was speaking to me freely on the phone. Yes, he was in custody somewhere else for something else, but he wasn't in custody with me." Danielson further stated that he "was not in a position to arrest" Halverson the day he spoke with Halverson, but he acknowledged that he never informed Halverson that he could terminate their conversation.

         ¶11 On cross-examination, Danielson admitted that he did not have any knowledge of where Halverson was located inside the Vernon County Jail when they were speaking. Consequently, Danielson could not testify as to whether Halverson was handcuffed or in a locked room during their phone call.

         ¶12 The circuit court granted Halverson's suppression motion. The court determined that Armstrong "created a very strong rule" in holding "that a person who is incarcerated is per se in custody for purposes of Miranda." See Armstrong, 223 Wis.2d at 355. Relying upon Armstrong, the circuit court concluded Halverson was interrogated while in custody, and, therefore, Danielson was required to Mirandize Halverson.

         ¶13 The State had argued that Halverson was not in custody for purposes of Miranda when assessing Danielson and Halverson's conversation under the totality of the circumstances, relying upon the United States Supreme Court's decision in Howes. In the State's view, the Supreme Court's decision in Howes effectively overruled A rmstrong's per se custody rule.

         ¶14 The circuit court disagreed with the State. The court opined that Wisconsin's per se custody rule under Armstrong survived the Howes decision, in part because the circuit court concluded that Halverson's interrogation and the interrogation at issue in Howes were factually distinguishable. However, before concluding the hearing, the court reserved the right for the State to move for reconsideration if it believed there was testimony from a jail officer that would affect the court's decision. The State subsequently filed a motion for reconsideration, and the court held a hearing on that motion.

         ¶15 Matthew Hoff, a corporal with the Vernon County Sheriff's Department, testified for the State. Hoff had been employed by the sheriff's department and worked in the county's jail for thirteen years. Hoff was on duty the day Danielson spoke with Halverson by phone and was "familiar" with Halverson, but Hoff testified that neither he nor his coworkers specifically recalled Halverson receiving a phone call that day.

         ¶16 Hoff then testified regarding the jail's standard operating procedures for when an inmate receives a phone call. A call is first received by the officer working in the mass control room. That officer then informs officers on the jail floor that an inmate has received a call. If there are officers available, the inmate is instructed to leave the jail pod[2] and meet a floor officer after passing through a set of doors.

         ¶17 The floor officer then informs the inmate that he or she has a phone call. The inmate is told the caller's identity, and he or she is given the choice to take or reject the call. Hoff explained:

At any time the inmate can tell us he doesn't want to talk to whatever individual is on the other line because we're not going to force them to speak with somebody. I'm not going to drag somebody out of the pod … to talk to somebody they don't want to talk to.

         If the inmate elects to take the call, the floor officer then escorts the inmate seventy-five feet to the program room. The inmate is not handcuffed at any point during this process.

         ¶18 The program room is a multipurpose room approximately fifteen feet long and twenty-five feet wide, with its walls made of observation glass. It is carpeted and contains tables, chairs and a phone with an unrecorded line. The program room is equipped for remote court appearances and is used for the jail library.

         ¶19 Once the floor officer and the inmate arrive at the program room, the floor officer makes the outbound phone call, connects it, and then gives the phone to the inmate. At that point, the floor officer leaves the program room, locking the door. Outside of the program room, the floor officer continues to observe the inmate through the observation glass to make sure the inmate is "still on the phone [and] not touching any of the video equipment." Hoff reiterated that although the officer observes the inmate, no one listens to the inmate's conversation. When the floor officer sees the inmate hang up the phone, the officer opens the program room's door and escorts the inmate back to his or her pod.

         ¶20 The circuit court denied the State's motion for reconsideration. Although the court "certainly believe[d]" that Hoff knew "what he's talking about," it stated it was not going to presume that the jail's standard operating procedure was followed in this instance. The court explained, "Habit is habit, but … from there I'm not going to take the leap that [Hoff] can know exactly how this conversation went down. He may not have even been the officer that escorted [Halverson]. We don't know." The court concluded that there was "nothing compelling" in this case that would convince it to overturn the Wisconsin Supreme Court's decisions in Schimmel v. State, 84 Wis.2d 287, 267 N.W.2d 271 (1978), [3] and Armstrong. The court further stated it was "not convinced that our supreme court is necessarily going to go along with … [Howes]. [The Wisconsin Supreme Court] set up a bright line when the U.S. Supreme ...

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