N. PATRICK CROOKS, J.
¶ 1 This is a review of the circuit court's order granting Andrew M. Edler's motion to suppress statements he made during a custodial interrogation. We affirm the order of the circuit court. The statements Edler made after he invoked his right to counsel on April 20, 2011, must be suppressed. We remand to the circuit court for further proceedings consistent with this decision.
¶ 2 The court of appeals for District II certified the appeal pursuant to Wis. Stat. § (Rule) 809.61,
¶ 4 We first examine Edler's March 30 invocation in light of the recent United States Supreme Court case Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). In Shatzer the United States Supreme Court examined the presumption in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), that after a suspect validly invokes the right to counsel, any subsequent waiver is invalid unless an attorney is present or the suspect "initiates further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880. The Court in Shatzer explained that the Edwards presumption ends when the suspect has been outside police custody for 14 days. Shatzer, 559 U.S. at 110, 130 S.Ct. 1213. Edler asks this court not to adopt Shatzer and instead interpret the Wisconsin Constitution to require a permanent bar on subsequent interrogation, or in the alternative, adopt a different test. We see no need in this case to interpret the Wisconsin Constitution to provide different protection than that provided by the United States Supreme Court's interpretation of the United States Constitution. We therefore adopt the rule created in Shatzer and, because 19 days had passed between when Edler was released from custody and when he was reinterrogated, hold that the March 30 invocation does not bar the interrogation on April 20.
¶ 5 A separate basis for suppressing the statements may exist even if the Edwards presumption no longer applied. If Edler's statement in the police car on April 20 was an unequivocal, unambiguous invocation of the right to counsel, the Edwards presumption would begin again. Given the circumstances surrounding the invocation and the understanding that statements beginning with the word "can" often constitute a request, we hold that Edler's statement, "can my attorney be present for this," was a valid invocation of the right to counsel. The invocation re-starts the Edwards presumption, barring Edler's waiver of rights later that day because Edler was not provided with counsel and did not "initiate[ ] further communication, exchanges, or conversations with the police." After Edler's request for an attorney, police should have ceased questioning him. Because they did not, Edler's statements made after that request must be suppressed. His request was an unequivocal, unambiguous invocation of his right to counsel.
¶ 6 Edler was a seventeen-year-old firefighter for the Waldo Fire Department. He was able to respond to fires, but because he was on probationary status, he was limited to providing assistance such as moving hoses or other items for the firefighters. He became a suspect in two arsons committed in a nearby town due to his unusually quick response to those fires.
¶ 7 On March 30, 2011, Detective Gerald Urban met with Edler about an unrelated burglary. In an interrogation room at the sheriff's department, Urban read Edler his
¶ 8 From jail the next day, Edler requested to speak with Urban. Edler was transported from the jail to the sheriff's department, where an interview room had been set up. Urban met with Edler in the interview room, and Edler asked him about when he would be having his initial appearance. Urban asked Edler if he had anything to say about the arsons, to which Edler responded, "I honestly don't have anything to say about that." Urban did not ask any further questions about the arsons at that time.
¶ 9 Edler was charged with one count of burglary and one count of misdemeanor theft, made his initial appearance, and was released from custody on April 1, 2011. Edler was appointed a public defender for the burglary case on April 4, 2011.
¶ 10 On April 18, 2011, Urban talked with a friend of Edler. Edler's friend agreed to wear a covert wire to talk to Edler about his involvement in the two arsons. Edler made some damaging statements that were recorded on that day.
¶ 11 On April 20, 2011, Urban arrested Edler at Edler's home for the arson fires. Edler's father inquired about why Edler was being arrested, and Urban explained to Edler's father that he was being arrested for the fires. Edler's father then told Edler to be honest and cooperate with the detectives.
¶ 12 Edler was handcuffed and placed in the back seat of the detective's unmarked car. Urban sat next to Edler in the back seat. As they rode in the car, Urban encouraged Edler to follow his father's advice and cooperate with the investigation. About five minutes into the drive, Edler stated, "Can my attorney be present for this," to which Urban responded, "Yes, he can." Edler did not make any incriminating statements during the ride.
¶ 13 When they arrived at the station, Edler was brought into an interrogation room.
¶ 14 Edler was charged on April 22, 2011, with two counts of arson in violation of Wis. Stat. § 943.02(1)(a) and one count of possessing, manufacturing, or selling a Molotov cocktail in violation of Wis. Stat. § 943.06(2), each as a party to the crime under Wis. Stat. § 939.05.
¶ 15 Edler moved to suppress the statements he made after he waived his right to
¶ 16 The Sheboygan County Circuit Court, the Honorable Terence T. Bourke presiding, granted the motion to suppress on the grounds that when in custody on April 20, Edler unequivocally, unambiguously invoked his right to counsel during the transportation to the sheriff's department, finding several facts: in the car on the way to the station Edler asked if his attorney could be present; Edler had an attorney in his burglary case but did not have one in the arson matters; and Edler had talked to Urban three weeks earlier and, at that time, Edler requested an attorney while being questioned about the arsons.
¶ 17 The circuit court held that Edler's Fifth Amendment right to counsel was violated when Urban interrogated Edler after Edler's unequivocal, unambiguous assertion of the right to counsel on April 20. The circuit court reasoned that under Miranda, after a request for counsel is made, it must be "scrupulously honored," and Edler's subsequent waiver of his Miranda rights at the station was therefore not valid. The circuit court quoted the holding in Edwards:
Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880.
¶ 18 The State appealed the order to suppress Edler's statements on the grounds that Edler's statement was a question about his rights and not itself an assertion of the rights. The court of appeals certified the appeal pursuant to Wis. Stat. § (Rule) 809.61.
¶ 19 Whether this court will apply the rule in Shatzer or adopt a different rule under the Wisconsin Constitution is a question of law which we decide independently. Kenosha County Dep't of Human Servs. v. Jodie W., 2006 WI 93, ¶ 19, 293 Wis.2d 530, 716 N.W.2d 845.
¶ 20 Whether a defendant effectively invoked his Fifth Amendment right to counsel is a question of constitutional fact decided by this court in a two-part test. State v. Hambly, 2008 WI 10, ¶ 16, 307 Wis.2d 98, 745 N.W.2d 48. First, this court upholds the circuit court's findings of facts unless clearly erroneous. Id. Second, this court independently applies constitutional principles to those facts, benefitting from the circuit court's interpretation. Id. The relevant facts are not in dispute; therefore, we must answer the question of whether the statements should be suppressed under either the United States or Wisconsin constitutions. State v. Knapp, 2005 WI 127, ¶ 20, 285 Wis.2d 86, 700 N.W.2d 899.
¶ 21 We first decide whether this court will adopt the 14-day break-in-custody
¶ 22 The Fifth Amendment to the United States Constitution states in relevant part: "No person ... shall be compelled in any criminal case to be a witness against himself." The Wisconsin Constitution contains a similar provision: "No person ... may be compelled in any criminal case to be a witness against himself or herself." Wis. Const. art. I, § 8(1).
¶ 23 The United States Supreme Court has interpreted and applied the Fifth Amendment protections as requiring a warning of certain constitutional rights when a defendant is subjected to custodial interrogation. Miranda created a rule to prevent law enforcement officers from violating the Fifth Amendment. While the rule has been and is still often called "prophylactic,"
¶ 24 The United States Supreme Court in Edwards further interpreted Miranda. The relevant facts from Edwards are as follows: Edwards was arrested, was given Miranda warnings, and was cooperating with police. 451 U.S. at 478-79, 101 S.Ct. 1880. After some time passed, Edwards stated, "I want an attorney before making a deal." Id. at 479, 101 S.Ct. 1880. The police did not question Edwards further on that day. Id. The next day, two different officers went to see Edwards in jail. Id. Edwards attempted to decline to talk to them but was told by a guard "that `he had' to talk." Id. The guard brought Edwards to the officers, the officers then informed him of his Miranda rights, and he waived them. Id. The Supreme Court held that "an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85, 101 S.Ct. 1880. Thus, Edwards created a presumption of involuntariness of a waiver of Miranda rights made after a valid invocation of the right to counsel unless an attorney is provided
¶ 25 As we noted earlier, the United States Supreme Court recently interpreted the Edwards presumption in Shatzer and determined that the presumption of Edwards ends after a 14-day break in custody. The Shatzer court examined whether a break in custody ended the Edwards presumption. Shatzer, 559 U.S. at 100, 130 S.Ct. 1213. Shatzer was incarcerated at a correctional facility serving a sentence on another offense. Id. at 100-01, 130 S.Ct. 1213. A detective met with Shatzer at the institution, gave Shatzer his Miranda warnings, and Shatzer waived those rights. Id. at 101, 130 S.Ct. 1213. There was some confusion about what the detective was there for, but when Shatzer realized what the detective wanted to talk about, Shatzer declined to speak without an attorney, and Shatzer was released back into general population at the prison.
¶ 26 The Supreme Court disagreed with Shatzer and held that the Fifth Amendment was not violated. The Court described the reasons behind Edwards as "conserving judicial resources," "preserv[ing] the integrity of an accused's choice to communicate with police only through counsel," and "preventing police from badgering a defendant into waiving his previously asserted Miranda rights." Id. at 106, 130 S.Ct. 1213 (citations omitted). Explaining the problems with a permanent bar to future questioning and the establishment of prophylactic rules,
¶ 27 The State argues that we should adopt the rule of Shatzer because it strikes a reasonable balance between the competing interests, preserving the protections of Edwards, and providing predictability for police officers. Edler argues that Edwards would normally bar further interrogation of a defendant after he had invoked his right to counsel and that the subsequent interrogation of Edler was in violation of Edwards. He further argues that the Shatzer rule constricts the rights of defendants who have invoked their right to counsel. Edler urges this court to extend the protection provided in Wisconsin under Article 1, Section 8 of the Wisconsin Constitution beyond that provided by the United States Supreme Court in Shatzer. He suggests that subsequent custodial interrogation be permitted only if the suspect's attorney is present or if the suspect initiates further communication. In the alternative, he suggests a totality of the circumstances test to determine whether a break in custody is sufficient.
¶ 28 We adopt the 14-day rule of Shatzer. The break in custody was more than 14 days, and therefore, we hold that interrogating Edler after a 19-day break in custody did not itself violate Edwards. We agree with the court in Shatzer that predictability is important when creating prophylactic rules so police have clear guidance on what they can do and when.
¶ 29 This holding is consistent with the fact that we often interpret both the United States and Wisconsin constitutions the same way. See, e.g., State v. Jennings, 2002 WI 44, 252 Wis.2d 228, 647 N.W.2d 142. There are exceptions to this rule. For example, in Knapp, this court looked to the Wisconsin Constitution to provide protection beyond that described by the United States Supreme Court. 285 Wis.2d 86, 700 N.W.2d 899. In Knapp, a police officer testified that he had intentionally failed to provide Miranda warnings to a suspect so as to "keep the lines of communication open." Id., ¶¶ 13-14. The police officer acknowledged that he was aware that the suspect was attempting to contact counsel before the police brought the suspect in for custodial interrogation. Id., ¶ 14. Additionally, "the State ha[d] conceded that the physical evidence was seized as a direct result of an intentional Miranda violation." Id., ¶ 20. This court held that "the exclusionary rule bars physical fruits obtained from a deliberate Miranda violation under Article I, Section 8." Id., ¶ 73 (footnote omitted).
¶ 30 The case at hand does not present the same kind of constitutional issues as the intentional violation of Miranda in Knapp. We decline to extend the meaning of Wisconsin Constitution Article I, Section
¶ 31 Because we decline to provide different protection, we apply the 14-day break-in-custody rule of Shatzer. The parties agree that Edler was outside of custody for 19 days. Therefore, Shatzer was complied with here, and the statements cannot be suppressed on the grounds that Edler's March 30 invocation barred the interrogation on April 20.
¶ 32 Even if under Shatzer enough time passed since Edler invoked his Miranda right to counsel such that his subsequent interrogation did not violate the Edwards presumption, we must determine whether Edler's statement in the police car was an unequivocal, unambiguous invocation of the right to counsel such that the subsequent waiver at the station was invalid under Edwards.
¶ 33 As noted above, Edwards creates a presumption that unless a suspect either "initiates further communication, exchanges, or conversations," or is provided with an attorney, any waiver made after a valid invocation of the right to counsel is invalid. Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880. "The legal sufficiency of a defendant's invocation of the right to counsel during a custodial interrogation is determined by the application of a constitutional standard to historical facts." Jennings, 252 Wis.2d 228, ¶ 25, 647 N.W.2d 142. This court measures independently "the historical facts against a uniform constitutional standard, benefiting from, but not deferring to, the circuit court's decision." Id. (citations omitted).
¶ 34 In Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the United States Supreme Court established the test of whether a statement invoked the right to counsel as follows: "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Id. at 459, 114 S.Ct. 2350. The test adopted was an objective one: "Although a suspect need not `speak with the discrimination of an Oxford don,' he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. (internal citation omitted). This court adopted the United States Supreme Court's test in Jennings, 252 Wis.2d 228, ¶¶ 30, 36, 647 N.W.2d 142. Under the objective test, we must examine the circumstances surrounding the request.
¶ 36 Regardless of the surrounding circumstances, including Edler's previous experience with Detective Urban, we are satisfied that Edler's statement, "can my attorney be present for this," constituted an unambiguous, unequivocal invocation. Our holding is consistent with the approaches of other courts that have looked at similar statements. See, e.g., United States v. Lee, 413 F.3d 622 (7th Cir.2005) (holding "can I have a lawyer" was a valid invocation and that police should have ended the interrogation unless they clarified the suspect's statement); United States v. Wysinger, 683 F.3d 784 (7th Cir. 2012) (citing its decision in Lee and reiterating that the phrase "can I have a lawyer" is an unequivocal, unambiguous request for counsel); State v. Dumas, 750 A.2d 420 (R.I.2000) (holding that the phrase "can I get a lawyer" amounted to a colloquial request); Taylor v. State, 274 Ga. 269, 553 S.E.2d 598 (2001) (holding that the phrase "can I have a lawyer present when I do that," when made in response to the police's request that a suspect tell her side of the story, was an unequivocal, unambiguous request for an attorney); Commonwealth v. Hilliard, 270 Va. 42, 613 S.E.2d 579 (2005) (holding that "can I get a lawyer in here? ... I already have a lawyer," in the circumstances, was an unequivocal, unambiguous request for an attorney).
¶ 37 For the reasons stated above, we hold that Edler's statement was an unequivocal, unambiguous request for counsel. There is no indication that after Edler's unequivocal, unambiguous request that Edler initiated further communications with Urban to indicate a valid waiver under Edwards. Therefore, any statements made by Edler after he requested his attorney in the car on the way to the sheriff's department must be suppressed.
¶ 38 We first examine Edler's March 30 invocation in light of the recent United
¶ 39 A separate basis for suppressing the statements may exist even if the Edwards presumption no longer applied. If Edler's statement in the police car on April 20 was an unequivocal, unambiguous invocation of the right to counsel, the Edwards presumption would begin again. Given the circumstances surrounding the invocation and the understanding that statements beginning with the word "can" often constitute a request, we hold that Edler's statement, "can my attorney be present for this," was a valid invocation of the right to counsel. The invocation re-starts the Edwards presumption, barring Edler's waiver of rights later that day because Edler was not provided with counsel and did not "initiate[ ] further communication, exchanges, or conversations with the police." After Edler's request for an attorney, police should have ceased questioning him. Because they did not, Edler's statements made after that request must be suppressed. His request was an unequivocal, unambiguous invocation of his right to counsel.
Affirmed and cause remanded.
¶ 40 MICHAEL J. GABLEMAN, J., did not participate.
SHIRLEY S. ABRAHAMSON, C.J., (concurring).
¶ 41 I concur in the mandate. The defendant's statement is to be suppressed. I join the part of the majority opinion concluding that Edler's statement in the police car was an unequivocal, unambiguous invocation of his right to counsel such that the subsequent waiver at the station was invalid under Edwards.
¶ 42 A person being interrogated in custody does not have to use the precise words "I want a lawyer" to invoke the right to counsel. In discussing whether a defendant's statement about counsel is an unequivocal request for counsel, the Texas Supreme Court wisely observed: "While police often carry printed cards to ensure precise Miranda warnings, the public is not required to carry similar cards so they can give similarly precise responses."
¶ 43 I write separately because I do not agree with the majority opinion that the court should fully adopt the 14-day rule of
¶ 44 There is no need in the present case for the court to decide whether to adopt the Shatzer rule. The defendant's invocation of the right to counsel at the second interrogation decides the present case. The statements made after invocation of the right to counsel must be suppressed.
¶ 45 If I were to reach the Shatzer issue, I would follow Shatzer to the extent of holding that law enforcement's subjecting a suspect — who has invoked his right to counsel and has been released from custody — to custodial interrogation within the Shatzer 14-day period violates Miranda
¶ 46 Law enforcement obligations under state law for the first 14 days would thus be governed by and be in sync with the bright-line rule set under federal law.
¶ 47 I would not adopt Shatzer's prophylactic rule that after the 14-day period Edwards has no effect.
¶ 48 The Shatzer decision and today's majority opinion are based entirely on an unsupported generalization about all suspects, namely that a 14-day break in custody and interrogation will somehow overcome the concern of coercion and compulsion that is the basis for the Edwards line of cases. The Shatzer Court speculated that "[i]t seems to us that" a
¶ 49 I agree with Justice John Paul Stevens that this speculation "may well prove inaccurate in many circumstances."
¶ 50 As Justice Stevens wrote, Edwards may require a longer period than 14 days, under the circumstances of a case, for a court to conclude that a sufficient break in custody occurred to dissipate the lingering coercive effects of the prior interrogation.
¶ 52 In these situations, the court should consider the totality of circumstances including the age, education, and intelligence of the suspect; the physical, psychological and emotional condition of the suspect; and the suspect's prior experience with police to determine whether the coercive effects of the prior interrogation have dissipated. The personal characteristics of the suspect must be viewed along with the police tactics used, such as the time between interrogations and length of the interrogations, the general conditions under which the statements were made, the physical and psychological pressures brought to bear on the suspect, the inducements and strategies used by law enforcement, the prior relationship between the interrogating officer and the suspect, and the circumstances ensuing in the period between the suspect's exercising the right to counsel and the re-interrogation.
¶ 53 Examining whether the coercive effects of the prior interrogation have dissipated comports with the genuine concern for individual voluntariness required by Miranda and Edwards, rather than a blanket generalization about human reaction to subsequent or repeated interrogations, and assists law enforcement officers in governing their conduct.
¶ 54 In the present case, after validly invoking his right to counsel with regard to the arson investigation, the 17-year-old
¶ 55 We know that at no time was the defendant provided an attorney as he requested during the custodial interrogation. The State has not suggested that the defendant "initiate[d] further communication, exchanges, or conversations with the police."
¶ 56 Further inquiry is necessary about this particular defendant and the circumstances, beyond just saying that 14 days passed, before I can join an opinion concluding, as a matter of law, that the coercive effects of the prior interrogation had dissipated.
¶ 57 For the reasons set forth, I write separately.
ANNETTE KINGSLAND ZIEGLER, J., (concurring in part, dissenting in part).
¶ 58 I concur because I agree with the majority's adoption of Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). See majority op., ¶ 31. I dissent and write separately to discuss the majority opinion's lack of regard for the fundamental question presented in this case: what is the legal standard to be applied when a suspect makes a statement about counsel post-custody, pre-Miranda warnings, pre-interrogation, and pre-waiver of Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In my view, we accepted certification to answer this question. Instead, the majority opinion merely restates the previously adopted Davis standard as if Edler's statement was made post-custody, post-Miranda warnings, during interrogation, and after waiver of Miranda rights. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). It was not. We should answer the fundamental question presented and provide guidance for law enforcement, courts, and counsel, as this issue is likely to recur especially in light of Shatzer and its impact on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
¶ 59 Here, the issue presented is whether, under the circumstances, Edler's question "Can my attorney be present for this?" constitutes an invocation of the right to counsel. In response to this question, Detective Urban responded "Yes he can." About 20 minutes after making that statement, Edler was read his Miranda rights. While his rights were being read, Edler interrupted Urban and stated "If the lawyer — if I request a lawyer, does that mean you still have to bring me into custody and I have to go sit in the jail?" Urban told Edler that he was already in custody and that Urban needed to read the full Miranda rights before they could talk further. Urban read Edler his Miranda rights in their entirety. Edler waived his right to counsel and made incriminating statements.
¶ 60 Approximately three weeks earlier, Edler was arrested, read his Miranda rights, and unambiguously invoked his right to counsel by stating "From this point on, I'd like to have a lawyer here." Urban scrupulously honored that request and ceased any questioning. Thus, Edler knew how to unambiguously invoke his
¶ 61 Simply stated, my dissent distils into the following four points, which are interrelated: (1) the majority's analysis has not adhered to the proper de novo standard of review; (2) the majority muddies the waters with respect to existing precedent, the "reset" for interrogation permitted by Shatzer, and the impact of Shatzer on Edwards; (3) the majority does not provide sufficient analysis regarding how or whether law enforcement may clarify such pre-Miranda questions from a suspect; and (4) this issue is ripe for determination so that law enforcement, litigants, and courts will know how to evaluate such statements.
¶ 62 The facts are undisputed. On March 30, 2011, Detective Urban met with Edler to discuss a burglary. Urban read Edler his Miranda rights and interrogated him, and Edler made incriminating statements about the burglary. After a short break, Urban asked Edler about two arsons that were unrelated to the burglary. At this point, Edler successfully invoked his right to counsel by stating "From this point on, I'd like a lawyer here." Urban respected Edler's invocation and ceased the interrogation. In fact, after Edler made this statement, he began to talk again and Urban told him "to be quiet" because he had asked for a lawyer. In other words, in the first interrogation, Urban scrupulously honored Edler's invocation of counsel.
¶ 63 Edler spent that night in jail and requested to meet with Urban the next day. After a brief conversation about the burglary charge, Urban asked Edler if he had anything to say about the arsons. Edler responded that "I honestly don't have anything to say about that." Urban again scrupulously honored Edler's wish to remain silent.
¶ 64 On April 1, 2011, Edler was charged with burglary, made his initial appearance with an attorney from the Public Defender's office, and was released from custody on a signature bond. On April 4, 2011, Edler was appointed a public defender on the burglary charge.
¶ 65 Almost three weeks later, on April 20, 2011, Edler was arrested for arson. As Edler was being arrested, his father urged him to be honest and cooperate with the police. Edler was handcuffed, placed in the back of a squad car, and transported to the police station. Edler was not read his Miranda rights at this point. About five minutes into the 20 minute car ride to the station, Edler asked "Can my attorney be present for this?" Urban responded "Yes he can." Edler did not ask any follow up questions or make further statements about an attorney during the remaining car ride, and Urban did not ask Edler any questions about the burglary or the arsons during the car ride.
¶ 66 At the police station, Urban read Edler his Miranda rights. As Edler was read the portion of his Miranda rights regarding his right to counsel, Edler interrupted Urban and asked "If the lawyer — if I request a lawyer, does that mean you still have to bring me into custody and I have to go sit in the jail?" Urban responded that Edler was already in custody and that he would be willing to discuss the issue further after reading the rights. Urban then reread the Miranda warnings in its entirety to Edler. Edler waived his rights. Urban asked Edler "realizing that you have these rights, are you now willing to answer questions?" Edler replied
¶ 67 I agree with the majority that the standard of review is two-fold. We uphold the trial court's findings of fact unless they are clearly erroneous, and we apply the constitutional principles to those facts independently while benefiting from the trial court's interpretation. State v. Hambly, 2008 WI 10, ¶ 16, 307 Wis.2d 98, 745 N.W.2d 48. I disagree with the majority's application of this standard of review.
¶ 68 The trial court did not engage in fact finding that required discretionary determinations regarding credibility, demeanor, or which version of the facts to accept. We accept the facts as the trial court found them. We then engage in a de novo review of the legal standard the trial court applied. Because this legal standard has never been determined, certainly no fault of the trial court, the trial court was without a specific legal standard to apply when it reached its legal conclusion. If the trial court applied the correct legal analysis, we should adopt that standard. If the trial court should have applied a different legal analysis, we should set forth that rule. The majority does neither.
¶ 69 While I do not quarrel with the majority's determination that a question such as "Can my lawyer be present for this?" could be an unambiguous request for counsel under certain circumstances, another court could come to the opposite conclusion just as easily in different circumstances. Law enforcement, courts, and litigants expect our opinions to give them the necessary tools to do their jobs properly. The majority opinion does not provide that guidance. Because the mere mention of an attorney is not an invocation of counsel, it is important to clarify what about Edler's question meets a standard applicable to pre-Miranda invocations. The majority specifically does not extend the Davis standard to this pre-Miranda scenario,
¶ 70 Precedent makes it less than clear that Edler's question "Can my attorney be
¶ 71 For example, in State v. Ward, we concluded that where the defendant asked the police whether she should call an attorney, that question was equivocal and insufficient to invoke her right to counsel. 2009 WI 60, ¶ 43, 318 Wis.2d 301, 767 N.W.2d 236. See also, Halbrook v. State, 31 S.W.3d 301, 302-04 (Tex.Ct.App.2000) (holding that the question "Do I get an opportunity to have my attorney present?" was ambiguous under Davis); United States v. Doe, 170 F.3d 1162, 1166 (9th Cir.1999) (concluding that defendant's question "What time will I see a lawyer?" was ambiguous under Davis); United States v. Younger, 398 F.3d 1179, 1187 (9th Cir.2005) (concluding that defendant did not sufficiently invoke his right to counsel when he asked "[b]ut, excuse me, if I am right, I can have a lawyer present through all this, right?") abrogated in part on other grounds, United States v. Vongxay, 594 F.3d 1111, 1116 (9th Cir.2010); Commonwealth v. Redmond, 264 Va. 321, 568 S.E.2d 695, 700 (2002) (holding that "Can I speak to my lawyer? I can't even talk to [a] lawyer before I make any kinds of comments or anything?" was ambiguous and equivocal, and therefore insufficient to invoke the defendant's right to counsel); Marcy Strauss, Understanding Davis v. United States, 40 Loy. L.A. L.Rev. 1011, 1035-37 (2007) (reporting that courts often conclude questions about a lawyer are ambiguous).
¶ 72 Courts frequently conclude that even fairly pointed statements about obtaining a lawyer, as opposed to questions, are nevertheless ambiguous and equivocal. For instance, the Court in Davis concluded that the statement "Maybe I should talk to a lawyer" was ambiguous and therefore did not constitute an invocation. 512 U.S. at 462, 114 S.Ct. 2350. Applying Davis, we held in State v. Jennings, that the statement "I think maybe I need to talk to a lawyer" was insufficient to invoke the right to counsel. 2002 WI 44, ¶ 36, 252 Wis.2d 228, 647 N.W.2d 142. As another example, in State v. Long, the court of appeals concluded that the defendant's statement "My attorney told me I shouldn't talk unless he is here" was an ambiguous and equivocal statement. 190 Wis.2d 386, 397, 526 N.W.2d 826 (Ct.App. 1994).
¶ 73 Significantly, the cases relied upon by the majority are clearly distinguishable from the facts and circumstances in the case at issue. See majority op., ¶ 36. The majority opinion relies upon Taylor and Lee to support its conclusion that "Can my attorney be present for this?" is an invocation of counsel. Taylor v. State, 274 Ga. 269, 553 S.E.2d 598 (2001); United States v. Lee, 413 F.3d 622 (7th Cir.2005). However, in both Taylor and Lee, unlike the case at hand, the statements were made post-custody, post-Miranda warnings, and during interrogation. Taylor, 553 S.E.2d at 601-02; Lee, 413 F.3d at 624. Further, in Taylor and Lee, unlike the case at issue, the court relied heavily on the fact that law enforcement actually discouraged the suspects from obtaining a lawyer. Taylor, 553 S.E.2d at 602; Lee, 413 F.3d at 627. Law enforcement did not engage in any such conduct in the case at issue.
¶ 74 Other cases relied upon by the majority are likewise distinguishable especially due to the fact that the suspects' questions were asked post-Miranda warnings. In State v. Dumas, the court stated that the post-Miranda question "`Can I get a lawyer?' could be sufficiently clear in some circumstances to meet [the Davis] standard." 750 A.2d 420, 422, 425 (R.I.2000) (emphasis added). However, the Dumas court concluded that the defendant's question in and of itself did not amount to an invocation. It remanded the matter for the trial court to consider the circumstances surrounding the defendant's question, including "the responses of the officers and any further utterances by defendant." Id. at 425. Here, the majority does not remand this case to the trial court to consider the officer's actions and further utterances by the defendant. The majority also cites Wysinger as support for its position. United States v. Wysinger, 683 F.3d 784, 795 (7th Cir.2012). While it is true that Wysinger cites Lee, a case wherein the post-Miranda question "Can I have a lawyer?" was deemed to be an unequivocal request for counsel, the facts in Wysinger are distinguishable from the facts before this court. Id. (quoting United States v. Lee, 413 F.3d 622, 624, 626 (7th Cir.2005)). In fact, in Wysinger, the court concluded that the suspect's pre-Miranda question "Do I need a lawyer before we start talking?" was insufficient to invoke his right to counsel. 683 F.3d at 794-95. See also Commonwealth v. Hilliard, 270 Va. 42, 613 S.E.2d 579 (2005) (holding that post-Miranda statement
¶ 75 I dissent because the majority opinion could be viewed as implicitly overruling well-established case law and because the cases cited by the majority opinion are distinguishable. If the majority intends to provide more protections to suspects by altering the standard to invoke the right to counsel or by tethering a subsequent interrogation to a previous arrest, the majority should make that clear.
¶ 76 Moreover, the majority opinion adopts Shatzer but lacks a thorough discussion of Shatzer and its limitation of Edwards.
¶ 77 In this case, Edler had been out of custody for 19 days when he was arrested on April 20, 2011, for arson. Under the rule of Shatzer, the break in custody operated to reset the opportunity for law enforcement to interrogate Edler. Nonetheless, the majority focuses almost entirely
¶ 78 Given the majority's analysis, what place does Shatzer hold in our jurisprudence? Is the majority elevating the Edwards continued invocation rule over the Shatzer clean break rule? Is Wisconsin adopting its own version of Shatzer/Edwards? Does the majority conclude the question "Can my attorney be present for this?" in and of itself, is an invocation of the right to counsel? Does the majority limit its analysis to a situation where the same officer is involved in both arrests?
¶ 79 Similarly, the majority's analysis of how a reasonable officer would understand Edler's question turns on knowledge gained by Urban three weeks earlier, when Edler invoked his right to counsel. See majority op., ¶ 35. Because the majority makes much of the fact that Urban was involved in both interrogations, the majority opinion is further limited. Id. Unfortunately, the majority does not clarify why it is so focused on Urban's knowledge from three weeks prior.
¶ 80 Considering that the circumstances of the prior interrogation are seminal to the majority's analysis, it is curious that the majority attaches no weight to the fact that Urban scrupulously honored Edler's prior invocation. Why does the majority assume that Urban has now failed to honor a request for counsel when he previously demonstrated that he would scrupulously honor such a request? See People v. Gonzalez, 34 Cal.4th 1111, 23 Cal.Rptr.3d 295, 104 P.3d 98, 107 (2005) (stating that where interrogating officers knew the suspect had been read his Miranda rights on a prior occasion, "the police could reasonably have assumed that defendant was capable of making an unequivocal request for counsel if he so desired").
¶ 81 In the earlier interrogation, Urban respected Edler's invocation by ceasing the interrogation, and when Edler made further statements, Urban acknowledged the invocation and told Edler "to be quiet" because he had invoked his right to counsel. In this subsequent arrest, about five minutes into the car ride, Edler asked "Can my attorney be present for this?" Urban responded "Yes he can." Compared to the earlier response, Urban's latter response suggests that he understood Edler to be asking a question about his
¶ 82 Unlike law enforcement in Taylor and Lee, Urban did not attempt to dissuade Edler from obtaining a lawyer. Edler asked "Can my lawyer be present for this?" about five minutes into the 20 minute car ride before any interrogation.
¶ 83 Under Davis and Jennings, an officer is not required to stop an interrogation or to ask follow up questions about counsel if the suspect makes an ambiguous statement about an attorney, but this court has suggested that it is a good practice. See Jennings, 252 Wis.2d 228, ¶ 32, 647 N.W.2d 142. Should we adopt a rule requiring law enforcement to clarify such pre-Miranda questions? Again, the majority opinion passes on this opportunity to provide such guidance to law enforcement.
¶ 84 From Urban's perspective, the statement made by Edler at the police station, whether he would sit in jail if he requested a lawyer, likely clarifies that Edler did not invoke his right to counsel in the car. The majority opinion lacks any analysis of Edler's question regarding counsel at the station, during the time when Urban was reading the Miranda warnings, or his waiver of his Miranda rights. The majority does not consider how Urban made clear that he was not going to engage in discussion with Edler until he finished reading him his rights and Edler waived his rights. The majority does not discuss how Edler, not Urban, reinitiated the conversation by asking Urban a question. Urban was not interrogating Edler during the car ride or while he was reading the Miranda warnings.
¶ 85 As Edler had an attorney on a pending burglary charge, his question "Can my attorney be present for this?" may have been clarifying whether that particular attorney could be present for the forthcoming interrogation, even though he did not yet have an attorney on the uncharged arson. He also might have been asking whether he was entitled to have any attorney present during the interrogation.
¶ 86 Given the totality of the circumstances, the majority is too quick to conclude that law enforcement would objectively know that the question "Can my lawyer be present for this?" was an unambiguous invocation of counsel and that law enforcement erred by giving Edler his Miranda rights and accepting Edler's waiver. I do not conclude that a reasonable law enforcement officer, particularly one who is aware that Edler is capable of invoking his rights, would believe that the question "Can my attorney be present for this?" was an unambiguous request for counsel.
¶ 87 I readily concede that Edler's question might have been a poorly-worded request for an attorney. Under the totality of the circumstances, however, it is just as likely that Edler's question was a clarification of his rights or something else. Precedent does not require the cessation of interrogation when a reasonable law enforcement officer believes the suspect might be invoking the right to counsel. See Davis, 512 U.S. at 459, 114 S.Ct. 2350.
¶ 88 I dissent because the majority opinion neither extends Davis to Edler's statement nor enunciates the standard to apply. Simply stated, the majority opinion leaves open questions that are likely to recur. The majority opinion has not concluded that the "unambiguous and unequivocal" objective standard from Davis applies post-custody, pre-Miranda warnings, pre-interrogation, and pre-waiver of Miranda rights. The majority opinion does not determine whether interrogation must be impending for a suspect to invoke his right to counsel. The majority opinion leaves open whether law enforcement must clarify a potential request for counsel under these pre-Miranda circumstances. It remains unknown whether law enforcement should ever clarify a potential request by reading the suspect the Miranda warnings. The law is now less clear regarding the implications of Shatzer on Edwards. I write separately to highlight that our court should be analyzing these issues with regard to Edler's question, which was made post-custody, pre-Miranda warnings, pre-interrogation, and pre-waiver of Miranda rights. We should clarify the law.
¶ 89 For the foregoing reasons, I respectfully concur in part and dissent in part.
We answer the first two questions. Because we hold that the statement by Edler was an unequivocal, unambiguous request for counsel, we need not and do not address whether the standard for a statement pre-Miranda is the same as that articulated in State v. Jennings, 2002 WI 44, 252 Wis.2d 228, 647 N.W.2d 142, and Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), or whether the standard should differ when a defendant has not recently been told of his or her constitutional rights.
Recently the majority in Shatzer emphasized that Edwards and Miranda were judicially prescribed prophylactic rules and that the Court had an obligation to justify any expansion. Maryland v. Shatzer, 559 U.S. 98, 103-05, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). The concurrence by Justice Stevens made it clear that the Shatzer rule was based on the Fifth Amendment and argued that the majority "demeans Edwards as a `second layer' of `judicially prescribed prophylaxis.'" Id. at 120, 130 S.Ct. 1213 (Stevens, J., concurring).
Supra, ¶ 2 n. 2.
Citing numerous law review articles, Professor LaFave discusses the criticism of the United States Supreme Court's reliance on prophylactic rules rather than administratively based rules as follows:
1 Wayne R. LaFave, Crim. Proc. § 2.9(h) (3d ed.2007 & Supp.2012).
In Arizona v. Roberson, the United States Supreme Court explained as follows: "[T]o a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling." Arizona v. Roberson, 486 U.S. 675, 686, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).
In McLaughlin, the Court required law enforcement to do something within a short specified period of time in order to protect the rights of the accused, while in Shatzer, the Court concluded that if law enforcement refrains from doing something for a sufficient period of time, the accused's rights have been sufficiently respected.
Still, in McLaughlin, the Court held that even if law enforcement complied with the 48-hour mandate, the accused may still prove a Constitutional violation. McLaughlin, 500 U.S. at 56-57, 111 S.Ct. 1661 (1991).
See Zadvydas v. Davis, 533 U.S. 678, 701, 712, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (citing McLaughlin, 500 U.S. at 56-58, 111 S.Ct. 1661) (noting that the 48-hour rule was based on the court of appeals' determination of the time required to complete a probable cause hearing). In contrast, the 14-day period selected in Shatzer bears no relationship to the needs of law enforcement, the characteristics of the suspect, or the circumstances that occur during the 14 days.
See also Jessica A. Davis, Casenote, Another Tweak to Miranda: The Supreme Court Significantly Limits the Edwards Presumption of Involuntariness in Custodial Interrogation, 36 S. Ill. U. L.J. 593, 608 (2012) ("According to the majority, fourteen days is sufficient for the coercive pressures to custodial interrogation to disappear because it says so.").
Shatzer, 559 U.S. 98, 121, 130 S.Ct. 1213 (2010) (Stevens, J., concurring).
See Kit Kinports, The Supreme Court's Love-Hate Relationship with Miranda, 101 J.Crim. L. & Criminology 375, 386 (2011) ("[O]nce a suspect is released from custody, she is not entitled to state-provided counsel (assuming charges have not yet been filed). For those unable to afford private lawyers, then, a fourteen-day break in custody does not provide a meaningful opportunity to obtain legal advice.") (footnote omitted).
See also Illan M. Romano, Note & Comment, Is Miranda on the Verge of Extinction? The Supreme Court Loosens Miranda's Grip in Favor of Law Enforcement, 35 Nova L.Rev. 525, 535 (2011) (presenting the following hypothetical application of Shatzer: "This holding expressly permits police to engage in a tactic where, once a suspect invokes his right to counsel, police simply release the suspect, wait fourteen days, and try again hoping this time the suspect is not intelligent enough to invoke his right to counsel, which may not have been provided to him the first time around.").