State v. Gregory M. Sahs ( 2013 )

2013 WI 51
SUPREME COURT OF WISCONSIN
CASE NO.: 2009AP2916-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent,
v.
Gregory M. Sahs,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 330 Wis. 2d 498, 792 N.W.2d 240
(Ct. App. 2010 - Unpublished)
OPINION FILED: June 18, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 25, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Conen
JUSTICES:
CONCURRED: ROGGENSACK, J. concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
and oral argument by Mark S. Rosen and Rosen and Holzman, LTD.,
Waukesha.
For the plaintiff-respondent, the cause was argued by Sarah
K. Larson, assistant attorney general, with whom on the briefs
was J.B. Van Hollen, attorney general.
2013 WI 51
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2009AP2916-CR
(L.C. No. 2008CF3217)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUN 18, 2013
Gregory M. Sahs,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, C.J. This is a review of an
unpublished decision of the court of appeals that affirmed the
judgment of conviction entered by the Circuit Court for
Milwaukee County, Jeffrey A. Conen, Judge.1
1
State v. Sahs, No. 2009AP2916-CR, unpublished slip op.
(Wis. Ct. App. Oct. 26, 2010).
No. 2009AP2916-CR
¶2 Gregory M. Sahs, the defendant, was convicted of
possession of child pornography in violation of Wis. Stat.
§ 948.12(1m) (2007-08).2
¶3 The charge of possessing child pornography arose from
incriminating admissions the defendant made to his probation
agent. The defendant was on probation as a result of a prior
conviction for possession of child pornography. After the
defendant made incriminating statements to his probation agent,
the police were alerted and found the computer the defendant
used to access and possess child pornography, leading to a
revocation of his probation and these additional criminal
charges.
¶4 After being criminally charged, the defendant moved
the circuit court to suppress the admissions to his probation
agent, claiming that they were compelled, testimonial, and
incriminating in violation of his state and federal
constitutional privilege against self-incrimination. The Fifth
Amendment to the United States Constitution3 and Article I,
2
All references to the Wisconsin Statutes are to the 2007-
08 version unless otherwise noted.
3
The Fifth Amendment to the United States Constitution
provides in pertinent part: "No person . . . shall be compelled
in any criminal case to be a witness against himself . . . ."
The privilege against self-incrimination is applied to the
states through the Fourteenth Amendment's due process clause.
Malloy v. Hogan, 378 U.S. 1, 6 (1964).
2
No. 2009AP2916-CR
Section 8 of the Wisconsin Constitution4 provide that no person
shall be compelled in any criminal case to be a witness against
himself.
¶5 The defendant's admissions are clearly testimonial and
incriminating. The issue is whether the admissions were
compelled.
¶6 The legal issue before this court is the same as the
legal issue before the circuit court and court of appeals:
Should the incriminating statements made by the defendant to his
probation agent admitting possession of child pornography be
suppressed on the ground that the statements were compelled in
violation of the defendant's federal constitutional privilege
against self-incrimination?5
¶7 The court of appeals concluded that the circuit court
properly denied the motions to suppress: "[T]he evidence that
Sahs relies upon [namely a Department of Corrections document]
does not appear in the record" and "the facts in the record are
insufficient to show compulsion."6
4
Article I, Section 8 of the Wisconsin Constitution states:
"No person . . . may be compelled in any criminal case to be a
witness against himself or herself."
5
The defendant filed a second motion to exclude the
evidence discovered after a search of his computer, as well as
statements made to police, on the ground that the evidence and
statements were a direct consequence of the compelled statements
to the probation agent. We need not and do not address this
second motion because we conclude that the defendant has not
carried his burden of proving that his statements to the
probation agent were compelled.
6
State v. Sahs, No. 2009AP2916-CR, unpublished slip op.,
¶¶1, 9 (Wis. Ct. App. Oct. 26, 2010).
3
No. 2009AP2916-CR
¶8 We affirm the decision of the court of appeals.
¶9 The defendant has failed to meet his burden to prove
that his initial, oral statements were compelled.7 Neither the
circuit court nor this court can consider the Department of
Corrections form that the defendant claims advised him that his
incriminating statements cannot be used against him in criminal
proceedings. The form is not in the record. The parties did
not agree about its existence, the details of its use, or the
defendant's knowledge of its contents before the defendant made
his oral admissions.
¶10 The defendant has failed to put sufficient evidence
into the record to show that the rules of his probation rendered
his incriminating statements compelled. No documents, no
testimony, and no undisputed, agreed-upon facts by the parties
are in the record to evidence any compulsion of the defendant to
admit possession of child pornography to his probation agent.
¶11 Because there is not sufficient evidence in the record
to show compulsion, we affirm the decision of the court of
7
When a defendant seeks to exclude prior statements based
upon his Fifth Amendment privilege, the burden is on the
defendant to establish that the statements at issue are
compelled, testimonial, and incriminating. In re Commitment of
Mark, 2006 WI 78, ¶16, 292 Wis. 2d 1, 718 N.W.2d 90. After a
defendant proves that his statements were compelled,
testimonial, and incriminating, the burden shifts to the State
to demonstrate that the evidence it wishes to use in a criminal
prosecution is "derived from a legitimate source wholly
independent of the compelled testimony." State v. Spaeth, 2012
WI 95, ¶¶38, 74, 343 Wis. 2d 220, 819 N.W.2d 769 (quoting
Kastigar v. United States, 406 U.S. 441, 460 (1972)).
4
No. 2009AP2916-CR
appeals, which affirmed the circuit court's order denying
suppression of the statements and the judgment of conviction.8
I
¶12 We first turn to the facts. The Complaint charging
the defendant with two counts of possession of child pornography
was filed on July 2, 2008. The defendant waived a preliminary
hearing. The State filed the information based on the
complaint. The defendant entered a plea of not guilty to the
two counts charged.
¶13 The defendant then filed his motion seeking to
suppress the statements he made to his probation agent. The
State opposed the motion. The circuit court requested that the
parties participate in an evidentiary hearing regarding the
suppression motion. Instead, both parties proffered facts in
written briefs to the circuit court and stipulated that the
circuit court could decide the case based on the factual
representations set forth in the briefs.
¶14 The facts set forth here are therefore predominantly
taken from the parties' briefs filed in the circuit court. The
8
The defendant's motion to suppress his statements was
orally denied in open court by the Circuit Court for Milwaukee
County, John Franke, Judge. Milwaukee County Circuit Court
Judge Jeffrey A. Conen signed the written order of denial and
later entered the judgment of conviction.
5
No. 2009AP2916-CR
circuit court explained that it was "dealing with
representations here and not a factual record by affidavit."9
¶15 As one might suspect from the proceedings we have
described thus far, the record in this case relating to the
suppression motion is extremely thin. What follows are the
parties' undisputed, agreed-upon facts we have culled from the
parties' briefs and the findings of fact the circuit court made.
¶16 The parties agree that the defendant was sentenced to
probation in 2005 arising from a conviction for possession of
child pornography.
¶17 The parties agree that Department of Corrections
Probation/Parole Agent Michael Krause was assigned to supervise
the defendant's probation and that the defendant was required to
participate in sex offender group therapy as a condition of his
probation.10 The other conditions of the defendant's probation
are not in the record.
¶18 The parties finally agree that the defendant was on
probation when, in January 2007, he made statements to Agent
Krause indicating that he again possessed child pornography.
From there, the parties' factual assertions diverge.
9
A circuit court may predicate its factual findings on
undisputed facts. State v. Thierfelder, 174 Wis. 2d 213, 217
n.4, 495 N.W.2d 669 (1993); State v. Schulpius, 2006 WI App 263,
¶¶11-12, 298 Wis. 2d 155, 726 N.W.2d 706.
10
These facts are taken from the defendant's motion to
exclude evidence and the State's response to the defendant's
motion to exclude evidence, which were filed with the circuit
court.
6
No. 2009AP2916-CR
¶19 The defendant asserts that he was required to take a
polygraph test as a condition of sex offender treatment and that
he failed this polygraph test on December 15, 2006,11 when he
untruthfully answered that he had not broken any of his
probation rules.
¶20 The State, in contrast, contends that the polygraph
test was administered because the defendant had "refused to
participate in a meaningful way in his group therapy sessions."
The focus of the polygraph test was on the defendant's prior
sexual history. In his pre-polygraph examination interview, the
defendant admitted that he had not been truthful about this
history previously; the polygraph test then focused on whether
the defendant had been truthful in the pre-polygraph exam
interview. The result of the polygraph test was that the
defendant was truthful.
¶21 The parties agree that the defendant was terminated
from his group therapy sessions. But, the parties dispute the
reason for termination. The defendant believes he was
terminated because he failed the polygraph test. The State
asserts that the defendant was terminated because the
information that he provided about his prior sexual history to
11
There is some confusion in the circuit court briefs and
in the briefs before this court whether the date of the
polygraph test was December 2006 or December 2005. The
defendant's material in the record refers to December 2005. The
polygraph report is in the record as an attachment to the
documents the State filed in response to the defendant's motion.
The report is dated December 2006 and states that the polygraph
test was administered in December 2006.
7
No. 2009AP2916-CR
the polygraph examiner in a pre-test interview should have been
disclosed during his previous group therapy sessions.
¶22 The parties agree that the defendant was given an
opportunity to regain admittance to group therapy. They do not
agree on the conditions he had to meet for re-admittance or
whether he was re-admitted.
¶23 The defendant asserts that he was required to take
another polygraph test, which was scheduled for January 13,
2007.12 The State asserts that the defendant was required only
to write a letter of full disclosure regarding his prior sexual
history and that when he completed the letter, he was allowed
back into therapy. The State asserts that the defendant had
already been allowed back into his group therapy when he and
Agent Krause met on January 12, 2007, and that Agent Krause had
no intention of initiating revocation proceedings against the
defendant, at that time, for his probation violations.
¶24 The State's brief sets forth Agent Krause's
recollection about the events of January 2007. The State
asserts that in January 2007, Agent Krause received a phone call
from the defendant, who wanted to come in to talk "about some
things." According to Agent Krause, he and the defendant agreed
upon a mutually acceptable date, which was January 12, 2007.
12
The circuit court commented that "the parties represent
that another polygraph was set for January 13." The State's
response to the defendant's motion, however, makes no mention of
a January 13 polygraph test.
8
No. 2009AP2916-CR
¶25 The date of the meeting (Jan. 12) was the day before
the date the defendant claims that he was required to take a
polygraph examination (Jan. 13) in order to get back into
therapy. The State makes no mention of this second polygraph
test.
¶26 The parties agree that at the January 12, 2007
meeting, the defendant orally told Agent Krause that he had
violated the rules of his probation by using a computer he kept
at a friend's house to access child pornography. According to
Agent Krause, the defendant volunteered that he had been
violating the rules of his probation.
¶27 According to the defendant and Agent Krause, Agent
Krause wrote down the defendant's statements on a Department of
Corrections form, which the defendant signed. The defendant
asserts that this Department form included a notification and a
box checked off next to the following statement:
I have been advised that I must account in a true and
accurate manner for my whereabouts and activities, and
that failure to do so is a violation for which I could
be revoked. I have also been advised that none of
this information can be used against me in criminal
proceedings.13
¶28 The defendant does not state, either in the brief he
filed in this court or in the motion he filed in the circuit
court, when he was first advised that his statements could not
be used against him in a criminal proceeding or whether he saw
the form before he gave the oral statements.
13
The DOC form is not in the record.
9
No. 2009AP2916-CR
¶29 The State agrees that Agent Krause wrote down the
defendant's statement on a Department form but neither denies
nor concedes the existence of the Department form or the
notification that the defendant described. The State's brief in
this court asserts that it never conceded or stipulated that the
defendant was aware of the written notification when he gave his
earlier, oral statements. The State's position here is that the
defendant did not proffer any evidence to support his assertion
that he was aware of the written notification of immunity when
he gave his earlier, oral statements.14
¶30 The parties agree that after the defendant made the
incriminating statements, Agent Krause took the defendant into
custody and initiated revocation proceedings.
¶31 There is no dispute about what happened thereafter.
¶32 Agent Krause notified the West Allis Police Department
of the defendant's statements. The police arranged to retrieve
the computer the defendant admitted to using.
¶33 Detective Jacque Chevremont of the West Allis Police
Department met with the defendant twice while he was in custody
at the Milwaukee Secure Detention Facility. Detective
Chevremont read the defendant his Miranda warnings both times;
the defendant stated he understood the warnings and that he was
willing to speak with the Detective. The defendant admitted
14
The circuit court explicitly stated that it "won't make
findings of fact as to what happened after [the defendant's oral
admission of possessing child pornography] because I do not find
that those [oral] statements to the probation officer on these
undisputed facts must be suppressed . . . ."
10
No. 2009AP2916-CR
that while on probation, he downloaded child pornography on a
computer that he kept at a friend's house.
¶34 In ruling on the suppression motions, the circuit
court assumed that the defendant was advised of the standard
conditions of probation, which include providing true and
correct information when asked. Neither the conditions of
probation imposed on the defendant nor any "standard conditions
of probation" are in the record before this court.
¶35 The circuit court's findings of fact to be upheld as
not clearly erroneous had to be based in the present case on the
parties' agreed-upon, undisputed facts. The circuit court made
the following factual findings:
• The defendant initiated the January 12, 2007 meeting
with his probation agent.
• The defendant volunteered the information that he
had been violating the probation rules by using a
friend's computer to download images of child
pornography.
¶36 With regard to the circuit court's first finding, the
parties agreed that the defendant initiated the January 12, 2007
meeting with his probation agent.
¶37 With regard to the circuit court's second finding, the
circuit court, relying on common sense, assumed that the
probation agent would have asked the defendant some questions.
Nevertheless, the circuit court found that the defendant
volunteered that he had violated the rules of probation. The
State asserted that the defendant volunteered that he had been
11
No. 2009AP2916-CR
violating the probation rules. The defendant did not
characterize his statements as volunteered. Neither party made
any representation to the circuit court about whether the
defendant made any statement in response to questions.
¶38 The circuit court denied the defendant's motions to
suppress, concluding that the facts were insufficient to show
compulsion and that simply because an agent might revoke
probation is not enough to establish compulsion.
¶39 After the circuit court denied the defendant's motions
to suppress, the defendant changed his plea to guilty of one
count of possession of child pornography pursuant to plea
negotiations.
II
¶40 Whether the defendant's statements to his probation
agent were compelled in violation of his constitutional right
against self-incrimination presents a question of constitutional
fact. In reviewing issues of constitutional fact, first, we
review the circuit court's findings of historical fact; we will
uphold them unless they are clearly erroneous. Second, we
determine the application of constitutional principles
independently of the circuit court and court of appeals,
benefitting from their analyses.15
15
Spaeth, 343 Wis. 2d 220, ¶30; State v. Felix, 2012 WI
36, ¶22, 339 Wis. 2d 670, 811 N.W.2d 775 (citing State v. Eason,
2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625).
12
No. 2009AP2916-CR
¶41 A probationer has a Fifth Amendment privilege against
compelled self-incrimination.16 A critical issue is whether the
probationer must claim the privilege or whether the situation
gives rise to a self-executing privilege.
¶42 The United States Supreme Court has declared that an
ordinary witness who is "merely required to appear and give
testimony" must affirmatively claim the privilege.17 "[I]n the
ordinary case, if a witness under compulsion to testify makes
disclosures instead of claiming the privilege, the government
has not 'compelled' him to incriminate himself."18
¶43 However, the United States Supreme Court has also
recognized exceptions to the general rule requiring a person to
affirmatively assert his or her Fifth Amendment privilege. In
some situations, the privilege is self-executing and thus need
not be affirmatively invoked before the statement is deemed
compelled.19 One of these "self-executing situations" occurs
when a probationer must answer questions that require him to
choose between making incriminating statements and jeopardizing
his conditional liberty by remaining silent.20
16
Minnesota v. Murphy, 465 U.S. 420, 426 (1984).
17
Id. at 435 (quoted in State v. Spaeth, 2012 WI 95, ¶47,
343 Wis. 2d 220, 619 N.W.2d 769).
18
Murphy, 465 U.S. at 427 (quoting Garner v. United States,
424 U.S. 648, 654 (1976)).
19
Spaeth, 343 Wis. 2d 220, ¶¶43, 47 (quoting Minnesota v.
Murphy, 465 U.S. 420, 426, 434-35 (1984)).
20
Murphy, 465 U.S. at 435-36; Spaeth, 343 Wis. 2d 220,
¶¶46-49.
13
No. 2009AP2916-CR
¶44 The United States Supreme Court has explained the
difference between the ordinary witness who must claim the
privilege when he is "merely required to appear and give
testimony" and certain situations relating to a probationer
whose privilege may be self-executing when he is required to
answer incriminating questions. The Supreme Court has
differentiated between the two as follows:
The threat of punishment for reliance on the privilege
distinguishes cases of this sort [namely those
involving a probationer] from the ordinary case in
which a witness is merely required to appear and give
testimony. A state may require a probationer to
appear and discuss matters that affect his
probationary status; such a requirement, without more,
does not give rise to a self-executing privilege. The
result may be different if questions put to the
probationer, however relevant to his probationary
status, call for answers that would incriminate him in
a pending or later criminal prosecution. There is
thus a substantial basis in our cases for concluding
that if the state, either expressly or by implication,
asserts that invocation of the privilege would lead to
revocation of probation, it would have created the
classic penalty situation, the failure to assert the
privilege would be excused, and the probationer's
answers would be deemed compelled and inadmissible in
a criminal prosecution.21
III
¶45 The defendant asserts that his statements to his
probation agent were compelled in violation of his federal
constitutional privilege against self-incrimination for two
reasons. First, he claims that he signed a Department of
21
Murphy, 465 U.S. at 435 (quoted in Spaeth, 343
Wis. 2d 220, ¶47).
14
No. 2009AP2916-CR
Corrections document that notified him that his failure to
account truthfully about his activities is a violation for which
his probation could be revoked and that "none of the information
can be used against [him] in criminal proceedings." Second, he
claims that his statements were compelled because he allegedly
was required to report his activities truthfully to his
probation agent and was required to take a mandatory polygraph
test and knew that if he failed the polygraph test, his
probation could be revoked.
¶46 We discuss each claim in turn.
A
¶47 We turn first to the defendant's claim of compulsion
relying on the Department of Corrections form described above.
This form, according to the defendant, advised the defendant
that the statements he made to the probation agent were not to
be used against him in a criminal proceeding.
¶48 The burden was on the defendant in the circuit court
to prove that his statement to the probation agent was compelled
and that use of the statement in this criminal proceeding
violates the federal constitutional privilege against self-
incrimination.
¶49 The circuit court and court of appeals ruled that the
defendant did not meet his burden.
¶50 The Department of Corrections form upon which the
defendant relies is not part of the circuit court record or part
of the record before this court. The well-established rule is
15
No. 2009AP2916-CR
that appellate review is limited to the record presented.22 The
burden is on the appellant, here the defendant, to ensure that
the record is sufficient to address issues raised on appeal.23
¶51 No undisputed, agreed-upon facts by the parties or
other evidence appears in the record to prove that the defendant
signed the form or that the defendant was informed or knew of
the contents of the form before he gave oral incriminating
statements to his probation agent.
¶52 The circuit court made no findings of fact regarding
the existence of the Department form or the conversation that
occurred between the defendant and Agent Krause when the form
was allegedly completed and signed.
¶53 Because the Department form is not in the record and
nothing about the execution of the form is in the parties'
undisputed, agreed-upon facts, the defendant's argument that the
form immunized his statements fails.
B
¶54 We turn now to the defendant's claim that the
statements to the probation agent were compelled by the threat
of revocation of his conditional liberty. The defendant makes
two arguments. He argues that the mere fact that he was
required to appear and report truthfully to his probation agent
22
Schimke v. Milwaukee & Suburban Transport Co., 34
Wis. 2d 317, 320-21, 149 N.W.2d 659 (1967).
23
State v. Marks, 2010 WI App 172, ¶20, 330 Wis. 2d 693,
794 N.W.2d 547; State Bank of Hartland v. Arndt, 129
Wis. 2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986).
16
No. 2009AP2916-CR
is sufficient to establish compulsion. He also argues that the
fact that he was required to take a polygraph test establishes
compulsion.
1
¶55 The case law establishes that the mere requirement on
a probationer to appear and speak "truthfully to his or her
probation (or parole) officer is insufficient to establish
compulsion."24
¶56 The seminal case regarding probationers and self-
incrimination is Minnesota v. Murphy, 465 U.S. 420 (1984). The
United States Supreme Court recognized that requiring Murphy, a
probationer, to appear and answer questions truthfully was
insufficient to establish compulsion.25 The Court declared that
if Murphy was in a situation that gave rise to a self-executing
privilege against self-incrimination——such that "the State,
either expressly or by implication, assert[ed] that invocation
of the privilege would lead to revocation of probation"——then
"the failure to assert the privilege would be excused, and the
probationer's answers would be deemed compelled and inadmissible
in a criminal prosecution,"26 even though the privilege was not
affirmatively invoked. See ¶¶41-44, supra.
24
Commitment of Mark, 292 Wis. 2d 1, ¶25.
25
Murphy, 465 U.S. at 427. See also Commitment of Mark,
292 Wis. 2d 1, ¶25.
26
Murphy, 465 U.S. at 435.
17
No. 2009AP2916-CR
¶57 As to Murphy, the Court concluded that the State of
Minnesota did not go further than requiring Murphy to appear and
give testimony. It did not "require[ ] him to choose between
making incriminating statements and jeopardizing his conditional
liberty by remaining silent."27 The Court in Murphy concluded
that there was no evidence in the record showing that the State
would have revoked the probation or that the probationer
(Murphy) believed his probation would have been revoked if he
chose to remain silent.28 Accordingly, Murphy did not prove his
statement was compelled.
¶58 In the present case, there is no evidence that the
State, either expressly or by implication, told the defendant
that his refusal to speak to his probation agent or his
invocation of his privilege against self-incrimination would
lead to the revocation of his probation. The defendant claims
27
Id. at 436 (quoted in Spaeth, 343 Wis. 2d 220, ¶48).
28
Murphy, 465 U.S. at 436.
The Court explained further in Murphy, 465 U.S. at 437, as
follows:
Murphy's probation condition proscribed only false
statements; it said nothing about his freedom to
decline to answer particular questions and certainly
contained no suggestion that his probation was
conditional on his waiving his [privilege] with
respect to further criminal prosecution. . . . Without
the benefit of an authoritative state-court
construction of the condition, we are hesitant to read
into the truthfulness requirement an additional
obligation that Murphy refrain from [invoking his
privilege].
18
No. 2009AP2916-CR
that he believed his probation would be revoked if he failed to
tell his probation agent the truth, but there is no evidence in
the record indicating that the defendant was informed of such
potential revocation. The parties did not agree that revocation
was a consequence or that the defendant believed his probation
would have been revoked if he chose to remain silent.
¶59 Nothing in the record supports the defendant's claim
that there was an explicit consequence of revocation for failing
to tell the truth or that the defendant believed that probation
would be revoked if he did not tell the truth. Thus, the
probationer in the present case, like the probationer in
Minnesota v. Murphy, has not proved his claim of compulsion.
2
¶60 The defendant appears to rest his claim of compulsion
not only on the fact that the rules of probation required him to
tell the truth, but also on the fact that he was required to
take a polygraph test and that he knew that if he did not admit
to his behavior it would be discovered the next day during his
scheduled polygraph test. The defendant argues that on the
basis of his past experiences, he made the incriminating
statement knowing that if he did not give an accurate and
truthful accounting of his behavior before the mandated
polygraph test, he would be in violation of his probation rules
and he would face revocation of his probation.
¶61 Again, the defendant has not carried his burden of
proving compulsion. Nothing in the record supports the
defendant's claim of compulsion regarding the polygraph test.
19
No. 2009AP2916-CR
¶62 The defendant's original rules of supervision, which
the defendant asserts require a polygraph test, are not in the
record. The requirement of a polygraph test is not an
undisputed fact.29 Nothing appears in the record to support the
defendant's assertion that he was required to take a polygraph
test the day after he made his statements.
¶63 The circuit court could not and did not determine
whether the defendant was required to take a mandatory polygraph
test as a condition of his probation or that he had a mandatory
polygraph test scheduled for January 13, 2007, which he knew he
would fail. Nothing in the record describes the rules governing
the polygraph test.
¶64 Without any evidence in the record, the defendant
fails to demonstrate that his admission to the probation agent
was compelled by his being required to take a polygraph test.
¶65 The fact that a probationer was required to take a
polygraph test as a condition of probation played an important
part in both State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243,
792 N.W.2d 212, and State v. Spaeth, 2012 WI 95, 343
Wis. 2d 220, 819 N.W.2d 769, in the court's determining whether
the probationers' statements were compelled.
29
The defendant asserts that he was required to take a
polygraph test as a condition of his mandatory sex offender
treatment. The State contends that the polygraph test was
administered because the defendant had "refused to participate
in a meaningful way in his group therapy sessions."
20
No. 2009AP2916-CR
¶66 The Peebles and Spaeth cases were decided after the
circuit court's and court of appeals' decisions in the present
case and did not guide these decisions.
¶67 In Peebles, the court of appeals was faced with
determining whether a probationer's incriminating statements
were compelled.30 Peebles was placed on probation after pleading
no contest to sexual assault. The court ordered "Sex
Counseling/register/be compliant with Sex Offender Program."31
¶68 Peebles subsequently met with his probation agent and
signed the Rules of Community Supervision and the Standard Sex
Offender Rules, which were entered into the record. The rules
warned him that his probation could be revoked if he violated
the rules.32
¶69 One requirement of Peebles' probation was that he take
a polygraph test.33 Peebles testified that he understood that if
he did not follow the rules of supervision, including
participating in sex offender treatment and cooperating with his
treatment counselor, which required talking in treatment about
his sexual behavior, he could face revocation from supervision
or incarceration.34
30
State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792
N.W.2d 212.
31
Id., ¶2.
32
Id., ¶3.
33
Id., ¶5.
34
Id., ¶4.
21
No. 2009AP2916-CR
¶70 Peebles' probation was ultimately revoked based on
comments he made in sex offender counseling and to the polygraph
examiner immediately before a polygraph examination.35
¶71 The court of appeals explained in Peebles that "a
probationer's statements are compelled if he or she must choose
between providing them or jeopardizing his or her conditional
liberty by remaining silent."36
¶72 The court of appeals concluded that Peebles'
statements were compelled because the rules of his supervision,
which were in the record, required that he be truthful, that he
submit to polygraph tests, and that he fully cooperate with and
successfully complete sex offender counseling. Peebles "then
gave his statements, at least in part, because he was required
to take lie detector tests."37
¶73 In Spaeth, this court explained that the Peebles
decision demonstrates how statements made to probation agents
may be "compelled by way of probation rules." This court
explained that based on Peebles' testimony about his subjective
view of the consequences of failure to take a polygraph test,
the court of appeals held that Peebles' statements were
compelled.38
35
Id., ¶¶6-7.
36
Id., ¶22 (citing Minnesota v. Murphy, 465 U.S. at 436).
37
Peebles, 330 Wis. 2d 243, ¶20.
38
Spaeth, 343 Wis. 2d 220, ¶57.
22
No. 2009AP2916-CR
¶74 The record before the court in the present case does
not support the same conclusion as did the record in Peebles.
In the present case, the defendant's probation rules are not in
the record. The parties did not reach undisputed, agreed-upon
facts regarding the defendant's knowledge or belief that his
probation would be revoked unless he told the truth.
¶75 In the present case, the court is unable to determine
what the probation rules required and what the defendant
believed would be the consequences of his failing to tell the
truth. Thus, the court is unable to conclude, from the record,
that the defendant's probation rules required him to be
truthful, required him to submit to polygraph tests, or required
revocation of probation if he violated the rules.
¶76 In Spaeth, the State and Spaeth stipulated that
Spaeth's participation in a polygraph test while on probation
was compelled.39 A condition of Spaeth's probation was a
39
Spaeth, 343 Wis. 2d 220, ¶¶49, 58.
The Spaeth court concluded:
[The probation agent's] own testimony revealed that
Spaeth was required to take the polygraph examination
or face a sanction, including possible revocation.
This compulsion is authorized by statute and rule,
demonstrated in the cases, and testified to by the
[Department of Corrections] agent involved. All
parties agree that this case involves compulsion. As
a result, we have no difficulty determining that
Spaeth was compelled, under the rules of his
probation, to answer truthfully during the polygraph
examination.
Spaeth, 343 Wis. 2d 220, ¶58.
23
No. 2009AP2916-CR
mandatory polygraph test at least once per year.40 Spaeth was
"required to take this examination, required to cooperate with
the examiner, and required to answer questions truthfully. His
failure to take the polygraph examination could have resulted in
revocation of his probation. His failure to answer questions
truthfully also could have resulted in a serious sanction."41
¶77 Before taking the polygraph test, Spaeth signed a
"consent form" provided by the test administrator, but the form
he signed was not, according to the court, an accurate statement
of the law for this probationer because the form stated that his
statement may be used against him at trial.42 The court
determined that his "failure to take the polygraph examination
could have resulted in his revocation, and his refusal to sign
the 'consent form' could have been deemed a refusal to take the
polygraph examination. In addition, any statements that Spaeth
made during the polygraph examination were subject to use and
derivative use immunity and could not be used against him at a
criminal trial."43 The probation agent "later testified that
Spaeth was aware that the polygraph results and the statements
he made in the examination could not be used in a criminal
prosecution."44
40
Id., ¶4.
41
Id.
42
Id., ¶¶5-6.
43
Id., ¶6.
44
Id.
24
No. 2009AP2916-CR
¶78 The results of the Spaeth polygraph test showed that
he was being deceptive and his probation agent was so informed.45
The probation agent discussed the results of the polygraph test
with Spaeth, and Spaeth then admitted probation violations.46
The probation agent informed police, who arrested Spaeth for
both a probation violation and in connection with a possible
additional criminal offense.47
¶79 This court re-examined the fundamental principles of
the privilege against self-incrimination guaranteed by the Fifth
Amendment.48 The court recognized that in some situations, the
privilege is self-executing and need not be affirmatively
invoked before the statement is deemed compelled.49 When a
probationer must answer questions that require him to choose
between making incriminating statements and jeopardizing his
conditional liberty by remaining silent, the privilege is self-
executing and the statements are compelled.50
¶80 The Spaeth court concluded, based on the evidence in
the record, the testimony of the defendant and the defendant's
probation agent, and stipulations by the parties that the
45
Id., ¶8.
46
Id., ¶9.
47
Id., ¶¶10-11.
48
Id., ¶¶31-49.
49
Id., ¶¶43, 47.
50
Murphy, 465 U.S. at 435-36; Spaeth, 343 Wis. 2d 220,
¶¶46-49.
25
No. 2009AP2916-CR
defendant's participation in the polygraph test was compelled
and that any incriminating statements arising from it could not
be used against him.51
¶81 The present case does not provide the extensive record
available in Spaeth. The record in the instant case does not
include the probation rules, the polygraph requirements, or a
finding about what the defendant knew or believed regarding the
possible consequences of his incriminating statements.
¶82 The defendant has failed to provide sufficient
evidence to support his legal argument of compulsion on the
basis of the polygraph test. On this record, the court cannot
reach the legal conclusion that the defendant's statements were
compelled.
* * * *
¶83 In sum, the defendant has failed to meet his burden to
prove that his initial, oral statements were compelled. Neither
the circuit court nor this court can consider the Department of
Corrections probation form that the defendant claims advised him
that his incriminating statements cannot be used against him in
criminal proceedings. The form is not in the record. The
parties did not agree about its existence, the details of its
use, or the defendant's knowledge of its contents before the
defendant made his oral admissions.
¶84 The defendant has failed to put sufficient evidence
into the record to show that the rules of his probation rendered
51
Spaeth, 343 Wis. 2d 220, ¶49, 58.
26
No. 2009AP2916-CR
his incriminating statements compelled. No documents, no
testimony, and no undisputed, agreed-upon facts by the parties
are in the record to evidence any compulsion of the defendant to
admit possession of child pornography to his probation agent.
¶85 Because there is not sufficient evidence in the record
to show compulsion, we affirm the decision of the court of
appeals. The defendant's conviction is affirmed.
¶86 By the Court——The decision of the court of appeals is
affirmed.
27
No. 2009AP2916-CR.pdr
¶87 PATIENCE DRAKE ROGGENSACK, J. (concurring). Gregory
Sahs' incriminating, oral statement to his probation agent, made
when he was not in custody, was voluntarily made without the
threat that he would be revoked if he did not speak.
Accordingly, his statement was not compelled and his Fifth
Amendment privilege against self-incrimination for the crime he
disclosed was not self-executing. See Minnesota v. Murphy, 465
U.S. 420, 436 (1984).
¶88 I write to confirm for the reader that the majority
opinion does not rest on the Wisconsin Constitution, but rather,
that the majority opinion is based solely on the Fifth Amendment
of the United States Constitution, which is the only
constitutional provision that the parties argued before us.1 I
also write to draw together foundational principles that control
when the Fifth Amendment privilege against self-incrimination
becomes self-executing for probationers and to draw attention to
unduly broad statements in some opinions that could cause
confusion if the statements were applied without a thorough
consideration of all underlying legal principles. Because my
analysis differs from the majority opinion's analysis but also
results in the conclusion that Sahs' oral statement was not
compelled, I do not join the majority opinion, but respectfully
concur.
1
Even though Sahs argued both state and federal
constitutional provisions in his motion to the circuit court,
majority op., ¶4, he has not done so before us.
1
No. 2009AP2916-CR.pdr
I. BACKGROUND
¶89 In 2007, Sahs was convicted of possession of child
pornography, contrary to Wis. Stat. § 948.12(1m). This was
Sahs' second conviction for possession of child pornography, the
first one occurring in 2005. When the incriminating statements
giving rise to the second conviction were made, Sahs was on
probation for the 2005 conviction. He made the incriminating
statements to his probation agent, Michael Krause.
¶90 Prior to making incriminating statements, Sahs called
Krause and asked to come in and "talk about some things." Sahs
set up an appointment to meet with Krause on a mutually
convenient date, January 12, 2007.
¶91 When Sahs appeared for his appointment, he told Krause
that he had accessed child pornography through a computer he
kept at a friend's house. Sahs does not allege that he made
this oral statement in response to a question from Krause about
either a pending charge or particular criminal activities, nor
does he allege that Krause, or the conditions of his probation,
threatened revocation of probation if Sahs refused to answer
such questions. After Sahs orally incriminated himself of
violating Wis. Stat. § 948.12(1m), Krause asked Sahs to provide
a written statement on a standard Department of Corrections
(DOC) form. Sahs did so; however, the DOC form is not in the
record.2
2
Because the record does not contain the DOC form, and
because there is no contention that the written statement
somehow modified Sahs' earlier statement, I confine my
subsequent discussion to Sahs' oral statement to his probation
agent.
2
No. 2009AP2916-CR.pdr
¶92 At the time of Sahs' incriminating oral statement to
Krause, he alleged he was scheduled to take a polygraph test
within a few days as part of his probation requirements for his
2005 conviction. Sahs alleges that this upcoming obligation
generated his need to speak with Krause.
¶93 After Sahs made his oral and written incriminating
statements, Krause initiated revocation proceedings. Krause
also notified the West Allis Police Department, who took Sahs
into custody. Detective Chevremont gave Sahs Miranda3 warnings.
Sahs said that he understood the warnings and was willing to
speak with the detective. Sahs then admitted that while he was
on probation, he downloaded child pornography on the computer he
kept at his friend's house. Based on his admissions, Sahs was
charged with possessing child pornography, in violation of Wis.
Stat. § 948.12(1m).
¶94 As the matter proceeded before the circuit court, Sahs
moved to suppress both the oral and written statements he made
to Krause and his statements to Chevremont. The circuit court
found that Sahs initiated the January 12, 2007 meeting with
Krause, and that he volunteered that he had downloaded child
pornography onto a computer he kept at a friend's home. The
circuit court concluded that no Fifth Amendment violation
occurred and denied Sahs' motion to suppress.
3
Miranda v. Arizona, 384 U.S. 436 (1966), concludes that a
suspect has the right to remain silent and to have an attorney
present for any questioning. The warnings arising from Miranda
also caution that any statements the suspect makes can be used
against him or her.
3
No. 2009AP2916-CR.pdr
¶95 On appeal, as well as on this review, Sahs contends
that his statements to Krause were compelled by the rules of
probation to which he was subject because he was required to
appear and give truthful answers to questions; and therefore,
his Fifth Amendment privilege against self-incrimination was
self-executing, requiring suppression of his incriminating
statements. He also contends that the DOC form on which he
provided a written admission of violating Wis. Stat.
§ 948.12(1m) notified him that his statement thereon would not
be used in a subsequent criminal proceeding, thereby providing
another ground upon which to suppress his incriminating
statements. However, as I noted, that form is not in the record
before us.
II. DISCUSSION
A. Standard of Review
¶96 Whether a statement was testimonial, incriminating and
compelled, are questions of law for our independent review.
Murphy, 465 U.S. at 426. Whether testimony was voluntary,
thereby waiving the defendant's privilege against self-
incrimination, involves the application of constitutional
principles to the facts found by the circuit court. This also
presents a question of law for our independent review. State v.
Ward, 2009 WI 60, ¶17, 318 Wis. 2d 301, 767 N.W.2d 236. And
finally, we uphold the factual findings of the circuit court
unless they are clearly erroneous. State v. Novy, 2013 WI 23,
¶22, 346 Wis. 2d 289, 827 N.W.2d 610.
4
No. 2009AP2916-CR.pdr
B. General Fifth Amendment Principles4
¶97 The privilege, or right, to remain silent afforded by
the Fifth Amendment comes into play when a defendant is
compelled to give testimony that is incriminating. Murphy, 465
U.S. at 426. A defendant does not lose the Fifth Amendment
privilege against self-incrimination when he is convicted of a
crime. Baxter v. Palmigiano, 425 U.S. 308, 316 (1976).
¶98 Cases parsing a defendant's Fifth Amendment privilege
against self-incrimination arise in two broad categories.
Either the defendant remained silent, thereby maintaining his
Fifth Amendment privilege and objected to the sanction imposed
for his silence, or the defendant made a statement and then
moved to suppress his statement.
1. Defendant is silent
¶99 Generally, a witness must remain silent rather than
answer questions in order assert his Fifth Amendment privilege
against self-incrimination. Murphy, 465 U.S. at 429. However,
a witness may be compelled to testify, notwithstanding the Fifth
Amendment privilege, if he is granted use-immunity for his
4
The Fifth Amendment to the United States Constitution
provided in relevant part: "No person . . . shall be compelled
in any criminal case to be a witness against himself."
5
No. 2009AP2916-CR.pdr
answers to questions that may incriminate him. Kastigar v.
United States, 406 U.S. 441, 453 (1972).5
¶100 Only certain types of questions, for example, those
that are related to pending charges or relevant to particular
criminal activity, will implicate the Fifth Amendment if the
probationer is required to answer rather than to remain silent.
State v. Evans, 77 Wis. 2d 225, 227-28, 252 N.W.2d 664 (1977).
Stated otherwise, it is those types of questions that generate
testimony that is incriminating. Id. Therefore, requiring
answers to questions such as whether the probationer has been
following the curfew requirements of his probation, generally
are not sufficient to draw in the protections of the Fifth
Amendment, even though they could lead to revocation of
probation. See id. at 230 (explaining that a probationer enjoys
a conditional liberty that is made possible by the legislature
and the probationer's adhering to the rules of the probation).
¶101 A probationer may be forced to relinquish his right to
silence and be compelled to answer questions that were "prompted
by pending charges or accusations of particular criminal
activity" if he is advised that his responses "could not be used
against him in a subsequent criminal proceeding arising out of
5
Kastigar v. United States, 406 U.S. 441 (1972),
established the scope of Fifth Amendment immunity as "use-
immunity," which is immunity for the use and derivative use of
compelled testimony that is incriminating. Id. at 453. Use-
immunity contrasts with "transactional immunity," which is
absolute immunity from prosecution for the crime to which the
compelled, incriminating testimony relates. Id. However,
Kastigar did not address the criteria to be applied when
determining whether testimony was compelled.
6
No. 2009AP2916-CR.pdr
the same fact situation." Id. at 235-236. If the probationer
nevertheless refuses to answer and if his probation was revoked
because of his silence, no Fifth Amendment violation occurred.
Id. at 236 (explaining that a remand was necessary to advise
Evans that if he responded to questions that were incriminating,
his answers would not be used against him in violation of his
Fifth Amendment privilege against self-incrimination).
¶102 However, not all penalties levied when a defendant
refuses to speak are significant enough to implicate the Fifth
Amendment. See McKune v. Lile, 536 U.S. 24, 36 (2002)
(explaining that a prison inmate's silence resulting in
dismissal from sex-offender treatment program and the subsequent
transfer to a less desirable penal institution were not adverse
consequences significant enough to affect a defendant's Fifth
Amendment privilege).
¶103 State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564
(Ct. App. 1987), abrogated on other grounds by Arizona v.
Fulminante, 499 U.S. 279 (1991), provides a helpful discussion,
but it requires careful reading and an understanding of the
cases on which Thompson relies. Thompson, while in custody and
without being given Miranda warnings, initially refused to
answer questions posed by his probation agent about his
whereabouts on the day of a robbery and shooting. Id. at 826.
While still in custody and after being served with notice of a
revocation hearing, Thompson was again questioned and made
incriminating statements. Id. at 826-27. Thompson's answers
were later used at trial. Id. at 827.
7
 No. 2009AP2916-CR.pdr
¶104 Although there are some sweeping statements in the
Thompson decision that could be read to expand the principles
established in Murphy, Thompson's holding is proscribed by three
requirements: First, Thompson is based on the Fifth Amendment
and therefore, it must follow United States Supreme Court
precedent; second, the questions inquired about pending charges
or particular criminal activity, id. at 830-31; and third, the
questioning occurred while Thompson was in custody and without
the benefit of Miranda warnings, id. at 826-27. The failure to
give Miranda warnings prior to a custodial interrogation is
sufficient, standing alone, to suppress Thompson's incriminating
statements as compelled self-incrimination, according to Murphy.
See Murphy, 465 U.S. at 429-30.
¶105 Our decision in Tate v. Schwarz, 2002 WI 127, 257
Wis. 2d 40, 654 N.W.2d 438, presents another facet of the Fifth
Amendment privilege against self-incrimination. "Tate was
convicted of repeated sexual assault of a child after a jury
trial in which he testified and denied the offense." Id., ¶2.
The procedural posture of the case was critical to the
conclusions we reached. To explain, Tate was placed on
probation and ordered to attend a sex-offender treatment
program, which required him to admit the sexual assaults at a
time when his conviction was up on appeal. Id. He refused,
asserting his Fifth Amendment privilege. Id. He was terminated
from the program and his probation was revoked. Id.
¶106 Tate objected to the termination of probation. He
asserted that he had not been offered use-immunity, and he had
8
No. 2009AP2916-CR.pdr
not been told that statements made in treatment would not be
used against him in the event that his appeal resulted in a new
trial. Id. ¶11. He also was concerned that the requested
admission could result in a perjury charge. Id. We agreed that
because of the potential for new criminal consequences for the
same crime for which he was on probation, Tate's Fifth Amendment
privilege had been contravened by the probation revocation that
resulted from his silence when use-immunity was not offered.
Id., ¶4. We crafted a very narrow decision in which we
explained that there would be no Fifth Amendment violation in
requiring admissions in therapy sessions for the crime of
conviction if no threat of new criminal consequences pertained.
Id., ¶19 n.6 (citing State v. Carrizales, 191 Wis. 2d 85, 92,
528 N.W.2d 29 (Ct. App. 1995)).
2. Defendant speaks
¶107 As set out above, it is the general rule that a
witness must remain silent rather than answer questions if he
chooses to assert his Fifth Amendment privilege against self-
incrimination. Murphy, 465 U.S. at 429. However, Murphy
established certain situations where the application of this
general rule does not pertain, e.g., when the witness is in
custody and has not received Miranda warnings. Id.; see also
Thompson, 142 Wis. 2d at 827. This exception for custodial
questioning from the general rule that the Fifth Amendment
privilege must be asserted, is driven by the inherently coercive
nature of police custody. Murphy, 465 U.S. at 29-30.
9
No. 2009AP2916-CR.pdr
¶108 It was argued in Murphy that the five factors set out
below could result in a custody-like coercive setting for
probationers that should result in exceptions from the
obligation to remain silent when asserting the Fifth Amendment
privilege: (1) that the probation officer "could compel []
attendance and truthful answers;" (2) that "the probation
officer consciously sought incriminating evidence;" (3) that
probationer "did not expect questions about prior criminal
conduct and could not seek counsel before attending the
meeting;" (4) that "there were no observers to guard against
abuse or trickery;" and (5) "interrogator's insinuations that
the interrogation will continue until a confession is obtained."
Id. at 431-33. However, the Supreme Court concluded that those
factors, either individually or taken all together, are
insufficient to excuse the failure to "claim the privilege in a
timely manner" by remaining silent. Id. at 431.
¶109 An exception to the obligation to remain silent in
order to invoke the Fifth Amendment privilege against self-
incrimination, in addition to that set out in Murphy, occurs
when a probationer is required to appear and respond to
questions and the state seeks "to induce the [probationer] to
forgo his Fifth Amendment privilege by threatening to impose
economic or other sanctions 'capable of forcing the self-
incrimination which the Amendment forbids.'" Id. at 434
(quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977)).
¶110 To explain further, Cunningham arose in the context of
attempted enforcement of a New York statute that automatically
10
No. 2009AP2916-CR.pdr
removed political office-holders from office for refusing to
sign a document waiving the Fifth Amendment privilege against
self-incrimination prior to being questioned before a grand
jury. Cunningham, 431 U.S. at 802-03. The Supreme Court
concluded that because of the statutory, automatic removal from
office that resulted from refusing to waive the Fifth Amendment
privilege to remain silent, the questioning involved an
unconstitutional threat unless use-immunity was provided in
exchange for the waiver prior to questioning. Id. at 809.
¶111 When a state's parole revocation statute does not
automatically afford revocation, even when the probation agent
seeks revocation, the presence of such a statute, without more,
is not sufficient to constitute a threat of the type that
results in compelled testimony violative of the Fifth Amendment.
See Murphy, 465 U.S. at 437 (explaining that "[o]n its face,
Murphy's probation condition proscribed only false statements;
it said nothing about his freedom to decline to answer
particular questions and certainly contained no suggestion that
his probation was conditional on his waiving his Fifth Amendment
privilege"). Therefore, in regard to an obligation to appear
and to give truthful testimony,6 the Supreme Court has explained
that a probationer is in no different position from that of an
6
It is the ability of the probation agent to require
attendance at meetings and to require truthful answers to
questions the agent asks that is most often cited in Fifth
Amendment cases where the defendant is on probation. It is
important to note that the United States Supreme Court has held
that those facts are insufficient to cause the Fifth Amendment
privilege against self-incrimination to be self-executing.
Minnesota v. Murphy, 465 U.S. 420, 431 (1984).
11
No. 2009AP2916-CR.pdr
ordinary witness subpoenaed to trial or to appear before a grand
jury. Id. at 427. He must appear and if he chooses to speak,
he must answer truthfully. Id. (noting that "the general
obligation to appear and answer questions truthfully did not in
itself convert Murphy's otherwise voluntary statements into
compelled ones").
¶112 We have recently reaffirmed that generally, the Fifth
Amendment privilege against self-incrimination is not self-
executing and must be invoked. State v. Mark, 2006 WI 78, ¶2,
292 Wis. 2d 1, 718 N.W.2d 90. "The answers of [a probationer]
to questions put to him are not compelled within the meaning of
the Fifth Amendment unless the witness is required to answer
over his valid claim of the privilege." Id., ¶26. If a
probationer speaks, we examine whether the statements were
incriminating and compelled because the Fifth Amendment's
protection against self-incrimination will not lie unless there
is testimony that is incriminating and compelled. Id., ¶16
(further citations omitted).
¶113 In Mark, use-immunity was granted for prosecution of
future crimes so the statements that resulted in revocation were
not incriminating, i.e., Mark's statement did not incriminate
him in a crime that could be prosecuted. Therefore, the Fifth
Amendment did not come into play. In addition, the statements
were used in a ch. 980 commitment, which is not a criminal
proceeding.
¶114 In addition, according to the Supreme Court's decision
in Murphy, being revoked for a voluntary statement does not
12
No. 2009AP2916-CR.pdr
violate the Fifth Amendment right against self-incrimination.
Murphy, 465 U.S. at 440. All choices that a defendant makes are
not choices that result in compelled, rather than voluntary,
testimony.
¶115 An interesting example of such a choice is found in N.
Carolina v. Alford, 400 U.S. 25 (1970). There, Alford pled to
second-degree murder, rather than standing trial for the charged
offense, first-degree murder, in order to avoid the possibility
of being subjected to the death penalty if convicted of first-
degree murder. Id. at 26-27. The Supreme Court concluded that
the availability of such a choice and Alford's plea to second-
degree murder did not equate with a compelled plea that would
violate the Fifth Amendment. Id. at 39.
¶116 A recent court of appeals case, State v. Peebles, 2010
WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, greatly expanded
Fifth Amendment protections for probationers, above the Fifth
Amendment protections accorded to one who has never been
convicted of a crime. In Peebles, the court concluded that
Peebles was compelled7 to give incriminating statements in the
course of sex-offender treatment, even though he did not raise
his Fifth Amendment privilege, none of the exceptions to the
obligation to assert the privilege set out in Murphy or
7
Peebles was subject to "Rules of Community Supervision"
that provided his probation "may be revoked," but did not
require revocation if Peebles did not comply with the rules
stated therein. State v. Peebles, 2010 WI App 156, ¶3, 330
Wis. 2d 243, 792 N.W.2d 212.
13
No. 2009AP2916-CR.pdr
Cunningham were present and use-immunity was not granted prior
to Peebles' statements.8 Id., ¶¶1, 9.
¶117 Peebles is wrongly decided because it grants blanket,
self-executing use-immunity to probationers simply because they
could be revoked if they did not answer an agent's questions,
thereby omitting the obligation to raise the Fifth Amendment
privilege as Murphy has required. See Murphy, 465 U.S. at 431
(explaining that a probationer's obligation to appear and to
answer truthfully does not remove a probationer's obligation to
raise his Fifth Amendment privilege). Peebles cites Evans, 77
Wis. 2d at 235-36, for its holding. Peebles, 330 Wis. 2d 243,
¶13. However, in so doing, Peebles incorrectly states the legal
conclusions of Evans, and it is inconsistent with the Supreme
Court's holdings in Murphy.9
¶118 To explain, Evans arose out of a probationer's
silence, not a probationer's statement. Evans, 77 Wis. 2d at
236. In contrast with Evans, Peebles spoke and then sought to
suppress his statement. While Evans is based on the Fifth
Amendment, it preceded Murphy, which explained Fifth Amendment
principles more fully than Evans. Therefore, unless the
probationer falls within one of Murphy's or Cunningham's
8
No petition for review was filed in Peebles.
9
The court did correctly explain that there would have been
no Fifth Amendment violation if the sole potential consequence
of admissions in regard to criminal conduct were the revocation
of probation. Id., ¶26 (citing State v. Carrizales, 191 Wis. 2d
85, 97, 528 N.W.2d 29 (Ct. App. 1995). Stated otherwise,
Carrizales explains that the use of a probationer's silence in
noncriminal probation proceedings raised no Fifth Amendment
issues. Id.
14
No. 2009AP2916-CR.pdr
exceptions, a probationer must raise the privilege to remain
silent and be given use-immunity before he can be held to have
been compelled to speak. Murphy, 465 U.S. at 427;10 Cunningham,
431 U.S. at 806.11
¶119 Peebles' omission of a defendant's requirement to
raise the Fifth Amendment privilege before he can speak without
fear of prosecution is also inconsistent with our decision in
Mark where we said that, "while an individual has a prepetition
or prearrest right against self-incrimination, that right is
ordinarily not self-executing and must be invoked." Mark, 292
Wis. 2d 1, ¶2 (emphasis added). See also, id., ¶24 (explaining
that "Murphy reaffirms the general rule that the Fifth Amendment
privilege must be asserted in all but 'certain well-defined
situations.'") (citation omitted). Peebles completely ignores
our decision in Mark.
¶120 The problems created by Peebles' omission of a
probationer's obligation to raise the Fifth Amendment privilege
10
The United States Supreme Court explained,
Murphy was in no better position than the ordinary
witness at a trial or before a grand jury who is
subpoenaed, sworn to tell the truth, and obligated to
answer on the pain of contempt, unless he invokes the
privilege and shows that he faces a realistic threat
of self-incrimination.
Murphy, 465 U.S. at 427 (emphasis added).
11
In Lefkowitz v. Cunningham, 431 U.S. 801 (1977), removal
from office was absolute if the Fifth Amendment privilege was
not waived. Cunningham, 431 U.S. at 809. By contrast,
revocation of probation was only a possibility for Peebles.
Peebles, 330 Wis. 2d 243, ¶3.
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have been compounded by State v. Spaeth, 2012 WI 95, 343 Wis. 2d
220, 819 N.W.2d 769, which relied in part on Peebles, even
though the State conceded that Spaeth's statements had been
compelled and never briefed the issue of compulsion for us. See
id., ¶¶57-58. The mistaken reasoning in Peebles is further
compounded by the majority opinion herein, which repeatedly
mentions Peebles' overly broad statements.12
C. Fifth Amendment Application
¶121 This case turns on Sahs' statements. Therefore, he
falls into the second broad category of Fifth Amendment
privilege cases, i.e., those defendants who speak and then seek
to have their statements suppressed.
¶122 If Sahs' statement was voluntarily made, no self-
executing Fifth Amendment privilege arises that precludes the
statement's use in a subsequent criminal case, unless the
circumstances under which the statement was made meet one of
Murphy's or Cunningham's well-defined exceptions to the
obligation to raise the privilege. See Murphy, 465 U.S. at 427.
The Murphy/Cunningham exceptions are: (1) a probationer is in
custody while questioned without Miranda warnings; (2) a
probationer is threatened with significant sanctions if he
remains silent.
¶123 I conclude that Sahs' oral statement to Krause was
voluntarily made. There is nothing in the record that supports
the conclusion that Sahs' oral statement to Krause was
compelled. First, Sahs contacted Krause and asked to meet with
12
Majority op., ¶¶67-72.
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him. Second, their meeting was scheduled on a mutually
convenient date. Third, they met in Krause's office and Sahs
was not in custody. Fourth, there is nothing in the record to
show that Sahs' statements were made in response to Krause's
questions about pending charges or accusations of particular
criminal activity. Fifth, there is nothing in the record to
show that Sahs raised his privilege and that Krause threatened
to impose economic or other sanctions capable of forcing self-
incrimination. Sixth, there is nothing in the record to show
that Sahs' probation was conditioned on his waiving his Fifth
Amendment privilege.
¶124 That Sahs was required by the conditions of probation
to give truthful answers, if he chose to speak, is no different
from the obligations one has when subpoenaed to appear before a
grand jury. If one chooses to speak before a grand jury to
which he has been subpoenaed, one must speak truthfully.
Accordingly, I conclude that Sahs' oral statement to his
probation agent was voluntarily made and may be used against him
in a subsequent criminal case.
III. CONCLUSION
¶125 Sahs' incriminating, oral statement to his probation
agent, made when he was not in custody, was voluntarily made
without a threat by his probation agent. Accordingly, his
statement was not compelled and his Fifth Amendment privilege
against self-incrimination for the crime he disclosed was not
self-executing. See Murphy, 465 U.S. at 436.
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¶126 In conclusion, I write to confirm for the reader that
the majority opinion does not rest on the Wisconsin
Constitution, but rather, that it is based solely on the Fifth
Amendment of the United States Constitution, which is the only
constitutional provision that the parties argued before us. I
also write to draw together foundational principles that control
when the Fifth Amendment privilege against self-incrimination
becomes self-executing for probationers and to draw attention to
unduly broad statements in some opinions that could cause
confusion if the statements were applied without a thorough
consideration of all underlying legal principles. Because my
analysis differs from the majority opinion's analysis but also
results in the conclusion that Sahs' oral statement was not
compelled, I do not join the majority opinion, but respectfully
concur.
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No. 2009AP2916-CR.pdr
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