State v. Andrew M. Edler , 350 Wis. 2d 1 ( 2013 )

2013 WI 73
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2916-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant,
v.
Andrew M. Edler,
Defendant-Respondent.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: July 12, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 10, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sheboygan
JUDGE: Terence T. Bourke
JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
CONCURRED/DISSENTED: ZIEGLER, J., concurs and dissents. (Opinion
filed.)
NOT PARTICIPATING: GABLEMAN, J., did not participate.
ATTORNEYS:
For the plaintiff-appellant, the cause was argued by David
H. Perlman, assistant attorney general, with whom on the briefs
was J.B. Van Hollen, attorney general.
For the defendant-respondent, there was a brief by Richard
Hahn, Christopher M. Eippert, and Holden & Hahn, S.C.,
Sheboygan, and oral argument by Christopher M. Eippert.
2013 WI 73
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2916-CR
(L.C. No. 2011CF205)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant,
FILED
v.
JUL 12, 2013
Andrew M. Edler,
Diane M. Fremgen
Defendant-Respondent. Clerk of Supreme Court
APPEAL from an order of the Circuit Court for Sheboygan
County, Terence T. Bourke, Judge. Affirmed and cause remanded.
¶1 N. PATRICK CROOKS, J. 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.
No. 2011AP2916-CR
¶2 The court of appeals for District II certified the
appeal pursuant to Wis. Stat. § (Rule) 809.61,1 and we accepted
the certification.2
¶3 To answer the certified questions, we must decide
whether statements made by Edler on April 20 must be suppressed.
This case requires an examination of two separate interactions
between Edler and police, one involving Edler's unequivocal,
unambiguous request for counsel while in custody on March 30,
and the other involving Edler's arrest and statement, "Can my
1
All references to the Wisconsin Statutes are to the 2009-
10 version.
2
The certified questions are as follows:
1. [W]hether Wisconsin should follow Shatzer or rely
on the Wisconsin Constitution [art. I, § 8] as the
Wisconsin Supreme Court has done with Fifth Amendment
issues on other occasions.
2. When the defendant asked, in the squad car on the
way to the second interrogation, "can my attorney be
present for this?" did he unambiguously invoke his
right to counsel?
3. If the statement is declared to be ambiguous, then
we ask that the supreme court resolve a third issue.
Does it make a difference whether the ambiguous
statement was made before Miranda warnings were given
as opposed to afterwards?
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 (1994), or whether the standard should differ when
a defendant has not recently been told of his or her
constitutional rights.
2
No. 2011AP2916-CR
attorney be present for this," on April 20. Accordingly, there
are two potential bases for suppressing the April 20 statements.
¶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 (2010). In Shatzer the United States
Supreme Court examined the presumption in Edwards v. Arizona,
451 U.S. 477 (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. 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.
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
3
No. 2011AP2916-CR
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.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶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 Miranda3 rights,
and Urban questioned Edler about the burglary. After Edler made
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
No. 2011AP2916-CR
incriminating statements about the burglary, Urban left the
room, returning about eight minutes later. At that point, Urban
began to ask Edler about the two arsons. Edler then
unequivocally, unambiguously requested counsel, stating: "From
this point on, I'd like a lawyer here." Urban ceased
questioning Edler. After Urban spent about two minutes
explaining that if Edler was responsible for the fires he should
stop that behavior, Edler was taken to the jail to await
charging on the burglary.
¶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.
5
No. 2011AP2916-CR
¶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.4 Edler was having difficulty
breathing and was crying when Urban entered the room. Urban
explained the evidence they had against him and that Edler
needed to come clean. Once again, he encouraged Edler to follow
his father's advice. Then Urban stated, "I've got to play by
the rules." He then gave Edler his Miranda warnings, and Edler
waived those rights. Subsequently, Edler made incriminating
statements to Urban.5
4
The interview was video-recorded.
5
Toward the end of the interview, Edler appeared to have a
panic attack and then vomited. Urban did not question Edler
after that occurred.
6
No. 2011AP2916-CR
¶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 counsel on April 20 on the grounds that
his Fifth and Sixth Amendment rights were violated.6
¶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
6
Edler also moved to suppress the April 18, 2011,
statements recorded on the covert wire on Sixth Amendment
grounds. The circuit court denied the motion to suppress the
statements on April 18, dismissing the use of the Sixth
Amendment in this case, stating that "Sixth Amendment rights do
not attach until the State commences adversary proceedings,"
citing McNeil v. Wisconsin, 501 U.S. 171 (1991). The circuit
court explained why the exceptions to this rule were not
satisfied here. Edler did not appeal that order.
7
No. 2011AP2916-CR
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:
We further hold 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.
Edwards, 451 U.S. at 484-85.
¶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.
II. STANDARD OF REVIEW
¶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
8
No. 2011AP2916-CR
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.
III. ANALYSIS
¶21 We first decide whether this court will adopt the 14-
day break-in-custody rule of Shatzer. If we adopt that rule and
find that it was complied with here, then we must decide whether
the statement by Edler in the back of the police car after he
had been arrested was unequivocal or unambiguous.
¶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
9
No. 2011AP2916-CR
"prophylactic,"7 the United States Supreme Court, Chief Justice
Rehnquist writing for the majority, confirmed that it is a
"constitutional rule" in Dickerson v. United States, 530 U.S.
428, 444 (2000). The rule requires that a suspect be apprised
of certain constitutional rights, including the right to
counsel, before custodial interrogation. Miranda v. Arizona,
384 U.S. 436, 444-45 (1966). If the suspect is not given these
warnings and makes incriminating statements, those incriminating
statements must be suppressed. Id. at 444. If the suspect
chooses to invoke his or her right to counsel, that request must
be "scrupulously honored," and "the interrogation must cease
until an attorney is present." Id. at 474, 479.
¶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. After some
time passed, Edwards stated, "I want an attorney before making a
deal." Id. at 479. The police did not question Edwards further
on that day. Id. The next day, two different officers went to
7
See, e.g., Michigan v. Harvey, 494 U.S. 344, 351 (1990) (a
Sixth Amendment case describing prophylactic rules as "measures
designed to ensure that constitutional rights are protected.")
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 (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 (Stevens, J., concurring).
10
No. 2011AP2916-CR
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. 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 or the defendant
initiates further communication with police.
¶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. Shatzer was incarcerated at a correctional facility
serving a sentence on another offense. Id. at 100-01. A
detective met with Shatzer at the institution, gave Shatzer his
Miranda warnings, and Shatzer waived those rights. Id. at 101.
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
11
No. 2011AP2916-CR
Shatzer was released back into general population at the prison.8
Id. Two years and six months later, a different detective went
to the correctional institution to which Shatzer had been
transferred. Id. The detective gave Shatzer his Miranda
warnings, and Shatzer provided a written waiver of those rights.
Id. Shatzer subsequently made incriminating statements during
the interview and also agreed to a polygraph examination. Id.
at 101-02. Five days later, Shatzer again waived his Miranda
rights, was given a polygraph examination which he failed, and
made additional incriminating statements. Id. at 102. Shatzer
then moved to suppress his statements as a violation of the
Fifth Amendment on the grounds that Edwards barred the use of
his statements because he had invoked his right to counsel two
and a half years earlier. Id.
¶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 (citations omitted).
Explaining the problems with a permanent bar to future
8
The United States Supreme Court in Shatzer held that being
released back into general population constituted a break in
Miranda custody, stating: "Without minimizing the harsh
realities of incarceration, we think lawful imprisonment imposed
upon conviction of a crime does not create the coercive
pressures identified in Miranda." Shatzer, 559 U.S. at 113.
12
No. 2011AP2916-CR
questioning and the establishment of prophylactic rules,9 the
court decided that the Edwards presumption ends after there is a
14-day break in custody. Id. at 110. It reasoned, "[t]hat
provides plenty of time for the suspect to get reacclimated to
his normal life, to consult with friends and counsel, and to
shake off any residual coercive effects of his prior custody."
Id. The court recognized the clarity and certainty that result
from Edwards and stated that "[c]onfessions obtained after a 2-
week break in custody and a waiver of Miranda rights are most
unlikely to be compelled, and hence are unreasonably excluded."
Id. at 111.
A.
¶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.
9
The Edwards majority does not describe the holding as
creating a prophylactic rule. It holds that a constitutional
violation occurred, stating, "Because the use of [Edwards']
confession against him at his trial violated his rights under
the Fifth and Fourteenth Amendments as construed in Miranda v.
Arizona, we reverse the judgment of the Arizona Supreme Court."
Edwards v. Arizona, 451 U.S. 477, 480 (1981) (emphasis added)
(internal citation omitted). The Edwards rule has been
subsequently characterized as a prophylactic rule. See Shatzer,
559 U.S. at 105 (citing Montejo v. Louisiana, 556 U.S. 778, 787
(2009); Michigan v. Harvey, 494 U.S. 344, 349 (1990); Solem v.
Stumes, 465 U.S. 638, 644, n.4 (1984)).
13
No. 2011AP2916-CR
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.10 See
Shatzer, 559 U.S. at 110. We also agree that setting the two-
week rule spares courts the inquiry of whether a suspect being
asked to waive Miranda rights has ever asserted a Miranda right
to counsel at an earlier date. Id. at 111-12.
10
We recognize that the Shatzer majority calls the rule
"prophylactic," implying that it is not mandated by the United
States Constitution. In this case, Edler argues that this court
should interpret the Wisconsin Constitution to prevent this type
of behavior by police. Similarly, the court of appeals
certified to us the question of whether to extend the Wisconsin
Constitution to provide different protection than that in
Shatzer. For these reasons, we discuss the scope of the
Wisconsin Constitution.
14
No. 2011AP2916-CR
¶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. 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 8 in this situation so as to
provide different protection than the Fifth Amendment to the
United States Constitution.
¶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,
15
No. 2011AP2916-CR
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.
B.
¶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.11
¶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. "The legal
sufficiency of a defendant's invocation of the right to counsel
11
Generally, a defendant must be subjected to custodial
interrogation in order to get the protections of Miranda and
Edwards. See State v. Lonkoski, 2013 WI 30, ¶41, 346 Wis. 2d
523, 828 N.W.2d 552. In State v. Hambly, 2008 WI 10, ¶3, 307
Wis. 2d 98, 745 N.W.2d 48, we held that a suspect who had been
arrested and was not yet being interrogated could invoke his
Miranda right to counsel. In that case, this court split on the
issue of whether interrogation must be "imminent or impending,"
with three justices deciding that it must be "imminent or
impending" and three justices concluding that the question need
not be answered. Id., ¶33. We need not answer that question
here because the State conceded that Edler had a right to invoke
his Miranda rights during the police transport when the
attempted interrogation was forthcoming.
16
No. 2011AP2916-CR
during a custodial interrogation is determined by the
application of a constitutional standard to historical facts."
Jennings, 252 Wis. 2d 228, ¶25. 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 (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. 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. Under the
objective test, we must examine the circumstances surrounding
the request.12
12
We note that by using the objective test of Davis and
Jennings to determine whether the statement was an unambiguous,
unequivocal invocation of the right to counsel, we are not
answering the third question certified by the court of appeals.
Recall our earlier explanation:
17
No. 2011AP2916-CR
¶35 The relevant circumstances support the holding that
Elder's statement was an unequivocal, unambiguous request for
counsel. Urban had interrogated Edler on March 30, at which
time Edler had requested an attorney on the arsons, stating,
"From this point on, I'd like a lawyer here," and the request
had been complied with. Urban had been present on March 31 and
tried to ask Edler about the arsons, to which Edler responded,
"I honestly don't have anything to say about that." Urban had
talked to Edler's father, and Edler's father had encouraged
Edler to be honest with the detectives. At the time Edler
invoked his right to counsel he had been arrested, and no one
disputes that the word "this" related to the forthcoming
interrogation. Urban knew Edler had been charged with burglary
and had an attorney on that charge. An officer in Urban's
position would have known that Edler had on previous occasions
requested counsel to deal with this matter, which would make the
officer more likely to understand that Edler was asking for his
attorney again. In light of the circumstances, Edler's
statement, "can my attorney be present for this," was
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
(1994), or if the standard should differ when a
defendant has not recently been told of his or her
constitutional rights.
Supra, ¶2 n.2.
18
No. 2011AP2916-CR
sufficiently clear to a reasonable officer in Urban's position
to understand the statement to be a request for an attorney.
¶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, 553 S.E.2d 598 (Ga. 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,
613 S.E.2d 579 (Va. 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,
19
No. 2011AP2916-CR
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.
IV. CONCLUSION
¶38 We first examine Edler's March 30 invocation in light
of the recent United States Supreme Court case Shatzer. In
Shatzer the United States Supreme Court examined the presumption
in Edwards, 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. 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. 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, the
March 30 invocation does not bar the interrogation on April 20.
20
No. 2011AP2916-CR
¶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.
By the Court.— Affirmed and cause remanded.
¶40 MICHAEL J. GABLEMAN, J., did not participate.
21
No. 2011AP2916-CR.ssa
¶41 SHIRLEY S. ABRAHAMSON, C.J. (concurring). 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.1
¶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."2 This court should follow this sage, practical
advice.
¶43 I write separately because I do not agree with the
majority opinion that the court should fully adopt the 14-day
rule of Maryland v. Shatzer, 559 U.S. 98 (2010).
¶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.
1
Edwards v. Arizona, 451 U.S. 477 (1981).
2
In re H.V., 252 S.W.3d 319, 326 (Tex. 1998) (footnote
omitted).
1
No. 2011AP2916-CR.ssa
¶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 Miranda3 and Edwards
unless the suspect reinitiates the conversation or a lawyer is
made available.
¶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.4 I would adopt this 14-
day prophylactic rule under the court's superintending and
administrative authority, Wis. Const. Art. VII, § 3(1).5
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
Nevertheless, I agree with Justice Thomas, who wrote in
Shatzer that "an otherwise arbitrary rule is not justifiable
merely because it gives clear instruction to law enforcement
officers." Shatzer, 559 U.S. 98, 119 (2010) (Thomas, J.,
concurring).
5
See, e.g., In re Jerrell C.J., 2005 WI 105, ¶¶40-41, 283
Wis. 2d 145, 699 N.W.2d 110 (relying on Art. VII, § 3(1)).
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:
In general, commentators have criticized the Court's
explanation of its utilization of prophylactic rules
(often even though agreeing with the rules
themselves). The commentators cite the Court's
failure to fully explain its authority to prescribe
such rules, the Court's failure to fully explain the
difference (if any) between prophylactic and
administratively based per se rules, the Court's
failure to provide clear guidelines as to when the
2
No. 2011AP2916-CR.ssa
¶47 I would not adopt Shatzer's prophylactic rule that
after the 14-day period Edwards has no effect.6 Under Edwards,
once a suspect invokes the right to counsel during custodial
interrogation, a subsequent waiver of that right "cannot be
established by showing only that he responded to further police-
initiated custodial interrogation even if he has been advised of
his rights."7
¶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 period
of "14 days . . . provides plenty of time for the suspect to get
imposition of a prophylactic rule is justified, the
Court's inconsistency in its use of the "prophylactic"
characterization in describing what appear to be
functionally similar standards, and the Court's
failure to establish any significant guidelines for
determining when safeguards provided by legislation
are sufficient to replace the prophylactic standards.
1 Wayne R. LaFave, Crim. Proc. § 2.9(h) (3d ed. 2007 & Supp.
2012).
6
The Shatzer court explained that after a 14-day break in
custody, Edwards is no longer in effect but a defendant is "free
to claim the prophylactic protection of Miranda——arguing that
his waiver of Miranda rights was in fact involuntary under
Johnson v. Zerbst." Shatzer, 559 U.S. at 110-11 n.7 (internal
citations omitted).
7
Edwards, 451 U.S. at 484. This court has stated that such
a waiver is presumed to be invalid. State v. Harris, 199
Wis. 2d 227, 251-52, 544 N.W.2d 545 (1996).
3
No. 2011AP2916-CR.ssa
reacclimated to his normal life, to consult with friends and
counsel, and to shake off any residual coercive effects of his
prior custody."8
¶49 I agree with Justice John Paul Stevens that this
speculation "may well prove inaccurate in many circumstances."9
Fourteen days is an arbitrary figure.10
8
Shatzer, 559 U.S. at 110 (2010).
9
Id. at 123-24 n.7 (Stevens, J., concurring).
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 (1988).
10
The Shatzer court admitted that "while it is certainly
unusual for this Court to set forth precise time limits
governing police action, it is not unheard-of." Shatzer, 559
U.S. 98, 110 (2010). Ironically, the only case the Shatzer
court cites for its "unusual" decision to set forth a time limit
held that police must bring forth a person arrested without a
warrant to a magistrate judge within 48 hours to establish
probable cause for continued detention. Shatzer, 559 U.S. 98,
110 (2010) (citing County of Riverside v. McLaughlin, 500 U.S.
44 (1991)). The McLaughlin Court recognized a presumption that
up to a 48-hour delay in holding the probable cause hearing
after arrest was reasonable and hence constitutionally
permissible.
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.
4
No. 2011AP2916-CR.ssa
When police have not honored an earlier commitment to
provide a detainee with a lawyer, the detainee likely
will "understan[d] his (expressed) wishes to have been
ignored" and "may well see future objection as futile
and confession (true or not) as the only way to end
his interrogation." . . . Simply giving a "fresh set
of Miranda warnings" will not "'reassure' a suspect
who has been denied the counsel he has clearly
requested that his rights have remained
11
untrammeled.'"
¶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.12
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 (1991).
See Zadvydas v. Davis, 533 U.S. 678, 701, 712 (2001)
(citing McLaughlin, 500 U.S. at 56-58) (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.").
11
Shatzer, 559 U.S. 98, 121-22 (2010) (Stevens, J.,
concurring) (citations omitted) (quoting Davis v. United States,
512 U.S. 452, 472-73 (1994) (Souter, J., concurring in
judgment); Roberson, 486 U.S. at 686).
12
As Justice Stevens commented:
5
No. 2011AP2916-CR.ssa
¶51 If a court is not willing to extend Edwards
indefinitely and the court concludes that the coercive effects
of the prior interrogation may dissipate with time, then the
court should determine whether the coercive effects have
dissipated in that particular case. A court should take an
The most troubling aspect of the Court's time-based
rule is that it disregards the compulsion caused by a
second (or third, or fourth) interrogation of an
indigent suspect who was told that if he requests a
lawyer, one will be provided for him. When police
tell an indigent suspect that he has the right to an
attorney, that he is not required to speak without an
attorney present, and that an attorney will be
provided to him at no cost before questioning, the
police have made a significant promise. If they cease
questioning and then reinterrogate the suspect 14 days
later without providing him with a lawyer, the suspect
is likely to feel that the police lied to him and that
he really does not have any right to a lawyer.
Shatzer, 559 U.S. 98, 121 (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.").
6
No. 2011AP2916-CR.ssa
individualized approach to the dissipation of the coercive
effects of the prior interrogation, not a generalized one.
Under these circumstances, the court should hold that after the
14-day period ends, the presumption established by Edwards
continues and the State has the burden of proving by clear and
convincing evidence that time has dissipated the coercive
effects of the prior interrogation in that case.
¶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
7
No. 2011AP2916-CR.ssa
subsequent or repeated interrogations, and assists law
enforcement officers in governing their conduct.13
¶54 In the present case, after validly invoking his right
to counsel with regard to the arson investigation, the 17-year-
old defendant was released from custody. Then, 19 days later——
after law enforcement had covertly placed a wire on the
defendant's young friend——the same detective whom the defendant
had previously refused to talk to showed up at his home to
arrest him again to discuss the same investigation. As the
defendant was led away to the squad car, his father told him to
be honest and to cooperate with the detectives.
¶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."14
¶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.
13
See Hannah Misner, Comment, Maryland v. Shatzer:
Stamping a Fourteen-Day Expiration Date on Miranda Rights, 88
Denv. U. L. Rev. 289, 305 (2010).
14
Edwards, 451 U.S. at 485.
8
No. 2011AP2916-CR.akz
¶58 ANNETTE KINGSLAND ZIEGLER, J. (concurring in part,
dissenting in part). I concur because I agree with the
majority's adoption of Maryland v. Shatzer, 559 U.S. 98 (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 (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 (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 (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
1
No. 2011AP2916-CR.akz
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 right to counsel and knew that questioning would
cease if he so requested counsel. Urban also knew that Edler
was capable of invoking his right to counsel, and Urban
demonstrated that he would scrupulously honor a request for
counsel.
¶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.
I. FACTUAL BACKGROUND
2
No. 2011AP2916-CR.akz
¶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
3
No. 2011AP2916-CR.akz
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 "yeah." Edler then made
incriminating statements to Urban.
II. STANDARD OF REVIEW
¶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
4
No. 2011AP2916-CR.akz
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-
5
No. 2011AP2916-CR.akz
Miranda scenario,1 it does not clarify what legal standard should
be applied, nor does it conclude that this statement is always
an invocation of counsel. See majority op., ¶35. Hence, the
applicable legal standard remains unanswered for statements
regarding counsel when the suspect is in custody, has not been
given the Miranda warnings, is not yet being interrogated, and
has not waived his or her Miranda rights.2 See majority op., ¶¶2
n.2, 34 n.12. We can do better.
III. PRECEDENT, SHATZER, AND OFFICER CONDUCT
A. Precedent
¶70 Precedent makes it less than clear that Edler's
question "Can my attorney be present for this?" is sufficient to
invoke his right to counsel. "[I]f a suspect makes a reference
to an attorney that is ambiguous or equivocal in that a
1
Davis would be the rule to apply here when a suspect has
been given Miranda rights, has waived them, and is being
interrogated. Davis v. United States, 512 U.S. 452, 459 (1994);
Miranda v. Arizona, 384 U.S. 436 (1966). Edler made no such
statement regarding an attorney after he waived his Miranda
rights.
2
Though Wisconsin has not previously decided whether the
Davis standard applies to statements made before Miranda
warnings are given, other courts have faced this question. See,
e.g., United States v. Rodriguez, 518 F.3d 1072, 1079 n.6, 1080
(9th Cir. 2008) (listing 10 cases that have considered the
standard applicable to pre-Miranda invocations and concluding
that Davis did not supersede Ninth Circuit case law requiring
clarification of ambiguous statements prior to obtaining a
Miranda waiver); Harvey Gee, An Ambiguous Request for Counsel
Before, and Not After a Miranda Waiver: United States v.
Rodriguez, United States v. Fry and State v. Blackburn, 5 Crim.
L. Brief 51 (2009) (discussing standards for pre-Miranda
invocations).
6
No. 2011AP2916-CR.akz
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." Davis, 512 U.S. at 459. The majority does not
conclude that the question "Can my attorney be present for
this?" is always an invocation of counsel. See majority op.,
¶35. In fact, courts often conclude that such a question
regarding counsel is not an invocation, even if it is asked
after the Miranda warnings were given.3
¶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.
3
A question, such as "Can I get a lawyer?" may be
sufficiently clear to invoke the right to counsel in the right
circumstances. The majority opinion should not be read to
conclude that statements starting with "Can I" and including the
word "lawyer" are all unambiguous and unequivocal requests for
counsel. See majority op., ¶36. See also Marcy Strauss,
Understanding Davis v. United States, 40 Loy. L.A. L. Rev. 1011,
1037 (2007) ("The question, 'Can I get a lawyer?' has received a
more checkered reception. Many courts have found this type of
question to be ambiguous, and a way of simply asking for
clarification of one's rights."); Annual Review of Criminal
Procedure, 40 Geo. L.J. Ann. Rev. Crim. Proc. 199-202 (2011).
7
No. 2011AP2916-CR.akz
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, 568 S.E.2d 695, 700 (Va. 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. 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.
8
No. 2011AP2916-CR.akz
190 Wis. 2d 386, 397, 526 N.W.2d 826 (Ct. App. 1994).4 See also
State v. Parker, 886 S.W.2d 908, 918 (Mo. 1994) (concluding
defendant's statement that he "ought to talk to an attorney" was
not unambiguous invocation); Commonwealth v. Jones, 786 N.E.2d
1197, 1206 (Mass. 2003) (concluding defendant's statement that
he was "going to need a lawyer sometime" did not constitute an
unambiguous request for an attorney); Baker v. State, 214 S.W.3d
239, 243 (Ark. 2005) (concluding defendant's statements "I don't
feel that I can talk to you without an attorney sitting right
here to give——have them give me some legal advice" and "I think
I'm going to need one. I mean, it looks like that" were
ambiguous).
¶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.
4
Two recent court of appeals cases provide persuasive
authority reaffirming Wisconsin's adherence to a strict standard
that a suspect must meet to invoke his or her Miranda rights.
In State v. Smith, the court of appeals held that the defendant
did not invoke his right to remain silent where he stated "I
don't want to talk about this," referring to a specific line of
questioning, but where he also indicated a willingness to
continue discussing other matters. Smith, No. 2012AP520-CR,
unpublished slip op., ¶¶8-10 (Wis. Ct. App. Jan. 23, 2013). In
State v. Cummings, the court of appeals held that the defendant
did not invoke his right to remain silent where he made the
following statement during an interrogation: "Well, then, take
me to my cell." Cummings, No. 2011AP1653-CR, unpublished slip
op., ¶¶8-9 (Wis. Ct. App. Jan. 10, 2013).
9
No. 2011AP2916-CR.akz
Taylor v. State, 553 S.E.2d 598 (Ga. 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
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No. 2011AP2916-CR.akz
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, 613 S.E.2d
579 (Va. 2005) (holding that post-Miranda statement "Can I get a
lawyer in here?" was sufficient to invoke the right to counsel).
¶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.5 In any event, the majority
5
In some cases, the Wisconsin Constitution has been
interpreted to provide greater protections than the United
States Constitution. For example, in United States v. Patane,
542 U.S. 630 (2004), the Supreme Court concluded that "the fruit
of the poisonous tree doctrine does not extend to derivative
evidence discovered as a result of a defendant's voluntary
statements obtained without Miranda warnings." State v. Knapp,
2005 WI 127, ¶1, 285 Wis. 2d 86, 700 N.W.2d 899. The court in
Knapp concluded that under the Wisconsin Constitution, the
exclusionary rule barred physical fruits obtained from a
deliberate Miranda violation. Id., ¶2. However, this court has
previously determined that "[w]e cannot discover any meaningful
difference between the state and federal constitutional
protections against compulsory self-incrimination." State v.
Jennings, 2002 WI 44, ¶42, 252 Wis. 2d 228, 647 N.W.2d 142.
11
No. 2011AP2916-CR.akz
should outline the standard to be used when evaluating these
invocations, especially given Shatzer and the likelihood that
this scenario will recur. Unfortunately, the majority's
decision is cabined to this one defendant's assertion, on this
day, under these circumstances.
B. Maryland v. Shatzer
¶76 Moreover, the majority opinion adopts Shatzer but
lacks a thorough discussion of Shatzer and its limitation of
Edwards.6 See majority op., ¶31. Specifically, under Shatzer,
the rule of Edwards——that a defendant who has invoked the right
to counsel is not subject to further interrogation——is not
applicable if the defendant has been out of custody for 14 days.
Shatzer, 559 U.S. at 111-12 ("[W]hen it is determined that the
defendant pleading Edwards has been out of custody for two weeks
before the contested interrogation, the court is spared the
fact-intensive inquiry into whether he ever, anywhere, asserted
6
Though the majority opinion describes the rule of Shatzer
as a constitutional rule, the court in Shatzer states that "[w]e
have frequently emphasized that the Edwards rule is not a
constitutional mandate, but judicially prescribed prophylaxis."
Maryland v. Shatzer, 559 U.S. 98, 105 (2010); Edwards v.
Arizona, 451 U.S. 477 (1981). Logically, any changes in the
Edwards rule would similarly result in judicially-prescribed
rules. See also Dickerson v. United States, 530 U.S. 428, 446
(2000) (Scalia, J. dissenting) (stating that the majority
opinion in Dickerson describes Miranda as a constitutional
decision and as constitutionally based, but never says that
violating Miranda violates the Constitution). Clearly the
language in the Fifth Amendment of the United States
Constitution does not reference a 14-day break in custody.
These rules are instead prophylactic protections pertaining to
the Fifth Amendment.
12
No. 2011AP2916-CR.akz
his Miranda right to counsel."). Thus, Shatzer seemingly
limited the Edwards prohibition on a subsequent interrogation.
In my view, the majority opinion could be viewed as one which
diminishes the holding in Shatzer because it relies so heavily
on Edler's post-Miranda invocation of counsel three weeks prior
and on the fact that the same officer was involved in both
arrests.
¶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 on the
previous invocation of counsel and the fact that the same
officer was involved in both arrests. Majority op., ¶35. The
analysis of whether Edler invoked his right to counsel by
stating "Can my attorney be present for this?" should seemingly
focus on the facts and circumstances surrounding Edler's
statement as they existed on April 20, 2011, rather than a
residual invocation from 21 days earlier. In relying on the
facts related to the previous interrogations and on Urban's
knowledge of the previous interrogations, the majority opinion
could be diminishing the clean break rule of Shatzer. Instead,
the majority opinion could be viewed as reviving the Edwards
rule of continued invocation of counsel, despite the rule of
Shatzer. I would hope for more discussion regarding the legal
implications of Shatzer and of a previous invocation of counsel.
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No. 2011AP2916-CR.akz
¶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?
C. Officer Conduct
¶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, 104
P.3d 98, 107 (Cal. 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
14
No. 2011AP2916-CR.akz
defendant was capable of making an unequivocal request for
counsel if he so desired").7 Under the majority's analysis,
Urban's knowledge that Edler was capable of invoking his right
to counsel and Urban's history of honoring an invocation of
counsel deserve no consideration.
¶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 rights rather than invoking his
right to counsel.
¶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
7
See also State v. Markwardt, 2007 WI App 242, ¶36, 306
Wis. 2d 420, 742 N.W.2d 546 (stating that the rules for
invocation of the right to remain silent, which are derived from
Davis, do not leave room for reasonable competing inferences:
"[A]n assertion that permits reasonable competing inferences
demonstrates that a suspect did not sufficiently invoke the
right to remain silent").
15
No. 2011AP2916-CR.akz
into the 20 minute car ride before any interrogation.8 Here,
Urban could very well have understood Edler to be asking a
question about his rights.
¶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. 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
8
The timing of Edler's question "Can my attorney be present
for this?" could support that it was a clarification of his
rights and not an invocation. See Davis, 512 U.S. at 461
(stating that the Court is "unwilling to create a third layer of
prophylaxis to prevent police questioning when the suspect might
want a lawyer"). For example, in State v. Fischer, before the
police read the defendant his Miranda rights and before
interrogation began, the defendant stated that if the officers
read him his rights, he would not answer questions and would
request an attorney. 2003 WI App 5, ¶19, 259 Wis. 2d 799, 656
N.W.2d 503. The court held that a "conditional and futuristic
request for counsel is a statement that a reasonable officer in
light of the circumstances would have understood only that [the
defendant] might be invoking the right to counsel." Id. Since
Edler's statement was made 20 minutes prior to the start of
interrogation, Edler's statement could be viewed as conditional
and futuristic similar to the statement in Fischer. See
majority op., ¶32 n.11 (declining to clarify temporal standard
that was left unsettled by State v. Hambly, 2008 WI 10, 307
Wis. 2d 98, 745 N.W.2d 48).
16
No. 2011AP2916-CR.akz
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. Our court should provide guidance to law enforcement
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No. 2011AP2916-CR.akz
by illuminating the standard applicable to a statement made
post-custody, pre-Miranda warnings, pre-interrogation, and pre-
waiver of Miranda rights.
IV. CONCLUSION
¶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.
¶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
18
No. 2011AP2916-CR.akz
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.
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No. 2011AP2916-CR
1