State v. Kilgore , 370 Wis. 2d 198 ( 2016 )

NEUBAUER, C.J.

¶ 1. Bradley L. Kilgore appeals from a judgment convicting him of second-degree sexual assault after a jury found him guilty. During the execution of a search warrant at a residence Kilgore shared with David Peters where the suspected sexual assault of K.A.B. took place, Kilgore made multiple statements. He contends that the circuit court should have suppressed these statements, which were not preceded by Miranda¹ warnings, because he was in custody. Kilgore also contends that probable cause to obtain a buccal swab of his cheek for DNA testing was lacking. We reject both these contentions and, thus, affirm.

FACTUAL BACKGROUND

KA.B. 's Report of Rape

¶ 2. On April 12, 2013, City of Sheboygan police responded to Sheboygan Memorial Medical Center to interview K.A.B. who had reported that she had been sexually assaulted earlier that morning. K.A.B. recounted that after midnight, she and some friends had gone to a bar. K.A.B. consumed two drinks, which she did not leave unattended. She did not feel intoxicated. While at the bar, she saw Peters, someone she had met several years before, but had not seen in a long time. Peters introduced K.A.B. to his roommate, Kilgore. Peters asked K.A.B. for her phone number, and she gave it to him. K.A.B. left the bar and drove a friend home.

¶ 3. While K.A.B. was on her way home, Peters called her and asked her to come to his home where he lived with Kilgore. She agreed. There, Kilgore gave K.A.B. a drink containing orange juice; she did not see him make the drink. K.A.B. asked Peters for Tylenol for her back pain. He gave her two pills, and she took them without looking to see if they were Tylenol. Toxicology would later show that K.A.B. had benzodi-azepines and zolpidem in her system, the latter which is a sleeping aid comparable to Ambien and could significantly sedate a person unfamiliar with it. The last thing K.A.B. remembered was taking a photo of herself and Peters sitting together on a blue chair in the living room.

¶ 4. At 1:00 p.m., K.A.B. woke up in Peters' bedroom wearing only an undershirt. She went to leave and started vomiting. Her vomit was orange and foamy. She felt dazed and confused. K.A.B. started driving home but was having double vision. She pulled over and called a friend who took her to the hospital.

¶ 5. At the hospital, a rape kit was taken. K.A.B. said she had pain in her genitals and numerous bruises were observed on her buttocks, inner thighs, neck, and chest. K.A.B. told the police that Peters showed her needles he used for heroin, and he mentioned that he had cocaine and heroin at his residence.

The Execution of the Search Warrant

f 6. As a result of KA.B.'s report, a City of Sheboygan police detective, Tamara Remington, applied for a warrant to search the Peters/Kilgore residence. Among the things the police sought to recover were a comforter, drugs, and DNA samples from Peters and Kilgore.

¶ 7. On April 16, 2013, at approximately 2:00 p.m., the police executed the search warrant. According to the suppression hearing testimony of Remington, she was assisted by a captain, a detective, an officer, and members of the SWAT team. The target of the warrant was Peters, Remington said, because K.A.B. knew him and woke up naked in his bed. The only information the police had that Kilgore might have raped K.A.B was a text message Peters sent her asking if Kilgore had raped her. Remington denied that Kilgore was a suspect, rather, the police were seeking his DNA only to rule him out, including when testing the evidence they recovered, such as bedding. In fact, when Remington first drafted the warrant application, she "hadn't even thought of [Kilgore] personally." Someone else had "brought [Kilgore] to [her] attention," that he should be included in the warrant in order "to rule him out." Remington explained that the police always obtained DNA from the residents who lived there in order to rule them out. DNA would clear Kilgore, Remington thought. She considered Kilgore as a "potential witness."

f 8. During the execution of the search warrant, the SWAT team, who was heavily armed, surrounded the house. There was a voice at the door, Kilgore, who let the SWAT team inside. The SWAT team placed Kilgore facedown in the kitchen and held him at gunpoint. Meanwhile, the rest of the officers cleared the residence looking for any type of imminent danger. Once the residence was secured, the SWAT team vacated it.

¶ 9. Remington and the captain searched a seat in the living room and then directed Kilgore to that seat. Three or four other officers, meanwhile, searched the residence. Remington explained that while the detectives were heavily armed upon their entry into the residence, those weapons were secured by the time the residence had been cleared. The detectives had only handguns on their persons. No longer were any weapons drawn on Kilgore. Kilgore was not in handcuffs. However, Kilgore was not free to leave the residence. In other words, the police "would not let him just walk out," but, this was never conveyed to him. Kilgore was given a copy of the warrant and told that the police would be taking a buccal swab from the inside of his cheek. Kilgore said, "no problem," that he had never touched K.A.B., and that "his DNA would not be on her or in her."

¶ 10. Before the swab was taken, "[t]here was a great deal of conversation." In talking with Kilgore, Remington testified that she was "trying to find out about David Peters, our primary target, his location." Peters was well known by the police, he was a frequent criminal suspect, and considered "[v]ery dangerous." Remington testified that the police did not have the same concerns with Kilgore. In response, Kilgore was "very talkative," "very cooperative, helpful," and "cordial," even offering things "spontaneously."

¶ 11. For example, they discussed Kilgore's landlord, and how Kilgore was scared that he was going to be evicted because of Peters' "antics," meaning people "coming for drugs and things like that." They talked "about things [Kilgore] liked, games he liked to play," and his daughter. Remington asked Kilgore about Peters' whereabouts, and Kilgore said that he had some disease and was probably at the doctor. In fact, Peters called the house a couple of times, and Remington spoke with him briefly.

¶ 12. Remington asked Kilgore about Peters' involvement, and Kilgore said that on the prior evening Peters had brought a "nice white girl home." Remington asked him who made drinks for the victim, and Kilgore said that she did. Kilgore was pointing out different alcohols in the kitchen, and Remington would go into the kitchen to look while the captain stayed in the living room with Kilgore. Kilgore talked about pills that Peters supplied and crushed and snorted with K.A.B., identifying where that took place. He said that he was unable to hear what went on when Peters and K.A.B. went into Peters' bedroom, because he had on headphones while playing a video or computer game.

¶ 13. Kilgore talked about how Peters ate "pills like candy" and used heroin because he took too many prescription pills. Kilgore said he had to keep the drugs in his room to keep Peters from overusing them. Kilgore offered to help find Peters' drugs, but he was told to stay seated, and that the police would find them. Kilgore also talked about Peters' "escapades." Kilgore said that "girls are attracted" to Peters and "act like [his] slaves."

¶ 14. During the discussion, Remington was standing several feet from Kilgore and not over him. The police never read Miranda warnings to Kilgore. No threats or promises of leniency were made to Kilgore.

The Circuit Court Denies Kilgore's Motion to Suppress the Statements He Made During the Execution of the Search Warrant

¶ 15. At the end of the suppression hearing, defense counsel argued that Kilgore was in custody at the time of the execution of the search warrant and since he was not afforded the benefit of Miranda warnings, the statements he made to the police should be suppressed.

¶ 16. The circuit court denied Kilgore's motion, reasoning as follows:

I'm satisfied by the rationale in the [State v.] Goetz, [2001 WI App 294, 249 Wis. 2d 380, 638 N.W.2d 386] case that as a matter of law [a detention during the execution of a search warrant is] not an in-custody situation that would call for Miranda in and of itself. So you got to look at the particular situation and the facts in a particular situation.

And here you got a search warrant that was executed about ten minutes to two in the afternoon. And that in and of itself is really fairly neutral....

When officers went in they did direct Mr. Kilgore to the ground, and they did hold a gun on him. And the SWAT unit did a sweep of the residence to secure it. And once it was secured things changed. And I agree with [the assistant district attorney] that things did change.

And Mr. Kilgore was released from his handcuffs. He was allowed to sit down in a chair in the living room. The SWAT unit left. The detectives stayed, and they did not have any weapons that were unholstered. They did not threaten him in any way that I can see or as I recall from the testimony of Detective Remington.

The questioning concerned primarily Mr. Peters. That's how I recall her testimony. It wasn't about Mr. Kilgore, it was about Mr. Peters because Mr. Peters was the subject of the search warrant. And Mr. Kilg-ore's conduct was, in the words of Detective Remington, very cooperative. He was very cooperative. So it doesn't appear that he was intimidated by the situation.

So as I look at all the factors, I believe that he was not in custody. This was not a situation where a reasonable person would think that this was more than a temporary detention ....

The court also denied Kilgore's challenge based on a lack of probable cause to support the warrant. Kilgore appeals.

ANALYSIS

The Law of Custodial Interrogation

¶ 17. The Fifth Amendment to the United States Constitution and article I, section 8(1) of the Wisconsin Constitution protect a criminal defendant's right against self-incrimination.² In Miranda v. Arizona, 384 U.S. 486 (1966), the United States Supreme Court held that a defendant is entitled to certain warnings when being interrogated while "in custody." See Stansbury v. California, 511 U.S. 318, 322 (1994). This is because, when a suspect is in police custody, there is a heightened risk of obtaining statements that "are not the product of the suspect's free choice." J.D.B. v. North Carolina, 564 U.S. 261, 268-69 (2011).³

¶ 18. In Miranda, the Court described "custody" as when a suspect has been "deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. "[T]he ultimate inquiry," the Court later said, was whether there was "a formal arrest or restraint on freedom of movement of the degree associated with formal arrest." Thompson v. Keohane, 516 U.S. 99, 112 (1995) (citation omitted). In order to make that determination, a court will look at the totality of the circumstances. State v. Lonkoski, 2013 WI 30, ¶ 28, 346 Wis. 2d 523, 828 N.W.2d 552.

¶ 19. Among the factors a court may consider are "the defendant's freedom to leave; the purpose, place, and length of the interrogation; and the degree of restraint." Id. (citation omitted). On the latter, a court will consider whether the defendant was handcuffed, whether a gun was drawn on the defendant, whether a Terry⁴ frisk was performed, the manner in which the defendant was restrained, whether the defendant was moved to another location, and the number of police officers involved. Lonkoski, 346 Wis. 2d 523, ¶ 28. The test "is an objective one," that is, "whether a reasonable person in the suspect's position would have considered himself or herself to be in custody." Goetz, 249 Wis. 2d 380, ¶ 11.

Standard of Review

f 20. In reviewing the circuit court's determination of a motion to suppress, we accept the court's findings of historical fact unless clearly erroneous. State v. Morgan, 2002 WI App 124, ¶ 11, 254 Wis. 2d 602, 648 N.W.2d 23. The question of whether a defendant is in custody, however, is one of law, and, thus, we review that question de novo based on the facts as found by the circuit court. Id.

Kilgore Was Not In Custody

¶ 21. The Fifth Amendment does not prohibit the police from asking questions during execution of a search warrant, even though the suspect is not free to leave during the temporary detention, nor does it prohibit the suspect from volunteering an incriminating statement. What the Fifth Amendment does prohibit is the use of practices or tactics that compel a person to incriminate himself or herself: tactics which create a coercive custodial environment that is the functional equivalent of a formal arrest in which "the behavior of. . . law enforcement officials is such as to overbear the [individual's] will to resist and bring about confessions not freely self-determined." Beckwith v. United States, 425 U.S. 341, 347-48 (1976) (citation omitted); see Miranda, 384 U.S. at 457-58. Here, the circuit court credited the testimony of Remington at the suppression hearing to find that, after the SWAT team left the premises and Kilgore was moved to the living room, the element of compulsion associated with a formal arrest during the ensuing conversation between Kilgore and the two officers was lacking. The court, looking at the totality of the circumstances, found that after the SWAT team secured the residence and left, "things changed," to the point where "this was not a situation where a reasonable person would think this was more than a temporary situation." We agree.

¶ 22. Proceeding through each of these factors, the primary purpose of the questioning, as Remington testified, was to find Peters. He was the "primary target." This was because Peters knew K.A.B., had invited her to his home, and she woke up to find herself half naked in his bed. Peters was well known by the police, a frequent criminal suspect, and considered "very dangerous." The reason Kilgore's DNAwas even sought, according to Remington, was to rule him out as a suspect. While the officer's subjective intent is irrelevant, the officer's testimony regarding her inquiries and focus on Peters, which was accepted by the circuit court, is relevant to the extent they influenced the objective conditions surrounding the conversations. Lonkoski, 346 Wis. 2d 523, ¶¶ 34-35.

¶ 23. Here, the testimony is undisputed that the police questions were primarily focused on Peters — his whereabouts, his behavior the night before, his use of drugs, his interactions with K.A.B, his escapades with other women, etc. There is no evidence that the tone of the police questioning of Kilgore was accusatory or hostile. See United States v. Borostowski, 775 F.3d 851, 862 (7th Cir. 2014) (stating that generally where the tone of the questioning is not hostile or combative this supports a finding of noncustody); United States v. Panak, 552 F.3d 462, 465-66 (6th Cir. 2009) (noting that Miranda was concerned with the potentially coercive police tactic of isolating suspects in unfamiliar environments, but that concern does not apply to most in-home interrogations, even when "the individual has become the focus of an investigation" (emphasis added)).

¶ 24. Indeed, Kilgore himself did not behave as though the atmosphere was coercive or intimidating. He was described by Remington as "very talkative," "very cooperative, helpful," and "cordial," even offering things "spontaneously."⁵ He seemed all too willing to implicate Peters as best he could. Kilgore even discussed his landlord, computer games, and his daughter. The circuit court, again, accepted Remington's testimony, and concluded that it did not "appear that [Kilgore] was intimidated by the situation." The objective facts do not indicate that the environment, as it had evolved, was so coercive in either character or tone that Kilgore was induced to speak "where he would not otherwise do so freely." Miranda, 384 U.S. at 467.

¶ 25. The place of the questioning was Kilgore's own home. This is significant because when "a person is questioned on his own turf. . . the surroundings are not indicative of the type of inherently coercive setting that normally accompanies a custodial interrogation." United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004) (citations omitted); see Miranda, 384 U.S. at 449-50 (the suspect is "more keenly aware of his [or her] rights and more reluctant to tell of his [or her] indiscretions or criminal behavior within the walls of his [or her] home"); see also Beckwith, 425 U.S. at 346 n.7 (the "principal psychological factor" of concern is "isolating the suspect in unfamiliar surroundings 'for no purpose other than to subjugate the individual to the will of his examiner'" (quoting Miranda, 384 U.S. at 457)).

¶ 26. The length of the discussion is unknown, but Remington described it as a "very long time." A "very long time" is a relative term, but, in cases involving questioning of a suspect for over two hours, where other noncoercive circumstances were present, there has been a finding of noncustody. See Czichray, 378 F.3d at 827 (recounting that in the only United States Supreme Court decision involving questioning at a private residence which involved a three-hour interrogation, the court found the suspect was not in custody) (citing Beckwith, 425 U.S. at 347); State v. Mosher, 221 Wis. 2d 203, 207, 584 N.W.2d 553 (Ct. App. 1998).

¶ 27. Regarding the degree of restraint, Kilgore was not in handcuffs.⁶ While Kilgore was ordered facedown at gunpoint during the initial entry of the SWAT team, by the time he was questioned, the SWAT team had left the residence, and the detectives questioning him had their guns holstered. The questioning was done by two detectives. Kilgore was moved from the kitchen to the living room and directed to sit in a seat that had been searched, but, again, he was still in his home. See United States v. Craighead, 539 F.3d 1073, 1088 (9th Cir. 2008) (suggesting that an interview conducted in a suspect's kitchen, living room, or bedroom might allow the suspect to take comfort in the familiar surroundings of the home and decrease the sensation of being isolated in a police-dominated atmosphere). Remington testified that she was not standing over him and, at times, she walked away from the living room to check on something Kilgore had mentioned that was in the kitchen.

¶ 28. In arguing that he was in custody, Kilgore makes much of the fact that Remington testified that he was not free to leave. This, however, was never communicated to Kilgore. In any event, Kilgore takes Remington's testimony and applies it too strictly. Her testimony that Kilgore was not free to leave must be considered in context. The context was that the police were there to execute a search warrant. The police had obtained judicial authorization to obtain DNA from Kilgore via a buccal swab of his cheek. In addition, the police had judicial authorization to search the premises. In other words, while Kilgore was not free to leave his home during execution of the search warrant, he would be when the officers were done, i.e., he was not under arrest, but rather, temporarily detained.

¶ 29. The United States Supreme Court has made clear that during the execution of a search warrant, the police have the authority to detain an occupant of the residence incidental to the search. See Muehler v. Mena, 544 U.S. 93, 98 (2005); Michigan v. Summers, 452 U.S. 692, 705 (1981). The occupant is detained or seized during the execution of the search warrant but that seizure is considered reasonable. See Muehler, 544 U.S. at 98-99. Thus, the police could detain Kilgore for the duration of the search of the residence without running afoul of the Fourth Amendment. See id. at 98.⁷

¶ 30. Here, though, we deal not with the Fourth Amendment, but with the Fifth Amendment, and a seizure does not necessarily equate with custody. See United States v. Revels, 510 F.3d 1269, 1274 (10th Cir. 2007); United States v. Burns, 37 F.3d 276, 281 (7th Cir. 1994) ("in the usual case, a person detained during the execution of a search warrant is not 'in custody' for purposes of Miranda")', Goetz, 249 Wis. 2d 380, ¶ 17; State v. Gruen, 218 Wis. 2d 581, 593, 582 N.W.2d 728 (Ct. App. 1998). As the circuit court aptly noted, following well-established precedent, Goetz held that a detention during execution of a search warrant does not amount to custody in and of itself. Goetz, 249 Wis. 2d 380, ¶ 17. In concluding that the defendant was not in custody during an in-home execution of a search warrant under the circumstances of Goetz's detention, we relied on Summers, stating that a detention during the execution of a search warrant is "substantially less intrusive than an arrest." Goetz, 249 Wis. 2d 380, ¶ 12 (citation omitted). Being detained in one's own home "could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station." Id. (quoting Summers, 452 U.S. at 702).

¶ 31. Although different in some respects from a detention incident to the execution of a search warrant, for our purposes a Terry stop provides a useful analogy as it relates to the "free to leave" analysis. If a seizure was synonymous with custody, then Miranda warnings would be required during every Terry stop, because, in a sense, a person seized during a Terry stop, or detained incident to the execution of a search warrant, is not free to leave. See Berkemer v. McCarty, 468 U.S. 420, 435-37 (1984) (rejecting argument that in every traffic stop a person is in custody); United States v. Acosta, 363 F.3d 1141, 1148 (11th Cir. 2004) (stating that if the court applied the "free to leave" test "literally to Terry stops," then Miranda warnings would be "required before any questioning could occur during any Terry stop" (emphasis added)).

f 32. In other words, these sorts of seizures that do, in fact, impede a person from leaving could not be what the United States Supreme Court had in mind when it talked of the freedom to "terminate the interrogation and leave." Thompson, 516 U.S. at 112. The difference between a seizure and custody, both interferences with one's liberty, is a matter of degree. See United States v. Bengivenga, 845 F.2d 593, 598 (5th Cir. 1988). A person seized during a Terry stop or incident to execution of a search warrant is not free to leave, but that person will expect that after answering some questions or waiting for the police to complete their investigation or search, assuming nothing incriminating is found, he or she will be free to go.

f 33. A seizure, as compared to custody, is limited in duration and scope, and does not have the same element of coercion. The inability to leave must be considered in that context. Thus, the inability to leave is "not the determinative consideration," Gruen, 218 Wis. 2d at 593, but, a "factor" of what is the "ultimate" question, whether there was a "restraint on freedom of movement of the degree associated with a formal arrest." Thompson, 516 U.S. at 112; California v. Beheler, 463 U.S. 1121, 1125 (1983) (emphasis added); United States v. Swanson, 341 F.3d 524, 531 (6th Cir. 2003); Goetz, 249 Wis. 2d 380, ¶¶ 12-13, 17. In other words, the objective circumstances must be the functional equivalent of a formal arrest, along with the inherently coercive aspects of custodial questioning designed to overcome the suspect's free choice.

¶ 34. Considered in proper context, Kilgore's inability to leave while the police obtained a buccal swab of his cheek and completed their search of the residence did not transform that temporary detention into custody. The circumstances surrounding the encounter — in the afternoon, in Kilgore's living room, without handcuffs or guns drawn, the SWAT team gone, the absence of threats or promises of leniency, the focus of the questions on Peters, and the nonaccu-satory nature of the questioning — would not have led a reasonable person to believe that he or she was being restrained to the degree associated with formal arrest. There are no facts indicating the officers would continue questioning until Kilgore provided the answers to questions they sought. Indeed, after the police completed their search, Kilgore was free to go about his business. See Czichray, 378 F.3d at 827 (noting that one factor a court may consider is whether the suspect was placed under arrest at the termination of questioning). The circuit court did not err in finding that, under the totality of the circumstances, Kilgore was not in custody.

The Dissent Reweighs the Evidence and Reassesses the Credibility of Remington

¶ 35. The dissent notes that we "part ways on the emphasis we each place on the facts found in the record." We agree. The dissent draws its own conclusions about the "facts" by discounting both Remington's suppression testimony and the circuit court's findings of fact and ruling. For example, the dissent argues that Remington's portrayal of her conversation with Kilgore as a "friendly little chat was artful." Dissent, ¶ 59. The dissent comes to this conclusion after having discredited Remington because her testimony that she considered Kilgore as a potential witness was inconsistent with her seeking a sample of his DNA. But, the circuit court credited Remington's testimony, finding that "the questioning primarily concerned Mr. Peters," and that "Peters was the subject of the search warrant." Remington's testimony regarding the subjects discussed with Kilgore bears this out. Additionally, the court, based on Remington's testimony, found that Kilgore was "very cooperative" and he did not appear to be intimidated. The dissent makes no claim that these findings are clearly erroneous.⁸ In any event, regardless of Remington's focus or purpose, there is no evidence the officers' questions were hostile, aggressive, coercive or accusatory. Nor is there evidence of deception. The dissent does not point to any evidence to the contrary.

¶ 36. The dissent also suggests that Remington delayed taking the buccal sample, but there is no evidence to support this conclusion, and, in any event, the officers were entitled to detain him until the search of his home was completed. Ultimately, and most importantly, the dissent ignores the circuit court's finding that, after the SWAT team left, "things changed." We are not free to reweigh the evidence or reassess a witness's credibility. State v. Young, 2009 WI App 22, ¶ 17, 316 Wis. 2d 114, 762 N.W.2d 736 (2008). Our duty is to "search the record for evidence that supports findings the circuit court made, not for findings it could have made but did not." Id. The circuit court properly denied Kilgore's motion to suppress his statements.

Harmless Error

¶ 37. In light of our determination holding that there was no error, the State's argument that the error was harmless need not be addressed. See State v. Harris, 189 Wis. 2d 162, 182 n.14, 525 N.W.2d 334 (Ct. App. 1994), aff'd on other grounds, 199 Wis. 2d 227, 544 N.W.2d 545 (1996).⁹

Prohable Cause Existed to Take Kilgore's DNA

¶ 38. Kilgore argues that probable cause to take DNA from him was lacking. For one reason, he contends, Remington never told the warrant-issuing court that she considered Kilgore as a potential witness and not a suspect. For this same reason, Kilgore appears to contend that this was a Franks¹⁰ violation.

f 39. A search warrant "may issue only upon a finding of probable cause by a neutral and detached magistrate." State v. Ward, 2000 WI 3, ¶ 21, 231 Wis. 2d 723, 604 N.W.2d 517 (citation omitted). The probable cause test is one of common sense. Id., ¶ 23. The task of the court is to decide "whether, given all the circumstances set forth in the affidavit before [the court], including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. (citation omitted). In reviewing that determination, we accord the warrant-issuing court great deference. Id., f 22. Our duty is to ensure that the court had a substantial basis for concluding that probable cause existed. See State v. DeSmidt, 155 Wis. 2d 119, 133, 454 N.W.2d 780 (1990).

f 40. Here, the circuit court had a substantial basis for concluding that probable cause supported the police's application to obtain DNA from Kilgore. The affidavit supporting the warrant application recounted that K.A.B. had gone to the home of Kilgore and Peters. Kilgore had given K.A.B. a drink, and Peters had given her two pills, none of which she knew the contents. K.A.B. took a photo with Peters, and then she had no memory of anything else that happened over the next eleven hours until she awoke half naked in Peters' bed. She discovered bruises on her body and had pain in her genital area. The obvious inference was that one or both of the two men had drugged K.A.B., and then one or both of them sexually assaulted her.¹¹ See id. at 135. That some evidence indicated that Peters was the more likely perpetrator —that he and K.A.B. knew each other, he had invited her to his home, and she awoke in his bed — does not rule out probable cause as to Kilgore, who was also present at the time. The question is one of probabilities. "What is required is more than a possibility, but not a probability, that the conclusion is more likely than not." State v. Tompkins, 144 Wis. 2d 116, 125, 423 N.W.2d 823 (1988). In Tompkins, our supreme court illustrated this point with the following example:

[W]here there is evidence that would lead a reasonable person to conclude that the evidence sought is likely to be in a particular location — although there may be other evidence that could lead a reasonable person to conclude that the evidence may instead be in another location — there is probable cause for a search of the first location. The search of the first location is appropriate although there may also be probable cause to believe the evidence may be in the second or third location.

Id. That example applies here with equal force. K.A.B. was in the company of two men, both of whom had given her something that could have led to her impairment, and she awoke in their home to find that she had been sexually assaulted. It may have been Peters or it may have been Kilgore or it may have been both men. Certainly with both means and opportunity to commit the offense, there was more than a possibility that Kilgore had more likely than not drugged and/or raped K.A.B.

¶ 41. As for Remington's failure to tell the warrant-issuing court that she viewed Kilgore as a potential witness and not a suspect, her subjective viewpoint is irrelevant. Whether probable cause exists to issue a warrant is an objective, not a subjective, test. See State v. Kiper, 193 Wis. 2d 69, 81, 532 N.W.2d 698 (1995); 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.2(b) (5th ed. 2012). Thus, we need not consider her viewpoint, and her failure to tell it to the warrant-issuing court was not a "critical omission" from the affidavit supporting the search warrant so as to constitute a Franks violation. See State v. Mann, 123 Wis. 2d 375, 385-86, 367 N.W.2d 209 (1985).

CONCLUSION

¶ 42. The totality of the circumstances demonstrate that Kilgore was not in custody when he spoke with police while they were executing a search warrant. Although he was not free to leave while the police completed their search of his residence and obtained his DNA, that detention was limited and did not rise to the level of restraint on his freedom of action associated with formal arrest. As such, Kilgore was not entitled to Miranda warnings, and his statements were properly admitted into evidence. Further, the circuit court had a substantial basis for concluding there was probable cause to support the application to obtain Kilgore's DNA. Remington's subjective belief that Kilgore was only a potential witness was irrelevant for purposes of the probable cause analysis and, thus, also not a critical omission from the affidavit supporting the search warrant.

By the Court. — Judgment affirmed.

1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 Our supreme court's interpretation, of article I, section 8(1) of the Wisconsin Constitution has generally been consistent with the United States Supreme Court's interpretation of the Fifth Amendment to the United States Constitution. State v. Ward, 2009 WI 60, ¶ 18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236.

3 If someone is subjected to custodial interrogation without the warnings and makes statements, whether exculpatory or inculpatory, then those statements constitute a Miranda violation and, absent exceptions, cannot be used by the prosecution. Miranda, 384 U.S. at 444.

4 Terry v. Ohio, 392 U.S. 1 (1968).

5 While Kilgore's willingness to help the police might be considered a reflection of his subjective state of mind and not that of a reasonable person, we think it still bears on the general atmosphere of the interview as created by the police. See United States v. Hashime, 734 F.3d 278, 285 (4th Cir. 2013).

6 The circuit court stated that Kilgore was in handcuffs while the SWAT team secured the residence, although they were taken off him when Remington began questioning him. While Remington did not mention handcuffs, she did testify that Kilgore was "secured." In any case, Kilgore was not in handcuffs while being questioned.

7 The Fourth Amendment to the United States Constitution and article 1, section 11 of the Wisconsin Constitution contain substantively identical provisions that our supreme court has historically interpreted in accord with the United States Supreme Court's interpretation of the Fourth Amendment. State v. Dumstrey, 2016 WI 3, ¶ 14, 366 Wis. 2d 64, 873 N.W.2d 502.

8 Contrary to the dissent's suggestion that we, the majority, "believe" and "accept" Remington's suppression testimony, we are bound to accept the circuit court's findings of fact unless they are shown to be clearly erroneous.

9 The dissent in effect concurs in affirming the judgment of conviction on the grounds that the constitutional error was harmless, although no analysis is provided. Dissent, ¶ 62.

10 A search warrant is void and the fruits recovered from that search must be suppressed where there is a false statement in the affidavit supporting the search warrant, the statement was made knowingly and intentionally or with reckless disregard for the truth, and absent the challenged statement, the warrant is not supported by probable cause. See Franks v. Delaware, 438 U.S. 154, 156 (1978). Franks also applies to a "critical omission." See State v. Mann, 123 Wis. 2d 375, 385-86, 367 N.W.2d 209 (1985).

11 Peters' DNAwas found on bruises to K.A.B.'s neck.