                                                               2013 WI 51

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2009AP2916-CR
COMPLETE TITLE:
                        State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Gregory M. Sahs,
                                  Defendant-Appellant-Petitioner.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 330 Wis. 2d 498, 792 N.W.2d 240
                                 (Ct. App. 2010 - Unpublished)

OPINION FILED:          June 18, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 25, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Jeffrey A. Conen

JUSTICES:
   CONCURRED:           ROGGENSACK, J. concurs.   (Opinion filed.)
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
and oral argument by Mark S. Rosen and Rosen and Holzman, LTD.,
Waukesha.
       For the plaintiff-respondent, the cause was argued by Sarah
K. Larson, assistant attorney general, with whom on the briefs
was J.B. Van Hollen, attorney general.
                                                                     2013 WI 51
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.       2009AP2916-CR
(L.C. No.    2008CF3217)

STATE OF WISCONSIN                         :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                  FILED
      v.
                                                             JUN 18, 2013
Gregory M. Sahs,
                                                                Diane M. Fremgen
              Defendant-Appellant-Petitioner.                Clerk of Supreme Court




      REVIEW of a decision of the Court of Appeals.             Affirmed.



      ¶1      SHIRLEY S. ABRAHAMSON, C.J.       This is a review of an
unpublished decision of the court of appeals that affirmed the

judgment      of   conviction   entered   by   the     Circuit      Court      for
Milwaukee County, Jeffrey A. Conen, Judge.1




      1
       State v. Sahs, No. 2009AP2916-CR, unpublished slip op.
(Wis. Ct. App. Oct. 26, 2010).
                                                                               No.     2009AP2916-CR



       ¶2         Gregory       M.    Sahs,     the       defendant,        was      convicted          of

possession         of     child       pornography         in    violation         of   Wis.    Stat.

§ 948.12(1m) (2007-08).2

       ¶3         The charge of possessing child pornography arose from

incriminating            admissions       the      defendant         made   to     his     probation

agent.          The defendant was on probation as a result of a prior

conviction         for     possession         of    child       pornography.               After    the

defendant made incriminating statements to his probation agent,

the police were alerted and found the computer the defendant

used       to    access     and       possess      child       pornography,        leading         to    a

revocation          of     his       probation      and        these   additional           criminal

charges.

       ¶4         After being criminally                  charged,     the     defendant moved

the circuit court to suppress the admissions to his probation

agent,          claiming       that    they     were       compelled,        testimonial,           and

incriminating             in      violation          of        his     state         and     federal

constitutional privilege against self-incrimination.                                       The Fifth

Amendment         to     the     United    States       Constitution3          and     Article          I,




       2
       All references to the Wisconsin Statutes are to the 2007-
08 version unless otherwise noted.
       3
       The Fifth Amendment to the United States Constitution
provides in pertinent part: "No person . . . shall be compelled
in any criminal case to be a witness against himself . . . ."

     The privilege against self-incrimination is applied to the
states through the Fourteenth Amendment's due process clause.
Malloy v. Hogan, 378 U.S. 1, 6 (1964).

                                                    2
                                                                   No.   2009AP2916-CR



Section 8 of the Wisconsin Constitution4 provide that no person

shall be compelled in any criminal case to be a witness against

himself.

        ¶5     The defendant's admissions are clearly testimonial and

incriminating.            The     issue   is    whether     the    admissions     were

compelled.

        ¶6     The legal issue before this court is the same as the

legal       issue   before      the   circuit   court     and   court    of    appeals:

Should the incriminating statements made by the defendant to his

probation      agent      admitting     possession   of    child    pornography      be

suppressed on the ground that the statements were compelled in

violation      of   the    defendant's     federal      constitutional        privilege

against self-incrimination?5

     ¶7        The court of appeals concluded that the circuit court

properly denied the motions to suppress: "[T]he evidence that

Sahs relies upon [namely a Department of Corrections document]

does not appear in the record" and "the facts in the record are

insufficient to show compulsion."6
        4
       Article I, Section 8 of the Wisconsin Constitution states:
"No person . . . may be compelled in any criminal case to be a
witness against himself or herself."
        5
       The defendant filed a second motion to exclude the
evidence discovered after a search of his computer, as well as
statements made to police, on the ground that the evidence and
statements were a direct consequence of the compelled statements
to the probation agent.    We need not and do not address this
second motion because we conclude that the defendant has not
carried his burden of proving that his statements to the
probation agent were compelled.
     6
       State v. Sahs, No. 2009AP2916-CR, unpublished slip op.,
¶¶1, 9 (Wis. Ct. App. Oct. 26, 2010).
                                           3
                                                                     No.   2009AP2916-CR



       ¶8     We affirm the decision of the court of appeals.

       ¶9     The defendant has failed to meet his burden to prove

that his initial, oral statements were compelled.7                         Neither the

circuit      court   nor   this court     can       consider    the    Department    of

Corrections form that the defendant claims advised him that his

incriminating statements cannot be used against him in criminal

proceedings.         The form is not in the record.                  The parties did

not agree about its existence, the details of its use, or the

defendant's knowledge of its contents before the defendant made

his oral admissions.

       ¶10    The defendant has failed to put sufficient evidence

into the record to show that the rules of his probation rendered

his    incriminating       statements     compelled.            No     documents,    no

testimony, and no undisputed, agreed-upon facts by the parties

are in the record to evidence any compulsion of the defendant to

admit possession of child pornography to his probation agent.

       ¶11    Because there is not sufficient evidence in the record

to    show   compulsion,    we   affirm       the    decision    of    the   court   of



       7
       When a defendant seeks to exclude prior statements based
upon his Fifth Amendment privilege, the burden is on the
defendant to establish that the statements at issue are
compelled, testimonial, and incriminating.    In re Commitment of
Mark, 2006 WI 78, ¶16, 292 Wis. 2d 1, 718 N.W.2d 90.      After a
defendant   proves   that    his   statements   were   compelled,
testimonial, and incriminating, the burden shifts to the State
to demonstrate that the evidence it wishes to use in a criminal
prosecution is "derived from a legitimate source wholly
independent of the compelled testimony." State v. Spaeth, 2012
WI 95, ¶¶38, 74, 343 Wis. 2d 220, 819 N.W.2d 769 (quoting
Kastigar v. United States, 406 U.S. 441, 460 (1972)).

                                          4
                                                                    No.     2009AP2916-CR



appeals,     which     affirmed     the     circuit       court's     order      denying

suppression of the statements and the judgment of conviction.8

                                            I

     ¶12     We first turn to the facts.                   The Complaint charging

the defendant with two counts of possession of child pornography

was filed on July 2, 2008.                The defendant waived a preliminary

hearing.       The     State      filed     the     information      based       on    the

complaint.     The defendant entered a plea of not guilty to the

two counts charged.

     ¶13    The      defendant     then     filed        his   motion      seeking     to

suppress the statements he made to his probation agent.                                The

State opposed the motion.              The circuit court requested that the

parties    participate       in   an    evidentiary        hearing       regarding     the

suppression motion.          Instead, both parties proffered facts in

written    briefs to     the circuit            court    and   stipulated       that   the

circuit    court     could     decide      the    case    based     on    the    factual

representations set forth in the briefs.

     ¶14    The facts set forth here are therefore predominantly
taken from the parties' briefs filed in the circuit court.                             The




     8
       The defendant's motion to suppress his statements was
orally denied in open court by the Circuit Court for Milwaukee
County, John Franke, Judge.      Milwaukee County Circuit Court
Judge Jeffrey A. Conen signed the written order of denial and
later entered the judgment of conviction.

                                            5
                                                                  No.    2009AP2916-CR



circuit     court       explained       that        it     was     "dealing       with

representations here and not a factual record by affidavit."9

     ¶15    As    one   might   suspect      from    the    proceedings     we    have

described thus far, the record in this case relating to the

suppression motion       is extremely        thin.         What   follows   are    the

parties' undisputed, agreed-upon facts we have culled from the

parties' briefs and the findings of fact the circuit court made.

     ¶16    The parties agree that the defendant was sentenced to

probation in 2005 arising from a conviction for possession of

child pornography.

     ¶17    The    parties      agree   that     Department        of   Corrections

Probation/Parole Agent Michael Krause was assigned to supervise

the defendant's probation and that the defendant was required to

participate in sex offender group therapy as a condition of his

probation.10      The other conditions of the defendant's probation

are not in the record.

     ¶18    The parties finally agree that the defendant was on

probation when, in January 2007, he made statements to Agent
Krause    indicating    that    he   again     possessed      child     pornography.

From there, the parties' factual assertions diverge.


     9
       A circuit court may predicate its factual findings on
undisputed facts.   State v. Thierfelder, 174 Wis. 2d 213, 217
n.4, 495 N.W.2d 669 (1993); State v. Schulpius, 2006 WI App 263,
¶¶11-12, 298 Wis. 2d 155, 726 N.W.2d 706.
     10
       These facts are taken from the defendant's motion to
exclude evidence and the State's response to the defendant's
motion to exclude evidence, which were filed with the circuit
court.

                                         6
                                                                      No.     2009AP2916-CR



       ¶19    The defendant asserts that he was required to take a

polygraph test as a condition of sex offender treatment and that

he failed this polygraph test on December 15, 2006,11 when he

untruthfully         answered     that   he     had        not    broken     any    of     his

probation rules.

       ¶20    The State, in contrast, contends that the polygraph

test    was    administered       because      the    defendant      had     "refused       to

participate in a meaningful way in his group therapy sessions."

The focus of the polygraph test was on the defendant's prior

sexual history.           In his pre-polygraph examination interview, the

defendant      admitted that        he   had    not        been   truthful    about       this

history previously; the polygraph test then focused on whether

the    defendant       had   been   truthful          in    the    pre-polygraph          exam

interview.          The    result   of   the      polygraph       test     was     that   the

defendant was truthful.

       ¶21    The parties agree that the defendant was terminated

from his group therapy sessions.                  But, the parties dispute the

reason       for     termination.        The       defendant        believes        he    was
terminated         because he failed        the      polygraph      test.        The State

asserts       that     the      defendant       was        terminated       because        the
information that he provided about his prior sexual history to

       11
       There is some confusion in the circuit court briefs and
in the briefs before this court whether the date of the
polygraph test was December 2006 or December 2005.           The
defendant's material in the record refers to December 2005. The
polygraph report is in the record as an attachment to the
documents the State filed in response to the defendant's motion.
The report is dated December 2006 and states that the polygraph
test was administered in December 2006.

                                            7
                                                                    No.     2009AP2916-CR



the polygraph examiner in a pre-test interview should have been

disclosed during his previous group therapy sessions.

     ¶22    The   parties     agree   that          the   defendant       was    given    an

opportunity to regain admittance to group therapy.                          They do not

agree on the conditions he had to meet for re-admittance or

whether he was re-admitted.

     ¶23    The defendant asserts that he was required to take

another    polygraph      test,   which    was       scheduled      for    January       13,

2007.12    The State asserts that the defendant was required only

to write a letter of full disclosure regarding his prior sexual

history and that when he completed the letter, he was allowed

back into therapy.          The State asserts that the defendant had

already been allowed back into his group therapy when he and

Agent Krause met on January 12, 2007, and that Agent Krause had

no intention of initiating revocation proceedings against the

defendant, at that time, for his probation violations.

     ¶24    The     State's       brief        sets       forth     Agent        Krause's

recollection      about    the    events       of    January      2007.         The   State
asserts that in January 2007, Agent Krause received a phone call

from the defendant, who wanted to come in to talk "about some
things."    According to Agent Krause, he and the defendant agreed

upon a mutually acceptable date, which was January 12, 2007.




     12
       The circuit court commented that "the parties represent
that another polygraph was set for January 13."      The State's
response to the defendant's motion, however, makes no mention of
a January 13 polygraph test.

                                           8
                                                                        No.        2009AP2916-CR



        ¶25    The date of the meeting (Jan. 12) was the day before

the date the defendant claims that he was required to take a

polygraph       examination        (Jan.    13)     in    order    to     get       back     into

therapy.        The State makes no mention of this second polygraph

test.

        ¶26    The     parties     agree     that    at     the     January          12,     2007

meeting, the defendant orally                 told       Agent    Krause      that      he    had

violated the rules of his probation by using a computer he kept

at a friend's house to access child pornography.                              According to

Agent        Krause,    the   defendant       volunteered          that       he     had     been

violating the rules of his probation.

     ¶27       According      to   the     defendant      and     Agent    Krause,         Agent

Krause wrote down the defendant's statements on a Department of

Corrections form, which the defendant signed.                              The defendant

asserts that this Department form included a notification and a

box checked off next to the following statement:

     I have been advised that I must account in a true and
     accurate manner for my whereabouts and activities, and
     that failure to do so is a violation for which I could
     be revoked.    I have also been advised that none of
     this information can be used against me in criminal
     proceedings.13
     ¶28       The defendant does not state, either in the brief he

filed in this court or in the motion he filed in the circuit

court, when he was first advised that his statements could not

be used against him in a criminal proceeding or whether he saw

the form before he gave the oral statements.

        13
             The DOC form is not in the record.

                                             9
                                                              No.     2009AP2916-CR



      ¶29   The   State    agrees     that   Agent   Krause   wrote        down   the

defendant's statement on a Department form but neither denies

nor   concedes    the     existence    of    the   Department       form    or    the

notification that the defendant described.             The State's brief in

this court asserts that it never conceded or stipulated that the

defendant was aware of the written notification when he gave his

earlier, oral statements.        The State's position here is that the

defendant did not proffer any evidence to support his assertion

that he was aware of the written notification of immunity when

he gave his earlier, oral statements.14

      ¶30   The parties agree that after the defendant made the

incriminating statements, Agent Krause took the defendant into

custody and initiated revocation proceedings.

      ¶31   There is no dispute about what happened thereafter.

      ¶32   Agent Krause notified the West Allis Police Department

of the defendant's statements.              The police arranged to retrieve

the computer the defendant admitted to using.

      ¶33   Detective Jacque Chevremont of the West Allis Police
Department met with the defendant twice while he was in custody

at    the   Milwaukee      Secure      Detention     Facility.          Detective
Chevremont read the defendant his Miranda warnings both times;

the defendant stated he understood the warnings and that he was

willing to speak with the Detective.                 The defendant admitted

      14
       The circuit court explicitly stated that it "won't make
findings of fact as to what happened after [the defendant's oral
admission of possessing child pornography] because I do not find
that those [oral] statements to the probation officer on these
undisputed facts must be suppressed . . . ."

                                        10
                                                                      No.    2009AP2916-CR



that while on probation, he downloaded child pornography on a

computer that he kept at a friend's house.

     ¶34     In    ruling     on   the     suppression       motions,       the    circuit

court assumed that the defendant was advised of the standard

conditions        of    probation,        which    include     providing       true     and

correct    information        when     asked.        Neither    the     conditions       of

probation imposed on the defendant nor any "standard conditions

of probation" are in the record before this court.

     ¶35    The circuit court's findings of fact to be upheld as

not clearly erroneous had to be based in the present case on the

parties' agreed-upon, undisputed facts.                      The circuit court made

the following factual findings:

           • The defendant initiated the January 12, 2007 meeting

               with his probation agent.

           •      The defendant volunteered the information that he

                  had been violating the probation rules by using a

                  friend's    computer        to     download    images       of      child

                  pornography.
     ¶36    With regard to the circuit court's first finding, the

parties agreed that the defendant initiated the January 12, 2007
meeting with his probation agent.

     ¶37    With regard to the circuit court's second finding, the
circuit    court,       relying      on     common    sense,     assumed       that    the

probation agent would have asked the defendant some questions.
Nevertheless,          the   circuit       court     found     that    the     defendant

volunteered that he had violated the rules of probation.                                The

State asserted that the defendant volunteered that he had been
                                             11
                                                                             No.     2009AP2916-CR



violating          the      probation            rules.         The      defendant       did     not

characterize his statements as volunteered.                               Neither party made

any     representation           to        the    circuit       court    about      whether      the

defendant made any statement in response to questions.

        ¶38       The circuit court denied the defendant's motions to

suppress, concluding that the facts were insufficient to show

compulsion           and      that     simply         because    an     agent      might    revoke

probation is not enough to establish compulsion.

        ¶39       After the circuit court denied the defendant's motions

to suppress, the defendant changed his plea to guilty of one

count        of    possession         of    child          pornography    pursuant         to   plea

negotiations.

                                                      II

        ¶40       Whether      the defendant's              statements     to    his     probation

agent were compelled in violation of his constitutional right

against self-incrimination presents a question of constitutional

fact.        In   reviewing      issues          of    constitutional       fact,       first,   we

review the circuit court's findings of historical fact; we will
uphold        them    unless         they    are      clearly    erroneous.          Second,      we

determine            the       application             of     constitutional            principles
independently            of    the      circuit        court     and     court     of      appeals,

benefitting from their analyses.15




        15
       Spaeth, 343 Wis. 2d 220, ¶30;    State v. Felix, 2012 WI
36, ¶22, 339 Wis. 2d 670, 811 N.W.2d 775 (citing State v. Eason,
2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625).

                                                      12
                                                              No.    2009AP2916-CR



      ¶41    A probationer has a Fifth Amendment privilege against

compelled self-incrimination.16            A critical issue is whether the

probationer must claim the privilege or whether the situation

gives rise to a self-executing privilege.

      ¶42    The United States Supreme Court has declared that an

ordinary witness who is           "merely     required   to   appear    and   give

testimony" must affirmatively claim the privilege.17                   "[I]n the

ordinary case, if a witness under compulsion to testify makes

disclosures instead of claiming the privilege, the government

has not 'compelled' him to incriminate himself."18

      ¶43    However,    the    United    States    Supreme    Court   has    also

recognized exceptions to the general rule requiring a person to

affirmatively assert his or her Fifth Amendment privilege.                      In

some situations, the privilege is self-executing and thus need

not   be    affirmatively      invoked    before   the   statement     is   deemed

compelled.19      One of these         "self-executing    situations"       occurs

when a probationer must answer questions that require him to

choose between making incriminating statements and jeopardizing
his conditional liberty by remaining silent.20
      16
           Minnesota v. Murphy, 465 U.S. 420, 426 (1984).
      17
       Id. at 435 (quoted in State v. Spaeth, 2012 WI 95, ¶47,
343 Wis. 2d 220, 619 N.W.2d 769).
      18
       Murphy, 465 U.S. at 427 (quoting Garner v. United States,
424 U.S. 648, 654 (1976)).
      19
       Spaeth, 343 Wis. 2d 220, ¶¶43, 47 (quoting Minnesota v.
Murphy, 465 U.S. 420, 426, 434-35 (1984)).
      20
       Murphy,     465    U.S.    at     435-36;   Spaeth,    343   Wis. 2d 220,
¶¶46-49.

                                         13
                                                                           No.      2009AP2916-CR



     ¶44     The    United      States     Supreme           Court       has   explained        the

difference    between       the     ordinary        witness         who    must      claim      the

privilege    when     he     is    "merely         required         to    appear      and      give

testimony"    and    certain        situations          relating         to    a    probationer

whose privilege may be self-executing when he is required to

answer     incriminating          questions.                 The     Supreme        Court      has

differentiated between the two as follows:

     The threat of punishment for reliance on the privilege
     distinguishes cases    of this    sort   [namely   those
     involving a probationer] from the ordinary case in
     which a witness is merely required to appear and give
     testimony.    A state may require a probationer to
     appear   and   discuss    matters   that   affect    his
     probationary status; such a requirement, without more,
     does not give rise to a self-executing privilege. The
     result may be different if questions put to the
     probationer, however relevant to his probationary
     status, call for answers that would incriminate him in
     a pending or later criminal prosecution.       There is
     thus a substantial basis in our cases for concluding
     that if the state, either expressly or by implication,
     asserts that invocation of the privilege would lead to
     revocation of probation, it would have created the
     classic penalty situation, the failure to assert the
     privilege would be excused, and the probationer's
     answers would be deemed compelled and inadmissible in
     a criminal prosecution.21
                                             III

     ¶45    The     defendant       asserts         that      his     statements          to   his

probation    agent     were       compelled        in    violation         of      his    federal

constitutional       privilege         against          self-incrimination               for   two

reasons.      First,       he     claims     that       he    signed       a   Department       of


     21
       Murphy, 465              U.S.    at     435        (quoted         in       Spaeth,      343
Wis. 2d 220, ¶47).

                                             14
                                                                        No.    2009AP2916-CR



Corrections     document         that    notified         him    that   his    failure     to

account truthfully about his activities is a violation for which

his probation could be revoked and that "none of the information

can be used against [him] in criminal proceedings."                            Second, he

claims that his statements were compelled because he allegedly

was    required       to   report        his       activities      truthfully      to     his

probation agent and was required to take a mandatory polygraph

test    and    knew    that      if     he   failed       the    polygraph      test,     his

probation could be revoked.

       ¶46    We discuss each claim in turn.

                                               A

       ¶47    We turn first to the defendant's claim of compulsion

relying on the Department of Corrections form described above.

This form, according to the defendant, advised the defendant

that the statements he made to the probation agent were not to

be used against him in a criminal proceeding.

       ¶48    The burden was on the defendant in the circuit court

to prove that his statement to the probation agent was compelled
and    that   use     of   the    statement          in   this    criminal      proceeding

violates      the   federal       constitutional           privilege      against       self-
incrimination.

       ¶49    The circuit court and court of appeals ruled that the
defendant did not meet his burden.

       ¶50    The   Department        of     Corrections         form   upon    which    the
defendant relies is not part of the circuit court record or part

of the record before this court.                     The well-established rule is


                                               15
                                                                       No.     2009AP2916-CR



that appellate review is limited to the record presented.22                                The

burden is on the appellant, here the defendant, to ensure that

the record is sufficient to address issues raised on appeal.23

      ¶51    No     undisputed,       agreed-upon         facts   by    the    parties      or

other evidence appears in the record to prove that the defendant

signed the form or that the defendant was informed or knew of

the   contents      of     the    form     before    he    gave    oral      incriminating

statements to his probation agent.

      ¶52    The circuit court made no findings of fact regarding

the existence of the Department form or the conversation that

occurred between the defendant and Agent Krause when the form

was allegedly completed and signed.

      ¶53    Because the Department form is not in the record and

nothing     about    the    execution       of     the    form    is   in    the    parties'

undisputed, agreed-upon facts, the defendant's argument that the

form immunized his statements fails.

                                              B

      ¶54    We     turn        now   to    the     defendant's        claim       that    the
statements to the probation agent were compelled by the threat

of revocation of his conditional liberty.                         The defendant makes
two   arguments.           He    argues     that    the    mere    fact      that    he    was

required to appear and report truthfully to his probation agent


      22
       Schimke v. Milwaukee & Suburban                            Transport         Co.,    34
Wis. 2d 317, 320-21, 149 N.W.2d 659 (1967).
      23
        State v. Marks, 2010 WI App 172, ¶20, 330 Wis. 2d 693,
794   N.W.2d 547;  State   Bank   of  Hartland   v. Arndt, 129
Wis. 2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986).

                                             16
                                                                 No.        2009AP2916-CR



is sufficient to establish compulsion.                 He also argues that the

fact that he was required to take a polygraph test establishes

compulsion.

                                           1

     ¶55    The case law establishes that the mere requirement on

a probationer to appear and speak "truthfully to his or her

probation    (or    parole)      officer       is   insufficient       to     establish

compulsion."24

     ¶56    The    seminal    case      regarding     probationers           and    self-

incrimination is Minnesota v. Murphy, 465 U.S. 420 (1984).                           The

United States Supreme Court recognized that requiring Murphy, a

probationer,       to   appear    and    answer      questions     truthfully         was

insufficient to establish compulsion.25                The Court declared that

if Murphy was in a situation that gave rise to a self-executing

privilege     against     self-incrimination——such          that       "the        State,

either expressly or by implication, assert[ed] that invocation

of the privilege would lead to revocation of probation"——then

"the failure to assert the privilege would be excused, and the

probationer's answers would be deemed compelled and inadmissible

in a criminal prosecution,"26 even though the privilege was not

affirmatively invoked.        See ¶¶41-44, supra.




     24
          Commitment of Mark, 292 Wis. 2d 1, ¶25.
     25
       Murphy, 465 U.S. at 427.                 See also Commitment of Mark,
292 Wis. 2d 1, ¶25.
     26
          Murphy, 465 U.S. at 435.

                                         17
                                                                      No.   2009AP2916-CR



        ¶57    As to Murphy, the Court concluded that the State of

Minnesota did not go further than requiring Murphy to appear and

give testimony.            It did not "require[ ] him to choose between

making incriminating statements and jeopardizing his conditional

liberty by remaining silent."27                    The Court in Murphy concluded

that there was no evidence in the record showing that the State

would        have    revoked        the   probation      or   that   the    probationer

(Murphy) believed his probation would have been revoked if he

chose to remain silent.28                 Accordingly, Murphy did not prove his

statement was compelled.

       ¶58     In the present case, there is no evidence that the

State, either expressly or by implication, told the defendant

that     his    refusal        to    speak   to    his    probation     agent   or   his

invocation          of   his   privilege      against     self-incrimination       would

lead to the revocation of his probation.                       The defendant claims


        27
             Id. at 436 (quoted in Spaeth, 343 Wis. 2d 220, ¶48).
        28
             Murphy, 465 U.S. at 436.

     The Court explained further in Murphy, 465 U.S. at 437, as
follows:

       Murphy's probation condition proscribed only false
       statements; it said nothing about his freedom to
       decline to answer particular questions and certainly
       contained no suggestion that      his   probation  was
       conditional on his waiving his [privilege] with
       respect to further criminal prosecution. . . . Without
       the   benefit    of   an   authoritative   state-court
       construction of the condition, we are hesitant to read
       into   the  truthfulness  requirement   an  additional
       obligation that Murphy refrain from [invoking his
       privilege].

                                              18
                                                                           No.     2009AP2916-CR



that he believed his probation would be revoked if he failed to

tell his probation agent the truth, but there is no evidence in

the record indicating that the defendant was informed of such

potential revocation.           The parties did not agree that revocation

was a consequence or that the defendant believed his probation

would have been revoked if he chose to remain silent.

     ¶59       Nothing in the record supports the defendant's claim

that there was an explicit consequence of revocation for failing

to tell the truth or that the defendant believed that probation

would be        revoked   if he     did     not     tell       the    truth.          Thus,   the

probationer       in   the     present        case,      like        the    probationer       in

Minnesota v. Murphy, has not proved his claim of compulsion.

                                              2

        ¶60    The defendant appears to rest his claim of compulsion

not only on the fact that the rules of probation required him to

tell the truth, but also on the fact that he was required to

take a polygraph test and that he knew that if he did not admit

to his behavior it would be discovered the next day during his

scheduled       polygraph     test.       The      defendant         argues      that    on the

basis     of    his    past    experiences,             he   made      the       incriminating

statement       knowing   that      if   he     did      not    give       an    accurate     and

truthful        accounting     of     his       behavior        before          the     mandated

polygraph test, he would be in violation of his probation rules

and he would face revocation of his probation.

     ¶61       Again, the defendant has not carried his burden of

proving        compulsion.        Nothing          in    the     record          supports     the

defendant's claim of compulsion regarding the polygraph test.
                                              19
                                                                      No.        2009AP2916-CR



      ¶62   The defendant's original rules of supervision, which

the defendant asserts require a polygraph test, are not in the

record.       The    requirement      of    a        polygraph       test    is      not   an

undisputed fact.29       Nothing appears in the record to support the

defendant's assertion that he was required to take a polygraph

test the day after he made his statements.

      ¶63   The     circuit   court   could          not     and   did    not      determine

whether the defendant was required to take a mandatory polygraph

test as a condition of his probation or that he had a mandatory

polygraph test scheduled for January 13, 2007, which he knew he

would fail.       Nothing in the record describes the rules governing

the polygraph test.

      ¶64   Without     any   evidence          in    the    record,      the      defendant

fails to demonstrate that his admission to the probation agent

was compelled by his being required to take a polygraph test.

      ¶65   The fact that a probationer was required to take a

polygraph test as a condition of probation played an important

part in both State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243,

792   N.W.2d 212,       and   State        v.        Spaeth,       2012     WI     95,     343

Wis. 2d 220, 819 N.W.2d 769, in the court's determining whether

the probationers' statements were compelled.




      29
       The defendant asserts that he                        was required to take a
polygraph test as a condition of his                          mandatory sex offender
treatment.    The State contends that                       the polygraph test was
administered because the defendant had                       "refused to participate
in a meaningful way in his group therapy                    sessions."

                                           20
                                                                No.     2009AP2916-CR



     ¶66    The Peebles and Spaeth cases were decided after the

circuit court's and court of appeals' decisions in the present

case and did not guide these decisions.

     ¶67    In    Peebles,        the   court   of    appeals   was     faced   with

determining       whether     a    probationer's      incriminating      statements

were compelled.30       Peebles was placed on probation after pleading

no   contest      to   sexual       assault.         The   court      ordered   "Sex

Counseling/register/be compliant with Sex Offender Program."31

     ¶68    Peebles subsequently met with his probation agent and

signed the Rules of Community Supervision and the Standard Sex

Offender Rules, which were entered into the record.                       The rules

warned him that his probation could be revoked if he violated

the rules.32

     ¶69    One requirement of Peebles' probation was that he take

a polygraph test.33         Peebles testified that he understood that if

he   did    not      follow       the   rules   of     supervision,       including

participating in sex offender treatment and cooperating with his

treatment counselor, which required talking in treatment about

his sexual behavior, he could face revocation from supervision
or incarceration.34


     30
       State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792
N.W.2d 212.
     31
          Id., ¶2.
     32
          Id., ¶3.
     33
          Id., ¶5.
     34
          Id., ¶4.

                                          21
                                                                           No.     2009AP2916-CR



      ¶70    Peebles'          probation         was    ultimately       revoked       based   on

comments he made in sex offender counseling and to the polygraph

examiner immediately before a polygraph examination.35

      ¶71    The       court    of    appeals          explained    in    Peebles       that   "a

probationer's statements are compelled if he or she must choose

between providing them or jeopardizing his or her conditional

liberty by remaining silent."36

      ¶72    The        court        of     appeals        concluded        that       Peebles'

statements were compelled because the rules of his supervision,

which were in the record, required that he be truthful, that he

submit to polygraph tests, and that he fully cooperate with and

successfully complete sex offender counseling.                                  Peebles "then

gave his statements, at least in part, because he was required

to take lie detector tests."37

      ¶73    In    Spaeth,          this    court       explained        that    the    Peebles
decision demonstrates how statements made to probation agents

may   be    "compelled         by    way     of    probation       rules."         This   court

explained that based on Peebles' testimony about his subjective

view of the consequences of failure to take a polygraph test,

the   court       of    appeals           held    that     Peebles'       statements       were

compelled.38



      35
           Id., ¶¶6-7.
      36
           Id., ¶22 (citing Minnesota v. Murphy, 465 U.S. at 436).
      37
           Peebles, 330 Wis. 2d 243, ¶20.
      38
           Spaeth, 343 Wis. 2d 220, ¶57.

                                                  22
                                                                   No.     2009AP2916-CR



       ¶74     The record before the court in the present case does

not support the same conclusion as did the record in Peebles.

In the present case, the defendant's probation rules are not in

the record.         The parties did not reach undisputed, agreed-upon

facts regarding the defendant's knowledge or belief that his

probation would be revoked unless he told the truth.

       ¶75     In the present case, the court is unable to determine

what     the    probation     rules    required      and    what     the     defendant

believed would be the consequences of his failing to tell the

truth.       Thus, the court is unable to conclude, from the record,

that     the    defendant's     probation      rules       required      him    to    be

truthful, required him to submit to polygraph tests, or required

revocation of probation if he violated the rules.

       ¶76     In   Spaeth,   the     State    and    Spaeth       stipulated        that
Spaeth's participation in a polygraph test while on probation

was    compelled.39       A   condition       of   Spaeth's    probation        was     a

       39
            Spaeth, 343 Wis. 2d 220, ¶¶49, 58.

       The Spaeth court concluded:

       [The probation agent's] own testimony revealed that
       Spaeth was required to take the polygraph examination
       or face a sanction, including possible revocation.
       This compulsion is authorized by statute and rule,
       demonstrated in the cases, and testified to by the
       [Department of Corrections] agent involved.       All
       parties agree that this case involves compulsion.  As
       a result, we have no difficulty determining that
       Spaeth   was  compelled,  under  the  rules   of  his
       probation, to answer truthfully during the polygraph
       examination.

Spaeth, 343 Wis. 2d 220, ¶58.

                                         23
                                                              No.   2009AP2916-CR



mandatory polygraph test at least once per year.40                    Spaeth was

"required to take this examination, required to cooperate with

the examiner, and required to answer questions truthfully.                    His

failure to take the polygraph examination could have resulted in

revocation of his probation.             His failure to answer questions

truthfully also could have resulted in a serious sanction."41

     ¶77    Before     taking     the   polygraph    test,   Spaeth    signed   a

"consent form" provided by the test administrator, but the form

he signed was not, according to the court, an accurate statement

of the law for this probationer because the form stated that his

statement       may   be   used    against   him    at   trial.42     The   court

determined that his "failure to take the polygraph examination

could have resulted in his revocation, and his refusal to sign

the 'consent form' could have been deemed a refusal to take the

polygraph examination.            In addition, any statements that Spaeth

made during the polygraph examination were subject to use and

derivative use immunity and could not be used against him at a

criminal trial."43          The probation agent "later testified that
Spaeth was aware that the polygraph results and the statements

he made in the examination could not be used in a criminal
prosecution."44

     40
          Id., ¶4.
     41
          Id.
     42
          Id., ¶¶5-6.
     43
          Id., ¶6.
     44
          Id.

                                        24
                                                                 No.     2009AP2916-CR



       ¶78    The results of the Spaeth polygraph test showed that

he was being deceptive and his probation agent was so informed.45

The probation agent discussed the results of the polygraph test

with   Spaeth,      and Spaeth then       admitted      probation      violations.46

The probation agent informed police, who arrested Spaeth for

both a probation violation and in connection with a possible

additional criminal offense.47

       ¶79    This court re-examined the fundamental principles of

the privilege against self-incrimination guaranteed by the Fifth

Amendment.48        The court recognized that in some situations, the

privilege      is     self-executing     and   need     not    be      affirmatively

invoked      before    the   statement    is   deemed    compelled.49        When   a

probationer must answer questions that require him to choose

between      making    incriminating     statements      and    jeopardizing      his

conditional liberty by remaining silent, the privilege is self-

executing and the statements are compelled.50

       ¶80    The Spaeth court concluded, based on the evidence in
the record, the testimony of the defendant and the defendant's

probation      agent,    and    stipulations       by   the    parties     that   the

       45
            Id., ¶8.
       46
            Id., ¶9.
       47
            Id., ¶¶10-11.
       48
            Id., ¶¶31-49.
       49
            Id., ¶¶43, 47.
       50
       Murphy,         465   U.S.   at   435-36;    Spaeth,     343     Wis. 2d 220,
¶¶46-49.

                                         25
                                                            No.    2009AP2916-CR



defendant's participation in the polygraph test was compelled

and that any incriminating statements arising from it could not

be used against him.51

     ¶81     The present case does not provide the extensive record

available in Spaeth.          The record in the instant case does not

include the probation rules, the polygraph requirements, or a

finding about what the defendant knew or believed regarding the

possible consequences of his incriminating statements.

     ¶82     The     defendant    has    failed   to     provide    sufficient

evidence    to     support   his legal   argument   of    compulsion    on   the

basis of the polygraph test.            On this record, the court cannot

reach the legal conclusion that the defendant's statements were

compelled.

                                    * * * *

     ¶83 In sum, the defendant has failed to meet his burden to

prove that his initial, oral statements were compelled.                Neither

the circuit court nor this court can consider the Department of

Corrections probation form that the defendant claims advised him

that his incriminating statements cannot be used against him in
criminal proceedings.            The form is not in the record.              The

parties did not agree about its existence, the details of its
use, or the defendant's knowledge of its contents before the

defendant made his oral admissions.
     ¶84    The defendant has failed to put sufficient evidence

into the record to show that the rules of his probation rendered

     51
          Spaeth, 343 Wis. 2d 220, ¶49, 58.

                                        26
                                                                No.   2009AP2916-CR



his    incriminating   statements        compelled.        No     documents,    no

testimony, and no undisputed, agreed-upon facts by the parties

are in the record to evidence any compulsion of the defendant to

admit possession of child pornography to his probation agent.

       ¶85   Because there is not sufficient evidence in the record

to    show   compulsion,   we   affirm    the   decision    of    the   court   of

appeals.     The defendant's conviction is affirmed.

       ¶86   By the Court——The decision of the court of appeals is

affirmed.




                                     27
                                                                     No.   2009AP2916-CR.pdr


       ¶87     PATIENCE DRAKE ROGGENSACK, J. (concurring).                              Gregory

Sahs' incriminating, oral statement to his probation agent, made

when he was not in custody, was voluntarily made without the

threat       that    he     would      be    revoked       if   he      did      not       speak.

Accordingly,         his    statement        was   not     compelled       and    his      Fifth

Amendment privilege against self-incrimination for the crime he

disclosed was not self-executing.                    See Minnesota v. Murphy, 465

U.S. 420, 436 (1984).

       ¶88     I write to confirm for the reader that the majority

opinion does not rest on the Wisconsin Constitution, but rather,

that the majority opinion is based solely on the Fifth Amendment

of     the     United       States      Constitution,           which      is        the     only

constitutional provision that the parties argued before us.1                                    I

also write to draw together foundational principles that control

when    the    Fifth       Amendment    privilege        against     self-incrimination

becomes self-executing for probationers and to draw attention to

unduly       broad    statements        in    some   opinions        that       could      cause

confusion      if    the     statements       were   applied       without       a     thorough

consideration of all underlying legal principles.                                Because my

analysis differs from the majority opinion's analysis but also

results      in the        conclusion       that   Sahs'    oral     statement         was    not

compelled, I do not join the majority opinion, but respectfully

concur.




       1
       Even  though   Sahs   argued   both  state and federal
constitutional provisions in his motion to the circuit court,
majority op., ¶4, he has not done so before us.

                                               1
                                                                   No.   2009AP2916-CR.pdr


                                      I.    BACKGROUND

       ¶89     In 2007, Sahs was convicted of possession of child

pornography,         contrary    to       Wis.    Stat.     § 948.12(1m).         This    was

Sahs' second conviction for possession of child pornography, the

first one occurring in 2005.                     When the incriminating statements

giving rise to the second conviction were made, Sahs was on

probation for the 2005 conviction.                         He made the incriminating

statements to his probation agent, Michael Krause.

       ¶90     Prior to making incriminating statements, Sahs called

Krause and asked to come in and "talk about some things."                                Sahs

set    up     an    appointment       to    meet     with     Krause     on   a   mutually

convenient date, January 12, 2007.

       ¶91     When Sahs appeared for his appointment, he told Krause

that he had accessed child pornography through a computer he

kept at a friend's house.                   Sahs does not allege that he made

this oral statement in response to a question from Krause about

either a pending charge or particular criminal activities, nor

does he allege that Krause, or the conditions of his probation,

threatened revocation of probation if Sahs refused to answer

such       questions.      After      Sahs        orally    incriminated      himself     of

violating Wis. Stat. § 948.12(1m), Krause asked Sahs to provide

a   written        statement    on    a    standard        Department    of   Corrections

(DOC) form.          Sahs did so; however, the DOC form is not in the

record.2
       2
       Because the record does not contain the DOC form, and
because there is no contention that the written statement
somehow   modified  Sahs'  earlier  statement,  I  confine  my
subsequent discussion to Sahs' oral statement to his probation
agent.
                                                 2
                                                                   No.    2009AP2916-CR.pdr


        ¶92    At the time of Sahs' incriminating oral statement to

Krause, he alleged he was scheduled to take a polygraph test

within a few days as part of his probation requirements for his

2005 conviction.             Sahs alleges that this upcoming obligation

generated his need to speak with Krause.

        ¶93    After      Sahs   made   his     oral    and     written    incriminating

statements,        Krause    initiated         revocation       proceedings.       Krause

also notified the West Allis Police Department, who took Sahs

into custody.          Detective Chevremont gave Sahs Miranda3 warnings.

Sahs said that he understood the warnings and was willing to

speak with the detective.               Sahs then admitted that while he was

on probation, he downloaded child pornography on the computer he

kept at his friend's house.                Based on his admissions, Sahs was

charged with possessing child pornography, in violation of Wis.

Stat. § 948.12(1m).

        ¶94    As the matter proceeded before the circuit court, Sahs

moved to suppress both the oral and written statements he made

to Krause and his statements to Chevremont.                         The circuit court
found       that   Sahs    initiated     the       January 12,     2007    meeting    with

Krause, and that he volunteered that he had downloaded child

pornography onto a computer he kept at a friend's home.                                The

circuit       court    concluded        that       no   Fifth    Amendment      violation

occurred and denied Sahs' motion to suppress.


        3
       Miranda v. Arizona, 384 U.S. 436 (1966), concludes that a
suspect has the right to remain silent and to have an attorney
present for any questioning. The warnings arising from Miranda
also caution that any statements the suspect makes can be used
against him or her.

                                               3
                                                                   No.   2009AP2916-CR.pdr


      ¶95     On appeal, as well as on this review, Sahs contends

that his statements to Krause were compelled by the rules of

probation to which he was subject because he was required to

appear and give truthful answers to questions; and therefore,

his   Fifth    Amendment        privilege         against    self-incrimination        was

self-executing,       requiring           suppression        of    his    incriminating

statements.       He also contends that the DOC form on which he

provided      a    written          admission        of     violating      Wis.      Stat.

§ 948.12(1m) notified him that his statement thereon would not

be used in a subsequent criminal proceeding, thereby providing

another     ground       upon       which     to    suppress       his    incriminating

statements.       However, as I noted, that form is not in the record

before us.

                                    II.     DISCUSSION

                               A.    Standard of Review

      ¶96     Whether a statement was testimonial, incriminating and

compelled,     are   questions         of    law    for     our   independent      review.

Murphy,     465   U.S.    at    426.         Whether      testimony      was   voluntary,

thereby     waiving       the       defendant's           privilege      against     self-

incrimination,       involves          the     application         of    constitutional

principles to the facts found by the circuit court.                            This also

presents a question of law for our independent review.                          State v.

Ward, 2009 WI 60, ¶17, 318 Wis. 2d 301, 767 N.W.2d 236.                                And

finally, we uphold the factual findings of the circuit court

unless they are clearly erroneous.                    State v. Novy, 2013 WI 23,

¶22, 346 Wis. 2d 289, 827 N.W.2d 610.



                                              4
                                                               No.   2009AP2916-CR.pdr


                 B.   General Fifth Amendment Principles4

      ¶97     The privilege, or right, to remain silent afforded by

the   Fifth     Amendment       comes   into    play    when     a     defendant    is

compelled to give testimony that is incriminating.                      Murphy, 465

U.S. at 426.          A defendant does not lose the Fifth Amendment

privilege against self-incrimination when he is convicted of a

crime.      Baxter v. Palmigiano, 425 U.S. 308, 316 (1976).

      ¶98     Cases parsing a defendant's Fifth Amendment privilege

against      self-incrimination         arise   in     two     broad     categories.

Either the defendant remained silent, thereby maintaining his

Fifth Amendment privilege and objected to the sanction imposed

for his silence, or the defendant made a statement and then

moved to suppress his statement.

                           1.    Defendant is silent

      ¶99    Generally, a witness must remain silent rather than

answer questions in order assert his Fifth Amendment privilege

against self-incrimination.             Murphy, 465 U.S. at 429.            However,

a witness may be compelled to testify, notwithstanding the Fifth
Amendment     privilege,    if     he   is    granted   use-immunity        for    his




      4
       The Fifth Amendment to the United States Constitution
provided in relevant part: "No person . . . shall be compelled
in any criminal case to be a witness against himself."

                                          5
                                                                 No.   2009AP2916-CR.pdr


answers to      questions     that    may       incriminate     him.      Kastigar v.

United States, 406 U.S. 441, 453 (1972).5

      ¶100 Only certain types of questions, for example, those

that are related to pending charges or relevant to particular

criminal activity, will implicate the Fifth Amendment if the

probationer is required to answer rather than to remain silent.

State v. Evans, 77 Wis. 2d 225, 227-28, 252 N.W.2d 664 (1977).

Stated otherwise, it is those types of questions that generate

testimony    that      is   incriminating.            Id.      Therefore,    requiring

answers to questions such as whether the probationer has been

following the curfew requirements of his probation, generally

are   not   sufficient      to   draw   in      the    protections     of   the   Fifth

Amendment,      even    though     they      could      lead     to    revocation    of

probation.      See id. at 230 (explaining that a probationer enjoys

a conditional liberty that is made possible by the legislature

and the probationer's adhering to the rules of the probation).

      ¶101 A probationer may be forced to relinquish his right to

silence and be compelled to answer questions that were "prompted
by    pending    charges      or     accusations        of     particular     criminal

activity" if he is advised that his responses "could not be used

against him in a subsequent criminal proceeding arising out of


      5
       Kastigar  v.   United   States,  406  U.S.   441  (1972),
established the scope of Fifth Amendment immunity as "use-
immunity," which is immunity for the use and derivative use of
compelled testimony that is incriminating.    Id. at 453.   Use-
immunity contrasts with "transactional immunity," which is
absolute immunity from prosecution for the crime to which the
compelled, incriminating testimony relates.       Id.   However,
Kastigar did not address the criteria to be applied when
determining whether testimony was compelled.

                                            6
                                                                No.    2009AP2916-CR.pdr


the same fact situation."             Id. at 235-236.           If the probationer

nevertheless refuses to answer and if his probation was revoked

because of his silence, no Fifth Amendment violation occurred.

Id. at 236 (explaining that a remand was necessary to advise

Evans that if he responded to questions that were incriminating,

his answers would not be used against him in violation of his

Fifth Amendment privilege against self-incrimination).

       ¶102 However,     not    all    penalties       levied    when       a    defendant

refuses to speak are significant enough to implicate the Fifth

Amendment.         See   McKune    v.    Lile,        536    U.S.     24,       36   (2002)

(explaining    that      a     prison     inmate's          silence     resulting         in

dismissal from sex-offender treatment program and the subsequent

transfer to a less desirable penal institution were not adverse

consequences significant enough to affect a defendant's Fifth

Amendment privilege).

       ¶103 State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564

(Ct.   App.   1987),     abrogated       on    other    grounds       by    Arizona       v.

Fulminante, 499 U.S. 279 (1991), provides a helpful discussion,
but it    requires careful reading              and    an    understanding           of the

cases on which Thompson relies.                Thompson, while in custody and

without    being    given      Miranda    warnings,         initially       refused       to

answer    questions      posed    by     his    probation        agent          about    his

whereabouts on the day of a robbery and shooting.                           Id. at 826.

While still in custody and after being served with notice of a

revocation    hearing,       Thompson     was    again       questioned          and    made

incriminating statements.             Id. at 826-27.            Thompson's answers

were later used at trial.         Id. at 827.

                                          7
                                                                       No.     2009AP2916-CR.pdr


       ¶104 Although         there    are    some         sweeping     statements        in     the

Thompson decision that could be read to expand the principles

established in Murphy, Thompson's holding is proscribed by three

requirements:          First, Thompson is based on the Fifth Amendment

and    therefore,       it    must    follow          United      States       Supreme        Court

precedent; second, the questions inquired about pending charges

or particular criminal activity, id. at 830-31; and third, the

questioning occurred while Thompson was in custody and without

the benefit of Miranda warnings, id. at 826-27.                              The failure to

give   Miranda      warnings     prior       to       a    custodial     interrogation          is

sufficient, standing alone, to suppress Thompson's incriminating

statements as compelled self-incrimination, according to Murphy.

See Murphy, 465 U.S. at 429-30.

       ¶105 Our     decision     in       Tate       v.    Schwarz,    2002      WI    127, 257

Wis. 2d 40, 654 N.W.2d 438, presents another facet of the Fifth

Amendment     privilege        against           self-incrimination.                  "Tate    was

convicted of repeated sexual assault of a child after a jury

trial in which he testified and denied the offense."                                   Id., ¶2.
The    procedural       posture       of     the          case   was    critical        to     the

conclusions       we    reached.            To       explain,     Tate       was      placed     on

probation     and      ordered       to     attend          a    sex-offender          treatment

program, which required him to admit the sexual assaults at a

time when his conviction was up on appeal.                               Id.       He refused,

asserting his Fifth Amendment privilege.                         Id.     He was terminated

from the program and his probation was revoked.                           Id.

       ¶106 Tate objected to the termination of probation.                                      He

asserted that he had not been offered use-immunity, and he had

                                                 8
                                                                        No.   2009AP2916-CR.pdr


not been told that statements made in treatment would not be

used against him in the event that his appeal resulted in a new

trial.        Id. ¶11.        He also was concerned that the requested

admission could result in a perjury charge.                            Id.    We agreed that

because of the potential for new criminal consequences for the

same crime for which he was on probation, Tate's Fifth Amendment

privilege had been contravened by the probation revocation that

resulted from his silence when use-immunity was not offered.

Id.,   ¶4.       We    crafted         a    very      narrow       decision     in   which      we

explained that there would be no Fifth Amendment violation in

requiring      admissions         in       therapy      sessions       for     the   crime      of

conviction if no threat of new criminal consequences pertained.

Id., ¶19 n.6 (citing State v. Carrizales, 191 Wis. 2d 85, 92,

528 N.W.2d 29 (Ct. App. 1995)).

                                  2.   Defendant speaks

       ¶107    As    set    out    above,        it    is    the     general    rule     that    a

witness must remain silent rather than answer questions if he

chooses to assert his Fifth Amendment privilege against self-
incrimination.             Murphy,         465   U.S.     at    429.         However,    Murphy

established      certain      situations             where     the   application        of   this

general rule does not pertain, e.g., when the witness is in

custody and has not received Miranda warnings.                                 Id.; see also

Thompson,      142    Wis. 2d      at 827.            This     exception       for   custodial

questioning      from      the     general         rule      that    the     Fifth   Amendment

privilege must be asserted, is driven by the inherently coercive

nature of police custody.                  Murphy, 465 U.S. at 29-30.



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        ¶108 It was argued in Murphy that the five factors set out

below     could      result        in    a    custody-like           coercive        setting       for

probationers          that     should          result     in        exceptions           from      the

obligation to remain silent when asserting the Fifth Amendment

privilege:           (1) that       the      probation        officer       "could       compel     []

attendance          and    truthful          answers;"        (2)    that        "the      probation

officer       consciously        sought        incriminating             evidence;"        (3)    that

probationer         "did     not    expect       questions          about        prior     criminal

conduct       and     could      not      seek    counsel           before       attending        the

meeting;" (4) that "there were no observers to guard against

abuse or trickery;" and (5) "interrogator's insinuations that

the interrogation will continue until a confession is obtained."

Id. at 431-33.            However, the Supreme Court concluded that those

factors,       either        individually         or      taken          all     together,         are

insufficient to excuse the failure to "claim the privilege in a

timely manner" by remaining silent.                      Id. at 431.

        ¶109 An exception to the obligation to remain silent in

order    to    invoke      the     Fifth       Amendment       privilege          against        self-
incrimination, in addition to that set out in Murphy, occurs

when     a    probationer          is    required        to     appear         and      respond     to

questions and the state seeks "to induce the [probationer] to

forgo his Fifth Amendment privilege by threatening to impose

economic       or    other     sanctions         'capable           of    forcing        the     self-

incrimination         which        the       Amendment    forbids.'"                 Id.    at     434

(quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977)).

        ¶110 To explain further, Cunningham arose in the context of

attempted enforcement of a New York statute that automatically

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removed     political    office-holders          from    office    for     refusing        to

sign a document waiving the Fifth Amendment privilege against

self-incrimination        prior    to     being       questioned       before      a   grand

jury.       Cunningham,    431     U.S.     at    802-03.       The      Supreme       Court

concluded that because of the statutory, automatic removal from

office that resulted from refusing to waive the Fifth Amendment

privilege     to    remain       silent,        the    questioning        involved        an

unconstitutional        threat     unless       use-immunity       was    provided        in

exchange for the waiver prior to questioning.                     Id. at 809.

        ¶111 When   a    state's    parole       revocation       statute       does      not

automatically afford revocation, even when the probation agent

seeks revocation, the presence of such a statute, without more,

is   not    sufficient    to     constitute       a    threat    of     the   type      that

results in compelled testimony violative of the Fifth Amendment.

See Murphy, 465 U.S. at 437 (explaining that "[o]n its face,

Murphy's probation condition proscribed only false statements;

it   said    nothing      about    his      freedom      to     decline       to       answer

particular questions and certainly contained no suggestion that
his probation was conditional on his waiving his Fifth Amendment

privilege").        Therefore, in regard to an obligation to appear

and to give truthful testimony,6 the Supreme Court has explained

that a probationer is in no different position from that of an

        6
       It is the ability of the probation agent to require
attendance at meetings and to require truthful answers to
questions the agent asks that is most often cited in Fifth
Amendment cases where the defendant is on probation.      It is
important to note that the United States Supreme Court has held
that those facts are insufficient to cause the Fifth Amendment
privilege against self-incrimination to be self-executing.
Minnesota v. Murphy, 465 U.S. 420, 431 (1984).

                                           11
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ordinary witness subpoenaed to trial or to appear before a grand

jury.     Id. at 427.        He must appear and if he chooses to speak,

he   must     answer    truthfully.            Id.    (noting       that     "the     general

obligation to appear and answer questions truthfully did not in

itself      convert    Murphy's        otherwise       voluntary       statements          into

compelled ones").

       ¶112 We have recently reaffirmed that generally, the Fifth

Amendment      privilege     against          self-incrimination           is   not    self-

executing and must be invoked.                     State v. Mark, 2006 WI 78, ¶2,

292 Wis. 2d 1, 718 N.W.2d 90.                  "The answers of [a probationer]

to questions put to him are not compelled within the meaning of

the Fifth Amendment unless the witness is required to answer

over    his   valid    claim      of    the    privilege."           Id.,    ¶26.       If   a

probationer      speaks,         we    examine      whether     the    statements          were

incriminating         and   compelled          because       the     Fifth      Amendment's

protection against self-incrimination will not lie unless there

is   testimony    that      is    incriminating        and    compelled.            Id.,   ¶16

(further citations omitted).
        ¶113 In Mark, use-immunity was granted for prosecution of

future crimes so the statements that resulted in revocation were

not incriminating, i.e., Mark's statement did not incriminate

him in a crime that could be prosecuted.                           Therefore, the Fifth

Amendment did not come into play.                     In addition, the statements

were used in a ch. 980 commitment, which is not a criminal

proceeding.

       ¶114 In addition, according to the Supreme Court's decision

in Murphy, being revoked                for    a    voluntary       statement       does   not

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violate the Fifth Amendment       right      against    self-incrimination.

Murphy, 465 U.S. at 440.     All choices that a defendant makes are

not choices that result in compelled, rather than voluntary,

testimony.

     ¶115 An interesting example of such a choice is found in N.

Carolina v. Alford, 400 U.S. 25 (1970).             There, Alford pled to

second-degree murder, rather than standing trial for the charged

offense, first-degree murder, in order to avoid the possibility

of being subjected to the death penalty if convicted of first-

degree murder.    Id. at 26-27.       The Supreme Court concluded that

the availability of such a choice and Alford's plea to second-

degree murder did not equate with a compelled plea that would

violate the Fifth Amendment.      Id. at 39.

     ¶116 A recent court of appeals case, State v. Peebles, 2010

WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, greatly expanded

Fifth Amendment protections for probationers, above the Fifth

Amendment    protections   accorded     to    one     who     has      never     been

convicted of a crime.       In Peebles, the court concluded that
Peebles was compelled7 to give incriminating statements in the

course of sex-offender treatment, even though he did not raise

his Fifth Amendment privilege, none of the exceptions to the

obligation   to   assert   the   privilege      set     out       in    Murphy     or




     7
       Peebles was subject to "Rules of Community Supervision"
that provided his probation "may be revoked," but did not
require revocation if Peebles did not comply with the rules
stated therein.    State v. Peebles, 2010 WI App 156, ¶3, 330
Wis. 2d 243, 792 N.W.2d 212.
                                   13
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Cunningham were present and use-immunity was not granted prior

to Peebles' statements.8           Id., ¶¶1, 9.

       ¶117 Peebles is wrongly decided because it grants blanket,

self-executing use-immunity to probationers simply because they

could be revoked if they did not answer an agent's questions,

thereby omitting the obligation to raise the Fifth Amendment

privilege as Murphy has required.                   See Murphy, 465 U.S. at 431

(explaining that a probationer's obligation to appear and to

answer truthfully does not remove a probationer's obligation to

raise his Fifth Amendment privilege).                   Peebles cites Evans, 77

Wis. 2d at 235-36, for its holding.                   Peebles, 330 Wis. 2d 243,

¶13.       However, in so doing, Peebles incorrectly states the legal

conclusions of Evans, and it is inconsistent with the Supreme

Court's holdings in Murphy.9

       ¶118 To      explain,      Evans     arose     out    of     a     probationer's

silence, not a probationer's statement.                      Evans, 77 Wis. 2d at

236.       In contrast with Evans, Peebles spoke and then sought to

suppress      his    statement.      While     Evans    is    based      on    the     Fifth
Amendment, it preceded Murphy, which explained Fifth Amendment

principles       more   fully     than    Evans.        Therefore,            unless    the

probationer         falls   within    one      of    Murphy's       or     Cunningham's

       8
           No petition for review was filed in Peebles.
       9
       The court did correctly explain that there would have been
no Fifth Amendment violation if the sole potential consequence
of admissions in regard to criminal conduct were the revocation
of probation. Id., ¶26 (citing State v. Carrizales, 191 Wis. 2d
85, 97, 528 N.W.2d 29 (Ct. App. 1995).         Stated otherwise,
Carrizales explains that the use of a probationer's silence in
noncriminal probation proceedings raised no Fifth Amendment
issues. Id.

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exceptions, a probationer must raise the privilege to remain

silent and be given use-immunity before he can be held to have

been compelled to speak.         Murphy, 465 U.S. at 427;10 Cunningham,

431 U.S. at 806.11

      ¶119 Peebles'        omission   of    a     defendant's     requirement     to

raise the Fifth Amendment privilege before he can speak without

fear of prosecution is also inconsistent with our decision in

Mark where we said that, "while an individual has a prepetition

or   prearrest    right     against   self-incrimination,          that   right   is

ordinarily not self-executing and must be invoked."                       Mark, 292

Wis. 2d 1, ¶2 (emphasis added).             See also, id., ¶24 (explaining

that "Murphy reaffirms the general rule that the Fifth Amendment

privilege     must    be   asserted   in    all    but   'certain    well-defined

situations.'") (citation omitted).                Peebles completely ignores

our decision in Mark.

      ¶120 The       problems   created      by     Peebles'      omission   of   a

probationer's obligation to raise the Fifth Amendment privilege


      10
           The United States Supreme Court explained,

      Murphy was in no better position than the ordinary
      witness at a trial or before a grand jury who is
      subpoenaed, sworn to tell the truth, and obligated to
      answer on the pain of contempt, unless he invokes the
      privilege and shows that he faces a realistic threat
      of self-incrimination.

Murphy, 465 U.S. at 427 (emphasis added).
      11
       In Lefkowitz v. Cunningham, 431 U.S. 801 (1977), removal
from office was absolute if the Fifth Amendment privilege was
not waived.     Cunningham, 431 U.S. at 809.      By contrast,
revocation of probation was only a possibility for Peebles.
Peebles, 330 Wis. 2d 243, ¶3.

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have been compounded by State v. Spaeth, 2012 WI 95, 343 Wis. 2d

220,     819    N.W.2d      769,       which    relied    in    part       on        Peebles,      even

though       the    State       conceded       that    Spaeth's      statements          had       been

compelled and never briefed the issue of compulsion for us.                                         See

id., ¶¶57-58.              The mistaken          reasoning      in    Peebles           is   further

compounded          by    the    majority       opinion    herein,         which        repeatedly

mentions Peebles' overly broad statements.12

                           C.     Fifth Amendment Application

        ¶121 This case turns on Sahs' statements.                                    Therefore, he

falls        into    the        second     broad      category       of     Fifth        Amendment

privilege cases, i.e., those defendants who speak and then seek

to have their statements suppressed.

       ¶122 If       Sahs'       statement       was     voluntarily            made,    no       self-

executing Fifth Amendment privilege arises that precludes the

statement's          use    in     a     subsequent      criminal         case,        unless       the

circumstances under which the statement was made meet one of

Murphy's        or        Cunningham's          well-defined         exceptions              to     the

obligation to raise the privilege.                       See Murphy, 465 U.S. at 427.
The Murphy/Cunningham exceptions are:                          (1) a probationer is in

custody        while       questioned          without    Miranda         warnings;           (2)     a

probationer          is    threatened          with    significant         sanctions          if     he

remains silent.

        ¶123 I conclude that Sahs' oral statement to Krause was

voluntarily made.               There is nothing in the record that supports

the     conclusion          that       Sahs'     oral     statement             to     Krause       was

compelled.          First, Sahs contacted Krause and asked to meet with

        12
             Majority op., ¶¶67-72.

                                                 16
                                                                   No.    2009AP2916-CR.pdr


him.       Second,     their      meeting         was     scheduled      on    a    mutually

convenient date.         Third, they met in Krause's office and Sahs

was not in custody.           Fourth, there is nothing in the record to

show that Sahs' statements were made in response to Krause's

questions      about    pending      charges       or   accusations       of       particular

criminal activity.            Fifth, there is nothing in the record to

show that Sahs raised his privilege and that Krause threatened

to impose economic or other sanctions capable of forcing self-

incrimination.         Sixth, there is nothing in the record to show

that Sahs' probation was conditioned on his waiving his Fifth

Amendment privilege.

        ¶124 That Sahs was required by the conditions of probation

to give truthful answers, if he chose to speak, is no different

from the obligations one has when subpoenaed to appear before a

grand jury.          If one chooses to speak before a grand jury to

which     he   has     been    subpoenaed,          one     must   speak       truthfully.

Accordingly,      I    conclude       that     Sahs'       oral    statement         to   his

probation agent was voluntarily made and may be used against him

in a subsequent criminal case.

                                  III.   CONCLUSION

       ¶125 Sahs' incriminating, oral statement to his probation

agent, made when he was not in custody, was voluntarily made

without    a   threat    by    his    probation           agent.      Accordingly,        his

statement was not compelled and his Fifth Amendment privilege

against self-incrimination for the crime he disclosed was not

self-executing.        See Murphy, 465 U.S. at 436.



                                             17
                                                           No.   2009AP2916-CR.pdr


      ¶126 In conclusion, I write to confirm for the reader that

the   majority      opinion    does     not     rest      on     the       Wisconsin

Constitution, but rather, that it is based solely on the Fifth

Amendment of the United States Constitution, which is the only

constitutional provision that the parties argued before us. I

also write to draw together foundational principles that control

when the    Fifth Amendment     privilege      against     self-incrimination

becomes self-executing for probationers and to draw attention to

unduly    broad   statements   in     some    opinions     that     could     cause

confusion   if    the   statements    were    applied     without      a   thorough

consideration of all underlying legal principles.                      Because my

analysis differs from the majority opinion's analysis but also

results in the conclusion        that      Sahs'   oral    statement        was   not

compelled, I do not join the majority opinion, but respectfully

concur.




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