                                                                2017 WI 31

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:                2014AP1767-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Brian I. Harris,
                                   Defendant-Appellant-Petitioner.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                                  366 Wis. 2d 777, 874 N.W.2d 602
                                    (Ct. App. 2016 – Published)
                                       PDC No.: 2016 WI App 2

OPINION FILED:           April 7, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           October 18, 2016

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Kenosha
   JUDGE:                Michael S. Wilk

JUSTICES:
   CONCURRED:            ZIEGLER, J. joined by GABLEMAN, J. concurs
                         (opinion filed).
  DISSENTED:             ABRAHAMSON, J. dissents (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:
       For the defendants-appellant-petitioners, there was a brief
by   Kathleen       M.   Quinn   and   Kathleen   M   Quinn   Attorney   at   Law,
Milwaukee, and oral argument by Kathleen M. Quinn.


       For the plaintiff-respondent the cause was argued by David
H. Perlman, assistant attorney general, with whom on the brief
was Brad D. Schimel, attorney general.
                                                                    2017 WI 31
                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.       2014AP1767-CR
(L.C. No.    2011CF797)

STATE OF WISCONSIN                        :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                 FILED
      v.
                                                             APR 7, 2017
Brian I. Harris,
                                                               Diane M. Fremgen
              Defendant-Appellant-Petitioner.               Clerk of Supreme Court




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



      ¶1      DANIEL KELLY, J.    The question before the court is
whether the State compelled Petitioner, Brian Harris, to be a

witness against himself in violation of the Fifth Amendment to

the United States Constitution and article I, section 8 of the

Wisconsin Constitution.1



      1
       This is a review of a published decision of the court of
appeals, State v. Harris, 2016 WI App 2, 366 Wis. 2d 777, 874
N.W.2d 602,   affirming   the   circuit   court's  judgment  of
conviction, Hon. S. Michael Wilk presiding.
                                                                              No.     2014AP1767-CR



                                   I.        BACKGROUND

       ¶2    In    the    early    morning            hours      of     August      13,     2011,   a

Kenosha resident awoke to loud, metallic-sounding noises coming

from   an   adjacent       residence.             When       the      noises     persisted        for

several minutes, a neighbor called the police.

       ¶3    Officer       Justin           Niebuhr         of        the     Kenosha           Police

Department responded and met with the caller.                                  Both could hear

the sound of metal clanging coming from inside the neighboring

residence.        Officer Niebuhr approached the front door of the

supposedly-vacant          residence         and       found       it       locked,       and     upon

looking through a window saw only darkness.                                 In the process of

examining the exterior of the residence, Officer Niebuhr noticed

the screen was off the unlatched kitchen window.

       ¶4    After       backup    arrived,            Officers         Niebuhr       and       Arturo

Gonzalez entered the residence and traced the noises to the

basement.      Two additional officers responded to the scene and

"cleared"      the      main     and       upstairs         floors       of    the    residence.

Officers Niebuhr and Gonzalez went down to the basement where
they   found      Mr.    Harris    secreted            in    a   crawl        space    under      the

stairs.     Strewn about him were copper piping, a flashlight with

a red lens, and a duffle bag containing a saw and replacement

blades, a bolt-cutter type instrument, and some crowbars.                                          Mr.

Harris'     outfit      included       a    pair       of    black      work     gloves.           The

officers took Mr. Harris into custody and eventually placed him

in Officer Niebuhr's squad car.

       ¶5    While       still     in       the       squad      car     in     front       of    the
residence, Mr. Harris commenced an unprompted narrative of his
                                                  2
                                                                        No.    2014AP1767-CR



criminal activities.               Mr. Harris told Office Niebuhr he had been

homeless for approximately seven years, he frequently went into

vacant homes to sleep, and he often committed misdemeanor crimes

to get items to sell.               He said this was his plan for the copper

piping.     Neither Officer Niebuhr, nor any of the other officers

present,     were        questioning      Mr.       Harris     when     he    made     these

statements.        Officer Niebuhr confirmed he neither said nor did

anything     of     a    threatening      nature      to     prise    out     Mr.    Harris'

statements, nor did he promise Mr. Harris anything in exchange

for them.         Officer Niebuhr did not give Mr. Harris a Miranda2

warning before he made these statements.

      ¶6     Later       that      morning,    Detective      Chad    Buchanan       of    the

Kenosha Police Department went to the Kenosha County Jail to

interview Mr. Harris.               He met Mr. Harris at about 9:00 a.m. in

the   common      area,      just     outside       the     interview     rooms.          What

occurred     next       is   not    entirely       clear,    but   Detective        Buchanan

asked a question to the effect of "Would you like to give me a




      2
          Miranda v. Arizona, 384 U.S. 436 (1966).


                                               3
                                                                  No.    2014AP1767-CR



statement?"3       Mr. Harris responded:            "They caught me man, I got

nothing else to say."              Detective Buchanan did not inform Mr.

Harris of his Miranda rights prior to speaking with him.

       ¶7      The State charged Mr. Harris with burglary, possession

of burglarious tools, criminal damage to property, and criminal

trespass, each as a repeater.                Mr. Harris brought a suppression

motion to prevent the State from using his "they caught me"

statement at trial.4             The circuit court found that "Detective

Buchanan's      intent     was    to   ask   the    defendant     to    come   to   the

interview      rooms   for   an    interview       and . . . the       question     was,

would you like to give a statement?"                 The circuit court said the

expected response to this question would have been "yes, I'll

give       a   statement     or,       no,   I     won't   give    a     statement."

Consequently,      the     circuit      court      found   no   violation      of   Mr.

Harris's right to be free from self-incrimination, and so denied

the suppression motion.            The State used his statement at trial,

       3
       At the suppression hearing, Detective Buchanan said he
asked Mr. Harris "if he would like to come with me to the
detective bureau to be interviewed."         At trial, Detective
Buchanan testified that he "asked the defendant if he would like
to give me a statement . . . ." Although not entirely clear, it
appears Mr. Harris bases his argument on Detective Buchanan’s
trial   testimony.      This   makes    sense——between   the   two
characterizations, the trial testimony describes a question
closer to the Miranda line than the question described at the
suppression hearing.   Consequently, our analysis will focus on
the   formulation  presented   at    trial.     If   that   passes
constitutional muster, then so will the other.
       4
       The suppression motion encompassed other statements as
well, but the "they caught me" statement is the only one Mr.
Harris presented for our review.


                                             4
                                                                   No.     2014AP1767-CR



following which the jury found Mr. Harris guilty on all four

counts.

      ¶8     Mr.    Harris       timely      appealed    his    conviction.        In   a

published decision, the court of appeals affirmed.                        It noted the

confusion over the precise wording of the question that preceded

Mr.   Harris's          "they     caught      me"    statement,     but     found       it

unimportant to the outcome.                   The court of appeals concluded

that, whatever the exact wording, it was "not reasonably likely

to    elicit       an     incriminating           response;      [and]     thus,    the

communication       did     not       constitute     interrogation        and   Miranda

warnings were not required."5

                                II.   STANDARD OF REVIEW

      ¶9     We employ a two-step process in reviewing a circuit

court's denial of a motion to suppress.                        State v. Eason, 2001

WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625.                       First, we review

the circuit court's factual findings and uphold them unless they

are clearly erroneous.                Id.6    Second, we apply constitutional

principles to those facts                de novo, without deference             to the
courts initially considering the question, but benefitting from

their analyses.          In re Commitment of Mark, 2006 WI 78, ¶12, 292

Wis. 2d 1,     718       N.W.2d 90        ("We    also   review,     de    novo,    the

application        of     constitutional            principles     to      established

      5
          Harris, 366 Wis. 2d 777, ¶25.
      6
       Notwithstanding the uncertainty over the exact wording of
Detective Buchanan’s question, neither party argues that any of
the circuit court’s factual findings were clearly erroneous.
Consequently, we do not address this step of the review process.


                                              5
                                                                            No.     2014AP1767-CR



facts.");           State     v.        Hansford,         219     Wis. 2d 226,       234,    580

N.W.2d 171 (1998) ("Although we review questions of law de novo,

we benefit from the analyses of the circuit court and the court

of appeals.").

                                         III. DISCUSSION

       ¶10       Mr.    Harris          presents          a    single    question      for   our

consideration:              Whether the State compelled him to be a witness

against         himself      by    using       his    answer     to     Detective    Buchanan's

question at trial.7                A simple question like "Would you like to

give       me   a   statement?"          may       seem   an    unlikely    candidate     for   a

constitutional violation, but as our analysis here demonstrates,

we   are        unstinting        in    our    protection        of     criminal    defendants'

rights.

       ¶11       There is history behind the protection against self-

incrimination, history that reminds us of why that barrier is so

important.             It   is     born       of    experience,       and   responds    to   the

dangers         inherent      in       the    inquisitorial        method    of     questioning

suspects:

       The maxim 'Nemo tenetur seipsum accusare,'[8] had its
       origin in a protest against the inquisitorial and
       manifestly unjust methods of interrogating accused

       7
       The Fifth Amendment to the United States Constitution
provides that no "person . . . [shall] be compelled in any
criminal case to be a witness against himself."     U.S. Const.
amend. V.     The Wisconsin Constitution article I, section 8
contains   an   analogous   provision,  which  says   that  "No
person . . . may be compelled in any criminal case to be a
witness against himself or herself."
       8
           "No one is bound to accuse himself."


                                                     6
                                                                   No.   2014AP1767-CR


       persons, which [have] long obtained in the continental
       system, and, until the expulsion of the Stuarts from
       the British throne in 1688, and the erection of
       additional barriers for the protection of the people
       against the exercise of arbitrary power, [were] not
       uncommon even in England.     While the admissions or
       confessions of the prisoner, when voluntarily and
       freely made, have always ranked high in the scale of
       incriminating evidence, if an accused person be asked
       to explain his apparent connection with a crime under
       investigation, the ease with which the questions put
       to him may assume an inquisitorial character, the
       temptation to press the witness unduly, to browbeat
       him if he be timid or reluctant, to push him into a
       corner, and to entrap him into fatal contradictions,
       which is so painfully evident in many of the earlier
       state trials, . . . made the system so odious as to
       give rise to a demand for its total abolition.
Brown v. Walker, 161 U.S. 591, 596—97 (1896).9                       The ease with

which innocent questions can become inquisitorial requires that

this       protection   apply    to   criminal    suspects    whether      they   are

inside or outside of the courtroom:                  "[T]he privilege against

self-incrimination        protects      individuals    not    only       from   legal

compulsion to testify in a criminal courtroom but also from

'informal compulsion exerted by law-enforcement officers during

in-custody questioning.'"             Pennsylvania v. Muniz, 496 U.S. 582,

589    (1990)     (quoting      Miranda   v.     Arizona,    384     U.S. 436,    461

(1966)).        Thus,    our    constitutional      protection       against    self-


       9
       Although this excerpt from Brown specifically addressed
coerced confessions, instead of the broader right to remain
silent (which we address here), its condemnation of the
inquisitorial method served as part of the motivating rationale
for the ubiquitous Miranda warnings. And its description of the
inquisitorial method provides valuable insight as we consider
what    constitutes   the   "functional   equivalent"   of   an
interrogation.


                                          7
                                                                No.       2014AP1767-CR



incrimination is called to duty whenever the State interrogates

a suspect in police custody.                See Miranda, 384 U.S. 436; see

also State v. Armstrong, 223 Wis. 2d 331, ¶29, 588 N.W.2d 606

(1999).

      ¶12    This freedom from compelled self-incrimination is one

of the nation's "most cherished principles."                Miranda, 384 U.S.

at 458.      We are sufficiently solicitous of this protection that

we guard it by patrolling a generous buffer zone around the

central prohibition.

                          A. Procedural Requirements

      ¶13    The most important aspect of that buffer is the right

to remain silent while in police custody.                   We actualize the

right by requiring the State's agents, before conducting an in-

custody interrogation, to formally instruct the suspect of his

constitutional rights and then conduct themselves according to

how he elects to preserve or waive them.               Thus, a suspect must

      be warned prior to any questioning that he has the
      right to remain silent, that anything he says can be
      used against him in a court of law, that he has the
      right to the presence of an attorney, and that if he
      cannot afford an attorney one will be appointed for
      him prior to any questioning if he so desires.
Miranda, 384 U.S. at 479.

      ¶14    This     procedural       safeguard       arose       out        of    an

understanding that custodial interrogations present a uniquely

intimidating       atmosphere   that   can     interfere    with      a     suspect's

exercise of his rights:          "The concern of the Court in Miranda

was   that     the    'interrogation        environment'       created        by   the
interplay     of    interrogation   and      custody    would    'subjugate        the

                                        8
                                                                      No.     2014AP1767-CR



individual to the will of his examiner' and thereby undermine

the    privilege       against      compulsory     self-incrimination."                  Rhode

Island v. Innis, 446 U.S. 291, 299 (1980) (quoting Miranda, 384

U.S.     at    457–58).         Requiring        this    warning,       and    scrupulous

adherence       to     the     suspect's     decisions         thereafter,       give      us

assurance       that    his    decision     to    remain       silent    has    not      been

overborne.       The consequence of failing to honor this safeguard

is loss of the evidence:              "[U]nless and until such warnings and

waiver are demonstrated by the prosecution at trial, no evidence

obtained as a result of interrogation can be used against [a

suspect]."       Miranda, 384 U.S. at 479.

       ¶15     There is no doubt Mr. Harris was in police custody

when Detective Buchanan asked whether he would like to make a

statement (he was in jail), so our inquiry focuses on whether

that question qualifies as an interrogation.                            As we discuss

below,      custodial        interrogation       can    take    the   form     of    either

express       questioning      or   its   functional       equivalent.10            We   will

analyze Detective Buchanan's question and Mr. Harris' response
under each rubric.             If either analysis reveals the question to

be an interrogation, then we must suppress Mr. Harris' response

because it was not preceded by a Miranda warning.


       10
       "[T]he term 'interrogation' under Miranda refers not only
to express questioning, but also to any words or actions on the
part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect."
Rhode Island v. Innis, 446 U.S. 291, 301 (1980).


                                             9
                                                                      No.      2014AP1767-CR



                               B. Express Questioning

    ¶16        "Express questioning" does not encompass every inquiry

directed    to    the    suspect.         It      covers     only     those         questions

"designed to elicit incriminatory admissions."                           Pennsylvania v.

Muniz, 496 U.S. 582, 602 n.14 (1990).                  See also Doe v. U.S., 487

U.S. 201, 211 (1988) ("Unless some attempt is made to secure a

communication——written, oral or otherwise——upon which reliance

is to be placed as involving [the accused's] consciousness of

the facts and the operations of his mind in expressing it, the

demand made upon him is not a testimonial one." (quoting J.H.

Wigmore, 8 Wigmore on Evidence, § 2265 (4th ed. 1988))).

    ¶17        It is the nature of the information the question is

trying    to    reach,     therefore,       that     determines          whether       it   is

inquisitorial.           If    that     information         has     no      potential       to

incriminate       the    suspect,     the        question     requires         no     Miranda

warnings.       Id. at 211 n.10 ("In order to be privileged, it is

not enough that the compelled communication is sought for its

content.           The     content       itself        must       have         testimonial
significance.").

    ¶18        Detective      Buchanan's         question     did        not    constitute

express    questioning        because    it      sought     nothing      that       could   be

potentially incriminating.              Although his question was certainly

designed to obtain a response, the only information it sought

was whether Mr. Harris would like to make a statement; it did

not seek the statement itself.                 The response to such a question

is either "yes" or "no," and neither would have any testimonial
significance whatsoever.              Thus, Detective Buchanan's question
                                            10
                                                                               No.     2014AP1767-CR



did      not      constitute         "express           questioning"                 because        the

constitutional           privilege     applies          only        to     the        search        for

incriminating evidence.

                               C. Functional Equivalence

      ¶19      There are more ways than one to obtain incriminating

evidence from a suspect.               Miranda addressed itself to the most

obvious——express          questioning.            But        there       are     techniques          of

persuasion that, in a custodial setting, can create the same

potential        for   self-incrimination              even    in    the        absence        of   an

express question.             So the Innis Court expanded the prophylactic

buffer      by    applying       Miranda's        procedural             safeguards          to     the

"functional equivalent" of an interrogation.                             Innis, 446 U.S. at

300–01.        Such an equivalent includes "any words or actions on

the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect."

Id. at 301.

      ¶20      The test for determining what words or behavior might
constitute the functional equivalent of an interrogation is not

as straightforward as it first appears.                              The test (as stated

above)    inquires        into    what      the    police       officer              should       know,

implying       the     test   might    be    conducted          from       his        perspective.

However,       Innis     requires     that        we    account          for     the        suspect's

perception of events for the specific purpose of broadening the

buffer:          "This    focus      reflects          the    fact        that        the     Miranda

safeguards were designed to vest a suspect in custody with an
added measure of protection against coercive police practices,
                                             11
                                                                         No.     2014AP1767-CR



without regard to objective proof of the underlying intent of

the police."         Id.

      ¶21      This means that, even where an officer's action had a

purpose other than interrogation, the action "must be viewed

from the suspect's perspective to determine whether such conduct

was     reasonably         likely    to     elicit       a     response."         State    v.

Cunningham,          144    Wis. 2d 272,          280,        423   N.W.2d 862       (1988).

Further, Innis noted that the police may need to be mindful of

the ease with which a given suspect might be persuaded to make

an incriminating statement:                 "Any knowledge the police may have

had concerning the unusual susceptibility of a defendant to a

particular form of persuasion might be an important factor in

determining         whether    the       police      should    have     known    that   their

words     or        actions    were        reasonably          likely     to     elicit    an

incriminating response from the suspect."                           Innis, 446 U.S. at

302 n.8.

      ¶22      In      Wisconsin,          we        implement          the      "functional

equivalency"         standard       by    positing       a    reasonable        third-person
observer and inquiring into how such a person would expect the

suspect to react to the officer's words and actions:

      [I]f an objective observer (with the same knowledge of
      the suspect as the police officer) could, on the sole
      basis of hearing the officer's remarks or observing
      the officer's conduct, conclude that the officer's
      conduct or words would be likely to elicit an
      incriminating response, that is, could reasonably have
      had the force of a question on the suspect, then the
      conduct or words would constitute interrogation.




                                                12
                                                              No.     2014AP1767-CR



Cunningham, 144 Wis. 2d at 278–79.            This test is objective with

respect to each of the participants in the interaction.                   That is

to say, we do not consider what any of the participants actually

intended or understood.           We consider only what the objective

third-party      observer      would   conclude        from     the     available

information.

       ¶23    In determining whether Detective Buchanan's dialogue

with    Mr.     Harris    is    the    functional       equivalent        of     an

interrogation, we consider more than just the bare words with

which he formed his question.           We must reconstruct——as near to

verisimilitude as possible——the entire context within which the

dialogue took place.        Then, as described above, we ask whether a

reasonable     observer   would    conclude    that     the   suspect     in    the

vignette would understand the officer's words and actions as

reasonably likely to elicit an incriminating response.

       ¶24    Here is what we know about the circumstances in which

Detective Buchanan had his brief conversation with Mr. Harris.

In the very early hours of a morning in 2011, the police found
Mr. Harris secreted away in the basement of a house in which he

did not belong, with copper piping and burglarious tools arrayed

about him.      After taking him into custody, he was placed in the

back    seat    of   Officer    Niebuhr's     patrol     car,       whereupon    he

commenced divulging a great deal of information, much of it

incriminating.       For example, he said he had been homeless for

seven years and frequently sleeps in vacant houses.                      He also

said he often commits misdemeanor crimes to obtain things to
sell "to get by," and that is what he intended to do with the
                                       13
                                                                       No.     2014AP1767-CR



copper piping.

    ¶25        Mr.    Harris    offered     all    of    this       information       without

prompting.           Officer    Niebuhr     made    no    threats       or   promises     to

obtain the statements, and in fact asked no questions of Mr.

Harris    at    all    (while    he   was    in    the        patrol    car)    before    he

provided this information.            Officer Niebuhr said Mr. Harris did

not appear to be intoxicated, overly tired, or otherwise not in

control of his faculties.                 He also appeared to be clean and

decently attired.

    ¶26        The police then transported Mr. Harris to the Kenosha

County    Jail.         Later    in   the    morning,          at    about     9:00    a.m.,

Detective Buchanan (who had not been present for Mr. Harris'

arrest), went to the jail to interview him.                         A guard brought Mr.

Harris (who was not handcuffed) to the main floor of the jail.

Detective Buchanan met him in a common area just outside the

interview rooms.           He did not smell alcohol on Mr. Harris or

observe any behavior that would indicate he was intoxicated.

Detective Buchanan then asked Mr. Harris the question at issue
in this case.

    ¶27        As all such scenarios must be, this vignette is fact-

bound, which does not make it especially amenable to fixed rules

of interpretation.         However, past cases help sketch the boundary

between        "functional        equivalents            of      interrogation"          and

constitutionally-innocent questions and acts.                           We collected a

sampling of such cases in State v. Hambly, 2008 WI 10, 307 Wis.

2d 98, 745 N.W.2d 48, some of which we address below.
    ¶28        Our     evaluation     of     Detective          Buchanan's        question
                                            14
                                                                        No.   2014AP1767-CR



accounts for the following principles useful in identifying the

"functional equivalent" of an interrogation.                       As we consider and

apply those principles, we keep firmly in mind that the ultimate

purpose     of   our    analysis           is    to     protect        against    coerced

confessions by respecting a suspect’s decision to remain silent:

"In deciding whether particular police conduct is interrogation,

we must remember the purpose behind our decisions in Miranda and

Edwards [v. Arizona, 451 U.S. 477 (1981)]: preventing government

officials    from   using      the     coercive         nature    of     confinement    to

extract confessions that would not be given in an unrestrained

environment."       Arizona v. Mauro, 481 U.S. 520, 529–30 (1987).

Although the effect of that coercion may differ from suspect to

suspect, a specific individual's special susceptibility enters

the equation only if the State's agents should know of it.                            See,

e.g.,   Innis,    446   U.S.      at   303       n.10    (the    "subtle      compulsion"

associated with an unknowing appeal to the suspect's conscience

is not an interrogation).

      ¶29   From our cases addressing police statements made to a
suspect, as opposed to questions asked of him, we confirm that

our primary point of focus is on the reasonably likely effect of

the   officer's     words    on      the     suspect,      not     their      grammatical

format.     Seemingly       innocuous       statements,          when    freighted    with

subtext or inquisitorial design, can become an interrogation.

Thus, a dialogue with a suspect can constitute an interrogation

even when law enforcement officers ask no questions.                              Hambly,

307 Wis. 2d 98, ¶46 ("A law enforcement officer may thus be
viewed as interrogating a suspect by a statement, without asking
                                            15
                                                                No.    2014AP1767-CR



a single question, if the law enforcement officer's conduct or

speech could have had the force of a question on the suspect.").

       ¶30     However, to rise to the level of an interrogation, the

officer's statements (or, in this case, question) must exert a

compulsive force on the suspect:                 "Interrogation must reflect a

measure of compulsion above and beyond that inherent in custody

itself."          Id. (quoting Innis, 446 U.S. at 300) (internal marks

omitted).           For    example,    an   officer's     cryptic   comment        about

information only the perpetrator of the crime would recognize

may be considered functionally equivalent to an interrogation

because of the effect the comment causes.                   State v. Bond, 2000

WI App 118, 237 Wis. 2d 633, 614 N.W.2d 552.                   Similarly, giving

unresponsive answers to questions posed by a suspect with the

intent       of    provoking     an    incriminating       response,    and        using

interrogation techniques during the conversation, can serve as

the    functional         equivalent   of   an   interrogation.        Hambly,       307

Wis. 2d 98, ¶¶63-65 (citing Hill v. United States, 858 A.2d 435

(D.C. Ct. App. 2004) (finding that an officer telling a suspect
that     "he      told    us   what    happened"    was    unresponsive       to     the

defendant’s question regarding another person in custody and,

when coupled with other common interrogation techniques designed

to elicit a response, met the functional equivalency test)).

       ¶31     But police interactions with a suspect do not amount

to interrogations so long as they are not reasonably likely to

elicit an incriminating response.                  That is why law enforcement

officials may make context-appropriate, and accurate, comments
to a suspect without running afoul of Miranda and Innis.                            They
                                            16
                                                                 No.     2014AP1767-CR



can, for example, provide information responsive to questions

posed by defendants.            Hambly, 307 Wis. 2d 98, ¶¶65–66 (finding

no functional equivalence where defendant made an incriminating

statement after the police officer, prior to                     giving him the

Miranda warnings, informed the defendant of why he was under

arrest).          Similarly,    if   a   suspect    volunteers         incriminating

information following an officer's non-leading, direct responses

to the suspect's questions about possible charges against him,

there has been no functional equivalent of an interrogation.

State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656 N.W.2d 503

(finding that "an objective observer would not, on the sole

basis of hearing [defendant's] words and observing his conduct,

conclude     that    [an    officer's]   answers    to    [defendant's]          direct

questions about the evidence against him would be likely to

elicit      an    incriminating      response . . . .").          Nor      are     non-

editorialized statements of fact the functional equivalent of an

interrogation.         Easley v. Frey, 433 F.3d 969 (7th Cir. 2006)

(finding     no    interrogation     when     suspect   confessed       after    being
accurately informed that someone had implicated him in a crime,

and that he could be subject to the death-penalty if convicted).

      ¶32    Finally, we must also pay attention to the atmosphere

in which the suspect incriminates himself.                  As Innis observed,

the   Miranda       Court      was   concerned     with    the     "interrogation

environment" created by custodial questioning.                   Innis, 446 U.S.

at 299.      A police officer's quotidian question posed to a person

strolling in a park may carry an objectively different import if
growled at a manacled suspect held incommunicado for an extended
                                         17
                                                                             No.     2014AP1767-CR



period of time in a stark interview room.

     ¶33     With      all    of     this    in       mind,     we     have    no    difficulty

finding     that       Detective           Buchanan's          question        was     not    the

functional equivalent of an interrogation under the Cunningham

formulation.         There is no indication Detective Buchanan intended

his question to elicit an incriminating statement, nor is there

anything to suggest that asking a suspect whether he would like

to   make       a     statement       is     a        police     practice          designed    to

surreptitiously            cause     the    suspect        to    divulge           incriminating

evidence.

     ¶34     Further, the context in which he asked the question

conveyed a non-inquisitorial purpose.                          Mr. Harris and Detective

Buchanan were standing in a common area outside the interview

rooms.      A       reasonable     observer           would    conclude       that     Detective

Buchanan's question was diagnostic in nature:                            Should he conduct

Mr. Harris into the interview room where he would then give his

statement, or should he instead return Mr. Harris to his cell?11

Incidentally, Mr. Harris' response strongly suggests this is how
he understood it, too.                He said:           "They caught me man, I got

nothing     else      to     say."         The    latter        part    of     his     statement

indicates he believed there was no point in proceeding to the

interview room, and so he gave what amounted to a functional

"no" to the Detective's invitation.                           The initial clause of his


     11
       By "diagnostic" we mean a question that seeks information
useful   for  a   State  agent’s   functional  (as  opposed   to
inquisitorial) interaction with a suspect.


                                                 18
                                                                   No.    2014AP1767-CR



statement simply (and, perhaps, unwisely) explained why he was

declining      the    invitation.        But     even    if    he        subjectively

understood it otherwise, a reasonable observer would not expect

this    question,     presented   in    this   setting,       to    convey    to   Mr.

Harris       that    he   was   being    asked     to     immediately         provide

incriminating information.12

       ¶35    This diagnostic question aligns well with situations

in which we find no constitutional violation when police convey

non-editorial        statements   of    fact     to     suspects,        or   provide

accurate responses to their questions.                   In neither of those

circumstances        is   there   an     inquisitorial         subtext        to   the

communication.        That is true here as well.          Detective Buchanan's


       Mr. Harris urges us to follow the conclusion reached in
       12

State v. Hebert, 82 P.3d 470 (Kan. 2004).     But Messrs. Harris
and Hebert's situations are sufficiently dissimilar that the
Kansas Supreme Court's resolution does not counsel a different
result here.    There, Special Agent Cordts, before giving the
Miranda warnings, said:
     Talk to you a little bit and get both sides of the
     story. I've only heard one side of the story and,
     obviously, there's always two sides of a story here
     and I'd like in your words, your input and tell me
     what happened and explain in your words and coming
     from you. Would you like the opportunity to tell me
     your side of the story?
Id. at 480.    Mr. Hebert then started divulging incriminating
information.
     Agent Cordts' question is similar to that of Detective
Buchanan. But unlike here, it did not exist in isolation. The
preamble to Agent Cordts' question conveyed the idea that he
wanted Mr. Hebert to start talking. Agent Cordts' statement and
question, taken together, was tantamount to an instruction to
give a statement.    Thus, Hebert is substantively distinct from
Detective Buchanan's isolated diagnostic question, and so can
give Mr. Harris no support.


                                        19
                                                                        No.   2014AP1767-CR



question was not an excerpt from an extended conversation, nor

was there any indication Detective Buchanan was pressuring Mr.

Harris or menacing him.              There was no trickery, no good cop/bad

cop routine, no attempt to make him contradict prior statements,

and no evidence of any other discernible form of interrogation

technique.13      Thus, there was no proscribed inquisitorial element

to the question.             Sometimes, an inquiry calling for a "yes" or

"no" answer really does seek nothing more than that.

     ¶36    Finally,         there    is    the    question     of   what     the    police

knew, or should have known, about Mr. Harris and any particular

susceptibility          he    may    have    had     to    a    particular         form    of

persuasion.       Innis, 446 U.S. at 302 n.8.                  This question need not

detain     us    long    because      the     record does         not     indicate        that

Detective       Buchanan      exercised      any    form   of     persuasion,        either

expressly or implicitly, when he asked if Mr. Harris wished to

make a statement.            We will, however, briefly address Mr. Harris'

suggestion        that       his     particular       vulnerability           to     police

questioning made Detective Buchanan's question an interrogation.
     ¶37    Mr. Harris says his "emotional state was one in which

he was especially inclined to explain himself to law enforcement

with statements that a prosecutor would want to introduce at

trial."         He says Detective Buchanan, having read the police


     13
       We list these techniques only to identify ways in which
police conduct may become inquisitorial, thereby serving as the
functional equivalent of an interrogation.         We are not
suggesting there is anything amiss with these tactics when
employed in the proper context.


                                             20
                                                                       No.     2014AP1767-CR



reports before meeting him outside of the interview rooms, would

have known this.            He does not say what that emotional state was

or    how     Detective         Buchanan    was     supposed      to   infer     from       the

report's recounting of events what his emotional state had been.

Nor does he say what his emotional state at the time of arrest

might tell Detective Buchanan about his emotional state when he

met him outside the interview rooms.                       Because so many factors

and inputs affect one's state of mind, emotional lability is to

be expected.         So a person's emotional condition from hours past

is a poor predictor of what it might be presently.

       ¶38     Mr.    Harris       points    out,      correctly,      that    the    police

reports       reveal       he    provided    several      unprompted         incriminating

statements to Officer Niebuhr after he was arrested.                                 He says

this should have warned Detective Buchanan that his question

would likely result in incriminating statements.                              Mr. Harris'

conclusion, however, does not logically follow from his premise.

One     may    deduce       from     the    report       that    Mr.    Harris       may    be

loquacious,         but    little    more.        It   says     nothing    about     how    he
responds       to     questioning——his            statements       were,      after        all,

unprompted.          And neither Officer Niebuhr nor any other State

agent had exercised any form of persuasion on Mr. Harris before

he    implicated          himself.        Thus,    his    interaction        with    Officer

Niebuhr could not instruct Detective Buchanan on how particular

forms    of    persuasion         might     affect     him.      Whatever      reason       Mr.

Harris had for volunteering his statements to Officer Niebuhr,

his behavior did not indicate he would be particularly prone to
incriminating          himself       in     response      to    Detective       Buchanan's
                                              21
                                                                          No.        2014AP1767-CR



question.

       ¶39    Our analysis of this factor would be incomplete if we

did not account for both sides of the "susceptibility" ledger.

That is to say, we should consider not just what might make him

more   susceptible      to    police       tactics,        but     also    what        would    be

likely to make him less susceptible.                       This was not Mr. Harris'

first encounter with police questioning.                          Nor was it his first

time being arrested or convicted.                       In fact, he was charged in

this case as a repeat offender.                         Repeat, indeed——the record

discloses that this conviction makes it an even dozen for Mr.

Harris.      His familiarity with the criminal justice system does

not, of course, diminish the State's obligation to scrupulously

follow constitutional mandates.                     But our project at this point

of   the     analysis   is    to        discern,      as    accurately          as     possible,

whether Detective Buchanan's question would be reasonably likely

to elicit an incriminating response from Mr. Harris.                                       It is

reasonable to believe that a person’s twelfth time through the

criminal      justice    system         will    be    less       intimidating          than    the
first.        Inasmuch       as     Mr.        Harris      has     not    identified           any

characteristic      making         him     particularly            susceptible           to    law

enforcement officers' persuasion tactics, we will not infer one

for him just because he is loquacious.

       ¶40    We conclude that there was no functional equivalent of

an interrogation because, considered in the context of all the

circumstances described above, there was no reasonably causal

relationship      between         the    State's        words     or     actions        and    Mr.
Harris' incriminating statement.                     A question such as "Would you
                                               22
                                                                        No.    2014AP1767-CR



like   to    give    me     a    statement?",       when   posed     in    the     situation

obtaining     here,        would    not    logically       cause    a   suspect      to    say

something incriminating.                  It is true that Mr. Harris' "they

caught me" statement followed Detective Buchanan's inquiry, but

only post hoc ergo propter hoc reasoning can make the question

the cause of the answer’s incriminating substance.                             We will not

entertain that logical error.

       ¶41   Mr. Harris brings to our attention a Hawai'i case with

a prescription that would effectively eliminate the need for our

"functional     equivalency"             analysis    here.         State      v.   Eli,    273

P.3d 1196 (Haw. 2012).               In that case, as here, a police officer

asked the suspect if he would like to make a statement.                              Mr. Eli

said   he    would,        without       saying    anything    incriminating.              The

officer then gave him the Miranda warnings, only after which Mr.

Eli incriminated himself.                 Nevertheless, Hawai'i's Supreme Court

said   the    officer's         diagnostic        question    compelled        Mr.   Eli    to

serve as a witness against himself.

       ¶42   The Eli court concluded that a pre-Miranda agreement
to give a statement has an effect so coercive that the Miranda

warnings cannot counteract it.                     So the court said the Miranda

warnings must precede any inquiry into whether the suspect would

like to speak.        The reasoning appears to be that, once a suspect

agrees to give a statement, his will is so completely overthrown

that immediately instructing him he need not speak still leaves

him unable to remain silent.                      Why such an innocuous question

would have such a catastrophic effect, and why a suspect would
be   affected       more    by     the    remote    question       than    the     immediate
                                              23
                                                           No.     2014AP1767-CR



instruction, is unclear.         We do not, as a rule, assume that a

suspect is so fragile that a diagnostic question such as the one

posed by Detective Buchanan can shatter his will so thoroughly

that it leaves him beyond the rehabilitative ministrations of

the Miranda warnings.         In point of fact, our jurisprudence is to

the contrary.14

     ¶43    Our conclusion mirrors a recent United States Court of

Appeals    opinion    (more    recent    than   Eli)   treating     an   almost

identical dialogue.      United States v. Wallace, 753 F.3d 671 (7th

Cir. 2014).     There, agents of the Drug Enforcement Agency raided

Mr. Wallace's house, wherein they found large amounts of illegal

drugs.       During   the     search,    law    enforcement      officers   had

marshalled the house's occupants into the front room, including

Mr. Wallace.      The lead DEA agent approached Mr. Wallace and

asked:     "[W]ould you mind stepping out to talk about this?"              Id.



     14
       See, e.g., Oregon v. Elstad, 470 U.S. 298, 309 (1985)
("Though Miranda requires that the unwarned admission must be
suppressed, the admissibility of any subsequent statement should
turn in these circumstances solely on whether it is knowingly
and voluntarily made."); State v. Armstrong, 223 Wis. 2d 331,
588 N.W.2d 606 (1999) (finding oral statements made before a
Miranda warning inadmissible, but written statements made after
Miranda warning admissible); Briggs v. State, 76 Wis. 2d 313,
251 N.W.2d 12 (1977) (finding that even where an initial
statement made without Miranda warnings was inadmissible,
subsequent statements given at a police station after Miranda
warnings were admissible as they were the result of routine
investigative procedures); State v. Loeffler, 60 Wis. 2d 556,
211 N.W.2d 1 (1973) (holding that statements given after Miranda
warnings are admissible, even when the arrest that preceded the
statements was constitutionally deficient).


                                        24
                                                                     No.    2014AP1767-CR



at 673.      Mr. Wallace answered "I don't want to waste your time,

everything in there's mine."                Id.

      ¶44    Messrs.         Harris         and   Wallace        occupy       identical

constitutional ground.           Both were in police custody.                 Both were

asked by law enforcement officers whether they would like to

discuss criminal activity.              Both could have fully and accurately

answered the question with either a "yes" or a "no."                           And both

chose, instead, to respond with incriminating statements.

      ¶45    The Wallace court did not belabor the analysis.                           It

observed that "[t]he agent was just asking the defendant whether

he wanted to make a statement, to which the expected and proper

answer would have been yes or no."                  Id. at 674.            So the court

found no constitutional violation:                  "That was not a statement

elicited by an interrogation, or even responsive to the agent's

question      (which    called        for     a   yes     or    no   answer,     not   a

confession), and so there was no violation of the Miranda rule."

Id.   And although the court did not explicitly address the Innis

functional equivalency test, it relied on that case to support
its conclusion.

      ¶46    The Fifth Amendment to the United States Constitution

and article I, section 8 of the Wisconsin Constitution prevent

the State’s agents from compelling a defendant to serve as a

witness against himself.               But their protection is against the

State.      They do not protect Mr. Harris from himself.                     Whether or

not it was wise for him to make the statement he did, he was not

coerced     into    forsaking         his    silence.          Detective     Buchanan’s
question      was      not      the         "functional        equivalent"      of     an
                                             25
                                                            No.   2014AP1767-CR



interrogation, and so no Miranda warnings were necessary before

he asked it.15

                              V.   CONCLUSION

     ¶47    Detective Buchanan's inquiry into whether Mr. Harris

would like to make a statement was diagnostic in nature, not

inquisitorial, and the circumstances confirm that it was not the

functional equivalent of an interrogation.             Thus, Mr. Harris'

statement that "They caught me man, I got nothing else to say"

followed a voluntary decision to speak with Detective Buchanan.

     ¶48    Because the State did not compel Mr. Harris to be a

witness against himself, the judgment of the court of appeals is

affirmed.

     By    the   Court.—The   decision   of   the   court    of   appeals   is

affirmed.




     15
       The dissent is concerned that the uncertainty over the
exact wording of Detective Buchanan’s question weakens our
analysis. Of all the potential ways in which the parties say he
may have phrased his question, we opted to consider the one most
favorable to Mr. Harris. Indeed, it is the phrasing he adopted
in his own briefs. So if there is weakness-inducing uncertainty
here, neither logic nor the dissent identifies what it might be.


                                    26
                                                                    No.   2014AP1767-CR.akz




       ¶49   ANNETTE KINGSLAND ZIEGLER, J.                    (concurring).        I join

the majority opinion so long as it is read to answer only the

issue presented and does not alter, change, or affect existing

case law concerning Miranda, 384 U.S. 436 (1966), or an issue

not present here, Goodchild (voluntariness).                        See State ex rel.

Goodchild v. Burke, 27 Wis. 2d 244, 262, 133 N.W.2d 753 (1965).

The    question     in   this     case    is       exceedingly      narrow.      "Miranda

warnings     need    only    be    administered          to    individuals       who    are

subjected to a custodial interrogation."                         State v. Armstrong,

223 Wis. 2d 331, 344-45, 588 N.W.2d 606 (1999), modified, 225

Wis. 2d 121, 591 N.W.2d 604 (1999) (per curiam).                            There is no

dispute that Harris was in custody at the time that Detective

Buchanan asked Harris whether he wanted to give a statement.

Thus, the only issue this court need resolve in the present case

is      whether      Detective           Buchanan's           question        constitutes

"interrogation."         Supreme Court case law, in turn, instructs

that "the term 'interrogation' under Miranda refers not only to
express questioning, but also to any words or actions on the

part    of   the    police   (other       than       those    normally     attendant     to

arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect."

Rhode    Island     v.   Innis,     446    U.S.       291,    301    (1980)     (footnote

omitted).     I agree with the court's determination that Detective

Buchanan's     brief     interaction       with       Harris     does     not   fit    this

definition and that the absence of a Miranda warning prior to
that interaction does not, therefore, mandate reversal.

                                               1
                                                                     No.    2014AP1767-CR.akz


    ¶50     I     write       separately         to       clarify   that      the    court's

additional writing beyond the narrow question to be answered

should    not    be    read    to    change        the     law   relating    to     Goodchild

inquiries, which are not at issue in this case.                                A Goodchild

analysis is distinct from a Miranda analysis: "In Miranda the

question    is,       was   the     confession        or    other   statement       obtained

under     such    circumstances           of     custodial        interrogation       as    to

require    the     exclusion         of    the      statement       from     evidence.     In

Goodchild the question is, was the statement involuntary and

therefore should be excluded from evidence."                         Roney v. State, 44

Wis. 2d 522, 533, 171 N.W.2d 400 (1969).

    ¶51     When       examining      whether         a    declarant's      statement      was

voluntary, the question is "whether [the statement] was obtained

under such circumstances that it represents the uncoerced, free

will of the declarant or whether the circumstances deprived him

of the ability to make a rational choice."                        Id. at 532-33.

         This    court    applies   a    totality    of   the
    circumstances    standard   to   determine    whether   a
    statement was made voluntarily.      We must balance the
    personal characteristics of the defendant, such as
    age, education, intelligence, physical or emotional
    condition, and prior experience with law enforcement,
    with the possible pressures that law enforcement could
    impose.    Possible pressures to consider include the
    length    of   questioning,    general    conditions   or
    circumstances in which the statement was taken,
    whether   any   excessive   physical   or   psychological
    pressure was used, and whether any inducements,
    threats, methods, or strategies were utilized in order
    to elicit a statement from the defendant.
State v. Davis, 2008 WI 71, ¶37, 310 Wis. 2d 583, 751 N.W.2d 332

(citations omitted).



                                               2
                                                          No.   2014AP1767-CR.akz


       ¶52    To be clear, the question in this case is not whether

Harris' statement was voluntary; instead, the court has simply

been asked to determine whether Detective Buchanan interrogated

Harris.       At times, the majority opinion could be read to deviate

from    the       relevant   analysis     and   dabble   with   considerations

relevant to voluntariness, conflating the analyses.                I join this

opinion only if it is read to answer the question of whether

this was interrogation, leaving untouched the body of case law

which otherwise addresses Miranda or Goodchild.                 Thus, I write

to emphasize that this opinion should not be read to otherwise

change the law.

       ¶53    For the foregoing reasons, I respectfully concur.

       ¶54    I    am   authorized   to   state   that   Justice   MICHAEL    J.

GABLEMAN joins this opinion.




                                          3
                                                             No.   2014AP1767-CR.ssa




     ¶55     SHIRLEY S. ABRAHAMSON, J.            (dissenting).        A homeless

man, Brian Harris, was arrested late one night while he was

sleeping off a day's drinking in the basement of an abandoned

building.1       He was not given Miranda warnings.2

     ¶56     It is easy to use soaring rhetoric promising a court's

"unstinting" protection of a criminal defendant's constitutional

right not to be compelled to be a witness against himself,3 "one

of the nation's 'most cherished principles.'"4                     It's harder to

make the promise ring true, however, when a court stints in

protecting the defendant's constitutional rights.

     ¶57     I    begin   by   briefly       setting   the    stage    underlying

Harris's assertion that he was compelled to be a witness against

himself.

     ¶58     Both in the abandoned building's basement where Harris

was arrested and in his ride in the back of the squad car on his

     1
       At trial, Harris testified that he was too intoxicated to
have any memory of the night's events other than glimpses of
waking up in a mysterious basement with a police officer
standing over him and arresting him.
     2
         Miranda v. Arizona, 384 U.S. 436 (1966).
     3
         Majority op., ¶¶10-14.

     The Fifth Amendment to the United States Constitution
provides that no "person . . . shall be compelled in any
criminal case to be a witness against himself . . . ."   U.S.
Const. amend. V.    This provision is made applicable to the
states through the Fourteenth Amendment. Malloy v. Hogan, 378
U.S. 1 (1964).
     4
         Majority op., ¶12.


                                         1
                                                          No.   2014AP1767-CR.ssa


way to jail, Harris was loquacious.              The talkative Harris told

the   arresting   officers     that       he     had     been    homeless    for

approximately seven years; that he frequently went into vacant

buildings to sleep; that he was going to take copper piping from

the building in which he was arrested and sell it for money for

food; that he often commits misdemeanor crimes to get items to

sell for food to get by; and that he was alone.                        Harris's

statements at his arrest that were admitted at trial are not at

issue in this court.5

      ¶59   In the morning, Harris was led by jail guards to an

area in the jail outside of an interview room.                  He met up with

Detective Buchanan.     No one disputes that Harris was in custody.

No one disputes that the Detective asked Harris one question and




      5
       Citing   State  v.  Wedgeworth,    100  Wis. 2d 514,   302
N.W.2d 810 (1981), the circuit court ruled that the basement and
squad car statements "were voluntary, and they appear to me to
be the product of free and unconstrained will, reflecting
deliberate   choice,  not  coerce   [sic]   of  improper   police
pressure."

     Harris appealed     the   circuit         court's    decision    admitting
these statements.

     The court of appeals ruled that Harris' statements made in
the basement were the result of custodial interrogation and
should be suppressed. The court of appeals ruled, however, that
Harris's statements in the squad car were not the result of
interrogation and were sufficiently attenuated from the improper
questioning in the basement.   State v. Harris, 2016 WI App 2,
¶¶11-19, 366 Wis. 2d 777, 874 N.W.2d 602. Harris did not appeal
this ruling and does not challenge before this court the
admissibility of the statements in the basement or in the squad
car.


                                      2
                                                           No.   2014AP1767-CR.ssa


that Harris made an incriminating response before any Miranda

warnings were given.6

      ¶60    The incriminating response to the Detective was not

suppressed by the circuit court.7               It was introduced at trial

during the State's case-in-chief.               Harris testified at trial,

and the jury found him guilty of all charges.8              Majority op., ¶7.

      ¶61    The admissibility of Harris's response at the jail is

at issue in the instant case.                The relatively straightforward

legal issue presented is whether the Detective's question was

interrogation under the Fifth Amendment.              The State must prove

by a preponderance of evidence that the Detective's question was

not   an    express    question   or   the    functional   equivalent      of    an

express     question     for   Fifth    Amendment     purposes.9         If     the

Detective's question was either, Harris's response should have

been suppressed.


      6
       "[T]he words 'incriminating response' mean any response——
whether 'inculpatory or exculpatory——that the prosecution may
seek to introduce at trial.'" State v. Cunningham, 144
Wis. 2d 272, 279, 423 N.W.2d 862 (1988) (quoting Rhode Island v.
Innis, 446 U.S. 291, 301 n.5 (1980)).
      7
       The court of appeals affirmed, holding that Harris was not
subject to interrogation at the jail.        Harris appealed the
decision of the court of appeals.
      8
       Harris was charged (as a repeater) with burglary,
possession of burglarious tools, criminal damage to property,
and criminal trespass. The jury convicted him of all four
counts.   The circuit court withheld sentence on all counts and
put Harris on probation for many months.
      9
       State v. Armstrong, 223 Wis. 2d 331, 345, 588 N.W.2d 606
(1999); State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656
N.W.2d 503.


                                        3
                                                                  No.   2014AP1767-CR.ssa


      ¶62    My dissent takes two approaches, each considering the

case "upon its own facts," as the case law instructs.10

      ¶63    Under the first approach, I probe whether the majority

opinion can or should reach a decision when the record does not

reveal the precise words of the question the Detective posed to

Harris that prompted Harris to respond with an incriminating

statement.

      ¶64    Under the second approach, I take the same tack as the

majority opinion.           I apply the rule of law set forth in State v.

Cunningham,        144    Wis. 2d 272,       423    N.W.2d 862         (1988),      to   the

facts.      Majority op., ¶¶21-22.                 Although I use a Cunningham

analysis     as    does     the    majority      opinion,    I    reach       a   different

result.

      ¶65    I avoid, however, addressing the majority opinion's

belabored         account     of     the      applicable         law     on       custodial

interrogations.          The legal principles set forth in the majority

opinion would be easier to understand and apply if the opinion

stayed with the Cunningham analysis.
                                             I

      ¶66    The first approach examines the record to reveal that

the court does not know the Detective's precise word choice for

his question to Harris.             Exactly what did Detective Buchanan say

to Harris that brought forth Harris's incriminating statement?

We   do    not    know.      Indeed    the       case   is   awash      with      different

narratives about the Detective's question to Harris.


      10
           Cunningham, 144 Wis. 2d at 274.


                                             4
                                                                   No.    2014AP1767-CR.ssa


       ¶67    At the suppression hearing, the Detective testified as

follows about his question to Harris and Harris's response:

       I went there [to the jail] with the intention of
       asking Mr. Harris if he would like to come with me to
       the detective bureau to be interviewed.    I asked him
       if he would, and he stated to me something to the
       effect that they caught me, what's the point.
       ¶68    At trial, the Detective altered his testimony somewhat

from    the    motion    hearing      and   testified       as    follows        about   his

question to Harris and Harris's response:

       I reviewed the reports and went to jail. . . . I asked
       the defendant if he would like to give me a statement,
       and he said, they caught me man, I got nothing else to
       say.
       ¶69    The question was not recorded or videotaped and the

Detective's      communication        with       Harris     ended    right        then   and

there.

       ¶70    The    State's       brief         explains     that        "the      altered

testimony"      does    not     "materially        alter    the     terrain"       and   for

"purposes of clarity and consistency" it "will go with Detective

Buchanan's testimony at trial as the operative fact."11

       ¶71    The majority opinion uses the words the circuit court

used:       "Would you like to give a statement?"                 Majority op., ¶6.

       ¶72    With     regard    to    this      wording     and     to     add    to    the

confusion about the words the Detective used to communicate with

Harris, the court of appeals concluded that the words "would you

like to give a statement" were "never used at trial."                             The court

of appeals assures the reader, however, that the circuit court's

       11
            Brief of Plaintiff-Respondent at 5 n.2.


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                                                      No.   2014AP1767-CR.ssa


"mischaracterization" of the Detective's words did not affect

the decision of the court of appeals.            The court of appeals

explained its position as follows:

    The circuit court indicated in its ruling that
    Buchanan asked Harris "would you like to give a
    statement"——words   Buchanan   never    used   in   his
    testimony, but which, in one sense reasonably could be
    considered   a   shorthand   phrasing   of   Buchanan's
    testimony.   Thus whether as a summary of Buchanan's
    actual testimony or as an erroneous recollection of
    it, the [circuit] court chose to use specific words
    Buchanan never actually spoke in his testimony.12
    ¶73    Regardless of the precise words the Detective used,

the State argues, as might be expected, that the Detective's

question   can   reasonably   be   interpreted   as    an    inquiry    into

whether Harris wished to talk with the police, was answerable

with a "yes" or "no," and was not the functional equivalent of

an express question.    In contrast, as might be expected, Harris

views the Detective's question as an express question or the

functional equivalent of an express question.

    ¶74    Cunningham directs a court to view the law enforcement

officer's communication from the suspect's perspective.13              It is

therefore important for a Miranda analysis to know the officer's

    12
       Harris, 366 Wis. 2d 777, ¶22.      The court of appeals
further explained that the circuit court's mischaracterization
of the Detective's testimony was not drawn from "whole cloth"
but was probably based on the prosecutor's and defense counsel's
frequent restating of the Detective's communication in argument
as "Would you like to give a statement?"            Harris, 366
Wis. 2d 777, ¶22 n.2.
    13
       Cunningham, 144 Wis. 2d at 279 ("[T]he focus of the Innis
test is primarily upon the perceptions of the suspect.")
(internal quotation marks and citations omitted).


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                                                                    No.    2014AP1767-CR.ssa


exact       language    and   the         context     in   which    the     communication

occurred.        A law enforcement officer's choice of words might

have    material       bearing       on    how    a   suspect    will     understand      the

officer's communication.               Wording can be dispositive.

       ¶75     Different words may evoke different responses from a

suspect, and the same words or substantially the same words may

evoke different responses from different justices and different

courts.14

       ¶76     Not knowing what the Detective said to Harris renders

the court's analysis in the instant case weak.

                                                 II

       ¶77     The second approach is the one the majority opinion

takes:       Apply the rule of law set forth in State v. Cunningham,

144     Wis. 2d 272,      423        N.W.2d 862       (1988),      to     the    record   to

determine      whether     the       communication         at   issue     is,    for   Fifth

Amendment       purposes,       an        express     question     or     the    functional

equivalent that must be prefaced by Miranda warnings.                             I do not

reach the same conclusion as the majority opinion.
       ¶78     Cunningham,       144       Wis. 2d    at   278-79,        sets   forth    the

objective observer test to determine whether a law enforcement




       14
       See, e.g., the discussions in the majority opinion and in
the State's brief in State v. Hebert, 82 P.3d 470 (Kan. 2004),
and State v. Eli, 273 P.3d 1196 (Hawai'i 2012).


                                                 7
                                                   No.   2014AP1767-CR.ssa


officer's    conduct   or   words   constitutes   interrogation    of   a

suspect.    Cunningham directs courts to consider the following:15

    • The Miranda procedures are designed to protect a
      suspect in custodial situations where the compulsion
      to confess may be present. When a custodial suspect
      is interrogated by law enforcement officers without
      Miranda warnings, there is a presumption that any
      ensuing statements of the suspect resulting from the
      unwarned interrogation were compelled and must be
      suppressed.16

    • The focus is primarily upon the perception of the
      suspect to determine whether the officer's words or
      conduct was reasonably likely to elicit a response.

    • The test is not directed at the subjective intent of
      the officer.

    • The officer's communication is judged from the
      standpoint of an objective observer who has the same
      knowledge of the suspect as the police officer.

    • The objective observer would have the officer's
      knowledge of a suspect's unusual susceptibility to a
      particular form of persuasion.17
    15
       Cunningham's   objective  observer   foreseeability  test
involves a review of many fact-intensive factors: the suspect's
perspective, the officer's intent, the length of the discussion,
the officer's knowledge of the suspect's susceptibility, the
suspect's emotional state, and the purpose behind the Miranda
and Innis decisions. Cunningham, 144 Wis. 2d at 278-80.
    16
       Miranda, 384 U.S. at 471–72; Dickerson v. United States,
530 U.S. 428, 435 (2000); Oregon v. Elstad, 470 U.S. 298, 309,
310, (1985) ("Miranda requires that the unwarned admission must
be suppressed . . . ." This is true even though "[t]he failure
of police to administer Miranda warnings does not mean that the
statements received have actually been coerced, but only that
courts will presume [that] the privilege against compulsory
self-incrimination has not been intelligently exercised.").
    17
       Confinement might increase a suspect's anxiety and make
him more likely to seek discourse with others and more
susceptible to talking. See 2 Wayne R. LaFave et al., Criminal
Procedure § 6.7(c), at 877 (4th ed. 2015).

                                    8
                                                              No.   2014AP1767-CR.ssa

     • The objective observer would determine whether the
       officer's conduct or words play on the suspect's
       unusual susceptibility.

     • The objective observer could, on the sole basis of
       hearing the officer's remarks or observing the
       officer's conduct, conclude that the officer's
       conduct or words would have had the force of a
       question on the suspect.

     • The objective observer could, on the                    sole basis of
       hearing the officer's remarks or                       observing the
       officer's conduct, conclude that                       the officer's
       conduct or words would be likely                       to elicit an
       incriminating response.

     • Officers   cannot  be   held  accountable   for  the
       unforeseeable results of their words or actions.
     ¶79    The   determination      of       whether   the    facts    of   a   case

satisfy    the    legal   standard    articulated        in     Cunningham       is   a

question of law that this court determines independently of the

circuit court.18      I therefore apply the objective observer test

to the facts as a matter of law.

     ¶80    Before meeting Harris in a jail hallway outside of an

interrogation room, the Detective had read the reports on Harris

and was familiar with Harris's conduct of the previous night.
The Detective was well aware that Harris was a very garrulous

repeat offender who had already made numerous admissions to the

arresting officer.

     ¶81    Thus, the objective observer was on alert that Harris

was "unusually susceptible" to the coercive nature of police

custody and questioning.        The objective observer would have to




     18
          Cunningham, 144 Wis. 2d at 282.


                                          9
                                                                No.    2014AP1767-CR.ssa


determine whether the Detective's conduct or words played on the

suspect's unusual susceptibility.

     ¶82       The objective observer could, on the sole basis of

hearing    the    Detective's       remarks    or    observing        the    Detective's

conduct, conclude that the Detective's conduct or words would

have had the force of a question on the suspect or would be

likely    to    elicit     an    incriminating      response.19        The       objective

observer could have concluded that Harris would have perceived

the Detective's communication as having the force of a Fifth

Amendment interrogation.20           See majority op., ¶34 & n.12.

     ¶83       Informing    my    conclusions       is   the   principle         that    the

Fifth     Amendment's      right     against     self-incrimination              calls    on

courts     to    be   "unstinting       in     our       protection         of   criminal

defendants' rights."            Majority op., ¶10.

     ¶84       Accordingly, I conclude in this close case that the

Detective's      words     constituted    interrogation         that        should      have

been (but was not) preceded by Miranda warnings and should have

been suppressed.




     19
       See Innis, 446 U.S. at 302 n.8 (recognizing that an
officer's knowledge "concerning the unusual susceptibility of a
defendant to a particular form of persuasion might be an
important factor in determining whether the [officer] should
have known that [his] words or actions were reasonably likely to
elicit an incriminating response").
     20
       I would not introduce the idea of a "diagnostic" question
into Miranda law.


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                                                            No.   2014AP1767-CR.ssa


     ¶85    Finally,    I   conclude    that,   had    my     view    prevailed,

Harris    would   be   entitled   to   a    remand    for    a    Harrison/Anson

hearing to fully assess harmless error.21

     ¶86    For the reasons set forth, I dissent.




     21
       Harrison v. United States, 392 U.S. 219 (1968); State v.
Anson, 2005 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776.


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    No.   2014AP1767-CR.ssa




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