                                                                       2013 WI 30


                  SUPREME COURT              OF    WISCONSIN
CASE NO.:                2010AP2809-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Matthew A. Lonkoski,
                                   Defendant-Appellant-Petitioner.


                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                            Reported at 339 Wis. 2d 490, 809 N.W.2d 900
                                   (Ct. App. 2012 – Unpublished)

OPINION FILED:           April 9, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           February 25, 2013

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Oneida
   JUDGE:                Mark Mangerson

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the defendant-appellant-petitioner, there were briefs
by   Andrew       Hinkel,    assistant    state   public   defender,    and     oral
argument by Andrew Hinkel.




       For    the       plaintiff-respondent,     the   cause   was    argued    by
Warren D. Weinstein, assistant attorney general, with whom on
the brief was J.B. Van Hollen, attorney general.
                                                                                2013 WI 30


                                                                        NOTICE
                                                         This opinion is subject to further
                                                         editing and modification.   The final
                                                         version will appear in the bound
                                                         volume of the official reports.
No.       2010AP2809-CR
(L.C. No.    2009CF80)

STATE OF WISCONSIN                                   :              IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                             FILED
      v.
                                                                         APR 9, 2013
Matthew A. Lonkoski,
                                                                           Diane M. Fremgen
              Defendant-Appellant-Petitioner.                           Clerk of Supreme Court




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



      ¶1      N.    PATRICK     CROOKS,    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 Oneida

County, the Honorable Mark Mangerson presiding.1

      ¶2      At     issue     in   this   case      is       the    admissibility          of

statements         made   to    detectives      in       an   interrogation.              The

threshold question is whether Matthew A. Lonkoski was in police

      1
       State v. Lonkoski, No. 2010AP2809-CR, unpublished slip op.
(Wis. Ct. App. Jan. 18, 2012).
                                                                             No.     2010AP2809-CR



custody for purposes of Miranda2 when he stated that he wanted an

attorney.            Within       moments    of       stating     he    wanted        a   lawyer,

Lonkoski        clearly          retracted     his          statement        and      thereafter

repeatedly and emphatically stated that he wanted to talk to the

officers        without      a    lawyer.      However,          if    he    was     already   in

custody for Miranda purposes at the time he stated, "I want a

lawyer,"        he    would      receive     the      benefit     of    the        Miranda    rule

requiring interrogation to cease, and his subsequent statements

would be subject to the exclusionary rule if other exceptions to

Miranda did not apply.               Where a person is not in custody, there
is no such requirement to cease interrogation.

      ¶3        The circuit court first granted Lonkoski's motion to

suppress all statements he made after he stated that he wanted

an   attorney         on    the    grounds     that         an   Edwards3      violation       had

occurred.            On    reconsideration,           the    circuit    court        denied    the

motion     to    suppress,         focusing       its   analysis        on    the     fact    that

Lonkoski was not in custody when he stated he wanted an attorney

and therefore found that no Edwards violation had occurred.                                    The

court of appeals affirmed.

      ¶4        After the circuit court denied Lonkoski's motion to

suppress, he pleaded guilty and was convicted of child abuse—

      2
          Miranda v. Arizona, 384 U.S. 436 (1966).
      3
       Edwards v. Arizona, 451 U.S. 477, 483-85 (1981) (holding
that further interrogation is permissible after an accused
invokes a right to counsel if the State can show that the
accused initiated the further communications, exchanges, or
conversations and that the accused knowingly, intelligently, and
voluntarily waived his right to counsel).

                                                  2
                                                                           No.    2010AP2809-CR



recklessly causing great bodily harm in violation of Wis. Stat.

§ 948.03(3)(a)4 and neglecting a child resulting in the child's

death in violation of Wis. Stat. § 948.21(1)(d).

        ¶5        We hold that the circuit court properly denied the

motion to suppress because Lonkoski was not in custody when he

asked       for     an   attorney,      and       therefore,     Miranda         did   not    bar

further interrogation by the officers.

        ¶6        A person is in "custody" if under the totality of the

circumstances            "a   reasonable         person      would   not     feel      free    to

terminate the interview and leave the scene."                            State v. Martin,
2012 WI 96, ¶33, 343 Wis. 2d 278, 816 N.W.2d 270.                                  "[A] court

must        examine       all     of     the       circumstances       surrounding            the

interrogation, but the ultimate inquiry is simply whether there

was a formal arrest or restraint on freedom of movement of the

degree        associated         with        a    formal      arrest."       Stansbury         v.

California, 511 U.S. 318, 322 (1994) (per curiam) (citations

omitted) (internal quotation marks omitted).                               Several factors

have        been     considered         relevant        in     the    totality         of     the

circumstances such as "the defendant's freedom to leave; the

purpose, place, and length of the interrogation; and the degree

of restraint.” Martin, 343 Wis. 2d 278, ¶35.

        ¶7        Lonkoski      came    to       the   sheriff's     department         without

being       asked    and      voluntarily        submitted     to    questioning        by    law

enforcement officers.                  Although he was questioned in a small


        4
       All references to the Wisconsin Statutes are to the 2009-
10 version unless otherwise noted.

                                                   3
                                                                             No.    2010AP2809-CR



room within a jail by two officers with the door closed, the

circuit court found that it was a typical interrogation setting

locked to ingress by individuals but not for egress; he was

never restrained in any way; and the door was opened more than

once by people entering or exiting.                         In fact, on one occasion

when        the   officers       left   the    room,      one    of    the    officers     asked

Lonkoski whether he preferred the door to the interrogation room

to be open or shut.               Furthermore, Lonkoski was told that he was

not under arrest and that the officers were not accusing him.

In the totality of the circumstances, a reasonable person in

Lonkoski's position at the time he stated he wanted an attorney

would        believe      that    he    or    she    was    "free       to     terminate       the

interview and leave the scene."                      We decline to adopt Lonkoski's

argument          that    Miranda       applies      when       custody      is    "imminent."5

Accordingly,         although       our      analysis      differs      from       that   of   the

court of appeals, we affirm its decision.

                                                     I.

        ¶8        Lonkoski's ten-month-old daughter, Peyton, was found

unresponsive         by    her     parents,      Lonkoski        and   Amanda       Bodoh.     The

medical personnel and law enforcement officers who responded to

a 911 call declared her dead at the scene.                                An autopsy showed

that        Peyton's      blood    and       urine   contained         deadly       amounts     of

morphine and hydromorphone.

        5
       The State argues that even if Lonkoski was in custody,
Lonkoski reinitiated the conversation with the officers under
Edwards such that his subsequent statements are admissible.
Because we decide that Lonkoski was not in custody, we need not
address this argument.

                                                 4
                                                                        No.       2010AP2809-CR



      ¶9     After receiving the autopsy results, a detective from

the Oneida County Sheriff's Department requested that Bodoh come

in   for    an    interview.          Lonkoski      drove       her    to   the     sheriff's

department for the interview.                  Officers spoke with Bodoh while

Lonkoski     waited      in     the   lobby.        After       some   time,       Bodoh   was

escorted     to    a     different     part       of     the    sheriff's         department.

Lieutenant Jim Wood went to the lobby.                          Subsequently, Lonkoski

came to the interview room that Bodoh had recently vacated.                                 To

get to the room, someone at the front desk would have needed to

push a button to release the door, and the room was located down

a hallway from the lobby.                The door did not prevent a person

from exiting into the lobby from the interview area.

      ¶10    Detective Sara Gardner and Lieutenant Wood conducted

the interview of Lonkoski.               The interview room was small, and

Lonkoski     was       seated    furthest         from    the     door.        The     entire

interrogation was video-recorded.

      ¶11    At    the    beginning      of       the    interview,         the     following

occurred:

      Wood: You want to have a seat over there?                         Do you know
      Sara?

      Lonkoski: Yes.

      Gardner: Yeah very well.            How are you?

      Lonkoski: Very good.            How have you been?

      Gardner: Well, better than you from what I hear's been
      going on.

      Wood: Matt I'll, I'll close the door.     You're not
      under arrest. You understand that you guys came here
      by yourself and we want to talk to you about Peyton

                                              5
                                                      No.    2010AP2809-CR


     and Peyton's death and, um, let you know about some of
     the, ah, findings from the autopsy and everything. I
     mean you're, you're the father, right?

     Lonkoski: Mm hmm.   (Affirmative).

     Wood: Are you okay talking to us?

     Lonkoski: Yeah.

     Wood: Okay, I've got the door closed just cause I
     don't want other people to hear and stuff okay?  Um,
     what what has gone on since Peyton's death with you?
     How are you doin'?
     ¶12   The next 20 minutes or so of the interview consisted
of Lonkoski recounting the events in the days leading up to

Peyton's death.    The tenor    of    the   conversation    changed   when

Lieutenant Wood revealed the results of the autopsy to Lonkoski.

It was during this portion of the interrogation that Lonkoski

made the statement——"I want a lawyer"——that is at the center of

our analysis.

    Wood: No, no. The autopsy shows that Peyton died of an
    overdose.

    Lonkoski: An overdose?     Of what?

    Wood: Now that's – I'd like for you to try and help me
    out a little bit.

    Lonkoski: All I know is when I got back to the
    apartment, Amanda told me she gave, um, Peyton, baby
    Tylenol.   The bottle of baby Tylenol you guys seen
    when you guys went into the apartment was on top of
    the . . .

    Wood: Not the baby Tylenol, I know.        It's morphine.

    Lonkoski: What?

    Wood: Morphine.

    Lonkoski: What?

                                  6
                                                         No.   2010AP2809-CR


Wood: Morphine.

Lonkoski: Oh my god.

Wood: What did you say to Peyton when you said goodbye
to her that day out when I was out there and you went
to the truck before they took her away . . . what'd
you say to her?

Lonkoski: I said that I love her and I would be by her
soon.

Wood: And that you were sorry?

Lonkoski: Sorry for her passing away.

Wood: There's, there's more to it.    And that's, and
again Matt, it this is a very hard thing.       A hard
thing for you as a, as a pop, and, and, this is your
baby, but you gotta, you got to dig deep inside
yourself now.   The autopsy knows what happened.    We
know what happened.   What I need from you is I need
you to look up and look in your heart and look up at
Peyton and say, say okay, I can deal with it, I can, I
can talk open . . . .

Lonkoski: Are you accusing me of giving my daughter
morphine?

Gardner: Matt, Matt, look at me. Every time you and I
have talked, okay, and we go back a long way, all
right, there's been some rough stuff that you and I
have dealt with . . . .

Lonkoski: I want a lawyer. I want a lawyer now. This
is bullshit.

Wood: Okay.

Lonkoski: I would never do that to my kid, ever.   I
wasn't even at the apartment at all except at night.
Why are you guys accusing me?

Wood: I didn't accuse you.

Gardner: We were asking.

Lonkoski:   There   is   this   is   is   is   is   is    is   is   is
insane.

                                7
                                                    No.    2010AP2809-CR


Wood: I have to stop talking to you though 'cause you
said you wanted a lawyer.

Lonkoski: Am I under arrest?

Wood: You are now.

Lonkoski: Then I'll talk to you without a lawyer . . .
I, I don't want to go to jail, I didn't do anything to
my daughter, I would not lie to you guys—this is in
fact life or death.

Wood: Well, now you, now you complicate things.

Lonkoski: I just, I just want to leave here and go by
my mom now because this is in – this is, this is
insane.

Gardner: Matt we can't, we can't talk to you just
because you don't want to go to jail okay some things
that we wanted to talk to you about were like Jim
said—we know what happened to Peyton—we need to know a
couple of the gaps to fill the gaps.

Lonkoski: All right....

Gardner: (Unintelligible).

Lonkoski: Ask those gaps.

Gardner: That's what we want you to talk to us about.

Lonkoski: Ask those gaps.

Gardner: But I   don't    want    you   to   feel   like    we're
accusing you.

Lonkoski: All right. I will calm down.

Gardner: I don't—you don't have to talk to us—okay.

Lonkoski: Can can I can we go smoke a can I smoke a
cigarette when we do this?

Wood: What we're gonna do is—I'm gonna come back and,
and again you have to be careful what you say....

Lonkoski: (Unintelligible).


                              8
                                                                             No.     2010AP2809-CR


       Wood: If you want an attorney—you can have an
       attorney—we're gonna quit—what I'll do is I'll come
       back to you—go have a cigarette with Sara.

       Lonkoski: Okay thank you.

       Wood: Okay and I need to get more of the story.

       Lonkoski: I will tell you everything I promise on my
       dead daughter's life and my (unintelligible) right
       now.

       Wood: What I'm, what I'm gonna do is I'm gonna come
       back and I'll read you a Miranda card which is I'll
       read you your rights....

(Emphasis added).
       ¶13     Lonkoski's statement about wanting an attorney, made a

few moments before he was placed under arrest, is the focal

point of this case.

       ¶14     After       the    exchange          excerpted         above,       Lonkoski      was

escorted      out     of    the   room        to    smoke      a    cigarette      and    use    the

bathroom.        Meanwhile,          a   call       between         Wood    and    the    district

attorney       can     be    heard       on    the      video        recording,         with    Wood

apparently      asking       if   he     could         continue      talking       to    Lonkoski.

When       Lonkoski    returned        to     the      room,       Wood    read    Lonkoski     his

Miranda rights, and Lonkoski agreed to additional questioning.6




       6
       No one disputes the adequacy of Lonkoski's waiver of his
Miranda rights after he was arrested.

                                                   9
                                                               No.    2010AP2809-CR



Lonkoski    made     several     incriminating      statements       during   that

interview and during two subsequent interviews in the following

days.

     ¶15    After being charged, Lonkoski moved to suppress the

incriminating statements he made to the officers after he had

asked for an attorney.          The circuit court reviewed the video of

the interview, read briefs, and heard arguments from the parties

on the admissibility of the statements.

    ¶16     The    circuit     court   originally    granted    the    motion    to

suppress on the grounds that the statements violated Edwards,

stating, "we never really had a ceasing of the interrogation

like Edwards requires . . . [It] wasn't a matter here of the

defendant not reinitiating as much as it was the interrogation

procedure    never    ending."         At    the   circuit   court's     request,

Lonkoski drafted an order for the court to sign.                       The order

drafted included a finding that Lonkoski was "in custody" when

he invoked his right to counsel.              The State objected because no

findings to that effect had been made by the circuit court.                     The



     After Lonkoski returned from his cigarette break, Lonkoski
inquired as to whether Wood had been able to talk to the
district attorney. Wood said that he had and asked Lonkoski if
he wished to talk to the officers further.     Lonkoski said he
did.   Wood subsequently read the Miranda rights to Lonkoski.
According to statements made by Wood and Lonkoski, Lonkoski was
also given a written copy that he read. Wood asked Lonkoski if
he understood; Lonkoski stated, "I understand everything." Wood
then asked if he understood each of the rights; Lonkoski said,
"Yes." Wood then stated, "Realizing that you have these Rights
you are now willing to answer questions or make a statement?"
and Lonkoski said, "Yes."

                                        10
                                                                              No.     2010AP2809-CR



State        moved      for        reconsideration,        which     the       circuit        court

granted.

       ¶17        On    reconsideration,           the    circuit      court        focused     its

analysis on the question of custody and found that Lonkoski was

not in custody at the time he stated he wanted an attorney.                                      In

determining that Lonkoski was not in custody, the circuit court

made        the   following         findings     of     fact.     First,       it     found    that

Lonkoski          had   been       questioned      by    Detective     Gardner         for    prior

infractions, had a prior relationship with the officer, and was

familiar with the Oneida County Sheriff's Department building.7

Second, the door to the interview room was locked to prohibit

ingress from the hallway but not egress to the hallway.                                      Third,

the     officers’           early       questions       were    open-ended          rather     than

accusatory.                 The     questions      were    also     largely         related      to

establishing            a    cause      of    death    rather   than     to     identifying       a

homicide suspect.                 Fourth, after Lonkoski was arrested, he asked

for and received both a cigarette break and a bathroom break.

Fifth,        Lonkoski            was   not     physically      restrained          during     the
interrogation.                Finally,         Lonkoski    arrived       at     the     sheriff's

department voluntarily.                       The circuit court held that because
Lonkoski was not in custody when he stated that he wanted an

attorney, Edwards v. Arizona                      did     not   apply.         Therefore, the

circuit court denied the suppression motion.


        7
       We note that a suspect's history with law enforcement is
not a factor in the objective determination of whether a suspect
is in custody for Miranda purposes. Yarborough v. Alvarado, 541
U.S. 652, 668 (2004).

                                                  11
                                                                        No.   2010AP2809-CR



      ¶18    After      the    motion       to     suppress     was   denied,      Lonkoski

pleaded guilty to child abuse—recklessly causing great bodily

harm in violation of Wis. Stat. § 948.03(3)(a) and neglecting a

child resulting in the child's death in violation of Wis. Stat.

§   948.21(1)(d).         He       was   sentenced       to   five    years   of    initial

confinement and five years of extended supervision for count

one, to be served concurrently with the sentence on count two,

which was twelve years of initial confinement and five years of

extended supervision.               Lonkoski appealed the order denying his

suppression motion.

      ¶19    In an unpublished per curiam decision, the court of

appeals affirmed the conviction on different grounds than the

circuit      court.            State      v.        Lonkoski,     No.      2010AP2809-CR,

unpublished slip op. (Wis. Ct. App. Jan. 18, 2012).                             The court

of appeals assumed that Lonkoski was in custody at the point in

question and focused on whether he reinitiated the conversation

with the law enforcement officers.                         Id., ¶4.        It found that

Lonkoski     validly     reinitiated           conversation,      and      therefore,   the

interrogation complied with Edwards.                     Id., ¶10.

      ¶20    Lonkoski petitioned this court for review, which we

granted.     We now affirm on the grounds that Lonkoski was not in

custody     when   he    initially        stated      he   wanted     an   attorney,    and

therefore, Miranda and Edwards do not apply.

                                                   II.

      ¶21    When reviewing a circuit court's denial of a motion to

suppress     evidence,        we    apply      a    two-step    standard.       State    v.

Martin, 343 Wis. 2d 278, ¶28.                       We uphold the circuit court's
                                               12
                                                                       No.   2010AP2809-CR



findings of fact unless they are clearly erroneous.                              Id.         We

then       review    de    novo   the     application     of     the     facts      to      the

constitutional principles.              Id.

                                               III.

       ¶22    The question we must answer in this case is whether

the statements obtained from Lonkoski in the interviews were

obtained      in     violation    of    his    constitutional      rights        and     must

therefore be suppressed.                First, we must determine whether the

statements were obtained in violation of Miranda because they
were obtained after Lonkoski invoked his right to an attorney

during a custodial interrogation.                  If that is the case we must

then consider whether Lonkoski reinitiated conversation with the

detective       such       that   those    statements      are    admissible             under

Edwards notwithstanding the Miranda violation.                           The threshold

question to both of these arguments is whether Lonkoski was in

custody when he stated that he wanted an attorney.

       ¶23    The Fifth Amendment to the United States Constitution

states in relevant part: "No person . . . shall be compelled in

any criminal case to be a witness against himself."8                         Courts have

implemented         procedural     safeguards      consistent      with       the      Fifth

Amendment.          One such safeguard, grounded in the United States

Constitution, is found in Miranda.                    Dickerson v. United States,

530    U.S.         428,    432   (2000)       (holding    that        Miranda         is     a

       8
       The Fifth Amendment has been applied to the states through
the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964)
("We hold today that the Fifth Amendment's exception from
compulsory   self-incrimination   is   also  protected    by  the
Fourteenth Amendment against abridgment by the States.").

                                              13
                                                                           No.        2010AP2809-CR



constitutional decision which applies to both federal and state

courts and cannot be overruled by legislative action).                                    Miranda

held that no one should be subjected to custodial interrogation

until he or she is “warned that he has a right to remain silent,

that any statement he does make may be used as evidence against

him, and that he has a right to the presence of an attorney,

either retained or appointed.”                        Miranda v. Arizona, 384 U.S.

436,     444    (1966).           If    someone        is    subjected           to     custodial

interrogation         without     these         warnings     and     makes       incriminating

statements, then those statements constitute a Miranda violation
and cannot       be    used by the          prosecution.             Id.         Custody is a

necessary       prerequisite           to   Miranda         protections.               State    v.

Armstrong, 223 Wis. 2d 331, 344–45; Montejo v. Louisiana, 556

U.S. 778, 795 (2009) ("If the defendant is not in custody then

[Miranda and Edwards] do not apply; nor do they govern other,

noninterrogative types of interactions between the defendant and

the State.")

       ¶24     No one disputes that Lonkoski was interrogated, so the

issue is whether he was in custody.                         If he was not in custody,

then Lonkoski is not entitled to have his subsequent statements

suppressed under the Miranda rule.                      See, e.g., State v. Hassel,

2005 WI App 80, ¶9, 280 Wis. 2d 637, 696 N.W.2d 270; see also,

McNeil v. Wisconsin, 501 U.S. 171, n. 3 (1991) (stating, "We

have in fact never held that a person can invoke his Miranda

rights       anticipatorily,           in   a     context      other       than        'custodial

interrogation'        .   .   .   Most      rights      must    be    asserted          when   the

government seeks to take the action they protect against.").
                                                 14
                                                                   No.   2010AP2809-CR



      ¶25    Lonkoski   argues     that    because     the    interrogation        had

gotten to the point that the officers knew and could prove he

was responsible for his child's death, no one would believe he

was free to leave, and therefore, he was in custody.                       He further

argues that even if he was not actually in custody, a person may

invoke    rights   under   Miranda    "when    custodial       interrogation        is

imminent or impending."9         Pet'r Br. at 13.

      ¶26    The State argues that Lonkoski was not in custody when

he   asked   for   an   attorney    because       he   came   to     the    sheriff's

department    without    being    asked,    the    length     of    time    from   the

beginning of the interview to when the circuit court found that

he was arrested totaled about thirty minutes, and the detectives

told Lonkoski several times that he was not under arrest.                          The

State further disagrees with Lonkoski's argument that Miranda



      9
       Lonkoski also argues that no valid reinitiation occurred
under Edwards because the officers, not Lonkoski, reinitiated
the conversation by failing to cease the interrogation.
Lonkoski believes that Wood's response to Lonkoski's request for
an attorney and question about whether he was under arrest, "You
are now," was likely to elicit an incriminating response and was
thereby the functional equivalent to questioning under Rhode
Island v. Innis, 446 U.S. 291, 301 (1980) and State v. Hambly,
2008 WI 10, ¶46, 307 Wis. 2d 98, 745 N.W.2d 48.

     The State argues that even if Lonkoski was in custody when
he asked for an attorney, he reinitiated further conversation
with the detectives consistent with Edwards, and therefore, his
statements should not be suppressed.

     As noted previously, because           we hold that Lonkoski was not
in custody, we need not reach the            parties' arguments on whether
he reinitiated conversation with            the detectives such that his
statements could be admitted under          Edwards.

                                      15
                                                              No.     2010AP2809-CR



protections should apply when custody is "imminent," finding the

premise unsupported by case law.

       ¶27    The important threshold determination we must make is

whether Lonkoski was in custody when he stated he wanted an

attorney.         The test to determine custody is an objective one.

State v. Koput, 142 Wis. 2d 370, 378-79, 418 N.W.2d 804 (1988).

The inquiry is "whether there is a formal arrest or restraint on

freedom      of    movement    of   a   degree   associated    with     a   formal

arrest."      State v. Leprich, 160 Wis. 2d 472, 477, 465 N.W.2d 844
(Ct. App. 1991) (citing New York v. Quarles, 467 U.S. 649, 655

(1984)).      Stated another way, if "a reasonable person would not

feel free to terminate the interview and leave the scene," then

that   person      is    in   custody   for   Miranda   purposes.       State   v.

Martin, 343 Wis. 2d 278, ¶33.            Courts also formulate the test as

"whether a reasonable person in the suspect's position would

have considered himself or herself to be in custody."                     State v.

Goetz, 2001 WI App 294, ¶11, 249 Wis.2d 380, 638 N.W.2d 386.

       ¶28    The custody determination is made in the totality of

the circumstances considering many factors.               Martin, 343 Wis. 2d

278,   ¶35.        The   factors    include   "the   defendant's      freedom   to

leave; the purpose, place, and length of the interrogation; and

the degree of restraint" used by law enforcement.                   Id.     As one

factor in the totality of the circumstances, an interview that

takes place in a law enforcement facility such as a sheriff's

department, a police station, or a jail, may weigh toward the

encounter being custodial, but that fact is not dispositive.

See, e.g., State v. Grady, 2009 WI 47, ¶4-5, 317 Wis. 2d 344,
                                         16
                                                                            No.     2010AP2809-CR



766     N.W.2d       729         (examining         an      undisputedly          non-custodial

interrogation         that       took     place       at    a   police      station).        When

determining         the    degree       of     restraint,        courts     consider    factors

like "whether the suspect is handcuffed, whether a weapon is

drawn, whether a frisk is performed, the manner in which the

suspect is restrained, whether the suspect is moved to another

location, whether questioning took place in a police vehicle,

and the number of officers involved."                           State v. Morgan, 2002 WI

App 124, ¶12, 254 Wis. 2d 602, 648 N.W.2d 23.

        ¶29   The parties agree that Lonkoski was not in custody at

the beginning         of the interview.                    Because     we    are   determining

whether Lonkoski was in custody at the point when he stated he

wanted an attorney, we look at the circumstances surrounding the

interview to determine if he was in custody when he made that

statement.

        ¶30   We     will    begin        by    looking         at   the    totality    of   the

circumstances, examining the facts surrounding the defendant's

freedom to leave.                The circuit court found that the area that

Lonkoski      was    in was a            "typical        interrogation       setting."       The

court     stated          that     the       area     was       "locked     to     ingress    by

individuals, but there [was] no indication that it was locked

for egress.         That is, that the defendant could simply walk out."

The circuit court also found that although the door was closed

during most the interview, "there were clearly times when the

door was opened and he could in fact have walked out."                                 Finally,

the officers stated that Lonkoski was not under arrest and that

they were not accusing him.
                                                 17
                                                                         No.        2010AP2809-CR



       ¶31    The purpose, place, and length of the interrogation

also support the conclusion that Lonkoski was not in custody.

Lonkoski came to the sheriff's department on his own volition,

providing transportation for the child's mother, Bodoh.                                       The

location of the interview being the sheriff's department weighs

toward a custodial situation, but that fact is not dispositive.

Grady, 317 Wis. 2d 344, ¶4-5.                  An officer went to the waiting

room where Lonkoski waited for Bodoh, and Lonkoski went to an

interview room.         The circuit court found that the officers asked

Lonkoski "open ended questions" that "called for a narrative by

him.         They    were    not    accusatory.            They     were        not     leading

questions."          The circuit court found that the length of the

interrogation         was    "relatively      short"       before    he    asked        for    an

attorney, after about 30 minutes.                      These facts indicate that

Lonkoski was not in custody.

       ¶32    Like     the    other       factors,     the     degree          of     restraint

Lonkoski       experienced         also     does     not     indicate          a      custodial

situation.          Two officers questioned Lonkoski.                    The door to the

interview room was repeatedly used by the officers throughout
the interview without a key.                  At one point when both officers

were leaving the room, Gardner asked Lonkoski if he preferred
the door open          or    closed   to     which    Lonkoski      responded,           "Don't

bother    me."        During    the       relevant    portion       of    the        interview,
Lonkoski      was     not    handcuffed,      no     weapons      were     drawn        by    the

officers, and no frisk was performed.                      Morgan, 254 Wis. 2d 602,
¶12.     The circuit court found that Lonkoski was not physically


                                             18
                                                                No.     2010AP2809-CR



restrained    in   any   way.     These       factors      indicate     a     lack        of

custody.

      ¶33    Lonkoski argues that once the officers zeroed in on

him as a suspect, there was no way any reasonable person would

have felt free to leave.           He cites several cases from other

jurisdictions that he believes support the proposition that a

person's knowledge that officers suspect the person of a serious

crime is a significant factor that weighs in favor of finding

that the person was in custody.

      ¶34   Statements    officers      make    to     a    suspect     can        be    an

indication of the presence or absence of custody.                      Stansbury v.

California, 511 U.S. at 325 (finding relevant the views of the

officers manifested to an individual that would affect how a

reasonable     person    would    perceive       his       or   her     situation).

However, a suspect's belief that he or she is the main focus of

an investigation is not determinative of custody.                            Id.        The

United   States    Supreme    Court     has   rejected       this   theory.              For

example, the United States Supreme Court in Beckwith v. United

States, 425 U.S. 341 (1976), dismissed a similar argument about

the circumstances of a non-custodial interrogation transforming

into custodial interrogation after the investigation focused on

the   suspect,     stating,     "[W]e    are    not        impressed        with        this

argument."     Id. at 345 (citation omitted) (internal quotation

marks omitted).     The Court quoted from United States v. Caiello,

420 F.2d 471, 473 (2d Cir. 1969) which stated: "It was the

compulsive    aspect     of   custodial       interrogation,          and     not        the

strength or content of the government's suspicions at the time
                                        19
                                                                        No.   2010AP2809-CR



the questioning was conducted, which led the court to impose the

Miranda requirements with regard to custodial questioning." Id.

at 346-47 (emphasis added).

       ¶35   In addition, we note that Lonkoski's standard would

necessarily focus on the subjective beliefs of both police and

the    suspect.       This     is    inconsistent       with      the    objective       test

created for custody.           See, e.g., Koput, 142 Wis. 2d 370, 378-80,

(explaining the objective standard used to determine custody as

not    considering       the    "unarticulated          plan"     of     police     or    the

subjective beliefs of the suspect who may know he was guilty and

should be in custody); see also, Stansbury v. California, 511
U.S.    at   326    (rejecting       a    California        Supreme      Court      custody-

analysis because it "regarded the officers' subjective beliefs

regarding Stansbury's status as a suspect (or nonsuspect) as

significant in and of themselves, rather than as relevant only

to     the   extent      they       influenced        the     objective        conditions

surrounding        his    interrogation.").                 The    totality         of   the

circumstances test applied in our opinion today provides the

appropriate framework to protect suspects in interrogations and

to determine whether a suspect is in custody for purposes of

Miranda.     Lonkoski's argument to the contrary is unsupported by

the    controlling       case       law   and     the    purpose        behind       Miranda

protections.

       ¶36     Lonkoski also argues that                 even     if     he   was    not in

custody when he asked for an attorney, he was undisputedly in

custody a few seconds later when he was arrested, so Miranda

protections        should      apply.            He   states       that       the     policy
                                            20
                                                                 No.     2010AP2809-CR



justification for the "imminent interrogation" rule in State v.

Hambly, 2008 WI 10, ¶3, 307 Wis. 2d 98, 745 N.W.2d 48, "applies

with    equal    force   whether    the    missing     element     [of       custodial

interrogation] is interrogation or custody."                    Pet'r Br. at 21.

He also argues that if this were not the rule, then officers

could overcome an assertion of rights by immediately arresting a

person and continuing the interrogation.               We disagree.

       ¶37   The   policy    justification      in     Hambly    does     not   apply

here.       In State v. Hambly, we held that Miranda was properly

invoked before a suspect was interrogated when the suspect had

been formally arrested and asked for an attorney.                       307 Wis. 2d

98.     The suspect in Hambly had repeatedly refused to speak with

law    enforcement    voluntarily;      after    his    refusal,       the    officers

formally arrested him and placed him in the back of the squad

car; as he was escorted to the car, he stated that he wanted an

attorney.       Id., ¶7-9.   The suspect was not being interrogated at

the time he asked for an attorney.               Id., ¶3.       This court held:

"a suspect in custody may request counsel and effectively invoke

the Fifth Amendment Miranda right to counsel when faced with

'impending interrogation'          or   when    interrogation      is     'imminent'

and the request for counsel is for the assistance of counsel

during interrogation."        Id., ¶24.10       The court reasoned that the
       10
       In Hambly, the court was divided on "whether to adopt a
temporal standard to determine whether a suspect in custody has
effectively invoked his or her Fifth Amendment Miranda right to
counsel." State v. Hambly, 307 Wis. 2d 98, ¶4. The question of
whether to adopt a temporal standard is not relevant to the
analysis of Hambly set forth in this opinion and therefore is
not discussed.

                                          21
                                                                   No.     2010AP2809-CR



case illustrated the "type of coercive atmosphere that generates

the   need    for      application    of    the     Edwards   rule."         Id.,    ¶44

(quoting United States v. Kelsey, 951 F.2d 1196, 1199 (10th Cir.

1991)).

      ¶38    Lonkoski      believes    that       "imminent   interrogation"         and

"imminent     custody"     are   equally         coercive   and   that     this   court

should extend its holding in Hambly to the inverse situation

where a suspect is being interrogated but is not yet in custody.

This argument ignores the differences in the circumstances in

each situation.         In Hambly, the suspect was enduring a much more
coercive     environment      than    Lonkoski,       who   was    talking     to    law

enforcement officers while he was not yet in custody.                         Before a

suspect      is   in     custody,     the    coerciveness         is     substantially

lessened because a reasonable person in the suspect's position

would believe that he or she could end the conversation and

leave at any time.          See, Martin, 343 Wis. 2d 278, ¶33 (holding

that custody exists when a reasonable person would believe that

he could not end the conversation and leave).

       ¶39 Another        reason     the     "imminent      custody"       rule     that

Lonkoski proposes is unnecessary is that the current definition

of "custody" encompasses both formal arrest and situations in

which a reasonable person would consider himself or herself in

custody.      See, e.g., Stansbury v. California, 511 U.S. at 322.

By contemplating both, the current test prevents law enforcement

from gaming the system by placing a suspect in a custodial-like

situation without formally arresting the person to avoid Miranda


                                            22
                                                                   No.     2010AP2809-CR



protections.         We therefore see no reason to adopt a new test to

fit the facts of this case.

        ¶40    We    also     reject     Lonkoski's       implication         that     the

officers can override an assertion of Fifth Amendment rights by

immediately         arresting    a   suspect.        First,     warrantless     arrests

require probable cause so law enforcement officers can arrest

only suspects they have probable cause to arrest. See, e.g.,

State v. Lange, 2009 WI 49, ¶19, 317 Wis. 2d 383, 766 N.W.2d 551

("A warrantless arrest is not lawful except when supported by

probable cause.").            Law enforcement officers do not necessarily

have probable cause to arrest everyone who agrees to talk with

them.         Second,    upon    arrest,      law    enforcement       must   give    the

warnings       described        in   Miranda.          Lonkoski     dismisses         this

important step by stating, "the person could hardly be expected

to believe that he or she truly had the right to counsel at this

point; after all, he or she has just asked for a lawyer and had

the   request       denied."11       Pet'r    Br.    at   22.     We    disagree      that

providing       Miranda       warnings       to     suspects    provides       them    no

protection.             The     contents      of     Miranda      warnings      provide

significant information about a person's rights and require the

person to waive those rights before admissible statements can be




        11
       We note that there is no evidence Lonkoski ever "asked
for a lawyer and had that request denied"——as explained above,
within moments of stating he wanted a lawyer, Lonkoski made
clear that he no longer wanted a lawyer and he wished to speak
with the officers.

                                             23
                                                                           No.      2010AP2809-CR



elicited by law enforcement.12               Therefore, our decision does not,

as Lonkoski's argument suggests, give law enforcement free rein

to ignore valid assertions of the right to counsel.

       ¶41   We conclude that Lonkoski was not in custody when he

asked for an attorney.               Because his statement about wanting an

attorney      was    not      made     during       a    custodial            interrogation,

Miranda's rule requiring that the interrogation cease upon a

request      for    an     attorney    does       not   apply,          and      there    is    no

constitutional       violation        and   no    bar    to        using      his    subsequent

statements.          As     noted     previously,        this           holding        makes    it

unnecessary        for us to reach the             issue       of    reinitiation under

Edwards because "[i]n every case involving Edwards, the courts
must    determine        whether     the    suspect      was       in    custody         when   he

requested counsel and when he later made the statements he seeks

to suppress."            Maryland v. Shatzer, 559 U.S. __, 130 S. Ct.

1213, 1223 (2010) (emphasis added).

                                                 IV.

       ¶42   We     hold    that     the    motion      to    suppress           was    properly

denied because Lonkoski was not in custody when he asked for an

attorney,      and        therefore,        Miranda          did     not         bar     further

interrogation by the officers.

       ¶43   A person is in "custody" if under the totality of the

circumstances        "a    reasonable       person      would        not      feel      free    to

       12
       To be adequate Miranda warnings, "the person must be
warned that he has a right to remain silent, that any statement
he does make may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained or
appointed." Miranda v. Arizona, 384 U.S. at 445.

                                             24
                                                                      No.    2010AP2809-CR



terminate the interview and leave the scene."                         State v. Martin,

343 Wis.      2d   278, ¶33.         "[A]    court      must    examine      all    of the

circumstances surrounding            the    interrogation,        but       the    ultimate

inquiry is simply whether there was a formal arrest or restraint

on freedom of movement of the degree associated with a formal

arrest." Stansbury v. California, 511 U.S. at 322 (citations

omitted) (internal quotation marks omitted).                          Several factors

have     been      considered       relevant       in    the     totality          of     the

circumstances such as "the defendant's freedom to leave; the

purpose, place, and length of the interrogation; and the degree

of restraint.” Martin, 343 Wis. 2d 278, ¶35.
        ¶44   Lonkoski      came    to    the    sheriff's       department         without

being    asked     and   voluntarily       submitted      to    questioning         by    law

enforcement officers.              Although he was questioned in a small

room within a jail by two officers with the door closed, the

circuit court found that it was a typical interrogation setting

locked to ingress by individuals but not for egress; he was

never restrained in any way; and the door was opened more than

once by people entering or exiting.                     In fact, on one occasion

when    the   officers      left    the    room,   one    of    the    officers         asked

Lonkoski whether he preferred the door to the interrogation room

to be open or shut.          Furthermore, Lonkoski was told that he was

not under arrest and that the officers were not accusing him.

In the totality of the circumstances, a reasonable person in

Lonkoski's position at the time he stated he wanted an attorney

would    believe     that    he     or    she    was    "free    to     terminate        the

interview and leave the scene."                  We decline to adopt Lonkoski's
                                            25
                                                                No.    2010AP2809-CR



argument    that   Miranda    applies      when    custody      is     "imminent."

Accordingly,     although    our   analysis     differs    from       that   of   the

court of appeals, we affirm its decision.



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

affirmed.




                                      26
    No.   2010AP2809-CR




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