                                                         2018 WI 16

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2015AP2506-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Daniel J. H. Bartelt,
                                 Defendant-Appellant-Petitioner.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 375 Wis. 2d 148, 895 N.W.2d 86
                              PDC No: 2017 WI App 23 - Published

OPINION FILED:         February 20, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         November 14, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Washington
   JUDGE:              Todd K. Martens

JUSTICES:
   CONCURRED:
   DISSENTED:          A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
                       J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
and an oral argument by Leon W. Todd, assistant state public
defender.


       For the plaintiff-respondent, there was a brief by Amy C.
Miller, assistant solicitor general, Brad D. Schimel, attorney
general, Misha Tseytlin, solicitor general, and Ryan J. Walsh,
chief deputy solicitor general.            There was an oral argument by
Amy C. Miller.
                                                                       2018 WI 16
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.       2015AP2506-CR
(L.C. No.     2013CF276)

STATE OF WISCONSIN                          :             IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                    FILED
      v.                                                       Feb 20, 2018

Daniel J.H. Bartelt,                                              Sheila T. Reiff
                                                               Clerk of Supreme Court

              Defendant-Appellant-Petitioner




      REVIEW of a published decision of the court of appeals.

Affirmed.

      ¶1      PATIENCE DRAKE ROGGENSACK, C.J.           This review concerns

the point in time at which a person is "in custody" for purposes

of Miranda.1      Daniel J.H. Bartelt asks us to overturn a decision
of the court of appeals, affirming the circuit court's2 judgment

entered in favor of the State regarding Bartelt's motion to

suppress incriminating statements, and concluding that Bartelt

was not in custody at the time the statements were made.

      1
       Miranda v. Arizona, 384 U.S. 436 (1966); cf. Edwards v.
Arizona, 451 U.S. 477 (1981).
      2
       The     Honorable   Todd   K.   Martens     of    Washington        County,
presided.
                                                                          No.     2015AP2506-CR



    ¶2      Bartelt presents two issues:                    first, whether Bartelt's

confession to a serious crime transformed his custody status

from noncustodial to "in custody;" and second, whether Bartelt's

request for counsel was unequivocal such that police officers

violated his Fifth Amendment rights when they questioned him the

following day without counsel present.

    ¶3      On     the     first       issue       we    conclude        that,    under     the

totality     of    the     circumstances            attendant       to     his    interview,

Bartelt's      confession       did     not     transform       his       custody     status.

Rather,     Bartelt      was     not     in     custody      until        Detectives       Joel

Clausing    and    Aaron       Walsh    of     the      Washington       County     Sheriff's

Department took his cell phone, approximately ten minutes after

his confession, and instructed him to remain in the interview

room.      Because we determine that Bartelt was not in custody

until   this      point,    which       was    after      his   alleged          request    for

counsel, we need not and do not reach the issue of whether his

alleged request for counsel was unequivocal.

    ¶4      Accordingly, we affirm the court of appeals.

                                   I.     BACKGROUND

    ¶5      This case arises from two crimes committed in July

2013.     On July 12, 2013, M.R. was assaulted by a male suspect

with a knife while walking her dog in Richfield Historical Park

in the Village of Richfield.                  M.R. was tackled to the ground and

suffered several knife wounds before disarming the suspect, who

fled the scene in a blue Dodge Caravan.                         Three days later, on

July 15, 2013, Jessie Blodgett, a friend and former girlfriend


                                               2
                                                                             No.   2015AP2506-CR



of Bartelt, was found dead in her home in the City of Hartford.

According to preliminary autopsy findings, the cause of death

was ligature strangulation.

       ¶6       As of July 16, 2013, Clausing and Detective Richard

Thickens        of    the   Hartford         Police       Department         had     identified

Bartelt as a person of interest in the attack on M.R.                                     Earlier

that month, a deputy had noticed a blue Dodge Caravan at the

same park and had run the license plate, which revealed that the

vehicle was registered to Bartelt's parents.                                  Police learned

that    the     Bartelts       had    a     son,    and   were        then    able    to       match

Bartelt's         photograph          from      the       Wisconsin          Department           of

Transportation          with     the      composite        sketch       drawn        at    M.R.'s

direction.           Clausing contacted Bartelt around 5:00 p.m. on July

16, and told him that the police were investigating an incident,

and that they needed to speak with him.                                 Bartelt was "very

compliant," and agreed to meet with detectives at the Slinger

Police Department.

       ¶7       The    Slinger       Police    Department         is    located       inside       a

municipal building that it shares with various other offices and

departments.          There is one main entrance to the building.                               Once

inside,     a     separate     entrance        leads      to    the    police      department.

Neither the main door to the building nor the door to the police

department is secured during normal business hours, and there

are    no   metal      detectors       or     other    security        screening          devices.

Inside      the       police    department,           another     door        leads       to     the

"internal portion" of the department.                          This door is locked from


                                                3
                                                               No.   2015AP2506-CR



the outside, but one can freely exit.                  The interview room is

located about twenty-five feet inside this secured area.                      The

room is thirteen and one-half feet by ten and one-half feet, and

contains a table, three chairs and a window.                   The room can be

accessed by either of two doors, neither of which can be locked.

    ¶8     Bartelt was dropped off by two friends at the Slinger

Police Department around 5:12 p.m.              His friends waited outside.

Clausing testified that Bartelt was escorted to the interview

room but was not searched.          Bartelt chose the seat on the far

side of the table, while Clausing sat at the end, and Walsh sat

opposite   Bartelt.      Clausing   and        Walsh   were   wearing   civilian

clothes; however, they both had their badges displayed on their

belts, as well as their service weapons.                  Clausing testified

that one of the doors to the room was left open.                 Unbeknownst to

Bartelt, the interview was recorded by both audio and visual

means.

    ¶9     Clausing began the interview by telling Bartelt that

he was not in trouble, he was not under arrest, and he could

leave at any time.       Clausing did not read Bartelt his Miranda

rights.    Bartelt, who had just come from the Blodgett residence

to pay his respects to the family, believed the police were

meeting with him about Blodgett's murder.                     However, Clausing

explained that law enforcement was investigating an attack that

had occurred at Richfield Historic Park on the previous Friday.

Bartelt    was   asked   a   number       of    preliminary      questions    and

initially denied any involvement.               Bartelt stated that he had


                                      4
                                                            No.      2015AP2506-CR



been with his girlfriend on the day in question, although he

could not "remember any specifics."              Clausing then explained

that cell phones "are kind of like GPS's," and told Bartelt, "I

don't want any lies."

    ¶10   Clausing   then    observed     some    scrapes      and    a   cut   on

Bartelt's hand and arm.      Bartelt stated he did not remember how

he scraped his arm, but that he had stabbed his hand "with a

screw at work."   The following exchange then occurred:

         DET.   CLAUSING:      . . . So      what      do   you      think
    evidence is?

          MR. BARTELT:      Incriminating items, documents.

         DET. CLAUSING: First -- but I'm more of a nuts-
    and-bolts type of guy. Like, what would you consider
    to be evidence?

          MR. BARTELT:      Well --

          DET. CLAUSING:      Fingerprints?

          MR. BARTELT:      Yeah.

          DET. CLAUSING:      Okay.    Fibers?     Hairs?

          MR. BARTELT:      Yeah.

         DET. CLAUSING:        Any    DNA?       You   know,      footwear
    impressions?

          MR. BARTELT:      Yeah.

         DET. CLAUSING: Witness statements, right?                   Video
    surveillance, stuff like that, right?

          MR. BARTELT:      Yeah.

         DET. CLAUSING: Is there any evidence that we
    just talked about which would show that you would be
    in this park at the time of this incident that had
    occurred? Is there any evidence out there that would
    show that?
                                      5
                                                                   No.       2015AP2506-CR


           MR. BARTELT:           I don't think so . . . What is this
      about?
      ¶11   After reminding Bartelt that police were investigating

an incident at Richfield Historical Park, Clausing said, "What

if I were to tell you that there might be something that links

you   there."          Clausing    then     proceeded     to    explain         "Locard's

exchange principle," which holds that the perpetrator of a crime

will bring something into the crime scene——such as fingerprints,

sweat,   DNA,     or    clothing     fibers——and        leave     it    behind.         The
detectives added that they had found evidence "from the person

that was out there," which needed to be analyzed by the state

crime laboratory.

      ¶12   Clausing       next      told       Bartelt    that         they     had     an

eyewitness, stating, "I would hate to put down your picture in

front of the eyewitness and have them say, that's the guy that

was out there."         Further, Clausing stated, "I can prove that you

were out there.         It's not just a tip.            I can prove it.           And all

I'm getting at is that if you were out there, just talk to us

about what happened or what you saw or what you observed or

whatever."       Walsh told Bartelt they knew that his vehicle had

been spotted at the park on several occasions when Bartelt was

supposed to be at work.            Bartelt admitted that he had been laid

off for several months, and that the injury was actually the

result of a cooking accident.

      ¶13   At    this     time    Clausing      moved    his     chair        closer    to

Bartelt.         When    Clausing's       face    was     about        two     feet    from
Bartelt's, Clausing told him, "No more lies.                            It just makes


                                            6
                                                                  No.    2015AP2506-CR



things worse.        It is spiraling out of control right now . . . .

Nobody in their right mind would lie about cutting themselves if

it happened at home cooking . . . .                   What happened?          Just be

honest."      Bartelt admitted that he had been to the park before

and that he had seen the sketch on television, but that "it

wasn't me."

      ¶14     Walsh then urged Bartelt to help bring closure to M.R.

"Daniel, the truth is going to help us bring some resolution to

this for everybody involved . . . .                 We have one scared person

out   there    right    now . . . and        the    easiest   way       to   put   some

resolution to this is [for] the [ ] person that did this to take

responsibility."         Walsh   added       that    he   could    understand      why

someone would do this, "especially if the person that did it

explains to us what they were thinking, where they were in their

life."      For example, Bartelt had lost his job and hid that from

his parents, and he had dropped out of college after only one

semester.      Walsh stated that "when things are not going well for

people, they do things that are very out of character."                              He

added, "I think you are a good person . . . [g]ood people can

explain things away and we can understand why they do things.

So tell us about the park."

      ¶15     Following a lengthy narrative from Clausing about the

two   types     of     people    in   this         situation——those          who   take

responsibility and those who say "prove it"——Bartelt admitted to

being at the park and going "after that girl" because he "wanted

to scare someone."        Bartelt told the officers that he had been


                                         7
                                                                    No.     2015AP2506-CR



reading when he saw M.R., and in the "spur of the moment," he

decided      to    "run    at   her   and    knock   her   down     and   scare     her."

Bartelt admitted there was no real explanation or motive for the

attack; he was "just numb" and scared because "life scares me."

Bartelt targeted M.R. because "[t]here was no one else there."

Following this admission, Clausing asked Bartelt if he would be

willing to provide a written statement of confession.                               Walsh

explained that the written statement would be Bartelt's chance

to apologize.             When Bartelt asked what would happen after he

gave    his       statement,     Clausing      responded,     "I    can't     say       what

happens then.         We'll probably have more questions for you, quite

honestly."          Clausing     later      testified   that,      once   Bartelt       had

confessed, he "was going to be under arrest, and he probably

wasn't free to get up and leave."

       ¶16    It was at this point that Bartelt asked, "Should I or

can I speak to a lawyer or anything?"                   Clausing told him, "Sure,

yes.    That is your option."                 Bartelt responded, "I think I'd

prefer that."             At 5:45 p.m., roughly 33 minutes after Bartelt

arrived      at     the    station    for    questioning,     Clausing       and    Walsh

suspended the interview, took Bartelt's cell phone, and left the

room.        When    the    detectives      returned    seven      or   eight    minutes

later, Clausing told Bartelt he was under arrest, handcuffed

him, and searched him.                Bartelt was then transported to the

Washington County Jail.

       ¶17    Clausing       testified      that,    during   the       course     of   the

interview, both he and Walsh spoke in a conversational tone,


                                              8
                                                                    No.     2015AP2506-CR



which did not change even after Bartelt's admission.                            Neither

detective ever made reference to or unholstered their weapons.

Bartelt never asked to use the restroom or take a break.                         At one

point during the interview Clausing gave Bartelt permission to

answer his cell phone, which Bartelt declined to do.

       ¶18   The    following       day,    on     July   17,     2013,    Bartelt    was

brought to the interview room at the Washington County Sheriff's

Department to be questioned by Thickens and Detective James Wolf

regarding    his    relationship       with      Blodgett.         Before    commencing

with    questioning,       Thickens    read        Bartelt   his    Miranda     rights,

which Bartelt knowingly and voluntarily waived.

       ¶19   Bartelt was questioned for approximately 90 minutes

about his relationship with Blodgett and his whereabouts on the

day of Blodgett's death.              Bartelt denied being at the Blodgett

residence     on    July      15,    2013,       or    having     any     knowledge    of

Blodgett's death.        Bartelt stated that on the morning of July 15

he had left his house at 6:30 a.m. and drove "all over" before

spending a few hours at Woodlawn Union Park.                      Bartelt then asked

for an attorney, at which point the questioning stopped.

       ¶20   Thickens      later      drove      to     Woodlawn     Union     Park   to

investigate,       and   in   doing    so     he      collected    garbage    from    the

park's receptacles.           In one container he found a Frosted Mini-

Wheats cereal box containing paper toweling, numerous types of

rope and tape, and antiseptic wipes with red stains.                         One of the

ropes   later      revealed    DNA    that       belonged    to    both    Bartelt    and

Blodgett, and which matched the ligature marks on Blodgett's


                                             9
                                                                      No.       2015AP2506-CR



neck.     Another rope matched the ligature marks on her wrists and

ankles.      Based on this evidence and the confession Bartelt made

during his first interview, Bartelt was charged with attempted

first-degree         intentional            homicide,       first-degree           reckless

endangerment, and attempted false imprisonment for the attack on

M.R.,   as    well       as    first-degree        intentional       homicide      for   the

murder of Blodgett.

      ¶21    Bartelt          moved    to   suppress     his    statements,        and   any

evidence derived from them, on the grounds that the officers had

violated     his    Miranda       rights     when    they      questioned       him.     The

circuit court denied Bartelt's motion, concluding that at the

time of his July 16, 2013, interview, Bartelt had voluntarily

agreed to speak with police.                  The circuit court concluded that

Bartelt     was    not    in    custody     until    after      he   had    requested     an

attorney, roughly ten minutes after his confession.                             Therefore,

no Miranda warnings were necessary with respect to the July 16

interview, and police were free to initiate questioning on July

17 because "an assertion of Miranda . . . which a person makes

while they are not in custody, does not prospectively prohibit

law   enforcement         from        attempting    to   interview         an   individual

later."      Further, with respect to the July 17 interview, the

circuit court found that Bartelt was properly given his Miranda

warning, which he voluntarily waived.

      ¶22    Following the denial of Bartelt's suppression motion,

the circuit court ordered that the Blodgett homicide charge be

separated from the charges related to M.R.                           After a seven-day


                                              10
                                                                          No.       2015AP2506-CR



jury       trial,    Bartelt      was    found      guilty    of     Blodgett's         murder.

Consequently, he was sentenced to life imprisonment without the

possibility          of     release     to     extended      supervision.               Shortly

thereafter, the parties reached a plea agreement regarding the

attempted murder, reckless endangerment, and false imprisonment

charges.        In exchange for Bartelt's guilty plea to first-degree

reckless endangerment, the State agreed to dismiss and read-in

the remaining counts, and Bartelt was sentenced to five years'

imprisonment and five years' extended supervision consecutive to

his life sentence.

       ¶23      Bartelt appealed his murder conviction on the grounds

that the circuit court improperly denied his suppression motion.

Specifically, Bartelt argued that once he confessed to attacking

M.R.,       a   reasonable        person      in    his    circumstances            would   have

believed        he    was     not      free    to    leave     the    station,          thereby

transforming          the     non-custodial          interview       into       a     custodial

interrogation.              Bartelt     therefore     argued       that    all       statements

made after his admissions about M.R. were inadmissible under the

principles of Miranda and Edwards.                        As a consequence, Bartelt

alleges that detectives violated his Fifth Amendment rights when

they       approached       him   to    question     him     about    Blodgett's         murder

without counsel being present.                      Under the exclusionary rule,3

       3
       The exclusionary rule was first adopted by the United
States Supreme Court in Weeks v. United States, 232 U.S. 383
(1914), which held that evidence obtained in violation of the
Fourth Amendment is inadmissible. This holding was expanded to
include state court proceedings in Mapp v. Ohio, 367 U.S. 643
(1961). However, Wisconsin courts have aligned themselves with
                                                   (continued)
                                               11
                                                              No.    2015AP2506-CR



Bartelt alleged that all derivative evidence discovered as a

result of his statements should have been suppressed.4

      ¶24      The court of appeals rejected Bartelt's arguments and

affirmed the circuit court's judgment.                 Bartelt sought review,

which we granted.          For the reasons explained below, we affirm

the court of appeals.

                                 II.     DISCUSSION

                            A.   Standard of Review

      ¶25      A    determination   of    when   custody    begins   presents   a

question of constitutional fact that we review under a two-part

standard.          State v. Jennings, 2002 WI 44, ¶20, 252 Wis. 2d 228,

647 N.W.2d 142.         The circuit court's findings of historical fact

will be upheld unless they are clearly erroneous.                      State v.

Henderson, 2001 WI 97, ¶16, 245 Wis. 2d 345, 629 N.W.2d 613.

Whether those findings support a determination of custody for

purposes of Miranda is a question of law that we independently

review.       Id.

                            B.   Miranda and Custody

      ¶26      The Fifth Amendment of the United States Constitution

states that "[no person] shall be compelled in any criminal case

to   be   a    witness    against   himself,     nor   be   deprived   of   life,


the federal rule since long before the Mapp holding.                   See Hoyer
v. State, 180 Wis. 407, 417, 193 N.W. 89 (1923).
      4
       See State v. Knapp, 2005 WI 127, ¶2, 285 Wis. 2d 86, 700
N.W.2d 899 ("Where physical evidence is obtained as the direct
result of an intentional Miranda violation, we conclude that our
constitution requires that the evidence must be suppressed.").


                                          12
                                                                         No.      2015AP2506-CR



liberty, or property, without due process of law . . . ."                                   We

have       interpreted        Article    I,    Section        8(1)5    of   the     Wisconsin

Constitution consistent with the United States Supreme Court's

interpretation of the Fifth Amendment.                         State v. Ward, 2009 WI

60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236.

       ¶27       In   1966,     the     Supreme       Court     held    that      the    Fifth

Amendment requires law enforcement to inform suspects of their

rights to remain silent and to have an attorney present during

custodial interrogations.               Miranda v. Arizona, 384 U.S. 436, 458

(1966).6              These     warnings        are     required        because         "[t]he

circumstances surrounding in-custody interrogation can operate

very quickly to overbear the will of [the suspect]."                                    Id. at

469;       see   also   State     v.    Quigley,       2016     WI    App   53,     ¶31,   370

Wis. 2d 702,          883     N.W.2d 139      ("[W]hen    a     suspect     is     in   police

custody, there is a heightened risk of obtaining statements that

'are not the product of the suspect's free choice.'" (internal

citation omitted)).



       5
       Article I, Section 8(1) reads:                     "[n]o person may be held
to answer for a criminal offense                          without due process of
law . . . ."
       6
       "[The 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.   If the accused
indicates that he or she wishes to remain silent, questioning
must stop. If he or she requests counsel, questioning must stop
until an attorney is present. Id. at 474.


                                               13
                                                                  No.    2015AP2506-CR



       ¶28   In Edwards, the Supreme Court added a second layer of

protection    to    the    Miranda    right     to    counsel    by     fashioning     a

bright-line rule requiring law enforcement to immediately cease

questioning once a suspect has asserted his or her right to

counsel during a custodial interrogation.                 Further,

       [W]e now hold that when an accused has invoked his
       right to have counsel present during custodial
       interrogation, a valid waiver of that right cannot be
       established by showing only that he responded to
       further police-initiated custodial interrogation even
       if he has been advised of his rights.
Edwards v. Arizona, 451 U.S. 477, 484 (1981).                    Stated otherwise,

once a suspect has invoked his Fifth Amendment right to counsel,

the    Miranda-Edwards       rule    prohibits       police     from    engaging      in

subsequent,    uncounseled      interrogations          regarding       the    same   or

separate investigations.             Arizona v. Roberson, 486 U.S. 675,

677-78 (1988).7

       ¶29   Over the years, particular emphasis has been placed on

when a suspect may effectively invoke his or her Fifth Amendment

rights.      Miranda stated that "[a]n individual need not make a

pre-interrogation         request    for   a    lawyer.       While     such   request

affirmatively secures his right to have one, his failure to ask

for a lawyer does not constitute a waiver."                      Miranda, 384 U.S.

at    470.    The   Supreme     Court      later     clarified    this    statement,

noting that the Court has "never held that a person can invoke

       7
       However, if it is the accused who initiates further
communication with the police, courts typically will conclude
that a valid waiver has been made.         State v. Kramar, 149
Wis. 2d 767, 785-86, 440 N.W.2d 317 (1989).


                                           14
                                                                 No.    2015AP2506-CR



his   Miranda    rights    anticipatorily,      in    a    context      other   than

'custodial      interrogation' . . . ."         McNeil      v.    Wisconsin,      501

U.S. 171, 182 n.3 (1991).          The Court continued:

      If the Miranda right to counsel can be invoked at a
      preliminary hearing, it could be argued, there is no
      logical reason why it could not be invoked by a letter
      prior    to   arrest,   or   indeed     even   prior    to
      identification as a suspect.        Most rights must be
      asserted when the government seeks to take the action
      they protect against.    The fact that we have allowed
      the Miranda right to counsel, once asserted, to be
      effective    with    respect    to     future    custodial
      interrogation does not necessarily mean that we will
      allow it to be asserted initially outside the context
      of   custodial   interrogation,    with   similar   future
      effect.
Id.

      ¶30    These Supreme Court decisions explain that the right

to counsel may not be invoked until a suspect is "in custody."

Wisconsin courts interpret Article I, Section 8 of the Wisconsin

Constitution consistent with the Supreme Court's interpretation

of the Fifth Amendment.            "Miranda and its progeny are aimed at

dispelling the compulsion inherent in custodial surroundings.

Thus,     the    Miranda      safeguards      apply       only     to     custodial

interrogations" under both constitutions.                  State v. Pheil, 152

Wis. 2d 523, 530-31, 449 N.W.2d 858 (Ct. App. 1989) (citation

omitted).8      "[U]nless a defendant is in custody, he or she may

not   invoke    the   right   to    counsel   under       Miranda."       State    v.

      8
       This exact language has been cited in numerous subsequent
decisions. See, e.g., State v. Kramer, 2006 WI App 133, ¶9, 294
Wis. 2d 780, 720 N.W.2d 459 (quoting State v. Hassel, 2005 WI
App 80, ¶9, 280 Wis. 2d 637, 696 N.W.2d 270).


                                       15
                                                                     No.     2015AP2506-CR



Kramer, 2006 WI App 133, ¶9, 294 Wis. 2d 780, 720 N.W.2d 459.

We therefore turn our attention to what "in custody" means such

that an invocation of the right to counsel becomes immediately

effective.

      ¶31     In    Miranda,       the     Supreme    Court        defined     custodial

interrogation        as     "questioning      initiated       by     law     enforcement

officers after a person has been taken into custody or otherwise

deprived      of    his    freedom    of    action    in    any    significant     way."

Miranda, 384 U.S. at 444.                   The test to determine whether a

person is in custody under Miranda is an objective test.                            State

v. Lonkoski, 2013 WI 30, ¶27, 346 Wis. 2d 523, 828 N.W.2d 552.

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

freedom      of    movement      of   a    degree    associated       with     a   formal

arrest."      Id. (quoting State v. Leprich, 160 Wis. 2d 472, 477,

465 N.W.2d 844 (Ct. App. 1991)); see also California v. Beheler,

463   U.S.    1121,       1125   (1983)     (per    curiam)    (quoting       Oregon   v.

Mathiason, 429 U.S. 492, 495 (1977)).                      Looking at the totality

of the circumstances, courts will consider whether "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 (citing Thompson v. Keohane, 516 U.S. 99, 112

(1995)).

      ¶32     We consider a variety of factors to determine whether

under   the       totality    of   the     circumstances      a    reasonable      person

would feel at liberty to terminate an interview and leave.                           Such

factors include:           the degree of restraint; the purpose, place,


                                            16
                                                                   No.   2015AP2506-CR



and length of the interrogation; and what has been communicated

by police officers.            State v. Blatterman, 2015 WI 46, ¶¶30, 31,

362 Wis. 2d 138, 864 N.W.2d 26.                "When considering the degree of

restraint,      we    consider:        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.

       ¶33    If we determine that a suspect's freedom of movement

is curtailed such that a reasonable person would not feel free

to     leave,    we     must     then    consider       whether     "the    relevant

environment presents the same inherently coercive pressures as

the type of station house questioning at issue in                          Miranda."

Howes v. Fields, 565 U.S. 499, 509 (2012).                     In other words, we

must    consider      whether    the    specific    circumstances        presented   a

serious      danger    of   coercion,     because       the   "freedom-of-movement

test identifies only a necessary and not a sufficient condition

for Miranda custody."            Id. (citation omitted).            Importantly, a

noncustodial situation is not converted to one in which Miranda

applies simply because the environment in which the questioning

took place was coercive.                Mathiason, 429 U.S. at 495.              "Any

interview of one suspected of a crime by a police officer will

have coercive aspects to it . . . [b]ut police officers are not

required to administer Miranda warnings to everyone whom they

question."      Id.     Therefore, "Miranda warnings are not required


                                          17
                                                                             No.    2015AP2506-CR



'simply          because   the     questioning          takes       place     in   the   station

house, or because the questioned person is one whom the police

suspect.'"           Beheler, 463 U.S. at 1125 (citing Mathiason, 429

U.S.       at    495).9      And      finally,         "the    initial       determination      of

custody          depends     on       the      objective            circumstances        of    the

interrogation, not on the subjective views harbored by either

the    interrogating         officers          or   the       person    being      questioned."

Stansbury v. California, 511 U.S. 318, 323 (1994).

                                 C.     Bartelt and Custody

       ¶34        We now turn to whether, under the totality of the

circumstances of this case, Bartelt was in custody at any time

prior       to    Clausing    taking        his     cell      phone    and    telling    him    to

remain in the interrogation room.                             Although the parties agree

that the interview was not initially custodial, Bartelt argues

that       his    confession       to    the      attack       on     M.R.   transformed       his

custody status into one in which a reasonable person would not

have felt free to leave.                    As a result, all further questioning

should have ceased once Bartelt invoked his right to counsel.10


       9
       The oft-used example of a situation in which one is
physically detained but not in custody is that of a Terry stop
or roadside traffic stop. See Terry v. Ohio, 392 U.S. 1 (1968);
Berkemer v. McCarty, 468 U.S. 420 (1984).     In Berkemer, the
Supreme   Court  analogized  traffic  stops  to   Terry  stops,
concluding that the "noncoercive aspect of ordinary traffic
stops prompts us to hold that persons temporarily detained
pursuant to such stops are not 'in custody' for the purposes of
Miranda." Berkemer, 468 U.S. at 440.
       10
       This argument assumes, although we do not decide, that
Bartelt's request for counsel was unequivocal.


                                                  18
                                                                         No.     2015AP2506-CR



Accordingly,         Bartelt      alleges      his        constitutional        rights       were

violated when detectives from the City of Hartford approached

him    the    following         day   about    the     murder       of   Blodgett       without

counsel      present.           Bartelt    therefore         argues      that,       under   the

exclusionary         rule,      all     statements         made    during      the    July    17

interview       and       the    evidence      that        was     derived       from    those

statements must be suppressed.

       ¶35     First,      we     consider       the       circumstances         surrounding

Clausing and Walsh's interrogation of Bartelt.                               Second, given

those circumstances, we consider whether a reasonable person in

Bartelt's position would have felt that he or she was at liberty

to terminate the interview and leave.                         "Once the scene is set

and the players' lines and actions are reconstructed, [we] must

apply    an    objective         test    to   resolve        'the    ultimate        inquiry':

'[was]       there    a    "formal      arrest       or    restraint      on     freedom      of

movement" of the degree associated with a formal arrest[?]'"

Keohane, 516 U.S. at 112 (quoting Beheler, 463 U.S. at 1125)

(quoting Mathiason, 429 U.S. at 495); see also Lonkoski, 346

Wis. 2d 523, ¶27.

       ¶36     As to Bartelt's custody status, the parties agree that

Bartelt was not in custody at the beginning of the interview and

up until the point that he confessed to attacking M.R.                                  Bartelt

came    to    the    Slinger      Police      Department          voluntarily.          He    was

dropped off by two friends who waited for him in the parking

lot, indicating that a reasonable person in Bartelt's position




                                              19
                                                                          No.    2015AP2506-CR



would have believed he or she would be free to leave at the end

of the interview.

       ¶37    Once inside the building, Bartelt was taken through a

secured door, locked from the outside only, to the internal

portion      of    the    police     department.            He    was   then     led    to    an

interview room that had two doors, neither of which could be

locked, and one of which was left ajar during the interview

itself.       See Lonkoski, 346 Wis. 2d 523, ¶¶30-32 (holding that

where defendant voluntarily came to police department, interview

room was locked for entry purposes only, and door was repeatedly

opened, defendant was not in custody).                           The detectives did not

search Bartelt, and he was not restrained in any way.                                   All of

these   circumstances           imply    he    was    not    in    custody.           Id.,    ¶32

(holding that lack of handcuffs and failure to search indicates

lack of custody).

       ¶38    At the outset of the interview, Clausing told Bartelt

that he was "not in trouble" and that he was "not under arrest."

See Mathiason, 429 U.S. at 495 (considering that defendant came

to police department voluntarily and was immediately informed

that    he    was    not    under       arrest       were    indicative         of    lack     of

custody).         Bartelt showed that he understood that when he nodded

and responded, "that's good."                  Clausing further advised Bartelt

that    he   could       "get   up   and      walk    out    of    here    any       time    [he]

want[ed]."         See Quigley, 370 Wis. 2d 702, ¶¶40-41 (holding that

a police officer's advisements that an interviewee was not under

arrest and was free to leave are "of substantial importance,"


                                               20
                                                                    No.     2015AP2506-CR



and further concluding that a suspect's acknowledgement and lack

of objection are "highly significant").                   Additionally, Clausing

testified that neither he nor Detective Walsh ever raised their

voice     or   made    a   show    of    authority,    such    as    referencing       or

removing their weapons.11               Lonkoski, 346 Wis. 2d 523, ¶32.              When

Bartelt's phone rang, he was given the opportunity to answer it.

See United States v. LeBrun, 363 F.3d 715, 722 (8th Cir. 2004)

("While the mere possession of a cellular phone without more

will not transform a custodial interrogation into a noncustodial

one, it is relevant to the question of whether the interview was

coercive       and     whether      a     reasonable    person       in      the     same

circumstances         would   feel       restrained.").        And        finally,    the

interview       lasted     only    thirty-five     minutes.           Lonkoski,       346

Wis. 2d 523, ¶31 (holding that a "relatively short" interview of

approximately thirty minutes indicated lack of custody).                               We

agree that these factors support the conclusion that, prior to

his confession, there was no restraint on Bartelt's freedom to

the degree associated with an arrest.

     ¶39       Nonetheless,       Bartelt    argues    that,   as     the     interview

progressed, he was increasingly treated as though he were the

target of a serious felony investigation.                  At the outset of the

interview, Clausing told Bartelt that he was investigating an


     11
       At one point, having caught               Bartelt in a         lie about his
employment and the nature of the cut             on his hand,         Clausing moved
his chair closer to Bartelt, from                approximately         four or five
feet away to within two feet. The                 ambiance of          the interview
remained otherwise unchanged.


                                            21
                                                                   No.     2015AP2506-CR



"incident" that had occurred in Richfield Historical Park on the

previous Friday.        He did not specify the nature of the incident,

nor did he accuse Bartelt of being involved.                         However, after

Bartelt's initial denials and hesitations, the detectives began

to insinuate that not only had Bartelt been at the park, but

that they suspected——and indeed had evidence——that Bartelt was

involved in an attack in the park.                      The detectives said they

knew what happened and just wanted to understand why.                           Clausing

testified     that     he   and     Walsh        were   attempting       to     minimize

Bartelt's     moral    liability     by     offering      justifications        for   his

behavior.     Bartelt argues that the inherently coercive nature of

the   interview,       coupled     with     the     fact    that     the      detectives

essentially told Bartelt they believed he was guilty, created an

environment     such    that     from   the      moment    Bartelt    confessed,      no

reasonable person would have felt free to leave.

      ¶40    The court of appeals acknowledged that the detectives

"applied some psychological pressures on Bartelt to persuade him

to confess . . . ."         State v. Bartelt, 2017 WI App 23, ¶35, 375

Wis. 2d 148, 895 N.W.2d 86.             We agree that this factor tends to

favor custody.         However, when combined with all of the other

circumstances        present      here,12     neither      the     use     of    certain

interrogation techniques nor that the interview took place at a

police station is enough to conclude that Bartelt could not have

terminated the interview and left, even after his confession.


      12
           See supra ¶¶35-36.


                                            22
                                                                    No.    2015AP2506-CR



      ¶41    In support of this conclusion, the court of appeals

cited to an Eighth Circuit decision, United States v. LeBrun,

which itself relied heavily on both Mathiason and Beheler.                                In

LeBrun, the suspect in a felony murder voluntarily agreed to

accompany police to a nearby patrol office.                       As they arrived,

LeBrun was told that he was not under arrest, that he was free

to terminate the interview at any time, and that he was free to

leave at any time.           LeBrun, 363 F.3d at 718.             LeBrun was led to

a windowless interview room, where the police used psychological

ploys to facilitate a confession.                 For example, the agents told

LeBrun     that   he   was     the    prime      suspect,   and     that     they     had

significant evidence against him.                 However, at no point did the

officers     shout     or    use    physical      force,    and     LeBrun      was      not

restrained in any way.

      ¶42    After     thirty-three        minutes    of    questioning,          LeBrun

confessed to the crime.             Id.    In concluding that LeBrun was not

in custody before, during, or after his confession, the Eighth

Circuit reiterated that "[n]ot every confession obtained absent

the   Miranda     warnings     is    inadmissible."         Id.     at    720     (citing

Mathiason, 429 U.S. at 495).                The critical inquiry, the court

concluded,      "is    not    whether      the    interview    took       place     in    a

coercive or police dominated environment, but rather whether the

defendant's 'freedom to depart was restricted in any way.'"                              Id.

(citing     Mathiason,       429    U.S.   at    495).13      "In    answering        this

      13
        In Mathiason, a police officer contacted Mathiason after
he had been identified as a potential suspect by a burglary
victim.     The officer asked Mathiason where it would be
                                                     (continued)
                                           23
                                                                       No.    2015AP2506-CR



question, we look at the totality of the circumstances while

keeping      in    mind    that     the    determination         is    based       'on    the

objective         circumstances      of    the    interrogation,             not   on    the

subjective views harbored by either the interrogating officers

or the person being questioned.'"                   Id. (citing Stansbury, 511

U.S.    at   322-23).         The    Eighth      Circuit        concluded      that      "the

purportedly        coercive   aspects       of    [the]    interview         are    largely

irrelevant to the custody determination and that the district

court     erred       in    giving        such    great         weight       to     certain

facts . . . ."        Id. at 720-21.

       ¶43   This issue was similarly discussed in Beheler, where

the    defendant,      having     been     told    he     was    not     under      arrest,


convenient to meet, and they agreed to meet at the state patrol
office. Once Mathiason arrived, the officer led Mathiason to an
office, where he was told that he was not under arrest. During
the course of the interview, the officer told Mathiason that he
was a suspect and falsely indicated that police had discovered
his fingerprints at the scene of the crime.   The Supreme Court
of Oregon overturned Mathiason's conviction, holding that the
interrogation took place in a coercive environment such that
Mathiason was in custody.     The Supreme Court of the United
States reversed:

       [T]here is no indication that the questioning took
       place in a context where respondent's freedom to
       depart was restricted in any way. He came voluntarily
       to the police station, where he was immediately
       informed that he was not under arrest.    At the close
       of a ½-hour interview respondent did in fact leave the
       police station without hindrance.    It is clear from
       these facts that Mathiason was not in custody "or
       otherwise deprived of his freedom of action in any
       significant way."

Oregon v. Mathiason, 429 U.S. 492, 495 (1977).


                                            24
                                                                             No.     2015AP2506-CR



accompanied police to the station for questioning.                                  Beheler was

not    provided     a     Miranda        warning,       and    he    ultimately          confessed

during the course of the thirty-minute interview.                                   The Supreme

Court concluded that, given the totality of the circumstances,

Beheler      was     neither           taken    into        custody        nor     significantly

deprived of his freedom of action.                            In so holding, the Court

reiterated that a noncustodial situation is not converted to a

custodial situation simply because the questioning took place in

a   coercive       environment.            Beheler,         463     U.S.    at     1124    (citing

Mathiason, 429 U.S. at 495).

       ¶44     As the court in LeBrun aptly noted, "Mathiason and

Beheler teach us that some degree of coercion is part and parcel

of the interrogation process and that the coercive aspects of a

police       interview           are    largely        irrelevant           to     the     custody

determination except where a reasonable person would perceive

the    coercion      as     restricting         his     or    her     freedom       to    depart."

LeBrun, 363 F.3d at 721.                 Furthermore, presenting a suspect with

incriminating         suggestions          does       not     automatically          convert      an

interview      into     a    custodial         interrogation.              United        States   v.

Jones, 523 F.3d 1235, 1241 (10th Cir. 2008).

       ¶45     Given      the     totality       of     the       circumstances          presented

herein, we conclude that Bartelt was not in custody at the time

of his confession.

       ¶46     We now turn to Bartelt's argument that from the moment

of his confession no reasonable person in his position would

have    felt    free        to    terminate       the       interview       and     leave.        In


                                                25
                                                                No.     2015AP2506-CR



answering this inquiry, the court of appeals focused on whether,

given the totality of the circumstances, the environment of the

interview      after    Bartelt's      confession      "present[ed]      the        same

inherently     coercive    pressures      as     the   type   of    station        house

questioning at issue in Miranda."                Howes, 565 U.S. at 509.             The

court of appeals concluded:

      [A] defendant making an incriminating statement does
      not necessarily transform a noncustodial setting to a
      custodial one.      Indeed, "no Supreme Court case
      supports [the] contention that admission to a crime
      transforms an interview by the police into a custodial
      interrogation."
Bartelt, 375 Wis. 2d 148, ¶40 (citing Locke v. Cattell, 476 F.3d

46, 53 (1st Cir. 2007)).

      ¶47     As an issue of first impression in Wisconsin courts,

the court of appeals relied on several out-of-state and federal

court decisions, including LeBrun, supra.                 Ultimately, the court

concluded that while           a confession is undoubtedly one of the

circumstances      we     must       consider,     Miranda     is     specifically

"concerned 'with a type of interrogation environment created by

the     police'   and     it    is    this     'atmosphere     created        by     the

authorities       for     questioning'         that       necessitates        Miranda

warnings."        Bartelt,     375    Wis. 2d 148,      ¶46   (citing        State    v.

Clappes, 117 Wis. 2d 277, 283, 344 N.W.2d 141 (1984)).                         As the

court    of   appeals    noted,      Miranda     itself    stated     that    Miranda

warnings are required "when an individual is taken into custody

or otherwise deprived of his freedom by the authorities in any

significant way and is subjected to questioning."                     Bartelt, 375
Wis. 2d, ¶47 (citing Miranda, 384 U.S. at 478).                     Therefore, the

                                         26
                                                                     No.   2015AP2506-CR



court of appeals focused on whether the atmosphere of Bartelt's

interview changed after his confession such that a reasonable

person would not feel free to leave.                    Considering the totality

of the circumstances, Bartelt's confession was not immediately

associated with a restraint on freedom of movement of the degree

associated with an arrest.

    ¶48     First, we note that both before and after Bartelt's

confession, Clausing and Walsh spoke in a conversational tone.

United     States    v.    Chee,     514        F.3d    1106    (10th      Cir.    2008)

(concluding, in part, that tone of interview, unchanged even

after confession to a serious crime, indicates lack of custody).

Although    Clausing      moved     his    chair       closer   to     Bartelt    after

catching Bartelt in a series of lies, the discussion otherwise

was not aggressive or confrontational.                  Thomas v. State, 55 A.3d

680, 696 (Md. 2012) (holding that a confession does not per se

render a suspect in custody, especially where the atmosphere of

the room never changed); Commonwealth v. Hilton, 823 N.E.2d 383,

396 (Mass. 2005) ("[A]n interview does not automatically become

custodial    at     the   instant    a     defendant      starts      to   confess.").

Rather,    following      Bartelt's       admission,      the   detectives        simply

continued to ask for details about the attack, which Bartelt

continued to supply.         United States v. Caiello, 420 F.2d 471,

473 (2d Cir. 1969) (stating that it is the presence or absence

of compelling pressures that renders an interview custodial);

State v. Lapointe, 678 A.2d 942, 958 (Conn. 1966) ("While we

agree that admissions of culpability may lead the police either


                                           27
                                                                      No.     2015AP2506-CR



to    arrest    a   suspect   or    to     place     restraints       on     his     freedom

approximating an arrest, the police in this case never altered

the circumstances of their interviews of the defendant in such a

way that his initial noncustodial status became custodial.").

       ¶49     Second, that Bartelt was arrested at the end of his

interview does not necessarily mean that he was in custody at

any point prior to his arrest.                  Thomas, 55 A.3d at 692 (noting

that when a suspect is arrested at the end of an interview that

does    not    demonstrate     that       he   was   in    custody      prior        to   the

arrest); Chee, 514 F.3d at 1114 (concluding that until a suspect

who has confessed to a crime is arrested, he is merely subject

to    arrest).       Stated    otherwise,        although        Clausing      and    Walsh

clearly suspected Bartelt and had enough evidence to arrest him

when he confessed, that in itself did not restrain Bartelt's

freedom of movement.          Indeed, the defendants in Chee, Beheler,

and     Mathiason     were    permitted         to   go    home       following        their

incriminating statements.            See Stansbury, 511 U.S. at 325 ("Even

a     clear    statement     from    an    officer        that    the       person     under

interrogation is a prime suspect is not, in itself, dispositive

of the custody issue, for some suspects are free to come and go

until the police decide to make an arrest.").

       ¶50     On review, Bartelt argues that the court of appeals

ignored the "many more cases" from other jurisdictions that have

gone the other way.            Specifically, Bartelt points to several

cases indicating that, after confession to a serious crime, a

person    should     generally      be    considered       to    be   in     custody      for


                                           28
                                                              No.   2015AP2506-CR



Miranda purposes, regardless of whether the confession altered

the atmosphere of the interrogation.             See State v. Pitts, 936

So. 2d 1111 (Fla. Dist. Ct. App. 2006); Jackson v. State, 528

S.E.2d 232 (Ga. 2000); People v. Ripic, 587 N.Y.S.2d 776 (N.Y.

App. Div. 1992); People v. Carroll, 742 N.E.2d 1247 (Ill. Ct.

App. 2001); Commonwealth v. Smith, 686 N.E.2d 983 (Mass. 1997);

Kolb v. State, 930 P.2d 1238 (Wyo. 1996); Ackerman v. State, 774

N.E.2d 970 (Ind. Ct. App. 2002).

    ¶51    Bartelt contends that the court of appeals erred in

relegating its discussion of these cases to a footnote, in which

it asserted that at least two of the cases are not persuasive

because they treat a defendant's confession as dispositive.                   We

disagree   with    Bartelt   because      the   aforementioned      cases    are

readily distinguishable.       Furthermore, it is law enforcement's

conduct that determines whether a suspect has been taken into

custody.   As we have explained above, whether a suspect is in

custody is a fact-specific inquiry where the totality of the

circumstances must be evaluated in full.                 The totality of the

circumstances     herein   differ   from    those   in    the   cases   Bartelt

cites.

    ¶52    Although    the   specific      question      we   address   today——

whether confession to a serious crime transforms a noncustodial

interview into a custodial interrogation in these circumstances—

—is an issue of first impression in Wisconsin, Bartelt contends

that our decision in State v. Koput, 142 Wis. 2d 370, 418 N.W.2d

804 (1988), supports the conclusion that no reasonable person


                                     29
                                                                      No.   2015AP2506-CR



would have felt free to leave following his confession to a

serious,       violent      crime.      In   Koput,      we    considered    whether      a

defendant, who had arrived for questioning at 9:30 a.m., was in

custody by the time he gave an inculpatory statement at 4:15

p.m.        Based on the totality of the circumstances, we concluded

that    Koput       was    not   in   custody     "until      after   his   confession,

sometime after 4:15 PM."              Id. at 380.14        As the court of appeals

correctly noted, Koput does not stand for the proposition that

it was the confession itself which transformed Koput's custody

status.       Rather, it was the combination of circumstances after

the confession that amounted to custody.

       ¶53     We therefore conclude that although an admission of

guilt to a serious crime is a factor to consider in a custody

analysis, Bartelt's admission to attacking M.R. was not enough

to   transform        his    status    to    that   of   "in    custody"     given      the

totality       of    the    circumstances.          Because     Bartelt     was   not    in

custody when he asked about counsel, his Fifth Amendment right

to counsel did not attach.




       14
       Koput goes on to state, "It was only then that a
reasonable person viewing the situation objectively would
conclude that he was not free to leave but was in custody."
State v. Koput, 142 Wis. 2d 370, 380, 418 N.W.2d 804 (1988).
Bartelt argues that in omitting this language from its opinion,
the court of appeals omitted Koput's indication that the
defendant's custody status changed after (and because) of his
confession.   We disagree.  Even with this language, Koput does
not stand for the proposition that the confession, in and of
itself, transformed his custody status.


                                             30
                                                                    No.    2015AP2506-CR



                                 III.   CONCLUSION

     ¶54     There     were   two   issues     on    this   appeal.         First,    we

considered whether Bartelt was in custody for the purposes of

Miranda once he confessed to attacking M.R.                   We concluded that,

in   light     of    the   totality       of   the   circumstances,          Bartelt's

confession did not transform his status to that of "in custody."

Rather, Bartelt was not in custody until Detectives Clausing and

Walsh took his cell phone, approximately ten minutes after his

confession, and instructed him to remain in the interview room.

Second, because we determine that Bartelt was not in custody

until   this     point,    which    was    after     his    alleged       request    for

counsel, we need not and do not reach the issue of whether his

alleged request for counsel was unequivocal.

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

affirmed.




                                          31
                                                                    No.     2015AP2506-CR.awb


     ¶55       ANN WALSH BRADLEY, J.                (dissenting).         "I committed a

serious,      violent        felony."     If       suspects       uttered      these    words,

would law enforcement let them walk out of the station?                                Would a

reasonable          person    feel    free     to        simply    get    up    and     leave?

Engaging in a work of fantasy, the majority says yes.                              Mired to

the grips of reality, I say no.

     ¶56       Legal decisions regarding what the "reasonable person"

would do in a given situation do not always reflect the real

world.     In reality, any reasonable person would not feel free to

leave a police interrogation room after confessing to a serious,

violent felony.              Yet, the majority again finds                     "a perceived

freedom to depart in circumstances when only the most thick-

skinned of suspects would think such a choice was open to them."

See Wayne R. LaFave, Pinguitudinous Police, Pachydermatous Prey:

Whence Fourth Amendment "Seizures"?, 1991 U. Ill. L. Rev. 729,

739-40.1

     ¶57       To further the fantasy, the majority omits relevant

facts from its analysis that would lead to the conclusion that
Bartelt was in custody after confessing to the attack on M.R.

As a result it does not reach a critical issue in this case——

whether       the    defendant       clearly       and    unequivocally        invoked     his

right    to    counsel.         Unlike   the       majority,       I   would     reach    that

issue.


     1
       See also Michelle R. Ghetti, Seizure Through the Looking
Glass:   Constitutional Analysis in Alice's Wonderland, 22 S.U.
L. Rev. 231, 253 (1995); Thomas v. State, 55 A.3d 680, 702-03
(Md. 2012) (Bell, C.J., dissenting).


                                               1
                                                                  No.        2015AP2506-CR.awb


      ¶58   I   conclude       that   a     reasonable           person       in    Bartelt's

position would not have felt free to leave the station house

interrogation room, and that Bartelt clearly and unequivocally

invoked his right to counsel.               When considering the totality of

the   circumstances      (namely      all        of   the    facts          of     record),     I

determine that Bartelt's Fifth Amendment rights were violated.

Accordingly, I respectfully dissent.

                                            I

      ¶59   The majority engages in fantasy by determining that a

reasonable      person    would       feel        free      to    leave           the     police

interrogation     room     under      the        circumstances          presented         here.

Academic    studies,     the    facts     of      this    case,        and       common    sense

support a conclusion contrary to that of the majority.

                                            A

      ¶60   A suspect is in custody for Miranda purposes if, under

the totality of the circumstances, a reasonable person would not

feel free to terminate the interview and leave the scene.                                 State

v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523, 828 N.W.2d 552
(citing State v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278, 816

N.W.2d 270).

      ¶61   Studies demonstrate that the "free to leave" standard

that courts apply does not generally reflect what reasonable

people actually think and how they act when interacting with law

enforcement.      Cty.     of   Grant       v.    Vogt,     2014       WI    76,     ¶71,     356

Wis. 2d 343,     850     N.W.2d 253         (Abrahamson,           C.J.,           dissenting)

(citing David K. Kessler, Free To Leave:                         An Empirical Look at
the   Fourth    Amendment's      Seizure         Standard,        99    J.       Crim.     L.   &

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                                                             No.   2015AP2506-CR.awb


Criminology      51    (2009);      Edwin    J.      Butterfoss,        Bright      Line

Seizures:        The   Need   for    Clarity    in    Determining       When     Fourth

Amendment Activity Begins, 79 J. Crim. L. & Criminology 437,

439-42 (1988); Janice Nadler, No Need to Shout:                    Bus Sweeps and

the Psychology of Coercion, 2002 Sup. Ct. Rev. 153 (2002)).2

     ¶62    Indeed, one study concluded that the average person

does not feel free to leave even a simple interaction with law

enforcement on a bus or sidewalk.              See Kessler, supra, at 74-75.

This result held true even among people who knew they had the

right to leave such an encounter.              Id. at 78.

     ¶63    Our jurisprudence should reflect reality.                      It should

be based on true inclinations and thought processes rather than

pushing the mythical "reasonable person" even further from the

bounds     of    the   real    world.        The     majority      in     this      case

accomplishes the latter.

                                         B

     ¶64    Although the majority correctly invokes analysis of

the totality of the circumstances, it errs by ignoring relevant
facts    that,    in   the    aggregate,     support     a   determination          that

Bartelt    was    in   custody      immediately      after   confessing        to   the

attack on M.R.


     2
       Although these studies address the "free to leave"
standard with regard to a Fourth Amendment seizure, they are
equally applicable to the same standard in relation to the Fifth
Amendment. In both situations, a court must determine whether a
reasonable person would feel free to leave. It defies logic to
argue that a person being questioned in a police station under
threat of custody would feel more free to leave than a person
stopped pursuant to Terry v. Ohio, 392 U.S. 1 (1968).


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      ¶65    First,   the    majority       correctly    sets   the   scene     by

observing that "Bartelt chose the seat on the far side of the

table, while Clausing sat at the end, and Walsh sat opposite

Bartelt."      Majority op., ¶8.        The majority fails to mention,

however, that in order to leave the room (unless he went under

the   table),    Bartelt    would   have      had   to   walk   around   either

detective.      Thus, from the outset of the interview, he would

have had to squeeze by a detective in his path if he tried to

leave the room.

      ¶66    Second, the majority observes that at one point during

the interrogation, Detective Clausing "moved his chair closer to

Bartelt, from approximately four or five feet away to within two

feet."      Id., ¶38 n.11.     Yet, according to the majority, "[t]he

ambiance of the interview remained otherwise unchanged."                 Id.3    I

disagree.     Under the totality of the circumstances, cutting the

distance by half and bringing the detective within arms reach of

the suspect changed the atmosphere of the room considerably.

      3
       The majority focuses its analysis on law enforcement's
conduct, not the suspect's.    See majority op., ¶48 (observing
that "both before and after Bartelt's confession, Clausing and
Walsh spoke in a conversational tone"); see also id. ("Although
Clausing moved his chair closer to Bartelt after catching
Bartelt in a series of lies, the discussion otherwise was not
aggressive or confrontational").

     To the extent that this line of analysis evinces a
departure from the totality of the circumstances test in favor
of a narrow focus on law enforcement conduct, this suggestion
can be quickly dispatched.    In the next sentence after stating
that "it is law enforcement's conduct that determines whether a
suspect has been taken into custody," the majority reaffirms
that a custody determination is made with reference to the
totality of the circumstances. See id., ¶51.


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                                                              No.   2015AP2506-CR.awb


       ¶67      Detective     Clausing's    movement    in    effect   shrunk    the

size       of    the   room     and   further       blocked     Bartelt's     exit.4

Subsequently, in order to leave the room, Bartelt would have had

not only to walk past either detective, but also if he chose to

leave      in   Detective      Clausing's       direction,    carefully     maneuver

around Detective Clausing, who now sat a mere two feet away from

him.

       ¶68      Finally, the majority also fails to note an important

shift in the tone of the conversation:                       Detective Clausing's

language becomes coarser.5            In fact, Detective Clausing does not

utter a curse word over the course of the entire interview until

after he pulls his chair closer to Bartelt.                         The change in

language coupled with the close proximity of the detective to




       4
       A suspect's purported belief at the beginning of the
interview that he would be free to leave at the end of the
interview is irrelevant.   See majority op., ¶36.   During the
course of the interview, circumstances can change. Indeed they
did here.
       5
           Detective Clausing lectured Bartelt:

       There is [sic] two different types of people that are
       in your chair at this time. Okay? There is a person
       that says, no, f--- this. F--- you. Prove it. And,
       okay, we will. But there is a person, you know, I f--
       -ed up, I made a mistake, I screwed up, but here is
       the reason why. Okay? Maybe I have a problem with A,
       maybe I have a problem with B.         I was out of
       character. I'm making bad decisions, and I regret it,
       and I will do everything in my power to reverse what I
       did and make things right.


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                                                             No.     2015AP2506-CR.awb


the suspect enhances coercive pressure.6              In other words, it puts

more pressure on the suspect and weighs in favor of a custody

determination, even if the officer's comments otherwise remain

conversational.

     ¶69      To summarize:         two detectives, one of them two feet

away and now swearing at him, block Bartelt's exit path.                               Yet

under the majority's analysis, Bartelt should have felt free to

stand    up   in    the    interrogation      room,   squeeze       by   a     hovering

detective, and walk out of the police station.

     ¶70      Add   to    this   atmosphere     the   fact    that       the    suspect

confessed     to    a    serious,   violent     felony——the        assault     of     M.R.

Essentially, the majority determines that a suspect in Bartelt's

situation could state to the police, "I committed a serious,

violent felony.           I'm leaving, see you later," and then march

past detectives on the way out of the interrogation room and the

police station.          This stretches the bounds of credulity.

     ¶71      Additionally,       Detective     Clausing     testified         that    he

subjectively        believed     that   after    Bartelt     confessed,         Bartelt
would not have been free to leave.7              Is Detective Clausing not a

reasonable person?

     6
       Although neither the detective's word choice nor his
positioning is by itself determinative of custody, each provides
further weight in favor of a custody determination when
analyzing the totality of the circumstances.
     7
       During   an  evidentiary               hearing,     Detective           Clausing
testified as follows:

     COUNSEL FOR BARTELT:     Okay.    And when, from your
     perspective, did [Bartelt being able to walk out of
     the room] change during the course of this interview?

                                                                         (continued)
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                                                                No.   2015AP2506-CR.awb


       ¶72   I    acknowledge      that     Detective      Clausing's       subjective

view of when Bartelt was in custody is not dispositive.                            See

Lonkoski, 346 Wis. 2d 523, ¶35.                    However, his view certainly

provides a window into the perspective of one reasonable person

with     a   front   seat      view    of        the   situation.        It   further

demonstrates law enforcement's expected response if Bartelt had

simply walked out as the majority contends he could have done.

       ¶73   If even the interrogating detective testified that a

suspect was not free to leave, would a reasonable suspect in

such a position really think he could just get up and walk out?

Only in a fantasy world would a suspect act in this manner.

Common sense tells us that a real world suspect would do no such

thing.

       ¶74   In    sum,    I    determine         that    the    totality     of   the

circumstances clearly indicates that Bartelt was not free to

leave.       Rather,      he   was     in       custody   for     Miranda     purposes

immediately after confessing to the attack on M.R.

                                            II
       ¶75   Finally, because the majority concludes that Bartelt

was not in custody until the detectives took his cell phone and

       DET. CLAUSING:       When he admitted to attacking [M.R.].

       COUNSEL FOR BARTELT: So at that point in time, he was
       in trouble, he was going to be under arrest, and he
       probably wasn't free to get up and leave, true?

       DET. CLAUSING:       In my mind?

       COUNSEL FOR BARTELT:          Yes.

       DET. CLAUSING:       Yes.


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                                                                No.    2015AP2506-CR.awb


instructed him to remain in the interview room, approximately

ten minutes after his confession, it does not reach the issue of

whether Bartelt unequivocally invoked his right to counsel.                            See

majority op., ¶¶3, 54.           As explained above, because I determine

that Bartelt was in custody for Miranda purposes immediately

after confessing to the attack on M.R., I would reach the issue,

and determine that Bartelt's invocation of the right to counsel

was clear and unequivocal.

       ¶76    To successfully invoke the right to counsel, a suspect

must make a clear and unequivocal request.                   State v. Edler, 2013

WI 73, ¶34, 350 Wis. 2d 1, 833 N.W.2d 564.                      "Although a suspect

need not 'speak with the discrimination of an Oxford don,' he

must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an attorney."

Id. (quoting Davis v. United States, 512 U.S. 452, 459 (1994)).

Under     this      objective    test,     the       court      must    examine        the

circumstances surrounding the request.                    Edler, 350 Wis. 2d 1,
¶34.

       ¶77    The    relevant    circumstances           here    are     as    follows:

Bartelt      stated,   "Should    I   or       can   I   speak    to    a     lawyer    or

anything?"       Detective Clausing responded, "Sure, yes.                      That is

your option."        Bartelt then told him, "I think I'd prefer that."

See majority op., ¶16.

       ¶78    "That"   clearly    refers to the option to                   speak to     a

lawyer.      The circumstances surrounding the statement present a
question, an answer, and a subsequent follow-up.                            Given this

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exchange,     a   reasonable     officer       would     have        understood         that

Bartelt     was   accepting      the    "option"        the    officer          had     just

presented to him.

    ¶79     Bartelt's     invocation      of      the   right        to   counsel       was

informal, but that does not make it ineffective.                      See Edler, 350

Wis. 2d 1, ¶36; State v. Dumas, 750 A.2d 420, 425 (R.I. 2000)

("A suspect asserting his or her right to counsel need not speak

with perfect formality, but may use any manner of colloquial

speech, so long as his or her statement would be reasonably

understood as a request for an attorney").                     The most reasonable

interpretation      is    that   Bartelt       used      the     word         "think"    as

colloquial filler, not as an indication of ambiguity.

    ¶80     Conversely,      ambiguous       or    equivocal         statements         not

invoking    the    protection,    are    those      from      which       a    reasonable

officer "would have understood only that the suspect might be

invoking the right to counsel."              State v. Jennings, 2002 WI 44,

¶36, 252 Wis. 2d 228, 647 N.W.2d 142 (quoting Davis, 512 U.S. at

459).
    ¶81     In Jennings, the defendant stated, "I think maybe I

need to talk to a lawyer."         Jennings, 252 Wis. 2d 228, ¶36.                      The

word "maybe" coupled with "think" in Jennings' statement adds

ambiguity not present here.              Instead, Bartelt's response was

made in reply to the detective's statement that having counsel

was his "option."        Bartelt clearly chose that option.

    ¶82     An    analogy     presented      in     Bartelt's         brief       further

illustrates       that    Bartelt's     statement          was       an       unambiguous
invocation of the right to counsel:                 "if a customer went to a

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                                                          No.     2015AP2506-CR.awb


restaurant and asked the waiter, 'What kind of light beers do

you have on tap?,' and the waiter responded, 'Miller Lite and

Bud Light.'    If the customer then said, "Okay.                    I think I'd

prefer a Miller Lite,' no reasonable person would think this was

anything other than a clear request for a Miller Lite."                   Indeed,

this analogy clarifies that neither the word "think" nor the

word "prefer" necessarily demonstrates equivocation.

    ¶83   In sum, Bartelt was in custody for Miranda purposes

immediately   after   confessing     to    the   attack     on    M.R.,   and    he

invoked his right to counsel.             Because a reasonable person in

Bartelt's position would not have felt free to leave the station

house   interrogation   room,   and        because      Bartelt     clearly     and

unequivocally invoked his right to counsel, I determine that

Bartelt's Fifth Amendment rights were violated.

    ¶84   Accordingly, I respectfully dissent.

    ¶85   I   am   authorized   to    state      that    Justice     SHIRLEY    S.

ABRAHAMSON joins this dissent.




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