                                                                   2020 WI 64

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:              2018AP319-CR


COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Timothy E. Dobbs,
                                 Defendant-Appellant-Petitioner.

                            REVIEW OF DECISION OF THE COURT OF APPEALS
                            Reported at 388 Wis. 2d 144,930 N.W.2d 280
                                       (2019 – unpublished)

OPINION FILED:         July 3, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 1, 2020

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Dane
   JUDGE:              Clayton Patrick Kawski & Jill Karofsky

JUSTICES:
DALLET, J., delivered the majority opinion of the Court with
respect to Parts I, II, and III.C., in which all Justices
joined; the majority opinion of the Court with respect to Part
III.A., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER,
and HAGEDORN, JJ., joined; and the majority opinion of the Court
with respect to Part III.B., in which ANN WALSH BRADLEY, REBECCA
GRASSL BRADLEY, and KELLY, JJ., joined. ZIEGLER, J., filed a
concurring opinion, in which ROGGENSACK, C.J., and HAGEDORN, J.,
joined. KELLY, J., filed a concurring opinion, in which REBECCA
GRASSL BRADLEY, J., joined.
NOT PARTICIPATING:



ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed       by    Michael   D.   Rosenberg   and   Community   Justice,   Inc.,
Madison. There was an oral argument by Michael D. Rosenberg.


       For the plaintiff-respondent, there was a brief filed by
Michael C. Sanders, assistant attorney general; with whom on the
brief is Joshua L. Kaul, attorney general. There was an oral
argument by Michael C. Sanders.


       An amicus curiae brief was filed on behalf of The Innocence
Projects, In., and the Wisconsin Innocence Project by Andrew T.
Dufresne, Sopen B. Shah, and Perkins Coie LLP, Madison; with
whom   on   the   brief   was   Keith       A.   Findley   and   the   Wisconsin
Innocence Project, Madison.




                                        2
                                                                   2020 WI 64


                                                          NOTICE
                                            This opinion is subject to further
                                            editing and modification.   The final
                                            version will appear in the bound
                                            volume of the official reports.
No.   2018AP319-CR
(L.C. No.   2015CF1938)

STATE OF WISCONSIN                      :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,
                                                               FILED
      v.                                                   JUL 3, 2020
                                                             Sheila T. Reiff
Timothy E. Dobbs,                                         Clerk of Supreme Court


            Defendant-Appellant-Petitioner.


DALLET, J., delivered the majority opinion of the Court with
respect to Parts I, II, and III.C., in which all Justices
joined; the majority opinion of the Court with respect to Part
III.A., in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER,
and HAGEDORN, JJ., joined; and the majority opinion of the Court
with respect to Part III.B., in which ANN WALSH BRADLEY, REBECCA
GRASSL BRADLEY, and KELLY, JJ., joined.    ZIEGLER, J., filed a
concurring opinion, in which ROGGENSACK, C.J., and HAGEDORN, J.,
joined. KELLY, J., filed a concurring opinion, in which REBECCA
GRASSL BRADLEY, J., joined.




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



      ¶1    REBECCA FRANK DALLET, J.    The petitioner, Timothy E.

Dobbs, seeks review of the court of appeals' decision1 affirming

his judgment of conviction for homicide by intoxicated use of a

vehicle.

      1State v. Dobbs, No. 2018AP319–CR, unpublished slip op.
(Wis. Ct. App. May 2, 2019).
                                                                        No.   2018AP319-CR



       ¶2       Dobbs     raises   two   issues       on    appeal.      First,    Dobbs

asserts that the circuit court improperly excluded the expert

testimony of Dr. Lawrence White.2                 Second, Dobbs claims that the

circuit court erred in denying his motion to suppress statements

that       he   made    to   law   enforcement        because    he    was    subject   to

custodial interrogation and not read the Miranda warnings,3 or,

in the alternative, because his statements were not voluntarily

made.4

       ¶3       We conclude that the circuit court properly exercised

its discretion when it excluded Dr. White's exposition testimony

for a lack of fit with the facts of Dobbs's case.                        Additionally,

although we determine that several of Dobbs's statements should

have       been      suppressed    because       he   was    subject     to    custodial

interrogation and was not read the Miranda warnings, we conclude

that the error was harmless.                 We further conclude that all of

Dobbs's statements were voluntary.

       ¶4       We     therefore   affirm    the      decision    of    the    court    of

appeals.
                I.     FACTUAL BACKGROUND AND PROCEDURAL POSTURE

       ¶5       On the morning of September 5, 2015, a vehicle crossed

several lanes of traffic and a median area, drove over a curb,


       The Honorable Clayton P. Kawski of the Dane County Circuit
       2

Court presided over the State's motion to exclude the testimony
of Dr. Lawrence White.
       3   Miranda v. Arizona, 384 U.S. 436 (1966).

       The Honorable David T. Flanagan of the Dane County Circuit
       4

Court presided over Dobbs's motion to suppress.

                                             2
                                                                             No.    2018AP319-CR



and struck a pedestrian.                The vehicle left the scene.                     Several

blocks      from    the    scene,      Madison          Police    Officer       Jimmy    Milton

noticed a vehicle with a completely deflated tire and exposed

wheel rim on the front driver's side that matched the witnesses'

description of the vehicle involved in the hit and run.                                 Officer

Milton positioned his squad car to prevent the driver, later

identified as Dobbs, from leaving.

       ¶6        With his hand on his service weapon, Officer Milton

instructed Dobbs to show his hands and exit the vehicle.                                   Dobbs

was immediately handcuffed and placed in the squad car.                                 Officer

Milton      told    Dobbs      he    was     "being       detained"       for      an   ongoing

"accident investigation" and that he was suspected of striking a

pedestrian.          Shortly        after    placing       Dobbs     in     the    squad   car,

Officer Milton learned that the pedestrian had died.

       ¶7        At 7:30 a.m., Officer Milton started questioning Dobbs

while he remained handcuffed in the backseat of the locked squad

car.       The audio from Officer Milton's microphone did not start

recording until 7:34 a.m.5                  At 7:34 a.m., Officer Milton asked
Dobbs      his    date    of   birth        and       questions     about    his     vehicle's

registration.            At 7:36 a.m., Officer Milton said to Dobbs "I

smell      alcohol."        Over     the     course      of   the    next    hour,      Officer

Milton talked to Dobbs about a variety of topics and asked him

numerous questions, including:



       Officer Milton testified that he asked Dobbs his name,
       5

address, where he had been coming from, where he was headed, and
other "identifying" information during this time.

                                                  3
                                                                     No.    2018AP319-CR



              "Do you have any medical issues other than that splint

               that you were wearing?"

              "Do you take medications for depression and anxiety?"

              "Do you have any injuries from the collision with the

               curb?"

              "So [those bruises and scratches on your face] are all

               old?"

In response to Officer Milton's comments, Dobbs stated that he

had not slept in 40 hours and had not taken his medication that

morning.       Dobbs told Officer Milton that "he was adjusting his

arm in the sling, and he lost control of the vehicle and he hit

the   curb,     and     that's    what      caused    the   damage   to     his   front

driver's side tire."

      ¶8       About 30 minutes into the questioning, Dobbs said "I

take it I'm going to jail."                 Officer Milton never responded to

Dobbs's statement, but he made several subsequent comments that

there was an ongoing investigation and that was why there were

up to three other officers on the scene at a time, including a
K-9 unit.

      ¶9       During    the     questioning,        Officer   Milton      exited   the

squad car several times to observe the exterior and interior of

Dobbs's vehicle, alongside two other officers.                       Officer Milton

saw   "impact     damage"        to   the    front    end   and   hood     of   Dobbs's

vehicle, including two dents and a tree branch that was lodged

in the vehicle's hood.                Officer Milton also observed a can of




                                             4
                                                                   No.    2018AP319-CR



air duster6 in plain view in the front center console, which was

within reach of the driver's seat.7              Officer Milton described the

vehicle's damage in detail to Dobbs and made comments like "it's

obvious you hit something because your wheel is damaged."

       ¶10       After about an hour, Officer Milton removed Dobbs's

handcuffs and he was escorted out of the locked squad car to

perform      field     sobriety   tests.       Dobbs   displayed     no    signs   of

intoxication during the tests, but Officer Milton asked him to

submit      to    a   blood   test.   Dobbs     agreed   and   was   subsequently

transported to a nearby hospital.

       ¶11       Dobbs arrived at the hospital at approximately 9:08

a.m.       Additional officers arrived at the hospital, including

Officer Nicholas Pine, who began a drug recognition evaluation

at approximately 9:45 a.m.8            As part of that evaluation, Dobbs

was given a preliminary breath test, which revealed that Dobbs

did not have any alcohol in his system.                    Nearly three hours

after Dobbs was first handcuffed and placed in the locked squad

car, at 10:19 a.m., Officer Pine first read Dobbs the Miranda
warnings.         Dobbs waived his Miranda rights and was questioned by

Officer Pine.

       The can of air duster was referred to by a variety of
       6

names during the suppression hearing and the jury trial,
including DustOff, Ultra Duster, air duster, duster, and
compressed air. For ease of reference, we will refer to it as
"air duster" throughout this opinion.

       During a search of Dobbs's vehicle, Officer Timothy Frey
       7

found a Menards receipt for air duster dated the morning of the
accident.
       8   There is no audio or visual recording of this evaluation.

                                           5
                                                                   No.    2018AP319-CR



      ¶12    Dobbs was then formally placed under arrest, informed

that the pedestrian had died, and read the Miranda warnings for

a second time by Officer Milton.              Dobbs again waived his Miranda

rights      and   agreed   to   answer       questions.         Dobbs     eventually

confessed that he had taken a puff of the air duster while he

was driving, passed out, swerved, and then drove away from the

scene.

      ¶13    Dobbs   was   transported        to   the   City    County       Building

garage where Officer Paul Fleischauer continued to question him.

Dobbs confessed to Officer Fleischauer that he had been huffing

for pain management, in addition to taking an antidepressant and

prescribed pain medication.            Dobbs said he had inhaled the air

duster while driving, likely striking the pedestrian after he

lost consciousness.

      ¶14    Dobbs   was   driven      to     another     hospital       to    receive

medical clearance to be booked into the jail.                      While at that

hospital, Officer Van Hove heard Dobbs say twice, unprompted,

that he had "taken a puff of Dust-Off and had killed a man" with
his   vehicle.       Officer    Van    Hove    did    not   ask    any        follow-up

questions in response.

      ¶15    Shortly thereafter, Dobbs indicated he wanted to call

his father, despite being warned that anything he said on the

phone    could    ultimately    be    used    in   court.       Officer       Van   Hove

overheard Dobbs tell his father that he went to Menards to buy

air duster, took a puff on his way home, and then drove over a

curb and "killed a man."         He also heard Dobbs say "he understood


                                         6
                                                                        No.     2018AP319-CR



his rights and wanted to be honest."                     Later that night, Officer

Bryan Dyer heard Dobbs spontaneously repeat the same story.

       ¶16   The     next      morning,   despite        Officer       Dean     Baldukas's

reminder to Dobbs that he was under arrest "and still had rights

associated with that," Dobbs blurted out, unprompted, that he

had taken a puff of the air duster.                        Additionally, Officers

Linda    Baehmann        and   Bryan    Dyer   overheard         similar      spontaneous

comments from Dobbs regarding huffing air duster.

       ¶17   Dobbs       was    ultimately     charged          with    one     count    of

homicide by intoxicated use of a vehicle and one count of hit

and run resulting in death.

       ¶18   Prior to trial, the circuit court heard a number of

motions, two of which are relevant to this appeal.                              The first

was Dobbs's motion to suppress his statements on the grounds

that:     (1) he was not read the Miranda warnings despite being

subject      to     custodial       interrogation;         and        (2) all     of     his

statements        were   not    voluntarily       made    due    to    his    mental     and

physical condition.            The circuit court denied Dobbs's motion to
suppress, concluding that the "first interrogation that would

have    required     a    Miranda      warning,    had     the    defendant       been   in

custody, was the interview by [Officer] Pine," at 10:19 am, when

Officer Pine first read Dobbs the Miranda warnings.                               Further,

the circuit court concluded that "[e]ach of the statements made

by the defendant to Officers Milton, Pine, Kleinfeldt, Van Hove,




                                           7
                                                                 No.    2018AP319-CR



Dyer, Baldukas, and Baehmann has been demonstrated to have been

voluntary and not the product of coercion in any degree."9

      ¶19    The second pre-trial motion relevant to this appeal

was   the    State's     motion   to    exclude   the   testimony      of     Dobbs's

proffered experts, including Dr. Lawrence White.                       The defense

had named Dr. White to testify generally about the phenomenon of

false confessions, as well as the interrogation techniques and

dispositional characteristics that make false confessions more

likely.      The State argued Dr. White's testimony would not be

relevant because there was no link between his testimony and the

facts surrounding Dobbs's confessions.              The State further argued

that Dr. White's testimony would confuse the jury, invade the

province of the jury as the ultimate assessor of credibility,

and re-litigate the voluntariness of Dobbs's statements.                          In

response, Dobbs alleged that Dr. White's testimony would assist

the   jury    by   dispelling     a    common   misbelief     that   an     innocent

person would never confess to a crime he or she did not commit.

      ¶20    At    the    Daubert10     evidentiary     hearing,        the    State
stipulated to Dr. White's qualifications.                 Dr. White testified

that he saw his role as a jury educator, lecturing about the

social science and legal scholarship on false confessions and

the   general      psychology     behind      interrogation     techniques       and

confessions.        He    detailed     the    interrogation    techniques       that


      9Dobbs filed a motion for reconsideration on his motion to
suppress, which was denied.
      10   Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

                                          8
                                                                          No.    2018AP319-CR



could make an innocent person confess:                      isolation, confrontation

with    inculpatory         evidence,       police    indifference        to     claims   of

innocence,         being    in    custody    for     over    six      hours,     persistent

questioning, minimization of the accused's culpability or the

consequences, and implying lenient treatment would be given in

return      for     a    confession.         Dr. White       further      described       the

dispositional characteristics that make a person more vulnerable

to     confessing          falsely     when       subject        to     these      coercive

interrogation           techniques,     including:           youth     (under     25    years

old),        low        intelligence,        a       suggestible         or       compliant

predisposition,           mental    disorders      like     anxiety      or     depression,

sleep deprivation, and physical exhaustion.                           Dr. White affirmed

that he did not review any reports or the specific facts of

Dobbs's case, and that he would not offer an ultimate opinion on

the truthfulness of Dobbs's confessions.

       ¶21    The       circuit    court    ruled     that      Dr. White's       testimony

would not assist the jury because he never reviewed Dobbs's case

and therefore could not explicitly apply his expertise to the
specific facts of the case.                  The circuit court determined his

proffered testimony was a "lecture" at the "highest level of

generality"        which    could     not    satisfy      the    requirement       in    Wis.

Stat. § 907.02(1) (2017-18)11 that "the witness has applied the

principles and methods reliably to the facts of the case."




       All subsequent references to the Wisconsin Statutes are
       11

to the 2017-18 version unless otherwise indicated.

                                              9
                                                                                No.    2018AP319-CR



      ¶22        Dobbs moved for reconsideration.                        The circuit court

affirmed its original ruling but articulated a second rationale

for   excluding            Dr. White's        exposition         testimony:           it   did   not

"fit"      the    particular             facts    surrounding          Dobbs's    confessions.

Specifically, the circuit court found that Dobbs had made no

showing      that           the    police        employed      the      types     of       coercive

techniques that Dr. White would testify about.

      ¶23        At        Dobbs's       jury     trial,       Officers         Milton,       Dyer,

Baldukas,        Baehmann,           and    Van    Hove     all      testified        to    Dobbs's

confessions that he inhaled air duster prior to the accident.

Dobbs took the witness stand and denied huffing any air duster

while driving on the day of the accident.                                 A jury ultimately

found Dobbs guilty of homicide by intoxicated use of a vehicle.12

Dobbs was sentenced to 20 years imprisonment, consisting of 12

years of initial confinement followed by 8 years of extended

supervision.

      ¶24        Dobbs       appealed,           challenging       the     circuit          court's

decisions        granting          the     State's      motion    to    exclude       Dr. White's
testimony and denying his motion to suppress his statements.

      ¶25        The       court     of      appeals      affirmed        the     judgment        of

conviction            in     an    unpublished,          per     curiam     decision.             It

determined        that       the     circuit      court     "reasonably         concluded        that

[Dr. White] would not assist the trier of fact unless [he] also

applied his knowledge about false confessions to the specific


       The jury found Dobbs not guilty on the second count of
      12

hit and run.

                                                   10
                                                                              No.    2018AP319-CR



circumstances in Dobbs's case."                       State v. Dobbs, No. 2018AP319–

CR,    unpublished       slip     op.,      ¶7    (Wis.       Ct.    App.     May    2,   2019).

Further, it affirmed the circuit court's decision on Dobbs's

motion to suppress based on its determination that Dobbs was not

entitled to Miranda warnings because he was not in custody when

he     was    "first     placed       in    the       squad     car."         Id.,     ¶¶11-14.

Additionally,      the     court      of    appeals       rejected         Dobbs's     argument

that his statements were not voluntarily made.                             Id., ¶¶15-17.

       ¶26     Dobbs    petitioned          this      court     for     review,       which    we

granted.        Additionally,          we    asked       the    parties        to    brief    the

following issue:              "Whether the court of appeals' decision is

consistent       with     State       v.     Morgan,          2002    WI      App    124,     254

Wis. 2d 602, 648 N.W.2d 23, and if not, whether Morgan should be

overruled."

                               II.    STANDARD OF REVIEW

       ¶27     It is within the circuit court's discretion whether to

admit proffered expert testimony.                        State v. Pico, 2018 WI 66,

¶15, 382       Wis. 2d 273, 914 N.W.2d 95.                      We review the circuit
court's       decision    under       an    erroneous          exercise       of     discretion

standard and therefore we will not reverse a circuit court's

decision if the decision "had a reasonable basis," and "was made

in accordance with accepted legal standards and in accordance

with    the    facts     of    record."            Id.    (internal          quotation      marks

omitted)       (quoting       State    v.     LaCount,         2008     WI    59,     ¶15,    310

Wis. 2d 85, 750 N.W.2d 780).

       ¶28     In evaluating a circuit court's decision on a motion
to suppress, we uphold the                   circuit      court's findings of fact
                                                 11
                                                                       No.    2018AP319-CR



unless they are clearly erroneous.                    State v. Eason, 2001 WI 98,

¶9, 245 Wis. 2d 206, 629 N.W.2d 625.                    However, we independently

apply constitutional principles to the facts as found by the

circuit      court    to   ensure    that       the     scope     of   constitutional

protections do not vary from case to case.                      State v. Turner, 136

Wis. 2d 333, 344, 401 N.W.2d 827 (1987).                    Whether Dobbs was in

custody for purposes of Miranda is a question of law that we

review de novo.            State v. Mosher, 221 Wis. 2d 203, 211, 584

N.W.2d 553 (Ct. App. 1998).

       ¶29     Finally, in assessing the circuit court's decision on

the voluntariness of Dobbs's statements, we independently apply

the constitutional principles of due process to the facts as

found by the circuit court.                See State v. Hoppe, 2003 WI 43,

¶34,     261     Wis. 2d 294,       661    N.W.2d 407.             Whether        Dobbs's

statements were voluntary is a question we review de novo.                          Id.

                                  III.     ANALYSIS

       ¶30     We first address whether the circuit court reasonably

exercised       its   discretion      in        excluding       Dr. White's        expert
testimony.       Next we consider whether any of the statements Dobbs

gave before he was read the Miranda warnings should have been

suppressed because he was subject to custodial interrogation,

and if so, whether admission of those statements was harmless

error.         Finally     we   consider        the    voluntariness         of   Dobbs's

statements in light of his mental and physical condition.




                                           12
                                                                     No.   2018AP319-CR


 A. The circuit court properly excluded Dr. White's exposition
 testimony on the grounds that it did not "fit" the facts of the
                              case.
    ¶31      Dobbs    sought       to     admit      the   expert    testimony        of

Dr. White,      who       would         have      testified     generally          about

interrogation techniques and dispositional factors that can lead

an innocent person to falsely confess without directly opining

on whether those techniques and factors led Dobbs to give a

false confession.         We refer to an expert witness testifying in

the form of an educational lecture on general principles as
exposition testimony.          See Daniel D. Blinka, Expert Testimony

and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev.

173, 219 (2006) ("Expository testimony consists of a lecture or

explanation     on    a     specialized         subject     such    as     economics,

accounting, engineering, medicine, or psychology.").

    ¶32      The circuit court excluded Dr. White's testimony after

determining that it would not assist the trier of fact for two

reasons:     (1) Dr. White did not know, and thus could not apply

his expertise to, the specific facts of the case, contrary to

the language of Wis. Stat. § 907.02(1) that the expert witness
"appl[y] the principles and methods reliably to the facts of the

case"; and (2) Dobbs made no showing that Dr. White's exposition

testimony would fit the facts of the case.                    We will not overturn

the circuit court's exercise of discretion if the decision had a

"reasonable basis" and was made in accordance with the proper

legal   standard      and    the    facts       in   the   record.         Pico,     382

Wis. 2d 273, ¶15.           We accept the circuit court's findings of



                                           13
                                                                       No.   2018AP319-CR



fact unless they are clearly erroneous.                     Metro. Assocs. v. City

of Milwaukee, 2018 WI 4, ¶25, 379 Wis. 2d 141, 905 N.W.2d 784.

      ¶33     The admission of expert testimony is governed by Wis.

Stat.      § 907.02.        As    originally       enacted,     § 907.02      permitted

expert testimony in the form of an opinion or otherwise as long

as the expert witness was qualified, the evidence assisted the

trier of fact, and the evidence was relevant.                         § 907.02 (1973-

74); Seifert v. Balink, 2017 WI 2, ¶52, 372 Wis. 2d 525, 888

N.W.2d 816     (lead   opinion).          This      court   initially        interpreted

§ 907.02     to   permit     exposition        testimony     without    requiring      an

expert to "apply[] those factors to the concrete circumstances

of   th[e]    case"    or    "stat[e]     to       the   jury   his    own    opinion."

Hampton v. State, 92 Wis. 2d 450, 458, 285 N.W.2d 868 (1979).

This court's reading of § 907.02 was consistent with the federal

interpretation of the identical language as set forth in Federal

Rule of Evidence 702 ("Rule 702").13                      See Kopf v. Skyrm, 993

F.2d 374, 378 (4th Cir. 1993) ("An expert on the stand may give

a dissertation or exposition of scientific or other principles
relevant to the case, leaving the trier of fact to apply them to


      13   Rule 702 and Wis. Stat. § 907.02 both read:

      If   scientific,   technical,   or  other   specialized
      knowledge will assist the trier of fact to understand
      the evidence or to determine a fact in issue, a
      witness qualified as an expert by knowledge, skill,
      experience,   training,   or  education,  may   testify
      thereto in the form of an opinion or otherwise.

Pub. L. No. 93–595,              88   Stat.    1926,     1937   (1975);      Wis.   Stat.
§ 907.02 (1973-74).

                                              14
                                                                    No.    2018AP319-CR



the   facts."     (quoting    Fed.   R.     Evid.      702,    Advisory     Committee

Notes14 to 1972 Proposed Rule 702)).15

      ¶34    In    2000,     Rule    702        was    amended    to      codify    the

reliability       standard    articulated         in   Daubert    v.   Merrell      Dow

Pharm., Inc., 509 U.S. 579 (1993), and its progeny.16                        In 2011,

the Wisconsin legislature followed suit, renumbering Wis. Stat.

§ 907.02 to § 907.02(1) and amending it to expressly "adopt the

Daubert     reliability      standard       embodied      in     Federal     Rule   of

      14   As Justice Shirley Abrahamson explained in Seifert:

      Under the Rules Enabling Act, 28 U.S.C. § 2072, the
      United   States  Supreme   Court   is  authorized   to
      promulgate rules of practice and procedure for the
      federal courts.   This authority is exercised by the
      Judicial Conference of the United States.          The
      Conference promulgates and changes rules of practice
      and procedure in the federal courts subject to
      oversight by the Court.     For the Federal Rules of
      Evidence, the Judicial Conference is aided in its
      rule-making powers by the Evidence Advisory Committee;
      the members of and reporter to this Committee are
      appointed by the Chief Justice of the United States
      Supreme Court.

Seifert v. Balink, 2017 WI 2, ¶55 n.13, 372 Wis. 2d 525, 888
N.W.2d 816 (lead opinion) (citing Paul R. Rice and Neals-Erik
William Delker, Federal Rules of Evidence Advisory Committee: A
Short History of Too Little Consequence, 191 F.R.D. 678, 679
(2000)).

       Rule 702 served to expressly "encourage the use of expert
      15

testimony in non-opinion form when counsel believes the trier
can itself draw the requisite inference," as opposed to having
an expert witness opine on hypotheticals before the jury.
Hampton v. State, 92 Wis. 2d 450, 459, 285 N.W.2d 868 (1979)
(quoting Fed. R. Evid. 702, Advisory Committee Notes to 1972
Proposed Rule 702).

       See General Electric Co. v. Joiner, 522 U.S. 136 (1997);
      16

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

                                           15
                                                                        No.   2018AP319-CR



Evidence 702."             State v. Kandutsch, 2011 WI 78, ¶26 n.7, 336

Wis. 2d 478, 799 N.W.2d 865; see also State v. Jones, 2018 WI

44,    ¶7,   381     Wis. 2d 284,         911    N.W.2d 97     ("These    changes      [to

§ 907.02] adopted the federal standard, which incorporates the

analysis promulgated in Daubert . . . .") (citing Seifert, 372

Wis. 2d 525, ¶6); 2011 Wis. Act 2, Wis. S. Amend. Memo, 2011

Jan. Spec. Sess. S.B. 1 ("This language [in § 907.02(1)] is

identical to the language of Rule 702 of the Federal Rules of

Evidence.").         Section 907.02(1) now reads:

       If   scientific,   technical,   or  other   specialized
       knowledge will assist the trier of fact to understand
       the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill,
       experience,   training,   or  education,  may   testify
       thereto in the form of an opinion or otherwise, if the
       testimony is based upon sufficient facts or data, the
       testimony is the product of reliable principles and
       methods, and the witness has applied the principles
       and methods reliably to the facts of the case.
2011    Wis.      Act      2,    § 34m    (emphasis     added      to   signify      added

language).

       ¶35    Whether       the     Daubert      reliability     standard      expressly

adopted      in     Wis.    Stat.    § 907.02(1)       altered     Wisconsin's       long-

standing practice of allowing expert exposition testimony is a

question of first impression.                    In answering this question, we

begin with the text of § 907.02(1).                   State ex rel. Kalal v. Cir.

Ct.    for   Dane       Cty.,     2004    WI    58,   ¶45,   271    Wis. 2d 633,       681

N.W.2d 110.         We interpret the statutory language in the context

in which it is used, not in isolation, and we consider prior
case   law     in    this       inquiry   as     it   "may   illumine    how    we   have


                                                16
                                                                      No.   2018AP319-CR



previously      interpreted       or     applied     the    statutory       language."

Augsburger v. Homestead Mut. Ins. Co., 2014 WI 133, ¶16, 359

Wis. 2d 385, 856 N.W.2d 874 (quoting Belding v. Demoulin, 2014

WI 8, ¶16, 352 Wis. 2d 359, 843 N.W.2d 373).                    Since § 907.02(1)

is identical to the language of Rule 702, we also look to the

federal interpretation of Rule 702 for guidance.                       See State v.

Poly–America, Inc., 164 Wis. 2d 238, 246, 474 N.W.2d 770 (1991)

("When a state statute is modeled after a federal rule, we look

to the federal interpretation of that rule for guidance and

assistance.").        Lastly, although not dispositive, we consider

how other state courts have interpreted analogous state laws.

See Seifert, 372 Wis. 2d 525, ¶55 (lead opinion).

    ¶36       The   text   of     Wis.    Stat.      § 907.02(1)      permitting     an

expert   to    testify     "in   the     form   of   an    opinion    or    otherwise"

remains unchanged by the addition of the Daubert reliability

standard.       See Wis. Stat. § 907.02(1).                 As we recognized in

Hampton,      the   phrase       "or     otherwise"       signifies     that    expert

testimony may take a form other than an opinion, which courts
should encourage when the trier of fact can itself draw the




                                           17
                                                                      No.    2018AP319-CR



requisite inference from the facts of the case.17                           Hampton, 92

Wis. 2d at 459; see also Hagenkord v. State, 100 Wis. 2d 452,

463, 302 N.W.2d 421 (1981) ("Testimony by experts is not limited

to   giving   opinions   or   to   the    stating       of    facts    derived      from

specialized    knowledge.").         A        reading    of     § 907.02(1)         that

requires an expert to apply his or her expertise to the facts of

the case would result in an expert always providing some type of




       Circuit courts need this flexibility to limit otherwise
      17

relevant and reliable expert testimony that, if given in the
form of an opinion, would invade the prerogative of the finder
of fact.    See Hampton, 92 Wis. 2d at 458 (holding that the
circuit court did not erroneously exercise its discretion by
limiting an eyewitness identification expert to only provide
exposition testimony rather than rendering an opinion on the
reliability of any of the eyewitnesses' identifications in the
case); 7 Daniel D. Blinka, Wisconsin Practice Series: Wisconsin
Evidence § 608.3, at 560 (4th ed.) ("Indeed, the supreme court
has encouraged the use of expert evidence in non-opinion form
because such expository testimony assists the jury while
minimizing the risk that the jury will surrender its autonomy to
the expert. A judge reluctant to introduce Jensen evidence may
nonetheless permit exposition to assist the jury without
sacrificing the record." (footnote omitted) (citing State v.
Jensen, 147 Wis. 2d 240, 256, 432 N.W.2d 913 (1988))).

                                         18
                                                                           No.    2018AP319-CR



an opinion about the matter18 and would render the phrase "or

otherwise"    inoperative.              Such     a   reading     would      violate      this

court's interpretive canon "to give reasonable effect to every

word" in a statute.            Kalal, 271 Wis. 2d 633, ¶46.

      ¶37   There        is     a      reasonable         reading     of     Wis.       Stat.

§ 907.02(1)    that           gives    effect        to   both      the    language          "or

otherwise" and the condition that "the witness has applied the

principles and methods reliably to the facts of the case."                                    If

the expert is testifying in the form of an opinion, he or she is

applying the principles or methods to the specific facts of the

case and must therefore do so reliably.                     If, however, the expert

is   testifying     in    a     form    other    than      an   opinion,         such   as    an

exposition, then the expert would not be applying principles or



      18For example, in this case, if Dr. White applied the
principles and methods to the facts of the case, he would be
giving an opinion on whether or not Dobbs's dispositional
factors combined with the police interrogation techniques could
have resulted in Dobbs falsely confessing.    It is important to
recognize that if Dr. White offered such an opinion, it would
invade the province of the factfinder as the sole determiner of
credibility.     Cf. State v. Kleser, 2010 WI 88, ¶104, 328
Wis. 2d 42, 786 N.W.2d 144 ("The essence of the rule prohibiting
vouching testimony is that such testimony invades the province
of the fact-finder as the sole determiner of credibility."
(citing   State   v.   Haseltine,  120  Wis. 2d 92,  95-96,   352
N.W.2d 673 (Ct. App. 1984))). Even if Dr. White had simply been
asked whether any of the factors he described in his exposition
testimony related to Dobbs's case, his response would be
offering his view about whether his exposition testimony relates
to the particular facts in Dobbs's case.       This is the very
definition    of    an    opinion.      See   "Opinion," Merriam-
Webster Online Dictionary (2020), https://www.merriam-
webster.com/dictionary/opinion ("[A] view . . . formed in the
mind about a particular matter.").

                                            19
                                                                          No.   2018AP319-CR



methods to the facts of the case and it would be nonsensical to

require him or her to do so reliably.

       ¶38    A     reading    of   Wis.        Stat.     § 907.02(1)           permitting

exposition        testimony    is   consistent          with   the     intent      of     the

drafters of Rule 702, as evidenced by the Advisory Committee

Notes to the 2000 Amendment.             See Guertin v. Harbour Assur. Co.

of Bermuda, 141 Wis. 2d 622, 628–29, 415 N.W.2d 831 (1987) ("The

'written comments of legislatively created advisory committees

are    relevant       in   construing      statutes        and    ascertaining           the

legislative intent of statutes recommended by such committees.'"

(quoting Champlin v. State, 84 Wis. 2d 621, 625, 267 N.W.2d 295

(1978))).         The Advisory Committee Notes to the 2000 Amendment

clarify      that    the   amendment     was      not    intended         to    alter     the

established practice of admitting exposition testimony without

requiring an expert to apply those principles to the facts of

the case.

       If an expert purports to apply principles and methods
       to the facts of the case, it is important that this
       application be conducted reliably.    It might also be
       important in some cases for an expert to educate the
       factfinder about general principles, without ever
       attempting to apply these principles to the specific
       facts of the case.        For example, experts might
       instruct   the   factfinder   on  the   principles  of
       thermodynamics, or bloodclotting, or on how financial
       markets respond to corporate reports, without ever
       knowing about or trying to tie their testimony into
       the facts of the case.    The amendment does not alter
       the venerable practice of using expert testimony to
       educate the factfinder on general principles.
Fed.    R.    Evid.     702,    Advisory        Committee      Notes       to    the     2000
Amendment         (emphasis    added).      The      drafters        of     Rule       702(d)


                                           20
                                                                                 No.       2018AP319-CR



intended it to mean that if the expert gives opinion testimony,

then the expert must reliably apply the principles and methods

to the facts of the case.

       ¶39    Federal          courts        of      appeals      also    uniformly         interpret

Rule   702        to    continue       to       permit      the    admission         of    exposition

testimony without an expert applying general principles to the

specific facts of the case.                         For example, "[t]he federal courts

uniformly hold . . . that government agents or similar persons

may testify as to general practices of criminals to establish

the defendants' modus operandi."                            United States v. Mejia-Luna,

562 F.3d 1215, 1219 (9th Cir. 2009); see also United States v.

Skyers, 787 F. App'x 771, 774 (2d Cir. 2019) (summary order)

(upholding         admission       of       a       detective's     expert       testimony         that

"generally explained" a drug trafficking circle because it "was

relevant to helping the jury understand the general nature of

international            narcotics           trafficking           organizations");              United

States       v.        Reed,     788     F. App'x 903,              906       (4th        Cir.   2019)

(unpublished per curiam) ("Rule 702 did not require [the expert
witness] to explicitly link his testimony to the specific facts

of [the] case."); United States v. Galatis, 849 F.3d 455, 462

(1st   Cir.       2017)        (holding         a    Medicare-fraud        investigator           could

describe the applicable regulatory regime without ever applying

the regulations to the facts of the case or suggesting that any

actions      had       violated        the      law);       Lapsley      v.    Xtek,       Inc.,    689

F.3d 802,         809    (7th     Cir.       2012)         ("As   the     Rule       702    committee

notes . . . make clear, an expert may . . . 'give a dissertation
or exposition of scientific or other principles relevant to the
                                                      21
                                                                             No.    2018AP319-CR



case, leaving the trier of fact to apply them to the facts.'"

(quoting Fed. R. Evid. 702, Advisory Committee Notes to 1972

Proposed Rule 702)).

       ¶40     Federal       courts    acknowledge       that    an     expert       need    not

even    know    the     specific       facts       of   the    case     to     satisfy      the

requirements of Rule 702.                  See United States ex rel. Miller v.

Bill Harbert Int'l Const., Inc., 608 F.3d 871, 893-96 (D.C. Cir.

2010) (per curiam) (upholding the admission of an expert witness

who had no direct knowledge of the facts in the case, but whose

testimony       on     how    bid-rigging      cartels         work     in     general       was

sufficiently connected to the facts to be relevant and helpful

to     the     jury);        see    also     United      States       v.      Warren,        774

F. App'x 778, 780-82 (4th Cir. 2019) (unpublished per curiam)

(concluding that a FBI agent, "who acknowledged that he had no

information          regarding        the    facts      of      [the]        case,"        could

permissibly "testif[y] generally about human trafficking" to put

the case into context for the jury); United States v. Brinson,

772 F.3d 1314, 1319-20 (10th Cir. 2014) (rejecting the argument
that an expert without knowledge of the specific case facts was

unreliable because he testified generally "about characteristics

of   the     prostitution          trade"   rather      than    "about        case-specific

facts").

       ¶41     State     supreme      courts       faced      with    this         issue    have

likewise interpreted state statutes modeled after Rule 702 to

allow for the admission of expert exposition testimony.                                     The

Arizona Supreme Court was recently faced with a claim that the
same statutory language——"the expert has reliably applied the
                                              22
                                                                                 No.   2018AP319-CR



principles and methods to the facts of the case"——necessitates

that    the    expert       have     knowledge          of,     and       apply    his    or     her

expertise     to,     the    particular           facts       of    the    case.         State    v.

Salazar-Mercado, 325 P.3d 996 (Ariz. 2014) (interpreting Ariz.

R.   Evid.    702).         Citing     federal           case       law    and    the     Advisory

Committee Notes, the Arizona Supreme Court held that its expert

testimony      rule     "does        not     bar        admission         of     'cold'    expert

testimony      that     educates           the        trier    of     fact       about    general

principles     but     is    not     tied        to    the    particular          facts    of    the

case."19      Id. at 997-99, 1001.                    The South Dakota Supreme Court

likewise reached the same conclusion.                         See State v. Johnson, 860

N.W.2d 235, 247-48 (S.D. 2015) ("[A]n expert's testimony may be

admissible     [pursuant        to    S.D.        Stat.       § 19-19-702]         even    if    the

expert's      sole    function       is     'to        educate      the     factfinder      about

general     principles,       without        ever       attempting         to     apply    [those]

principles to the specific facts of the case.'" (alteration in

original) (quoting Salazar-Mercado, 325 P.3d at 999)); see also


       In a similar vein, the Utah Supreme Court recognized that
       19

its state's adoption of the Rule 702 language resolved the
"Catch-22" expert witnesses faced when testifying to eyewitness
reliability.    State v. Clopten, 223 P.3d 1103, 1106-07, 1114
(Utah 2009) (interpreting Utah R. Evid. 702 (2009)).       Under
Utah's prior rule, eyewitness experts whose testimony was too
specific would be excluded for invading the province of the
factfinder, while experts whose testimony was too general would
be excluded for lecturing rather than dealing with the specific
facts of the case.    Id. The Utah Supreme Court concluded that
the recent amendment to its own expert witness rule adopting the
language of Rule 702 now permitted an eyewitness expert to
"'give a dissertation or exposition' of factors found in the
case   that   are   understood  to   contribute  to   eyewitness
inaccuracy." Id. at 1114.

                                                 23
                                                                 No.    2018AP319-CR



State v. Marshall, 596 S.W.3d 156, 160-62 (Mo. Ct. App. 2020)

(interpreting Mo. Stat. § 490.065.2(1)).

       ¶42   We conclude that Wis. Stat. § 907.02(1) continues to

permit an expert witness to testify in the form of an opinion

"or     otherwise,"       including     exposition    testimony        on    general

principles without explicitly applying those principles to, or

even having knowledge of, the specific facts of the case.                       If an

expert testifies in the form of an opinion, then the expert must

apply the principles and methods reliably to the facts of the

case.

       ¶43   Our inquiry does not end there, however, because the

admissibility      of     exposition    testimony    pursuant   to     Wis.     Stat.

§ 907.02(1) is not automatic.              "[T]he trial judge stands as a

gatekeeper to prevent irrelevant or unreliable testimony from

being admitted."          Lapsley, 689 F.3d at 809; see also Jones, 381

Wis. 2d 284,       ¶¶31-32    ("[T]he      heightened      standard     under     the

amended Wis. Stat. § 907.02(1) does not change this gatekeeping

function.").       When expert testimony is proffered in the form of
an    exposition    on     general     principles,   the    circuit     court,     as

gatekeeper,        must     consider      the   following       four        factors:

(1) whether the expert is qualified; (2) whether the testimony

will address a subject matter on which the factfinder can be

assisted by an expert; (3) whether the testimony is reliable;




                                          24
                                                              No.   2018AP319-CR



and (4) whether the testimony will "fit" the facts of the case.20

7   Daniel    D.    Blinka,     Wisconsin     Practice   Series:      Wisconsin

Evidence § 702.4032, at 673-74 (4th ed. 2017) (citing Fed. R.

Evid. 702, Advisory Committee Notes to the 2000 Amendment).                  The

party      proffering     the   expert   testimony    bears   the   burden    of

satisfying         each    of    these    preliminary     questions     by     a

preponderance of the evidence.                Wis. Stat. § 901.04; see also



       This four-part inquiry is consistent with how federal
      20

courts analyze exposition testimony.    See, e.g., United States
ex rel. Miller v. Bill Harbert Int'l Const., Inc., 608 F.3d 871,
894-96 (D.C. Cir. 2010) (per curiam); Burton v. Am. Cyanamid,
362 F. Supp. 3d 588, 601-02 (E.D. Wis. 2019); Emblaze Ltd. v.
Apple Inc., 52 F. Supp. 3d 949, 959-61 (N.D. Cal. 2014); Konikov
v. Orange Cty., 290 F. Supp. 2d 1315, 1317 (M.D. Fla. 2003);
Magistrini   v.   One   Hour  Martinizing   Dry   Cleaning,  180
F. Supp. 2d 584, 612 n.30 (D.N.J. 2002), aff'd, 68 F. App'x 356
(3d Cir. 2003); TC Sys. Inc. v. Town of Colonie, 213
F. Supp. 2d 171, 175, 178-79 (N.D.N.Y. 2002); see also Fed. R.
Evid. 702, Advisory Committee's Notes to 2000 Amendments; 32
C.J.S. Evidence § 801 (2020); Daniel D. Blinka, Expert Testimony
and the Relevancy Rule in the Age of Daubert, 90 Marq. L. Rev.
173, 219 & n.215 (2006).         State courts with an expert
evidentiary rule modeled after Rule 702 similarly recognize this
test as the proper one for exposition testimony.    See State v.
Johnson, 860 N.W.2d 235, 248 (S.D. 2015); State v. Marshall, 596
S.W.3d 156, 160-61 (Mo. Ct. App. 2020).

     These    considerations   differ    slightly    from    the
considerations to admit opinion testimony of an expert:
(1) whether the scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue; (2) whether the expert
is qualified as an expert by knowledge, skill, experience,
training, or education; (3) whether the testimony is based upon
sufficient facts or data; (4) whether the testimony is the
product of reliable principles and methods; and (5) whether the
witness has applied the principles and methods reliably to the
facts of the case.      State v. Jones, 2018 WI 44, ¶29, 381
Wis. 2d 284, 911 N.W.2d 97.

                                         25
                                                                                 No.    2018AP319-CR



Seifert, 372 Wis. 2d 525, ¶58 (lead opinion) (citing Daubert,

509 U.S. at 593); Blinka, supra, § 702.403, at 672.

       ¶44    Fit "goes primarily to relevance," Daubert, 509 U.S.

at 591, and is tied to the gatekeeping function the circuit

courts      perform         under       Wis.     Stat.      § 904.01.            Whether          expert

testimony "fits" a case turns on whether it is "sufficiently

tied to the facts of the case" such that "it will aid the jury

in   resolving          a   factual          dispute."       Daubert,          509    U.S.       at    591

(quoting United States v. Downing, 753 F.2d 1224, 1242 (1985)).

"[E]xpert testimony is helpful to the jury," or fits, "if it

concerns      a    matter          beyond       the      understanding          of    the        average

person, assists the jury in understanding facts at issue, or

puts   the     facts         in       context."          United    States        v.    Welch,           368

F.3d 970,         974       (7th       Cir.    2004),       judgment       vacated          on     other

grounds,      543        U.S.         1112    (2005).           Establishing          the        fit    of

exposition testimony is particularly important because, unlike

opinion      testimony,            exposition         testimony         does    not    in        and    of

itself       explicitly            connect       the      witness's       expertise          to        the
particular facts of the case.                          See Trout v. Milton S. Hershey

Med.     Ctr.,          576        F. Supp. 2d 673,              677      (M.D.        Pa.         2008)

("Generalized expert testimony that is factually disconnected

from the case is inadmissible because it does not assist the

jury   in     rendering           a    verdict      based    on    the     material         facts       in

issue.") (citing Elcock v. Kmart Corp., 233 F.3d 734, 755 n.12

(3d Cir. 2000)).

       ¶45    In        this       case,      the     circuit      court       determined              that
Dr. White's        exposition            testimony        did     not    fit     the    particular
                                                    26
                                                                              No.    2018AP319-CR



facts of Dobbs's case because Dobbs "made no showing that the

types     of    tactics      that     were       employed          in   [his]       case     would

correspond to any of the generalized opinions that Dr. White

holds about false confessions and police interrogations."                                        We

conclude       that    the       circuit     court         applied      the     proper       legal

standard for admission of exposition testimony in assessing the

fit of Dr. White's testimony to the facts of the case.                                           We

therefore      uphold       its    exercise      of     discretion       so     long       as    the

circuit     court     had    "a     reasonable        basis,"       applying        the     proper

legal standard "in accordance with the facts of record."                                     Pico,

382 Wis. 2d 273, ¶15 (quoting LaCount, 310 Wis. 2d 85, ¶15).

      ¶46      Dr. White testified that he would educate the jury on

police    interrogation            techniques        that     could     make     an      innocent

person      confess:         isolation,          confrontation           with       inculpatory

evidence, police indifference to claims of innocence, being in

custody for over six hours, persistent questioning, minimization

of the accused's culpability or the consequences, and implying

lenient treatment will be given in return for a confession.
Dr. White       also     testified         he        would     educate        the        jury    on

dispositional         characteristics           that,       when    combined        with     those

police    interrogation           techniques,         make    an    accused      person         more

vulnerable to falsely confessing:                       youth (under 25 years old),

low   intelligence,          a    suggestible         or     compliant        predisposition,

mental disorders like anxiety or depression, sleep deprivation,

and physical exhaustion.

      ¶47      According to Dobbs, Dr. White's testimony would have
assisted       the    jury    in    assessing         the     truthfulness          of     Dobbs's
                                                27
                                                                          No.   2018AP319-CR



confessions          to    police   by     correcting      a   common    misbelief       that

innocent people do not confess to crimes they did not commit.

Dobbs       further       argues    that    he   established        a   "fit"     with   his

circumstances             and      Dr. White's          testimony       based     on      his

dispositional              factors——anxiety,             depression,        and         sleep

deprivation——combined with the police using the interrogation

technique of confronting him with evidence suggesting his guilt.

       ¶48     We acknowledge that the circuit court could have found

this        narrow        overlap    provided       a      sufficient      fit     between

Dr. White's testimony and the facts of Dobbs's case.21                           This is a

matter of circuit court discretion, however, and therefore our

role on review is to "search the record for reasons to sustain

the     circuit       court's       exercise       of    discretion."           Pico,     382

Wis. 2d 273, ¶15 (quoting LaCount, 310 Wis. 2d 85, ¶15).




       The Innocence Project, Inc. and The Wisconsin Innocence
       21

Project, as amicus curiae, argue that once the presence of even
one of the recognized risk factors is shown, the Daubert
threshold for fit is satisfied and at that point the circuit
court loses any discretion in the matter.    A circuit court, in
its discretion, might reasonably decide that the testimony is
not beyond the understanding of the average person, does not
assist the jury in understanding facts at issue, or does not put
the facts in context. United States v. Welch, 368 F.3d 970, 974
(7th Cir. 2004), judgment vacated on other grounds, 543 U.S.
1112 (2005).

     Additionally, the circuit court may always exclude expert
testimony, "if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence." Wis.
Stat. § 904.03.

                                              28
                                                                   No.   2018AP319-CR



       ¶49    The circuit court found that Dobbs was not subject to

most of the types of coercive interrogation techniques described

by Dr. White.       Dobbs had not been in custody for over six hours,

was not persistently interrogated while in custody, nor was he

isolated for much of that time.               The police did not attempt to

lessen his culpability or offer him leniency if he confessed.

The police did not fabricate incriminating evidence.                     The record

further contains at least six instances of Dobbs spontaneously

admitting to huffing the air duster absent any coercive police

tactics.

       ¶50    Additionally, our review of the record indicates that

Dobbs did not possess most of the characteristics that Dr. White

would testify may predispose an individual to falsely confess if

coercive      interrogation      techniques    were    used.       Dobbs      was   not

younger      than   25   years   old   and    did   not    claim   to    be   of    low

intelligence or particularly suggestible.

       ¶51    The circuit court could have reasonably concluded that

Dr. White's exposition testimony regarding situational factors
that   increase     the    likelihood    of    false      confessions    would      not

assist the trier of fact to understand the evidence, especially

in light of the numerous spontaneous confessions introduced into

evidence.      See United States v. Mamah, 332 F.3d 475, 477-78 (7th

Cir. 2003) (upholding the exclusion of expert testimony for lack

of fit where the defendant had previously been subjected to

coercive interrogation tactics, but the confession at issue was

made at a later point when the defendant was not subjected to
those tactics).           We conclude that the circuit court properly
                                        29
                                                                          No.   2018AP319-CR



exercised its discretion in excluding Dr. White's testimony on

the    grounds       that    it    did    not    sufficiently       fit   the    facts   of

Dobbs's case.

 B. Dobbs was subject to custodial interrogation without being
read Miranda warnings, but the admission of those statements was
                         harmless error.
       ¶52     Dobbs moved to suppress the statements he made from

approximately 7:30 a.m. to 10:19 a.m. on the grounds that he was

subject       to    custodial      interrogation       and    not    read    the    Miranda

warnings,          violating      his    Fifth   Amendment        right   against     self-

incrimination.              The    Fifth    Amendment        to    the    United    States

Constitution provides that "[n]o person . . . shall be compelled

in any criminal case to be a witness against himself."22                                 In

order to protect the rights secured by the Fifth Amendment, the

United States Supreme Court held that the government "may not

use    statements,          whether      exculpatory    or    inculpatory,         stemming

from        custodial       interrogation        of    the    defendant         unless   it

demonstrates          the    use    of    procedural     safeguards         effective    to

secure the privilege against self-incrimination."                               Miranda v.

Arizona, 384 U.S. 436, 444 (1966).                       Pursuant to Miranda, no

suspect may be subjected to custodial interrogation until he is

"warned that he has a right to remain silent, that any statement


       The Wisconsin Constitution similarly provides that "[n]o
       22

person . . . may be compelled in any criminal case to be a
witness against himself or herself."    Wis. Const. Art. I, § 8.
This court has generally interpreted this provision consistent
with the United States Supreme Court's interpretation of the
Fifth Amendment to the federal Constitution. See State v. Ward,
2009 WI 60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236.

                                                30
                                                                          No.   2018AP319-CR



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."         Id.     Incriminating statements made in violation of

Miranda must be suppressed, id., unless the admission of the

statements was harmless error.

      ¶53    Since custody is "a necessary prerequisite to Miranda

protections,"        we     must   first     resolve       whether    Dobbs       was     "in

custody," as that term is understood in the Miranda context.

State   v.    Lonkoski,        2013   WI     30,    ¶23,    346    Wis. 2d 523,           828

N.W.2d 552.         A person is in custody for Miranda purposes if

"there is a formal arrest or restraint on freedom of movement of

a degree associated with a formal arrest."                         State v. Bartelt,

2018 WI 16, ¶31, 379 Wis. 2d 588, 906 N.W.2d 684 (quoted source

omitted); see also California v. Beheler, 463 U.S. 1121, 1125

(1983) (per curiam) ("Although the circumstances of each case

must certainly influence a determination of whether a suspect is

'in custody' for purposes of receiving Miranda protection, the

ultimate inquiry is simply whether there is a 'formal arrest or
restraint on freedom of movement' of the degree associated with

a formal arrest." (quoted source omitted)).

      ¶54    This     objective       test       requires     us     to     examine       the

totality of the circumstances.                   See Bartelt, 379 Wis. 2d 588,

¶¶31-32;     see     also    Thompson      v.    Keohane,    516     U.S.       99,   112-13

(1995).      There are several factors we consider, including:                          "the

defendant's freedom to leave; the purpose, place, and length of

the   interrogation;         and   the     degree    of    restraint."            State    v.
Martin,      2012    WI     96,    ¶35,    343     Wis. 2d 278,       816       N.W.2d 270
                                            31
                                                                                 No.     2018AP319-CR



(quoting Morgan, 254 Wis. 2d 602, ¶12).                                 When evaluating 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."               Morgan, 254 Wis. 2d 602, ¶12.

         ¶55     As the State conceded, in both its brief23 and at oral

argument,24 Dobbs was in custody at some point while he was being

questioned in the squad car and therefore Miranda warnings were

required well before Officer Pines first read them at 10:19 a.m.

While we accept that concession, we also explain why, under the

totality of the circumstances, a reasonable person in Dobbs's

position would have felt a restraint on his freedom of movement

of   a        degree       associated       with    formal          arrest    and    why    he    was



       For example, the State conceded that "Dobbs's statements
         23

in response to inquisitorial questions before he waived his
Miranda rights probably should have been suppressed because
Dobbs was probably in custody at some point while he was being
questioned."

       As24          the    assistant           attorney      general        conceded      at    oral
argument:

         At some point when you look at the [State v. Bartelt,
         2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684] factors,
         it would appear that at some point because he was
         frisked, he was handcuffed, he was in the back of a
         locked squad car, and he was asked some questions,
         some of which were not inquisitorial and some of them
         may have been.  So I think at some point during that
         hour, it is likely that it changed into a custodial
         type situation.

                                                   32
                                                                      No.   2018AP319-CR



therefore in custody for purposes of Miranda.                         But first, we

answer the question we presented to the parties:                        "Whether the

court of appeals' decision is consistent with State v. Morgan,

2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23, and if not,

whether Morgan should be overruled."

       ¶56     In Morgan, 254 Wis. 2d 602, ¶13, the court of appeals

emphasized that the analyses required by the Fourth Amendment

and Fifth Amendment are distinct, despite some lack of clarity

in the case law.         See United States v. Smith, 3 F.3d 1088, 1096

(7th    Cir.    1993)    ("[O]ur       inquiry    into    the    circumstances        of

temporary      detention     for   a    Fifth    and   Sixth     Amendment        Miranda

analysis      requires   a    different     focus      than    that   for     a   Fourth

Amendment Terry25 stop.").              The court of appeals in this case

fell prey to this confusion when it relied upon Blatterman, a

Fourth       Amendment   case,     to     resolve      Dobbs's    Fifth      Amendment

claim.26       See   Dobbs,    No.      2018AP319–CR,     ¶¶12-13      (per       curiam)

(relying exclusively on State v. Blatterman, 2015 WI 46, 362

Wis. 2d 138, 864 N.W.2d 26).




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

       In her concurrence in Martin, then-Chief Justice Shirley
       26

Abrahamson made a "cautionary point" that "[i]t is possible that
some past cases have cited Fourth Amendment cases while deciding
Fifth Amendment issues or cited Fifth Amendment cases while
deciding Fourth Amendment issues.     Going forward, this court
should   be  cautious  to   avoid  conflating   closely  related
constitutional standards and analyses."    State v. Martin, 2012
WI 96, ¶¶72, 77, 343 Wis. 2d 278, 816 N.W.2d 270 (Abrahamson,
C.J., concurring).

                                           33
                                                                    No.       2018AP319-CR



      ¶57     We uphold Morgan and clarify that the Fourth Amendment

and   Fifth    Amendment     protect       different     interests       and     involve

different     inquiries.          A    claimed    violation    of    a    defendant's

Fourth    Amendment       rights      involves     balancing   the       government's

interest in crime prevention against an individual's right to be

free from government intrusion.                  See Morgan, 254 Wis. 2d 602,

¶14 (citing Terry v. Ohio, 392 U.S. 1, 19-27 (1968)).                                 When

evaluating a Terry stop under the Fourth Amendment, this court

considers the totality of the circumstances leading up to the

stop and focuses on "the reasonableness of the officers' actions

in the situation facing them."                   State v. Miller, 2012 WI 61,

¶30, 341 Wis. 2d 307, 815 N.W.2d 349 (quoted source omitted).

      ¶58     The   Fifth   Amendment       protects     a   different         interest:

the right not to be compelled to incriminate oneself.                            Morgan,

254 Wis. 2d 602, ¶15.             We require Miranda warnings to be given

based    on   the    need    to       protect    the   fairness     of    a     criminal

defendant's trial.          Id. (citing Schneckloth v. Bustamonte, 412

U.S. 218, 240 (1973)).             It is well-settled that at the point in
time where an individual's freedom of action is "curtailed to a

'degree associated with a formal arrest'" under the totality of

the circumstances, the safeguards of Miranda become applicable.

Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (quoting Beheler,

463 U.S. at 1125).

      ¶59     A brief detention, such as a traffic stop, typically

does not rise to the level of "custody" for purposes of Miranda.

See   Berkemer,     468     U.S.      at   437-40.      However,     if       under   the
totality of the circumstances a detained motorist's freedom of
                                            34
                                                                                 No.    2018AP319-CR



action is curtailed to a degree associated with a formal arrest,

he    or    she       is   entitled       to    the       "full       panoply    of    protections

prescribed by Miranda."                   Id. at 440 (citing Oregon v. Mathiason,

429 U.S. 492, 495 (1977) (per curiam)); see State v. Griffith,

2000 WI 72, ¶69 n.14, 236 Wis. 2d 48, 613 N.W.2d 72 (noting that

the    United         States      Supreme       Court       has    "made     clear      that    if    a

detained motorist is treated in such a manner that he or she is

rendered          'in          custody'        for        practical         purposes,      Miranda

protections are triggered."); State v. Gruen, 218 Wis. 2d 581,

594,       582    N.W.2d 728         (Ct.       App.       1998)       ("[T]he    fact     that      a

defendant         was      detained       pursuant          to    a    Terry     stop    does     not

automatically dispel the need for Miranda warnings.").

       ¶60       We     therefore        recognize          the       distinction      between       an

analysis of a violation of the Fourth and Fifth Amendment as

aptly described in Morgan, 254 Wis. 2d 602, ¶¶13-16.                                           Having

clarified this framework and identified the court of appeals'

error in relying on Blatterman, 362 Wis. 2d 138, we return to

the facts of Dobbs's case.
       ¶61       We conclude that Dobbs was in custody for purposes of

Miranda          protections         because,             under       the   totality       of     the

circumstances, a reasonable person would have considered himself

restrained         to      a    degree    associated          with      formal    arrest.         See

Martin, 343 Wis. 2d 278, ¶¶34-35.                           First, Dobbs was never free

to leave from the moment Officer Milton blocked Dobbs's vehicle

and handcuffed him in a locked squad car.                                       In each of the

locations Dobbs was taken, he was either locked in, guarded by
armed law enforcement, or both.                             This was not like a routine
                                                     35
                                                                         No.    2018AP319-CR



traffic stop where if Dobbs had successfully performed the field

sobriety tests, he would have been free to leave.                            See State v.

Swanson,    164   Wis. 2d 437,        452,       475     N.W.2d 148,         abrogated    on

other grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742,

695 N.W.2d 277 ("A reasonable person would understand a request

to perform a field sobriety test to mean that if he or she

passed the test, he or she would be free to leave.").

      ¶62    Second,    as     to     the    "place[]           and    length      of    the

interrogation,"        Martin,       343     Wis. 2d 278,             ¶35,     Dobbs     was

initially questioned by Officer Milton in his parked, locked

squad car from 7:31 a.m. until 8:52 a.m., with a short break to

complete field sobriety tests.               Dobbs was then subjected to more

questioning at the hospital by several armed officers.                            Unlike a

brief traffic stop, the place of interrogation did not expose

Dobbs to public view and would have caused a reasonable person

to feel completely at the mercy of police.                            See Berkemer, 468

U.S. at 437-40.

      ¶63    Ultimately, Dobbs was not read the Miranda warnings
until almost three hours after he was first handcuffed and put

in   the    backseat    of   a      locked       squad    car.         Three     hours    is

significantly longer than the 30 minutes of questioning in a

patrol car that the United States Supreme                         Court        has implied

rises to the level of custody for purposes of Miranda.                                    On

multiple    occasions    the     Supreme         Court    has    cited       favorably    to

Commonwealth v. Meyer, 412 A.2d 517 (Pa. 1980), which concluded

that a driver was in custody for purposes of Miranda when he was
detained for over 30 minutes, part of the time in a patrol car,
                                            36
                                                                       No.   2018AP319-CR



and    subject   to     questioning.       See       Berkemer,     468   U.S.   at     427

nn.7 & 8, 441 n.34; see also Pennsylvania v. Bruder, 488 U.S. 9,

11 n.2 (per curiam) ("[T]he motorist in Meyer could be found to

have been placed in custody for purposes of Miranda safeguards

because he was detained for over half an hour, and subjected to

questioning while in the patrol car.").

       ¶64    Lastly,    we    examine     the       degree   of   restraint,        which

includes "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."                    Morgan, 254 Wis. 2d 602,

¶12.      A   degree     of    restraint       was    used    when    Officer    Milton

initially blocked Dobbs's car and ordered him out while holding

onto his service weapon.             Dobbs was then frisked, handcuffed,

and locked in the backseat of Officer Milton's squad car while

being questioned for the first hour.                     Dobbs was not told "no"

when he asked whether he was going to be arrested and whether he
was going to jail.            Cf. State v. Quigley, 2016 WI App 53, ¶¶36-

43, 370 Wis. 2d 702, 883 N.W.2d 139 (holding that the defendant

was not in custody for purposes of Miranda where he was told

numerous times during questioning in an unlocked room that he

was not under arrest and was free to leave).                          Dobbs was also

surrounded by multiple officers at all times on the scene and at

the hospital, as many as four officers at one time.

       ¶65    Unlike     in    Gruen,    218     Wis. 2d      at     598,    where     the
defendant was not in custody for purposes of Miranda because he
                                           37
                                                                       No.   2018AP319-CR



was    only     held   in   a    police      van     for    10-15    minutes    without

handcuffs       and    asked      "three          short,    general,     common-sense

investigatory questions," Dobbs was initially questioned for an

hour    while      handcuffed    in    a    locked    squad    car.      Just   as   the

defendants in New York v. Quarles, 467 U.S. 649, 655 (1984), and

Morgan, 254 Wis. 2d 602, were determined to be in custody for

purposes of Miranda because they were surrounded by multiple

officers and handcuffed27 at the time of questioning,28 Dobbs's

freedom      was    restricted    to       the    degree    associated   with    formal

arrest.

       ¶66    Having    concluded          that,    under    the    totality    of   the

circumstances, Dobbs was in custody for purposes of Miranda well

before 10:19 a.m., we must next ascertain whether he was subject

to interrogation.           Custodial interrogation can take two forms:

express questioning or its functional equivalent.                        See State v.

Harris, 2017 WI 31, ¶15, 374 Wis. 2d 271, 892 N.W.2d 663; see

also Rhode Island v. Innis, 446 U.S. 291, 301 (1980) ("[T]he

term 'interrogation' under Miranda refers not only to express


       While we have recognized that the use of handcuffs alone
       27

"does not in all cases render a suspect in custody for Miranda
purposes," Martin, 343 Wis. 2d 278, ¶34, this case involves
other factors relevant to the degree of restraint.

       These cases are distinguishable from Torkelson, where the
       28

court concluded that a reasonable person in the defendant's
position "would not believe his freedom was restricted to a
'degree associated with formal arrest'" after being briefly
questioned by one officer in an area open to the public and not
handcuffed or physically restrained.   State v. Torkelson, 2007
WI App 272, ¶20, 306 Wis. 2d 673, 743 N.W.2d 511 (quoted source
omitted).

                                             38
                                                                      No.    2018AP319-CR



questioning, but also to any words or actions on the part of the

police     (other     than     those   normally       attendant      to     arrest    and

custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.") (footnotes

omitted).           "Express    questioning"         does    not    encompass        every

inquiry that is directed to a suspect, it covers only those

"designed      to    elicit    incriminatory        admissions."           Harris,     374

Wis. 2d 271, ¶16 (quoting Pennsylvania v. Muniz, 496 U.S. 582,

602   n.14      (1990)).        Therefore,      it     is    "the    nature     of     the

information the question is trying to reach" that determines

whether a question is inquisitorial.                 Id., ¶17.

      ¶67      As the State concedes, Officer Milton's questions and

statements about the damage to Dobbs's vehicle, his depression

and anxiety, and injuries to his face were intended to illicit

incriminatory          admissions        and         therefore        were       likely

inquisitorial.29           Accordingly,        we    conclude       that    under      the




       We need not determine which questions and statements were
      29

intended to illicit incriminatory admissions.      However, the
questions Officer Milton asked Dobbs included:

              Do you have any medical issues other than that
               splint that you were wearing?"

              "Do you take        medications         for    depression       and
               anxiety?"

              "Do you have any injuries from the collision with
               the curb?

              "So [those bruises and scratches on your face]
               are all old?"

                                         39
                                                            No.   2018AP319-CR



totality of the circumstances, Dobbs was subject to custodial

interrogation for purposes of Miranda.30          Therefore, it was error

for   at    least   some   of   Dobbs's    pre-Miranda   statements   to   be

admitted at trial.         However, because we determine the error in

admitting Dobbs's statements was harmless, we need not resolve

precisely which statements should have been suppressed by the

circuit court.

      ¶68    Admitting Dobbs's pre-Miranda statements was harmless

error if it is "clear beyond a reasonable doubt that a rational

jury would have found the defendant guilty absent the error."

Martin,      343    Wis. 2d 278,     ¶45     (quoted     source    omitted).

Accordingly, the State must prove "that the error complained of


     We also note that Officer Milton's comments "I smell
alcohol" and "its obvious you hit something" could also be
considered the functional equivalent to express questioning.

       Rejecting the State's concession that Dobbs was subject
      30

to custodial interrogation because she finds it "ill-advised,"
Justice Ziegler reframes this case in a way that was neither
briefed nor argued by the parties: "To me, the actual issue in
this case is whether law enforcement's investigatory detention
of Dobbs under Terry turned into custody under Miranda for
Fourth and Fifth Amendment purposes."         Justice Ziegler's
concurrence, ¶101.   Justice Ziegler further declares that "The
extent to which a stop can be reasonable under Terry for Fourth
Amendment purposes and, nonetheless, render the suspect in
custody under Miranda for Fifth Amendment purposes is an issue
subject to a federal circuit court split." Id., ¶99. Although
the discussion that follows demonstrates that a few circuits
simply frame the issue differently, as opposed to being "split,"
we focus only on whether Dobbs was in custody for purposes of
Miranda, which the State expressly concedes.    See Springer v.
Nohl Elec. Prods. Corp., 2018 WI 48, ¶40, 381 Wis. 2d 438, 912
N.W.2d 1   ("[T]he  court   must  always   be  careful   not  to
gratuitously address issues unnecessary to the resolution of the
matter before us").

                                      40
                                                                           No.   2018AP319-CR



did not contribute to the verdict obtained."                              State v. Mayo,

2007 WI 78, ¶47, 301 Wis. 2d 642, 734 N.W.2d 115 (quoted source

omitted).

      ¶69    All of Dobbs's incriminating statements about huffing

air duster before hitting the pedestrian were made to Officers

Milton and Fleischauer following Dobbs's waiver of his Miranda

rights, or were made to officers, hospital staff, and his father

spontaneously.         To     the    extent       that    Dobbs's      five      pre-Miranda

statements     introduced       into       evidence       were    incriminating,           they

were also independently testified to by other witnesses or were

inconsequential to the crime of homicide by intoxicated use of a

vehicle, the only crime for which Dobbs was convicted.

      ¶70    First, Officer Milton testified that Dobbs told him

"he had gone to Menards and he was on his way home."                               This fact

was   independently      introduced         by     Officer       Frey,    who     found     the

Menards      receipt    for     air       duster    dated        the     morning     of     the

accident.      Second, Officer Milton testified that Dobbs "admitted

to having hit a curb," a fact that a witness to the accident
testified to at trial.              Third, Dobbs told Officer Milton he "had

a few beers the previous evening," but the jury heard that there

was no alcohol detected in Dobbs's blood.                          Fourth, Dobbs told

Officer Milton that he "suffered from depression and anxiety and

he    took     medications          for     those        conditions,        as      well    as

painkillers."          Dobbs    testified          at    trial     about      his    medical

conditions and his medications.                    Finally, the jury heard that

Dobbs said "none of the injuries on his face were as a result of
the accident."         However, identifying when Dobbs received his
                                             41
                                                                                    No.   2018AP319-CR



facial      injuries         was     not    relevant          to    proving          he    committed

homicide by intoxicated use of a vehicle.                            We therefore conclude

that any error in admitting Dobbs's pre-Miranda statements "did

not contribute to the verdict obtained," and was harmless.

                C.     All of Dobbs's statements were voluntary.

      ¶71       In     the       alternative,      Dobbs       moved           to    suppress       his

statements           both    before    and       after    he       was     read       the    Miranda

warnings because he alleged they were not voluntarily made.                                          In

its written decision, the circuit court merely said:                                        "Each of

the statements made by the defendant to Officers Milton, Pine,

Kleinfeldt,          Van     Hove,    Dyer,       Baldukas         and    Baehmann          has   been

demonstrated          to     have    been    voluntary         and       not    the       product    of

coercion in any degree."

      ¶72       When a defendant challenges the voluntariness of the

statements he made to law enforcement the State bears the burden

of    showing         by     a    preponderance          of    the       evidence          that     the

statements were voluntary.                  See State v. Moore, 2015 WI 54, ¶55,

363 Wis. 2d 376, 864 N.W.2d 827.                       We evaluate voluntariness in
light of all the circumstances surrounding the interrogation and

balance     the       defendant's          personal      characteristics              against       the

actions of law enforcement.                      See id., ¶56.            We cannot properly

label a statement involuntary unless there is "some affirmative

evidence        of    improper       police       practices          deliberately           used     to

procure     a    confession."              Id.    (quoting         State       v.    Clappes,       136

Wis. 2d 222, 239, 401 N.W.2d 759 (1987).                            A defendant's personal

characteristics alone "cannot form the basis for finding that
the    suspect's            confessions,          admissions,            or     statements          are
                                                  42
                                                                           No.    2018AP319-CR



involuntary."           Moore,    363    Wis. 2d 376,         ¶56;        see    Hoppe,    261

Wis. 2d 294,      ¶37     ("Coercive     or     improper       police       conduct       is   a

necessary       prerequisite       for    a     finding        of     involuntariness."

(citing    Colorado       v.     Connelly,      479    U.S.     157,       167        (1986)));

Clappes, 136 Wis. 2d at 239.

     ¶73       Dobbs asks this court to conclude that his statements

to the police were involuntary without providing any evidence of

improper police conduct or coercion.                   Instead, he points solely

to   his    personal      characteristics,            namely        his    "physical       and

emotional duress" on September 5, 2015, including:

              his swollen and infected hand that he had not taken

               his painkillers or antibiotics for;

              his depression and anxiety;

              his failure to take his prescribed medication for his

               depression and anxiety;

              his lack of sleep in 40 hours; and

              his emotional breakdowns throughout the day.

Additionally, Dobbs notes that he had minimal contact with law
enforcement prior to the day of the accident as he had no prior

adult or juvenile record and had never been on probation or

supervision.

     ¶74       However,    Dobbs's      failure       to   establish        any       improper

police     practices       is     determinative.               We     decline          Dobbs's

invitation to assess the voluntariness of his statements based

solely on the his physical and mental condition as it would

"effectively result in the establishment of a per se rule of
involuntariness         (and      inadmissibility)          whenever             an     officer
                                           43
                                                            No.   2018AP319-CR



questions a defendant who is suffering from serious pain and

undergoing medical treatment at the time the questioning takes

place."      Clappes, 136 Wis. 2d at 242.         We conclude that based

upon the lack of proof of any improper police practices, Dobbs's

statements were voluntary.

                            IV.   CONCLUSION

       ¶75   We conclude that the circuit court properly exercised

its discretion when it excluded Dr. White's exposition testimony

for a lack of fit with the facts of Dobbs's case.            Additionally,

although we determine that several of Dobbs's statements should

have    been   suppressed   because    he   was   subject    to    custodial

interrogation and not read the Miranda warnings, we conclude

that the error was harmless.          We further conclude that all of

Dobbs's statements were voluntary.

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

affirmed.




                                      44
                                                                           No.    2018AP319-CR.akz


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

the majority opinion's analyses and conclusions regarding the

admissibility            of     Dr.        White's      expert       testimony            and    the

voluntariness of Dobbs' statements to law enforcement.                                    But I do

not   join        the    majority's          analysis        or    conclusions         regarding

Miranda1 and custodial interrogation for two reasons.                                     First, I

disagree with the majority's ultimate conclusion.                                 Dobbs was not

subject      to     custodial         interrogation           at     any     time     prior       to

receiving his Miranda warnings on the day in question.                                     Second,

I am concerned that the majority's analysis, though it addresses

the   Fifth       Amendment          and    Miranda,        could    seriously         undermine

Fourth Amendment law regarding Terry2 stops and investigatory

detention.          Accordingly,            I   write       separately       to    clarify       the

jurisprudence                surrounding         the         intersection            of         Terry

investigatory detention and Miranda custodial interrogation.                                       I

respectfully concur.


                                I.    MIRANDA AND THIS CASE

      ¶78     The Fifth Amendment to the United States Constitution
states that "[n]o person" "shall be compelled in any criminal

case to be a witness against himself" or herself.                                    Article 1,

section     8(1)        of    the    Wisconsin       Constitution          affords        the   same

protection.        State v. Bartelt, 2018 WI 16, ¶26, 379 Wis. 2d 588,

906 N.W.2d 684 (citing State v. Ward, 2009 WI 60, ¶18 n.3, 318

Wis. 2d 301,        767        N.W.2d 236).            In    Miranda       v.     Arizona,       the


      1   Miranda v. Arizona, 384 U.S. 436 (1966).
      2   Terry v. Ohio, 392 U.S. 1 (1968).

                                                 1
                                                                 No.    2018AP319-CR.akz


Supreme Court concluded that the Fifth Amendment requires law

enforcement       to    inform     suspects      of   their      rights     prior    to

conducting    custodial        interrogations.3           384    U.S.    436   (1966).

Miranda    warnings      are     required       because    "'[t]he      circumstances

surrounding in-custody interrogation can operate very quickly to

overbear the will of [the suspect.]'"                 Bartelt, 379 Wis. 2d 588,

¶27 (quoting Miranda, 384 U.S. at 469).                   Accordingly, Miranda is

rooted in a concern that custodial interrogation can "compel[]"

a suspect "to be a witness against himself" or herself.                             U.S.

Const. amend. V.

    ¶79     In this case, law enforcement did not inform Dobbs of

his Miranda rights until around 10:19 a.m., after he had already

made a series of statements.                This concurrence focuses on the

narrow    issue    of    whether    Miranda       required      Dobbs'    pre-warning




    3  We summarized the content of Miranda                             warnings    and
suspects' relevant rights in Bartelt as follows:

         "[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.

State v. Bartelt, 2018 WI 16, ¶27 n.6, 379 Wis. 2d 588, 906
N.W.2d 684.

                                            2
                                                                           No.    2018AP319-CR.akz


statements        to     be      suppressed.4                 Because        only        custodial

interrogation          triggers       Miranda         protections,          the     court          must

determine       whether       Dobbs    was    both       in    custody       and       subject      to

interrogation prior to 10:19 a.m.                       On review, determinations of

custody and interrogation involve a two-step process.                                        Bartelt,

379   Wis. 2d 588,        ¶25;      State    v.       Harris,     2017      WI     31,       ¶9,   374

Wis. 2d 271,       892    N.W.2d 663.             We     review      the     circuit         court's

factual     findings       and      uphold        them    unless        they       are       clearly

erroneous.             Bartelt,       379        Wis. 2d 588,         ¶25;         Harris,          374

Wis. 2d 271,       ¶9.         We     then       apply     constitutional              principles

regarding       Miranda    custody         and       interrogation         to    the     facts      de

novo,     but    benefit       from    the       analyses       of    the        courts       below.

Bartelt, 379 Wis. 2d 588, ¶25; Harris, 374 Wis. 2d 271, ¶9.                                        The

parties do not dispute the circuit court's factual findings in

this case.

                                       A.     Custody

      ¶80       "The test to determine whether a person is in custody

under Miranda is an objective test."                          Bartelt, 379 Wis. 2d 588,
¶31 (citing State v. Lonkoski, 2013 WI 30, ¶27, 346 Wis. 2d 523,

828 N.W.2d 552).          We look to the "totality of the circumstances"

to determine "whether there is a formal arrest or restraint on

freedom     of    movement       of    a     degree       associated            with     a    formal

arrest."        Id. (citing Lonkoski, 346 Wis. 2d 523, ¶27; California

      4Dobbs  does   not  challenge  the  sufficiency  of   law
enforcement's Miranda warnings, once he heard them, or the
validity of his waiver. Rather, he challenges the admissibility
of his post-Miranda warning statements as involuntary only.   I
join the majority on the voluntariness issue, and so will not
address it here.

                                                 3
                                                           No.   2018AP319-CR.akz


v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam); and State

v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278, 816 N.W.2d 270)).

See also New York v. Quarles, 467 U.S. 649, 655 (1984) ("'[T]he

ultimate inquiry is simply whether there is a "formal arrest or

restraint on freedom of movement" of the degree associated with

a formal arrest[.]'" (quoting Beheler, 463 U.S. at 1125)).

       ¶81     "We consider a variety of factors to determine whether

under    the    totality   of   the   circumstances    a   reasonable     person

would feel at liberty to [leave]."                Bartelt, 379 Wis. 2d 588,

¶32.     Those factors include: "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   (citing

State v. Morgan, 2002 WI App 124, ¶12, 254 Wis. 2d 602, 648

N.W.2d 23).         Regarding    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."               Bartelt, 379 Wis. 2d 588, ¶32

(citing Morgan, 254 Wis. 2d 602, ¶12).

       ¶82     But the restraint-on-freedom-of-movement test does not

end the inquiry.        Bartelt, 379 Wis. 2d 588, ¶33.            Restraint on

freedom of movement, i.e., constructive arrest, is a necessary,

but not a sufficient condition to establish Miranda custody.

Id.     "If we determine that a suspect's freedom of movement" is

restrained to a degree "such that a reasonable person would not
feel free to leave, we must then consider whether 'the relevant

                                        4
                                                                         No.    2018AP319-CR.akz


environment             presents . . . inherently                  coercive           pressures

. . . .'"             Id.   (quoting      Howes       v.    Fields,     565    U.S.   499,    509

(2012)).           Only     then    will    Miranda's         Fifth     Amendment      concerns

regarding compelled witness testimony be triggered.                                   A person

may not always be free to leave circumstances such as those

present here, but that does not require a determination that

such person is in custody.

       ¶83       In    this    case,      Dobbs       was    not   in    custody      prior   to

receiving the Miranda warnings.                            The circuit court determined

that       Dobbs      was   not    subject    to      custodial       interrogation        until

after 10:19 a.m.              Similarly, the court of appeals concluded that

Dobbs was detained, but not in custody.                               State v. Dobbs, No.

2018AP319-CR, unpublished slip op., ¶¶11-14 (Wis. Ct. App. May

2, 2019).             I agree.      Under the totality of the circumstances,

Dobbs was not formally arrested or subject to a restraint on

freedom of movement to a degree associated with formal arrest

prior       to     receiving        the    Miranda           warnings.          Bartelt,      379

Wis. 2d 588, ¶31.             The majority concludes otherwise only because
it seemingly changes the Bartelt test for Miranda custody.5                                    It

gives too much weight to particular factors at the expense of

the totality of the circumstances, and ignores the final inquiry

whether the environment included inherently coercive pressures.


       The majority also relies on the State's concession in this
       5

case that Dobbs was subject to custodial interrogation.       See
majority op., ¶55.      But we are not bound by the State's
concession.     State v. Anderson, 2014 WI 93, ¶19, 357
Wis. 2d 337, 851 N.W.2d 760 ("[W]e are not bound by a party's
concession of law." (citing Bergmann v. McCaughtry, 211
Wis. 2d 1, 7, 564 N.W.2d 712 (1997))).

                                                  5
                                                                         No.    2018AP319-CR.akz


       ¶84     Regarding        Dobbs'     "freedom         to     leave,"          Martin,       343

Wis. 2d 278, ¶35, the majority notes that Officer Milton blocked

Dobbs' vehicle, handcuffed him, and put him in the squad car.

Majority op., ¶61.              The majority also notes that, while at the

hospital, Dobbs was guarded.                 Id.      But during any traffic stop,

the suspect is not permitted to drive away, whether the vehicle

is blocked or not.                Additionally, it is not unusual for law

enforcement         to    place    a     suspect      in    a    squad      car      while       they

investigate and control the scene or to guard a suspect.                                          The

majority determines that Dobbs was not free to leave under these

circumstances.            Id.   That may be true.               But even if a suspect is

not    free    to    leave,       that    does     not     establish        that       he    is   in

custody.       Not being free to leave, though a necessary condition

to conclude a suspect is in custody, is not itself sufficient to

conclude a suspect is in custody.                     See Quarles, 467 U.S. at 655

(describing the ultimate inquiry as "whether there is a 'formal

arrest    or    restraint         on     freedom      of    movement'          of    the    degree

associated with a formal arrest").                         If it was sufficient, then
any person temporarily detained for an ordinary traffic stop

would    be    in    custody.          While     perhaps         not    actually       "free      to

leave," these people are not in Miranda custody.                                    See Berkemer

v. McCarty, 468 U.S. 420, 436 (1984) ("Certainly few motorists

would    feel     free . . . to          leave     the      scene      of   a       traffic      stop

without being told they might do so.").                                The record reflects

that     Dobbs'          case   unfolded         in    a     manner         similar         to    an

investigation and detention incident to a traffic stop.                                     Indeed,
Officer Milton repeatedly told Dobbs that there was an ongoing

                                               6
                                                         No.   2018AP319-CR.akz


investigation.       See majority op., ¶8.       Dobbs may not have been

actually "free to leave," but that does not mean that he was in

custody.

    ¶85     Regarding the second factor, "the purpose, place, and

length of the interrogation," Martin, 343 Wis. 2d 278, ¶35, the

majority's analysis again distorts facts ordinarily associated

with a routine traffic stop into Miranda concerns.              The majority

does not analyze the purpose of Officer Milton's questioning at

all, but notes that it occurred intermittently over the course

of three hours in the squad car and at the hospital.                 Majority

op., ¶¶62-63.        There are several problems with this.             First,

general    on-the-scene      questioning   is   not    the   same    thing   as

interrogation and does not raise Miranda concerns to the same

degree.      Dobbs     was   not   subjected    to     questioning    of     any

significant length and the type of conversation that occurred

did not amount to interrogation.           Second, the place of Dobbs'

questioning was not of particular concern.             Questioning suspects

in squad cars and hospitals, particularly incident to suspected
OWI or traffic accident cases, is a common, and often necessary,

law enforcement practice in order to control a scene or ensure

the health and well-being of a suspect.               Regarding the purpose

of law enforcement's questions, Dobbs was asked who he was,

where he was coming from, where he was going, how he got his

injuries, and whether he had any other medical issues or took

any medications.       Majority op., ¶7.        These types of questions

are routine in traffic stops, traffic accidents, and suspected
OWI cases.

                                      7
                                                                     No.    2018AP319-CR.akz


    ¶86     Regarding         "the    degree          of   restraint,"       Martin,     343

Wis. 2d 278, ¶35, the majority notes that Officer Milton held

his service weapon, that there were other officers on the scene

and at the hospital, and that Dobbs was frisked, handcuffed, and

locked in the squad car.              Majority op., ¶64.             But again, during

a routine traffic stop, a frisk or the presence of multiple

officers    is    common        in     order          to   ensure     officer      safety.

Importantly, there is nothing in the record to suggest that

Officer Milton, though he had his hand on his service weapon,

ever pointed it at Dobbs.                   Simply holding a service weapon,

without pointing it at a suspect, is also appropriately related

to officer safety.            Nor does the fact that Dobbs was handcuffed

pull the degree of restraint in this case into Miranda custody.

Martin, 343 Wis. 2d 278, ¶34 ("We recognize that the use of

handcuffs does not in all cases render a suspect in custody for

Miranda    purposes.").          Even    as       a   whole,   these       facts   did   not

necessarily      render       Dobbs    in     Miranda       custody.         Martin,     343

Wis. 2d 278,      ¶34     n.23        ("[D]rawing          weapons,        handcuffing    a
suspect, placing a suspect in a patrol car for questioning, or

using or threatening to use force does not necessarily elevate a

lawful    stop   into     a    custodial          arrest    for     Miranda     purposes."

(quoting United States v. Leshuk, 65 F.3d 1105, 1109–10 (4th

Cir. 1995))).




                                              8
                                                                No.    2018AP319-CR.akz


     ¶87   Accordingly, none of the Miranda custody factors favor

a determination of custody in this case.6                 Dobbs was not formally

arrested   or     restrained   to   a   degree          associated      with    formal

arrest.    Because I so conclude, my custody analysis ends here.

But, under Bartelt, since the majority concluded that Dobbs was

restrained   to    the   degree   associated           with   formal    arrest,     the

majority   should    have   continued       on    to    consider      "whether    'the

relevant     environment       present[ed] . . . inherently                    coercive

pressures . . . .'"         Bartelt,        379   Wis. 2d 588,         ¶33     (quoting

Howes, 565 U.S. at 509.)          For the sake of completeness, I note

that there was nothing inherently coercive or wrongful about law

enforcement's conduct in this case.                    There is nothing in the

record to suggest otherwise.            Indeed, the majority notes the

utter lack of wrongful or coercive conduct in the record in its


     6 This case is distinguishable from State v. Morgan, 2002 WI
App 124, 254 Wis. 2d 602, 648 N.W.2d 23.      In that case, the
court of appeals concluded that Morgan was in custody where,
after police pointed their guns at Morgan, he tried to flee and
was chased and caught by police, was frisked, handcuffed and
placed in a squad car.     Id., ¶¶3-4, 17.    Dobbs never had a
weapon pointed at him and never tried to evade or escape law
enforcement.   Under the totality of the circumstances, it is
clear that Dobbs was handcuffed and in the back of the squad car
for a very different reason from Morgan, and law enforcement
used significantly less force against Dobbs than Morgan.

     Rather, this case is more analogous to State v. Gruen, 218
Wis. 2d 581, 582 N.W.2d 728 (Ct. App. 1998).      In that case,
Gruen was not in custody where, after a traffic accident, he was
stopped near the scene, frisked, placed in the back of a police
van, and questioned by law enforcement.     Id. at 586, 597-98.
Just like Gruen, Dobbs did not have a weapon pointed at him, but
was stopped near the scene of a traffic accident, frisked,
detained in a police vehicle, and questioned. If Gruen was not
in custody, then Dobbs was not either.

                                        9
                                                                               No.    2018AP319-CR.akz


voluntariness analysis.                  Majority op., ¶¶73-74.                       Consideration

of    the     relevant        environment             further          counsels          against     a

determination of Miranda custody in this case.

                                    B.     Interrogation

      ¶88     For        purposes        of     Miranda,             interrogation           includes

express questioning or its functional equivalent.                                       Harris, 374

Wis. 2d 271,         ¶¶16-17,       19-22.            "Express        questioning"           includes

"only       those        questions        'designed             to    elicit          incriminatory

admissions.'"            Id., ¶16 (quoting Pennsylvania v. Muniz, 496 U.S.

582, 602 n.14 (1990)). "It is the nature of the information the

question is trying to reach, therefore, that determines whether"

the   question       triggers        Miranda.              Id.,      ¶17.        If    the    desired

"information has no potential to incriminate the suspect, the

question requires no              Miranda warnings."                     Id. (citing          Doe v.

United States, 487 U.S. 201, 211 n.10 (1988) ("In order to be

privileged, it is not enough that the compelled communication is

sought      for     its     content.                The        content        itself     must    have

testimonial significance.")).
      ¶89     Miranda       can     also       be     triggered          by    the     "'functional

equivalent' of an interrogation."                          Harris, 374 Wis. 2d 271, ¶19

(citing Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).

Functional        equivalence        is    aimed          at    capturing        law    enforcement

"techniques         of    persuasion          that,       in    a    custodial        setting,     can

create the same potential for self-incrimination even in the

absence      of     an     express        question."                 Id.         The     functional

equivalents of interrogation include "'any words or actions on
the part of the police (other than those normally attendant to

                                                 10
                                                                      No.   2018AP319-CR.akz


arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect.'"

Id.   (quoting      Innis,     446      U.S.      at    301    (footnotes         omitted)).

Functional    equivalence         is    an     objective       inquiry;      neither       law

enforcement's       underlying       subjective         intent    nor       the   suspect's

subjective understanding is dispositive.                      Id., ¶¶20, 22.

      ¶90    Rather, we review law enforcement's actions from the

perspective of a "reasonable third-person observer and inquir[e]

into how such a person would expect the suspect to react to the

officer's words and actions."                Harris, 374 Wis. 2d 271, ¶22.                  We

impute to the third-person observer "'[a]ny knowledge the police

may   have    had       concerning      the       unusual      susceptibility         of     a

defendant    to     a   particular       form      of    persuasion.'"             Id.,    ¶21

(quoting Innis, 446 U.S. at 302 n.8).                    The test is:

      "[I]f an objective observer (with the same knowledge
      of the suspect as the police officer) could, on the
      sole basis of hearing the officer's remarks or
      observing the officer's conduct, conclude that the
      officer's conduct or words would be likely to elicit
      an incriminating response, that is, could reasonably
      have had the force of a question on the suspect, then
      the conduct or words would constitute interrogation."
Id., ¶22 (quoting State v. Cunningham, 144 Wis. 2d 272, 278-79,

423 N.W.2d 862 (1988)).

      ¶91    The    majority      concludes        that       Dobbs    was    subject       to

interrogation.          Majority op., ¶67.              But, in so concluding, it

relies   entirely        on   the      State's      ill-advised        concession         that

Officer Milton interrogated Dobbs.                     Because I conclude Dobbs was

not in custody, I need not analyze whether he was interrogated;
regardless,    the      Miranda      protections         are   not     triggered.          See

                                             11
                                                                    No.    2018AP319-CR.akz


Innis, 446 U.S. at 300-01 ("[T]he Miranda safeguards come into

play whenever a person in custody is subjected to either express

questioning or its functional equivalent." (Emphasis added.)).

But I have reason to doubt the merit of the State's concession

in this case.

       ¶92   First, I note——and the majority seems to agree——that

at least some of Dobbs' statements were spontaneous and not

elicited     in    any       way.      See    majority       op.,   ¶¶15-16,        49,   69.

Second, I am unpersuaded that Officer Milton's questions were

express questions designed to elicit incriminating admissions.

As   discussed      above,         Officer    Milton's       questions      were    routine

investigatory       questions         incident       to    ordinary       traffic    stops,

traffic accidents, or suspected OWI cases.                            General, on-the-

scene questioning of this sort is not interrogation.                          See United

States v. Adegbite, 846 F.2d 834, 838 (2d Cir. 1988) ("[T]he

solicitation of information concerning a person's identity and

background does not amount to custodial interrogation prohibited

by Miranda . . . .").               Third, I am equally unpersuaded that this
case presents any functional equivalent concerns.                              I do not

readily see a basis for a reasonable third-party observer to

conclude that any officer's words or conduct "'could reasonably

have   had   the     force      of    a    question       on'"   Dobbs.      Harris,      374

Wis. 2d 271, ¶22 (quoting Cunningham, 144 Wis. 2d at 279).

       ¶93   Thus,       I     disagree       with        the    majority's        ultimate

conclusion;       Dobbs      was     not   subject    to     custodial      interrogation

under Miranda.           But my disagreement with the majority does not
end there.        I am also concerned that its analysis conflates the

                                              12
                                                                         No.    2018AP319-CR.akz


routine      investigatory           detention       of    Dobbs    in     this      case      with

custody       and       Miranda       Fifth        Amendment       violations,            thereby

undermining our Fourth Amendment jurisprudence.


                  II.    THE INTERSECTION OF MIRANDA AND TERRY.

       ¶94    The Fourth and Fifth Amendments to the United States

Constitution protect different interests.                           As discussed above,

the Fifth Amendment and Miranda protect the right to be free

from compulsion to incriminate oneself.                            U.S. Const. amend V.

Relevant here, the test for Miranda custody is whether, under

the "totality of the circumstances," viewed objectively, "there

is a formal arrest or restraint on freedom of movement of a

degree       associated        with     a     formal       arrest."             Bartelt,        379

Wis. 2d 588,        ¶31.        Custody       is    analyzed       in    light      of    various

factors,      including:         "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 (citing Morgan, 254

Wis. 2d 602, ¶12).

       ¶95    In contrast, the Fourth Amendment protects the right
to be free from unreasonable searches and seizures.                                 U.S. Const.

amend.      IV.;    see       also    Wis.    Const.       art.     1,    § 11.           If    law

enforcement conducts a traffic stop or "temporary investigative

stop,"    that      is    "a    seizure      within       the   meaning        of   the   Fourth

Amendment . . . ."              State v. Blatterman, 2015 WI 46, ¶17, 362

Wis. 2d 138,            864    N.W.2d 26.            To    comply        with       the   Fourth

Amendment, the stop must be reasonable at its inception and in
its duration.            Id., ¶¶19-20.             "Pursuant to Terry v. Ohio, 392

U.S.   1,     a    police      officer       may,    under       certain       circumstances,
                                               13
                                                                           No.    2018AP319-CR.akz


temporarily         detain       a     person       for     purposes       of     investigating

possible criminal behavior even though there is not probable

cause to make an arrest."                       Id., ¶18 (citing Terry, 392 U.S. at

22;   State     v.    Chambers,            55    Wis. 2d 289,        294,        198    N.W.2d 377

(1972).           "The      Wisconsin            Legislature         codified           the       Terry

constitutional standard in Wis. Stat. § 968.24."                                  Id.       Relevant

here,     "an     officer         may       conduct        a      temporary       investigatory

detention when 'the officer reasonably suspects that [a] person

is    committing . . . a                   crime.'              § 968.24."             Id.,        ¶19.

Accordingly, an officer may conduct an investigatory detention

so    long   as      he    has       reasonable         suspicion     to     do        so   and     the

detention is reasonable in duration.                        See id., ¶¶19-20.

       ¶96    What    starts          as    an    investigatory        detention            can    turn

into an arrest.              If and when it does, the Fourth Amendment

requires that the arrest be supported by probable cause.                                            See

Blatterman, 362 Wis. 2d 138, ¶29.                         The test whether a suspect is

arrested is "whether a 'reasonable person in the defendant's

position would have considered himself or herself to be "in
custody,"         given       the           degree        of      restraint            under       the

circumstances.'"             Id.,          ¶30    (quoting        State    v.     Swanson,          164

Wis. 2d 437,         447,    475       N.W.2d 148          (1991),    abrogated             on    other

grounds by State v. Sykes, 2005 WI 48, 279 Wis. 2d 742, 695

N.W.2d 277)).         The similarities between Fourth Amendment arrest

analysis      and     Fifth          Amendment          custody     analysis       are        readily

apparent.           This     case          tees      up    questions         surrounding           the

intersection between the Fifth Amendment and Miranda custodial
interrogation         on    one       hand,       and     the    Fourth    Amendment,             Terry

                                                   14
                                                                No.    2018AP319-CR.akz


investigatory detentions, and arrests on the other.                           A Terry

investigatory    detention       can    turn    into     an    arrest.           Miranda

custody occurs when a suspect is under arrest or restrained to a

degree    associated     with    formal        arrest.         So      can   a     Terry

investigatory        detention         turn      into         Miranda        custodial

interrogation?       If so, when and how?

    ¶97     In Morgan the court of appeals said that Miranda and

Terry are two different analyses designed to protect different

constitutional       rights.       Morgan,       254     Wis. 2d 602,         ¶¶13-16.

Morgan was not the first time that Wisconsin courts noted the

intersection of Miranda and Terry.              See also, State v. Griffith,

2000 WI 72, ¶69 n.14, 236 Wis. 2d 48, 613 N.W.2d 72; Swanson,

164 Wis. 2d at 447-49; Gruen, 218 Wis. 2d at 593-94; and State

v. Pounds, 176 Wis. 2d 315, 322, 500 N.W.2d 373 (Ct. App. 1993).

In Griffith, a Fourth Amendment traffic stop case, we stated:

    The United States Supreme Court has held that persons
    temporarily detained in ordinary traffic stops are not
    "in custody" and therefore not subject to the rule in
    [Miranda].   Berkemer v. McCarty, 468 U.S. 436, 440
    (1966); see also [Swanson, 164 Wis. 2d at 449].
    However, the Court made clear that if a detained
    motorist is treated in such a manner that he or she is
    rendered "in custody" for practical purposes, Miranda
    protections are triggered. Berkemer, 468 U.S. at 440.

Griffith, 236 Wis. 2d 48, ¶69 n.14.
    ¶98     In this case, the majority appears to draw a bright

line between Terry Fourth Amendment jurisprudence and Miranda

Fifth    Amendment    jurisprudence.           See     majority       op.,   ¶57   ("We

uphold Morgan and clarify that the Fourth Amendment and Fifth
Amendment    protect    different       interests       and    involve       different

inquiries."); see also id., ¶60 ("We therefore recognize the
                                        15
                                                                      No.    2018AP319-CR.akz


distinction between an analysis of a violation of the Fourth and

Fifth Amendment as aptly described in Morgan, 254 Wis. 2d 602,

¶¶13-16.").         In    doing        so,    the     majority       oversimplifies        the

analysis     in     this        case,        ignores     an     important          issue    in

constitutional law, and potentially undermines Fourth Amendment

law as an expense of its development of Fifth Amendment law.

    ¶99     The extent to which a stop can be reasonable under

Terry for Fourth Amendment purposes and, nonetheless, render the

suspect in custody under Miranda for Fifth Amendment purposes is

an issue subject to a federal circuit court split.                             The Second,

Seventh,    Ninth,        and     Tenth      Circuits        conclude       that     the   two

inquiries are entirely distinct.                     See United States v. Ali, 68

F.3d 1468, 1473 (2d Cir. 1995) (stating that whether a stop was

permissible       under    Terry       is    "irrelevant"      to     Miranda       analysis,

because "Terry is an exception to the Fourth Amendment probable-

cause     requirement,          not    to     the    Fifth     Amendment       protections

against    self-incrimination");              United     States      v.     Smith,    3    F.3d

1088,   1096-97     (7th        Cir.    1993)       (noting   the     "'vast       difference
between those rights that protect a fair criminal trial and the

rights guaranteed under the Fourth Amendment'"; stating that its

"inquiry into the circumstances of temporary detention for a

Fifth and Sixth Amendment Miranda analysis requires a different

focus than that for a Fourth Amendment                          Terry stop");          United

States v. Kim, 292 F.3d 969, 976 (9th Cir. 2002) (stating that

"whether an individual detained during the execution of a search

warrant    has     been     unreasonably            seized     for    Fourth       Amendment
purposes and whether that individual is 'in custody' for Miranda

                                               16
                                                                    No.    2018AP319-CR.akz


purposes    are    two     different           issues");      and   United      States     v.

Perdue, 8 F.3d 1455, 1463–64 (10th Cir. 1993) (noting that "a

suspect    can    be     placed      in   police       'custody'     for       purposes    of

Miranda before he has been 'arrested' in the Fourth Amendment

sense";    holding       that    a   gunpoint         stop    permissible       under     the

Fourth Amendment "created the 'custodial' situation envisioned

by Miranda and its progeny").

    ¶100 The First, Fourth, and Eighth Circuits conclude that

the two inquiries are not so distinct.                         See United States v.

Trueber, 238 F.3d 79, 92 (1st Cir. 2001) (stating, "As a general

rule, Terry stops do not implicate the requirements of Miranda

because Terry stops, though inherently somewhat coercive, do not

usually    involve       the    type      of    police      dominated     or    compelling

atmosphere       which     necessitates             Miranda    warnings")        (internal

quotations   omitted);          United     States      v.     Leshuk,     65    F.3d   1105,

1109-10 (4th Cir. 1995) (discussing Terry law in the course of

its Miranda analysis and stating, "From these standards, we have

concluded that drawing weapons, handcuffing a suspect, placing a
suspect in a patrol car for questioning, or using or threatening

to use force does not necessarily elevate a lawful stop into a

custodial arrest for Miranda purposes"); and United States v.

Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir. 2003)(rejecting the

defendant's "broad contention that a person is in custody for

Miranda purposes whenever a reasonable person would not feel

free to leave"); see also id. ("One is not free to leave a Terry

stop until the completion of a reasonably brief investigation,
which may include limited questioning.                       But most Terry stops do

                                               17
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not    trigger     the      detainee's      Miranda        rights.").        See     also

Katherine M. Swift, Drawing a Line Between Terry and Miranda:

The Degree and Duration of Restraint, 73 U. Chi. L. Rev. 1075,

1084-88 (summarizing this split of authority).

       ¶101 To the majority, the issue in this case is whether

Dobbs was in custody under Miranda.                 To me, the actual issue in

this case is whether law enforcement's investigatory detention

of    Dobbs    under   Terry     turned     into    custody     under     Miranda     for

Fourth and Fifth Amendment purposes.                  I answer no, it did not.

The     totality       of    the      circumstances,         viewed       objectively,

demonstrate that Dobbs was subject to a reasonable investigatory

detention, but not in              Miranda custody.           The intersection of

Miranda    and     Terry    is   at   the   heart     of    this    case.      But    the

majority fails to meaningfully address it.                     I am concerned that

the majority's analysis of Fifth Amendment Miranda law could

seriously undermine Fourth Amendment Terry law, and so I cannot

join it.


                                   III.   CONCLUSION
       ¶102 I join the majority opinion's analyses and conclusions

regarding the admissibility of Dr. White's expert testimony and

the voluntariness of Dobbs' statements to law enforcement.                           But

I do not join the majority's analysis or conclusions regarding

Miranda and custodial interrogation for two reasons.                          First, I

disagree with the majority's ultimate conclusion.                        Dobbs was not

subject       to   custodial       interrogation      at     any     time    prior    to
receiving his Miranda warnings on the day in question.                          Second,

I am concerned that the majority's analysis, though it addresses
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                                                            No.    2018AP319-CR.akz


the   Fifth   Amendment     and    Miranda,     could   seriously       undermine

Fourth   Amendment    law   regarding       Terry   stops   and    investigatory

detention.      Accordingly,      I   write    separately     to    clarify    the

jurisprudence        surrounding       the      intersection          of     Terry

investigatory detention and Miranda custodial interrogation.

      ¶103 For the foregoing reasons, I respectfully concur.

      ¶104 I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK and Justice BRIAN HAGEDORN join this opinion.




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      ¶105 DANIEL       KELLY,      J.     (concurring).          There        are      many

reasons people grow frustrated with the law.                      It's language is

too arcane, it's written at such length that no normal person

can   reasonably       hope   to    comprehend    even   a    small        part   of    its

content, it spreads like a crazed spider web across innumerable

sections,      subsections,        paragraphs,    and    parts,       it    changes      so

frequently it's impossible to stay abreast of it, etc.                            But for

those who actually make an effort to discover what the written

law requires, perhaps one of its most maddening features is

that, apparently, it sometimes doesn't mean what it so plainly

says.     Or at least that's sometimes the case once we get our

hands on it, as we did today with Wis. Stat. § 907.02(1).                                 No

tremors     will   spread      through      our   republic        because         of    our

treatment of this evidentiary rule.               But the way we reached our

conclusion      will    alienate     the    people     from     their      law    just    a

smidgen more, and will further encourage the perception that the

law cannot be understood without the priestly class of lawyers

and   judges    revealing      their     gnosis   to    those    to     whom      the   law
actually belongs.1

      1The advent of a written code of law is one of the most
significant developments in the relationship between governors
and the governed. Some of the key attributes of a written code
include the following:

           [I]t was important that the laws be stated in the
      vernacular, not Latin, and be phrased in clear and
      ordinary language, so that citizens could consult the
      code and perfectly understand their rights and
      obligations, without having to go to lawyers and
      judges. The codes needed to be organized logically so
      that people could readily find the relevant laws. And
      the provisions ought to be short, so that people could
      more easily remember them.
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       ¶106 Today, we made Wis. Stat. § 907.02(1) say something

that no reasonably capable English-speaker would understand it

to say.          Our task was to determine whether the 2011 addition of

the    Daubert2         standard     for   the      admission      of     expert         witness

testimony         changed     the    standard       for    the    admission         of    expert

witness testimony.                 Just to state the question suggests the

answer.          The text of the statute confirms the answer cannot be

anything other than "yes."                  It's not a lengthy provision, so

I'll       set    it   out    in    full   with     the    text    added       by    the    2011

"Daubert" amendment underlined for the sake of clarity:

       If   scientific,   technical,   or  other   specialized
       knowledge will assist the trier of fact to understand
       the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill,
       experience,   training,   or  education,  may   testify
       thereto in the form of an opinion or otherwise, if the
       testimony is based upon sufficient facts or data, the
       testimony is the product of reliable principles and
       methods, and the witness has applied the principles
       and methods reliably to the facts of the case.
2011 Wis. Act 2, § 34m (emphasis added).                          Most of the preamble

in this provision addresses whether expert testimony would be
helpful to the jury and whether the proposed witness qualifies

as    an    expert.          The    part   at   issue      today    is     the      permission

granting         clause,     which    provides      that    an    expert       witness      "may

testify thereto [that is, his area of expertise] in the form of

an     opinion         or    otherwise,     if"      the    witness        satisfies         the

conditions that follow.


Peter Tiersma, The Rule of Text: Is It Possible to Govern Using
(Only) Statutes?, 6 NYU J.L. & Liberty 260, 270–71 (2011).
       2   Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

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                                                         No.   2018AP319-CR.dk


     ¶107 I pause at this spot in the statute because this is

where the majority discovers some gnosis not accessible through

the words on the page.       Ordinary folk like me see the "if" and

conclude that what precedes it is contingent on what follows.3

Thus, I understand this language to mean that the expert may

testify "in the form of an opinion or otherwise" but only if he

can meet the conditions following the "if."4           The court, however,

acting on a plane of understanding to which I apparently do not

have access, says that only testimony in the form of an opinion

is   subject   to   the    listed   conditions.        Testimony     in    the

"otherwise"    category,   for   some   reason,   is    not.      The     court

dedicates the bulk of its opinion on this subject to a detailed

discussion of testimony in the "otherwise" category——its type,


     3 The   Oxford   English   Dictionary    defines "if"   as
"[i]ntroducing a clause of condition or supposition" and as
meaning "[o]n condition that; given or granted that; in (the)
case that; supposing that; on the supposition that."    If, The
Oxford English Dictionary (definition A. I. (conjunction)).
Merriam-Webster similarly defines "if" as meaning "in the event
that," "allowing that," "on the assumption that," and "on
condition that." See If, Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/if.
     4 We actually have a requirement that we read statutory
language the way everyone else does, with a narrow exception for
technical meanings and special definitions.          "[S]tatutory
interpretation 'begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the
inquiry.'" State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation
omitted).   We give that language "its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning."    Id., ¶45.   There are no technical or
specially-defined   words   involved  in  the   statute  we   are
considering today, so we should read it just like everyone else.

                                    3
                                                                     No.    2018AP319-CR.dk


its value, and our treatment of it prior to the 2011 Daubert

amendment.       I have no quibble with this historical recitation,

but   I   can't       figure    out    how     it     separates       "opinion"       from

"otherwise"      such    that      testimony    in     the     former       category      is

subject to the statute's Daubert conditions while testimony in

the   latter     is   not.      The   actual    words     on    the        page    flat-out

contradict the court inasmuch as they do not distinguish between

"opinion"      testimony     and    "otherwise"       testimony.            They    say   an

expert    "may    testify      thereto   in     the    form     of     an    opinion      or

otherwise, if . . . ."          In ordinary English, this means the "if"

applies with just as much force to "otherwise" as it does to

"opinion."5




      5Part of the problem might be the court's apparent
understanding that an expert who applies his principles and
methods to the facts of a case must necessarily be offering an
opinion.   It says "[e]ven if Dr. White had simply been asked
whether any of the factors he described in his exposition
testimony related to Dobbs's case, his response would be
offering his view about whether his exposition testimony relates
to the particular facts in Dobbs's case."     Majority op., ¶36
n.18. The court does not explain why this is the only way Dr.
White could have been asked to connect his principles and
methods to the facts of this case, nor does it provide any
authority for the proposition.


                                          4
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    ¶108 Although              I'm     highlighting                the        court's        gnostic

understanding       of    Wis.       Stat.    § 907.02(1),               the     majority        isn't

exactly hiding it, as a comparison between its framing of the

question and its answer makes plain.                             The majority says, and I

agree,    that     the    issue      before           us    is    "[w]hether          the    Daubert

reliability      standard . . . altered                      Wisconsin's             long-standing

practice    of      allowing          expert          exposition              testimony . . . ."

Majority op., ¶35.            Before I get to the court's answer, a short

glossary:     In this framing, "Daubert reliability standard" means

the requirements following the "if" in § 907.02(1), including

the requirement that the witness "applied the principles and

methods    reliably       to    the     facts          of    the    case";           and   the    term

"exposition        testimony"          means           testimony          included          in      the

"otherwise"      category.            And    now       the       court's        answer:          "[W]e

conclude    that    Wis.       Stat.     § 907.02(1)             continues           to    permit    an

expert    witness        to    testify       in       the    form        of    an     opinion       'or


     It's not hard to imagine exposition testimony that the
expert ties to the facts of the case without expressing an
opinion.    Here, after providing his exposition about false
confessions, Dr. White could have been asked whether he examined
Mr. Dobbs, and what the observation or examination comprised.
And he could have been asked whether, pursuant to this
examination, he observed any of the factors he described in his
exposition as potentially disposing a person to confess falsely.
So long as Dr. White does not take the ultimate step of saying
whether he believed the presence of those pre-disposing factors
meant that Mr. Dobbs had confessed falsely, he would not have
rendered an opinion.   But he would have applied his principles
and methods to the facts of the case. In fact, this is exactly
the type of connection the court describes as "fitness."

     So it simply is not true that all expert testimony that the
witness ties to the facts of the case is necessarily opinion
testimony.

                                                  5
                                                              No.   2018AP319-CR.dk


otherwise,' including exposition testimony on general principles

without explicitly applying those principles to, or even having

knowledge of, the specific facts of the case."                      Majority op.,

¶42.       So, although the words on the page say the legislature

made the admission of "otherwise" testimony contingent on the

expert having "applied the principles and methods reliably to

the facts of the case," we know——with our special knowing——that

this actually means the opposite, that the expert does not need

to have "applied the principles and methods reliably to the

facts of the case."          And so today we reveal to the bench, bar,

and public that our special insight allowed us to see that the

Daubert reliability standard of § 907.02(1) applies to only one

of the listed categories, even though the actual text says it

applies to both.6

       ¶109 But      that   does   not     end   our    revelation.         Having

discerned     that    the   existing     words   do   not   mean    what   they   so

obviously say, we further discerned that Wis. Stat. § 907.02(1)

contains a condition that is not actually there.                   The court says
that

       [w]hen expert testimony is proffered in the form of an
       exposition on general principles, the circuit court,


       The majority cites other courts that have experienced
       6

similar insight, as well as the Advisory Committee Notes to
Federal Rule of Evidence 702 (the federal analog to our expert
witness rule).   The court's apparent goal is to create a sense
of authority out of nothing more than a multiplicity of sources
because none of the citations lend any additional explanatory
power to the court's gnostic insights. If other sources explain
why certain language doesn't actually mean what it appears to
say, I will be an attentive student. But a sea of others simply
ignoring the text of the law means nothing to me.

                                          6
                                                                      No.   2018AP319-CR.dk

      as gatekeeper, must consider the following four
      factors:   (1) whether the expert is qualified;[7] (2)
      whether the testimony will address a subject matter on
      which the factfinder can be assisted by an expert;[8]
      (3) whether the testimony is reliable;[9] and (4)
      whether the testimony will "fit" the facts of the
      case.[10]
Majority op., ¶43.        From the footnotes I attached to each of the

elements in this quote, it is easy to see that one of them is

not like the others.         Elements one through three each reiterates

a requirement contained in § 907.02(1).                       Element four, however,

has   no    counterpart     in    the   statute         and    is    instead      a   purely

judicial creation.

      ¶110 That we would add a condition not already present in

the statute is interesting enough.                     But what I find fascinating

is    why   the   court    grafted       the       condition        onto    the   statute.

"Establishing the fit of exposition testimony is particularly

important," the court says, "because, unlike opinion testimony,

exposition     testimony     does       not       in   and    of    itself     explicitly

connect the witness's expertise to the particular facts of the


      7This element echoes the statute's requirement that the
witness is "qualified as an expert by knowledge, skill,
experience, training, or education[.]" Wis. Stat. § 907.02(1).
      8This is a restatement of the statutory requirement that
expert testimony is admissible only "[i]f scientific, technical,
or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue[.]"
Wis. Stat. § 907.02(1).
      9This reflects one of the Daubert reliability standards,
that is, that "the testimony is the product of reliable
principles and methods." Wis. Stat. § 907.02(1).

       This
      10          element        has    no        counterpart         in     Wis.      Stat.
§ 907.02(1).

                                              7
                                                                   No.   2018AP319-CR.dk


case."      Majority      op.,   ¶44.         Well,    yes.       But    the    explicit

connection is absent only because our gnosis revealed that the

statutory       requirement      that       "the      witness     has    applied       the

principles and methods reliably to the facts of the case" does

not     apply    to   exposition        testimony,       even     though       the    text

obviously says it does.          So now we are trying to patch a hole of

our own making.

      ¶111 It      gets     better.         The    "fitness"      patch    the       court

engineered to cover the hole it created is uncannily similar to

the condition it excised.

      Whether expert testimony "fits" a case turns on
      whether it is "sufficiently tied to the facts of the
      case" such that "it will aid the jury in resolving a
      factual dispute." Daubert, 509 U.S. at 591 (quoting
      United States v. Downing, 753 F.2d 1224, 1242 (1985)).
      "[E]xpert testimony is helpful to the jury," or fits,
      "if it concerns a matter beyond the understanding of
      the average person, assists the jury in understanding
      facts at issue, or puts the facts in context."
Majority op., ¶44 (emphasis added).                    There's a reason for the

similarity, and the court's Daubert cite should have tipped it

off to the irony of what it is doing here.                      The Daubert quote on

which    the     majority    relies     for     its    "fitness"     requirement        is

itself     the     inspiration        for       the    Wis.      Stat.     § 907.02(1)

requirement that the witness apply his testimony to the facts of

the case.       So let's take stock of where we are.                 Our legislature

wrote into § 907.02(1) the Daubert requirement that the expert

connect his testimony to the facts of the case, we took that

condition out and replaced it with a patch based on Daubert's
"fitness" concept, the very concept that inspired the condition

we removed, the removal of which created the need for the patch.
                                            8
                                                                      No.       2018AP319-CR.dk


This is dizzying and disorienting even for those trained in the

law.      For    everyone   else,      it   just       makes    the        law    a    hopeless

jumble.

       ¶112 One would hope that the end product of the court's

superior insight into the true meaning behind the words of Wis.

Stat.    § 907.02(1)       would    yield       something       profound.               But   it

didn't.       In fact, it produced just a few minor alterations to

the condition it removed.             Whereas the statute requires that the

witness apply his testimony to the facts so that there is an

actual       testimonial    connection      between           the    two,        the    court's

"fitness" requirement downgrades the connection from explicit to

implicit, and requires that the court make the connection as

part    of    its   gate-keeping      function         rather       than    requiring         the

witness to make it as part of his testimony.                         I don't think that

cake is worth the candle.              And it's most definitely not worth

the statute-rending process necessary to get there.

       ¶113 Having     said     all    this,       I    agree        with        the    court's

conclusion that the circuit court did not err in not admitting
Dr. White's testimony.          As everyone agrees, he not only did not

apply his testimony to the facts of this case, he did not even

know what they were.          Consequently, he did not satisfy the Wis.

Stat. § 907.02(1) condition that the witness must "appl[y] the

principles      and   methods      reliably      to     the    facts       of     the    case."

Therefore, I join the court's opinion except with respect to

Part III.A.

       ¶114 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.

                                            9
    No.   2018AP319-CR.dk




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