                                                                  2013 WI 73

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:                  2011AP2916-CR
COMPLETE TITLE:            State of Wisconsin,
                                     Plaintiff-Appellant,
                                v.
                           Andrew M. Edler,
                                     Defendant-Respondent.




                             ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:             July 12, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:             April 10, 2013

SOURCE OF APPEAL:
   COURT:                  Circuit
   COUNTY:                 Sheboygan
   JUDGE:                  Terence T. Bourke

JUSTICES:
   CONCURRED:              ABRAHAMSON, C.J., concurs. (Opinion filed.)
   CONCURRED/DISSENTED:    ZIEGLER, J., concurs and dissents. (Opinion
                           filed.)
  NOT PARTICIPATING:       GABLEMAN, J., did not participate.

ATTORNEYS:
        For the plaintiff-appellant, the cause was argued by David
H. Perlman, assistant attorney general, with whom on the briefs
was J.B. Van Hollen, attorney general.




        For the defendant-respondent, there was a brief by Richard
Hahn,        Christopher    M.   Eippert,   and    Holden   &   Hahn,   S.C.,
Sheboygan, and oral argument by Christopher M. Eippert.
                                                                         2013 WI 73
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.   2011AP2916-CR
(L.C. No.   2011CF205)

STATE OF WISCONSIN                              :             IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Appellant,
                                                                       FILED
      v.
                                                                  JUL 12, 2013
Andrew M. Edler,
                                                                     Diane M. Fremgen
             Defendant-Respondent.                                Clerk of Supreme Court




      APPEAL from an order of the Circuit Court for Sheboygan

County, Terence T. Bourke, Judge.            Affirmed and cause remanded.


      ¶1     N.   PATRICK     CROOKS,   J.     This     is    a   review      of    the

circuit     court's   order    granting      Andrew    M.    Edler's      motion      to
suppress statements he made during a custodial interrogation.

We affirm the order of the circuit court.                   The statements Edler
made after he invoked his right to counsel on April 20, 2011,

must be suppressed.         We remand to the circuit court for further
proceedings consistent with this decision.
                                                                No.    2011AP2916-CR



     ¶2     The court of appeals for District II certified the

appeal pursuant to Wis. Stat. § (Rule) 809.61,1 and we accepted

the certification.2

     ¶3     To     answer    the   certified       questions,   we    must   decide

whether statements made by Edler on April 20 must be suppressed.

This case requires an examination of two separate interactions

between    Edler    and     police,   one       involving   Edler's   unequivocal,

unambiguous request for counsel while in custody on March 30,

and the other involving Edler's arrest and statement, "Can my

     1
       All references to the Wisconsin Statutes are to the 2009-
10 version.
     2
         The certified questions are as follows:

     1. [W]hether Wisconsin should follow Shatzer or rely
     on the Wisconsin Constitution [art. I, § 8] as the
     Wisconsin Supreme Court has done with Fifth Amendment
     issues on other occasions.

     2. When the defendant asked, in the squad car on the
     way to the second interrogation, "can my attorney be
     present for this?" did he unambiguously invoke his
     right to counsel?

     3. If the statement is declared to be ambiguous, then
     we ask that the supreme court resolve a third issue.
     Does it make a difference whether the ambiguous
     statement was made before Miranda warnings were given
     as opposed to afterwards?

     We answer the first two questions.    Because we hold
that the statement by Edler was an unequivocal, unambiguous
request for counsel, we need not and do not address whether
the standard for a statement pre-Miranda is the same as
that articulated in State v. Jennings, 2002 WI 44, 252 Wis.
2d 228, 647 N.W.2d 142, and Davis v. United States, 512
U.S. 452 (1994), or whether the standard should differ when
a defendant has not recently been told of his or her
constitutional rights.

                                            2
                                                                       No.     2011AP2916-CR



attorney be present for this," on April 20.                          Accordingly, there

are two potential bases for suppressing the April 20 statements.

       ¶4    We first examine Edler's March 30 invocation in light

of    the   recent   United     States       Supreme         Court    case    Maryland      v.

Shatzer,     559   U.S.    98   (2010).           In   Shatzer       the    United    States

Supreme Court examined the presumption in Edwards v. Arizona,

451 U.S. 477 (1981), that after a suspect validly invokes the

right to counsel, any subsequent waiver is invalid unless an

attorney      is     present     or        the       suspect        "initiates       further

communication,       exchanges,       or    conversations            with    the   police."

Edwards, 451 U.S. at 484-85.                     The Court in Shatzer explained
that the     Edwards      presumption       ends       when    the    suspect      has     been

outside police custody for 14 days.                     Shatzer, 559 U.S. at 110.

Edler asks this court not to adopt Shatzer and instead interpret

the    Wisconsin     Constitution          to     require       a    permanent       bar    on

subsequent     interrogation,         or        in     the    alternative,         adopt     a

different test.        We see no need in this case to interpret the

Wisconsin Constitution to provide different protection than that

provided by the United States Supreme Court's interpretation of

the United States Constitution.                      We therefore adopt the rule

created in Shatzer and, because 19 days had passed between when

Edler was released from custody and when he was reinterrogated,

hold that the March 30 invocation does not bar the interrogation

on April 20.

       ¶5    A separate basis for suppressing the statements may

exist even if the Edwards presumption no longer applied.                                    If

Edler's     statement      in   the    police          car     on    April    20     was     an
                                             3
                                                                   No.   2011AP2916-CR



unequivocal, unambiguous invocation of the right to counsel, the

Edwards presumption would begin again.                   Given the circumstances

surrounding the invocation and the understanding that statements

beginning with the word "can" often constitute a request, we

hold that Edler's statement, "can my attorney be present for

this," was a valid invocation of the right to counsel.                             The

invocation re-starts             the    Edwards   presumption,     barring   Edler's

waiver of rights later that day because Edler was not provided

with       counsel    and    did     not   "initiate[]   further     communication,

exchanges, or conversations with the police."                        After Edler's

request for an attorney, police should have ceased questioning

him.       Because they did not, Edler's statements made after that

request must be suppressed.                  His request was an unequivocal,

unambiguous invocation of his right to counsel.

              I.      FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       ¶6      Edler       was   a   seventeen-year-old     firefighter      for   the

Waldo Fire Department.                 He was able to respond to fires, but

because       he     was    on   probationary     status,   he   was     limited   to

providing assistance such as moving hoses or other items for the
firefighters.          He became a suspect in two arsons committed in a

nearby town due to his unusually quick response to those fires.
       ¶7       On March 30, 2011, Detective Gerald Urban met with

Edler about an unrelated burglary.                 In an interrogation room at
the sheriff's department, Urban read Edler his Miranda3 rights,

and Urban questioned Edler about the burglary.                   After Edler made

       3
            Miranda v. Arizona, 384 U.S. 436 (1966).

                                             4
                                                                               No.       2011AP2916-CR



incriminating            statements        about       the     burglary,       Urban       left     the

room, returning about eight minutes later.                               At that point, Urban

began        to    ask       Edler    about        the       two     arsons.             Edler     then

unequivocally, unambiguously requested counsel, stating: "From

this     point         on,    I'd     like     a       lawyer       here."           Urban       ceased

questioning            Edler.         After     Urban          spent     about       two      minutes

explaining that if Edler was responsible for the fires he should

stop    that       behavior,         Edler    was       taken       to   the    jail       to    await

charging on the burglary.

        ¶8        From jail the next day, Edler requested to speak with

Urban.        Edler was transported from the jail to the sheriff's

department, where an interview room had been set up.                                       Urban met

with Edler in the interview room, and Edler asked him about when

he would be having his initial appearance.                               Urban asked Edler if

he   had      anything         to    say     about       the       arsons,     to     which      Edler

responded, "I honestly don't have anything to say about that."

Urban did not ask any further questions about the arsons at that

time.
       ¶9         Edler was charged with one count of burglary and one

count of misdemeanor theft, made his initial appearance, and was
released from custody on April 1, 2011.                               Edler was appointed a

public defender for the burglary case on April 4, 2011.
       ¶10        On   April    18,    2011,       Urban       talked     with       a    friend    of

Edler.        Edler's friend agreed to wear a covert wire to talk to
Edler about his involvement in the two arsons.                                 Edler made some

damaging statements that were recorded on that day.


                                                   5
                                                                     No.     2011AP2916-CR



        ¶11      On April 20, 2011, Urban arrested Edler at Edler's

home for the arson fires.                 Edler's father inquired about why

Edler was being arrested, and Urban explained to Edler's father

that he was being arrested for the fires.                       Edler's father then

told Edler to be honest and cooperate with the detectives.

        ¶12      Edler was handcuffed and placed in the back seat of

the detective's unmarked car.                Urban sat next to Edler in the

back seat.         As they rode in the car, Urban encouraged Edler to

follow his father's advice and cooperate with the investigation.

About       five   minutes    into    the    drive,       Edler     stated,     "Can   my

attorney be present for this," to which Urban responded, "Yes,

he can."         Edler did not make any incriminating statements during

the ride.

       ¶13       When they arrived at the station, Edler was brought

into        an   interrogation     room.4         Edler   was     having     difficulty

breathing and was crying when Urban entered the room.                               Urban

explained        the   evidence    they     had    against    him    and     that   Edler

needed to come clean.            Once again, he encouraged Edler to follow
his father's advice.             Then Urban stated, "I've got to play by

the rules."           He then gave Edler his Miranda warnings, and Edler

waived        those    rights.    Subsequently,       Edler       made     incriminating

statements to Urban.5



        4
            The interview was video-recorded.
        5
       Toward the end of the interview, Edler appeared to have a
panic attack and then vomited.     Urban did not question Edler
after that occurred.

                                            6
                                                                       No.     2011AP2916-CR



        ¶14      Edler was charged on April 22, 2011, with two counts

of arson in violation of Wis. Stat. § 943.02(1)(a) and one count

of possessing, manufacturing, or selling a Molotov cocktail in

violation of Wis. Stat. § 943.06(2), each as a party to the

crime under Wis. Stat. § 939.05.

        ¶15      Edler moved to suppress the statements he made after

he waived his right to counsel on April 20 on the grounds that

his Fifth and Sixth Amendment rights were violated.6

        ¶16      The   Sheboygan       County       Circuit   Court,     the     Honorable

Terence T. Bourke presiding, granted the motion to suppress on

the     grounds        that     when     in     custody       on   April       20,    Edler

unequivocally, unambiguously invoked his right to counsel during

the transportation to the sheriff's department, finding several

facts:        in the car on the way to the station Edler asked if his

attorney could be present; Edler had an attorney in his burglary

case but did not have one in the arson matters; and Edler had

talked to Urban three weeks earlier and, at that time, Edler

requested an attorney while being questioned about the arsons.
        ¶17      The circuit court held that Edler's Fifth Amendment

right       to   counsel      was   violated        when   Urban   interrogated       Edler


        6
       Edler also moved to suppress the April 18, 2011,
statements recorded on the covert wire on Sixth Amendment
grounds.   The circuit court denied the motion to suppress the
statements on April 18, dismissing the use of the Sixth
Amendment in this case, stating that "Sixth Amendment rights do
not attach until the State commences adversary proceedings,"
citing McNeil v. Wisconsin, 501 U.S. 171 (1991).    The circuit
court explained why the exceptions to this rule were not
satisfied here. Edler did not appeal that order.

                                                7
                                                                     No.    2011AP2916-CR



after Edler's unequivocal, unambiguous assertion of the right to

counsel on April 20.              The circuit court reasoned that under

Miranda,   after    a   request         for       counsel    is    made,    it   must    be

"scrupulously    honored,"        and    Edler's       subsequent      waiver      of   his

Miranda rights at the station was therefore not valid.                                  The

circuit court quoted the holding in Edwards:

     We further hold that an accused, such as Edwards,
     having expressed his desire to deal with the police
     only through counsel, is not subject to further
     interrogation by the authorities until counsel has
     been made available to him, unless the accused himself
     initiates   further    communication,  exchanges,   or
     conversations with the police.
Edwards, 451 U.S. at 484-85.

     ¶18   The     State     appealed         the    order    to    suppress       Edler's

statements on the grounds that Edler's statement was a question

about his rights and not itself an assertion of the rights.                             The

court of appeals certified the appeal pursuant to Wis. Stat.

§ (Rule) 809.61.

                            II.   STANDARD OF REVIEW

     ¶19   Whether this court will apply the rule in Shatzer or

adopt a different rule under the Wisconsin Constitution is a

question of law which we decide independently.                         Kenosha County

Dep't of Human Servs. v. Jodie W., 2006 WI 93, ¶19, 293 Wis. 2d

530, 716 N.W.2d 845.

     ¶20   Whether      a    defendant        effectively         invoked    his     Fifth

Amendment right to counsel is a question of constitutional fact

decided by this court in a two-part test.                     State v. Hambly, 2008

WI 10, ¶16, 307 Wis. 2d 98, 745 N.W.2d 48.                          First, this court


                                              8
                                                                     No.   2011AP2916-CR



upholds the circuit court's findings of facts unless clearly

erroneous.       Id.      Second,         this     court     independently       applies

constitutional principles to those facts, benefitting from the

circuit court's interpretation.                 Id.     The relevant facts are not

in dispute; therefore, we must answer the question of whether

the   statements    should      be   suppressed          under   either    the    United

States or Wisconsin constitutions.                    State v. Knapp, 2005 WI 127,

¶20, 285 Wis. 2d 86, 700 N.W.2d 899.

                                  III. ANALYSIS

        ¶21   We first decide whether this court will adopt the 14-

day break-in-custody rule of Shatzer.                   If we adopt that rule and
find that it was complied with here, then we must decide whether

the statement by Edler in the back of the police car after he

had been arrested was unequivocal or unambiguous.

      ¶22     The Fifth Amendment to the United States Constitution

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

any   criminal     case   to    be    a     witness      against     himself."      The

Wisconsin Constitution contains a similar provision: "No person

. . . may be compelled in any criminal case to be a witness

against himself or herself."              Wis. Const. art. I, § 8(1).

      ¶23     The United States Supreme Court has interpreted and

applied the Fifth Amendment protections as requiring a warning

of certain constitutional rights when a defendant is subjected

to custodial interrogation.               Miranda created a rule to prevent

law   enforcement      officers      from    violating       the   Fifth    Amendment.

While     the    rule     has     been       and        is   still     often      called


                                            9
                                                                  No.    2011AP2916-CR



"prophylactic,"7          the United States Supreme Court, Chief Justice

Rehnquist     writing      for   the   majority,      confirmed    that     it   is    a

"constitutional rule" in Dickerson v. United States, 530 U.S.

428, 444 (2000).           The rule requires that a suspect be apprised

of   certain       constitutional      rights,       including     the    right       to

counsel, before custodial interrogation.                     Miranda v. Arizona,

384 U.S. 436, 444-45 (1966).            If the suspect is not given these

warnings and makes incriminating statements, those incriminating

statements must be suppressed.                Id. at 444.         If the suspect
chooses to invoke his or her right to counsel, that request must

be   "scrupulously        honored,"    and    "the   interrogation       must    cease

until an attorney is present."           Id. at 474, 479.

      ¶24    The    United    States    Supreme      Court   in   Edwards    further

interpreted Miranda.             The relevant facts from Edwards are as

follows: Edwards was arrested, was given Miranda warnings, and

was cooperating with police.             451 U.S. at 478-79.             After some

time passed, Edwards stated, "I want an attorney before making a

deal."      Id. at 479.      The police did not question Edwards further

on that day.        Id.    The next day, two different officers went to

      7
       See, e.g., Michigan v. Harvey, 494 U.S. 344, 351 (1990) (a
Sixth Amendment case describing prophylactic rules as "measures
designed to ensure that constitutional rights are protected.")

     Recently the majority in Shatzer emphasized that Edwards
and Miranda were judicially prescribed prophylactic rules and
that the Court had an obligation to justify any expansion.
Maryland v. Shatzer, 559 U.S. 98, 103-05 (2010).             The
concurrence by Justice Stevens made it clear that the Shatzer
rule was based on the Fifth Amendment and argued that the
majority "demeans Edwards as a 'second layer' of 'judicially
prescribed prophylaxis.'" Id. at 120 (Stevens, J., concurring).

                                         10
                                                                                    No.     2011AP2916-CR



see Edwards in jail.                  Id.      Edwards attempted to decline to talk

to them but was told by a guard "that 'he had' to talk."                                                Id.

The guard brought Edwards to the officers, the officers then

informed him of his Miranda rights, and he waived them.                                                 Id.

The Supreme Court held that "an accused, such as Edwards, having

expressed         his    desire          to    deal       with       the    police        only   through

counsel,         is     not        subject         to     further          interrogation         by     the

authorities until counsel has been made available to him, unless

the accused himself initiates further communication, exchanges,

or   conversations             with      the       police."           Id.     at    484-85.           Thus,
Edwards created a presumption of involuntariness of a waiver of

Miranda rights made after a valid invocation of the right to

counsel       unless          an     attorney            is     provided       or    the      defendant

initiates further communication with police.

       ¶25       As we noted earlier, the United States Supreme Court

recently         interpreted          the      Edwards          presumption         in     Shatzer      and

determined that the presumption of Edwards ends after a 14-day

break in custody.              The Shatzer court examined whether a break in

custody ended the Edwards presumption.                                     Shatzer, 559 U.S. at

100.         Shatzer      was        incarcerated               at    a    correctional          facility

serving      a    sentence          on    another            offense.         Id.   at     100-01.        A

detective met with Shatzer at the institution, gave Shatzer his

Miranda warnings, and Shatzer waived those rights.                                         Id. at 101.

There was some confusion about what the detective was there for,

but when Shatzer realized                       what          the    detective      wanted       to    talk

about,     Shatzer        declined            to        speak       without    an     attorney,         and


                                                        11
                                                                         No.     2011AP2916-CR



Shatzer was released back into general population at the prison.8

Id.    Two years and six months later, a different detective went

to    the    correctional       institution            to     which    Shatzer     had    been

transferred.          Id.      The     detective            gave    Shatzer    his    Miranda

warnings, and Shatzer provided a written waiver of those rights.

Id. Shatzer subsequently made                  incriminating           statements      during

the interview and also agreed to a polygraph examination.                                  Id.

at 101-02.       Five days later, Shatzer again waived his Miranda

rights, was given a polygraph examination which he failed, and

made additional incriminating statements.                           Id. at 102.       Shatzer

then moved to suppress his statements as a violation of the

Fifth Amendment on the grounds that Edwards barred the use of

his statements because he had invoked his right to counsel two

and a half years earlier.              Id.

       ¶26   The Supreme Court disagreed with Shatzer and held that

the Fifth Amendment was not violated.                          The Court described the

reasons      behind    Edwards       as      "conserving            judicial   resources,"

"preserv[ing]         the     integrity        of        an        accused's     choice     to

communicate with police only through counsel," and "preventing

police from badgering a defendant into waiving his previously

asserted     Miranda        rights."         Id.    at      106     (citations     omitted).

Explaining      the     problems        with       a     permanent       bar     to    future


       8
       The United States Supreme Court in Shatzer held that being
released back into general population constituted a break in
Miranda   custody,   stating:  "Without   minimizing  the   harsh
realities of incarceration, we think lawful imprisonment imposed
upon conviction of a crime does not create the coercive
pressures identified in Miranda." Shatzer, 559 U.S. at 113.

                                              12
                                                                     No.    2011AP2916-CR



questioning and the establishment of prophylactic rules,9 the

court decided that the Edwards presumption ends after there is a

14-day break in custody.              Id. at 110.            It reasoned, "[t]hat

provides plenty of time for the suspect to get reacclimated to

his normal life, to consult with friends and counsel, and to

shake off any residual coercive effects of his prior custody."

Id.     The court recognized the clarity and certainty that result

from Edwards and stated that "[c]onfessions obtained after a 2-

week break in custody and a waiver of Miranda rights are most

unlikely to be compelled, and hence are unreasonably excluded."

Id. at 111.

                                            A.

      ¶27      The State    argues    that       we   should    adopt      the    rule    of

Shatzer     because    it   strikes    a    reasonable         balance     between       the

competing interests, preserving the protections of Edwards, and

providing predictability for police officers.                     Edler argues that

Edwards would normally bar further interrogation of a defendant

after     he    had   invoked   his    right          to   counsel    and        that    the

subsequent interrogation of Edler was in violation of Edwards.

      9
       The Edwards majority does not describe the holding as
creating a prophylactic rule.    It holds that a constitutional
violation occurred, stating, "Because the use of [Edwards']
confession against him at his trial violated his rights under
the Fifth and Fourteenth Amendments as construed in Miranda v.
Arizona, we reverse the judgment of the Arizona Supreme Court."
Edwards v. Arizona, 451 U.S. 477, 480 (1981) (emphasis added)
(internal citation omitted).       The Edwards rule has been
subsequently characterized as a prophylactic rule. See Shatzer,
559 U.S. at 105 (citing Montejo v. Louisiana, 556 U.S. 778, 787
(2009); Michigan v. Harvey, 494 U.S. 344, 349 (1990); Solem v.
Stumes, 465 U.S. 638, 644, n.4 (1984)).

                                           13
                                                                  No.     2011AP2916-CR



He further argues that the Shatzer rule constricts the rights of

defendants who have invoked their right to counsel.                      Edler urges

this court to extend the protection provided in Wisconsin under

Article 1, Section 8 of the Wisconsin Constitution beyond that

provided by the United States Supreme Court in Shatzer.                                He

suggests    that   subsequent         custodial    interrogation        be   permitted

only if the suspect's attorney is present or if the suspect

initiates further communication. In the alternative, he suggests

a   totality of     the    circumstances       test    to    determine       whether   a

break in custody is sufficient.

      ¶28    We adopt the 14-day rule of Shatzer.                       The break in
custody     was   more    than   14    days,   and    therefore,    we       hold   that

interrogating      Edler    after     a   19-day     break   in   custody      did not

itself violate Edwards.          We agree with the court in Shatzer that

predictability is important when creating prophylactic rules so

police have clear guidance on what they can do and when.10                          See

Shatzer, 559 U.S. at 110.              We also agree that setting the two-

week rule spares courts the inquiry of whether a suspect being

asked to waive Miranda rights has ever asserted a Miranda right

to counsel at an earlier date.             Id. at 111-12.


      10
       We recognize that the Shatzer majority calls the rule
"prophylactic," implying that it is not mandated by the United
States Constitution. In this case, Edler argues that this court
should interpret the Wisconsin Constitution to prevent this type
of behavior by police.       Similarly, the court of appeals
certified to us the question of whether to extend the Wisconsin
Constitution to provide different protection than that in
Shatzer.    For these reasons, we discuss the scope of the
Wisconsin Constitution.

                                          14
                                                                  No.        2011AP2916-CR



      ¶29   This holding is consistent with the fact that we often

interpret both the United States and Wisconsin constitutions the

same way.       See, e.g., State v. Jennings, 2002 WI 44, 252 Wis. 2d

228, 647 N.W.2d 142.           There are exceptions to this rule.                     For

example,    in     Knapp,      this    court     looked     to     the         Wisconsin

Constitution to provide protection beyond that described by the

United States Supreme Court.                 285 Wis. 2d 86.             In Knapp, a

police officer testified that he had intentionally failed to

provide Miranda warnings to a suspect so as to "keep the lines
of   communication      open."        Id.,    ¶¶13-14.      The    police        officer

acknowledged that he was aware that the suspect was attempting

to contact counsel before the police brought the suspect in for

custodial interrogation.            Id., ¶14.       Additionally, "the State

ha[d] conceded that the physical evidence was seized as a direct

result of an intentional Miranda violation."                      Id., ¶20.          This

court    held    that   "the   exclusionary      rule     bars    physical        fruits

obtained from a deliberate Miranda violation under Article I,

Section 8."      Id., ¶73 (footnote omitted).

      ¶30   The case at hand does not present the same kind of

constitutional issues as the intentional violation of Miranda in

Knapp.      We     decline     to     extend     the     meaning        of     Wisconsin

Constitution Article I, Section 8 in this situation so as to

provide different protection than the Fifth Amendment to the

United States Constitution.

      ¶31   Because we decline to provide different protection, we

apply the 14-day break-in-custody rule of Shatzer.                           The parties

agree that Edler was outside of custody for 19 days.                          Therefore,
                                         15
                                                                     No.      2011AP2916-CR



Shatzer was complied with here, and the statements cannot be

suppressed        on    the   grounds    that     Edler's     March      30    invocation

barred the interrogation on April 20.

                                             B.

       ¶32       Even if under Shatzer enough time passed since Edler

invoked his Miranda right to counsel such that his subsequent

interrogation did not violate the Edwards presumption, we must

determine whether Edler's statement in the police car was an

unequivocal, unambiguous invocation of the right to counsel such

that    the      subsequent waiver at the            station       was   invalid under

Edwards.11
       ¶33       As   noted   above,    Edwards     creates    a    presumption       that

unless       a    suspect     either     "initiates       further        communication,

exchanges, or conversations," or is provided with an attorney,

any waiver made after a valid invocation of the right to counsel

is     invalid.         Edwards,       451   U.S.    at     484-85.           "The   legal

sufficiency of a defendant's invocation of the right to counsel


       11
       Generally, a defendant must be subjected to custodial
interrogation in order to get the protections of Miranda and
Edwards.   See State v. Lonkoski, 2013 WI 30, ¶41, 346 Wis. 2d
523, 828 N.W.2d 552.    In State v. Hambly, 2008 WI 10, ¶3, 307
Wis. 2d 98, 745 N.W.2d 48, we held that a suspect who had been
arrested and was not yet being interrogated could invoke his
Miranda right to counsel. In that case, this court split on the
issue of whether interrogation must be "imminent or impending,"
with three justices deciding that it must be "imminent or
impending" and three justices concluding that the question need
not be answered.   Id., ¶33.    We need not answer that question
here because the State conceded that Edler had a right to invoke
his Miranda rights during the police transport when the
attempted interrogation was forthcoming.

                                             16
                                                                      No.     2011AP2916-CR



during     a     custodial          interrogation        is    determined          by   the

application of a constitutional standard to historical facts."

Jennings,       252    Wis.        2d    228,     ¶25.        This    court        measures

independently          "the        historical       facts     against         a     uniform

constitutional standard, benefiting from, but not deferring to,

the circuit court's decision."                  Id. (citations omitted).

     ¶34       In Davis v. United States, 512 U.S. 452 (1994), the

United States Supreme Court established the test of whether a

statement invoked the right to counsel as follows:                                 "[I]f a

suspect makes a reference to an attorney that is ambiguous or

equivocal       in    that     a    reasonable       officer     in    light       of   the

circumstances would have understood only that the suspect might
be invoking the right to counsel, our precedents do not require

the cessation of questioning."                    Id. at 459.        The test adopted

was an objective one: "Although a suspect need not 'speak with

the discrimination of an Oxford don,' he must articulate his

desire    to    have    counsel         present    sufficiently       clearly       that   a

reasonable police officer in the circumstances would understand

the statement to be a request for an attorney."                             Id. (internal

citation omitted).            This court adopted the United States Supreme

Court's test in Jennings, 252 Wis. 2d 228, ¶¶30, 36.                              Under the

objective test, we must examine the circumstances surrounding

the request.12

     12
       We note that by using the objective test of Davis and
Jennings to determine whether the statement was an unambiguous,
unequivocal invocation of the right to counsel, we are not
answering the third question certified by the court of appeals.
Recall our earlier explanation:

                                             17
                                                                      No.    2011AP2916-CR



     ¶35      The relevant        circumstances          support    the     holding   that

Elder's statement was an unequivocal, unambiguous request for

counsel.      Urban had interrogated Edler on March 30, at which

time Edler had requested an attorney on the arsons, stating,

"From this point on, I'd like a lawyer here," and the request

had been complied with.              Urban had been present on March 31 and

tried to ask Edler about the arsons, to which Edler responded,

"I honestly don't have anything to say about that."                            Urban had

talked   to    Edler's       father,    and       Edler's    father    had    encouraged

Edler to be honest with the detectives.                            At the time Edler

invoked his right to counsel he had been arrested, and no one

disputes      that     the    word     "this"      related     to     the    forthcoming

interrogation.         Urban knew Edler had been charged with burglary

and had an attorney on that charge.                          An officer in Urban's

position would have known that Edler had on previous occasions

requested counsel to deal with this matter, which would make the

officer more likely to understand that Edler was asking for his

attorney      again.         In    light      of       the   circumstances,      Edler's
statement,      "can     my       attorney        be    present     for      this,"   was


     Because we hold that the statement by Edler was an
     unequivocal, unambiguous request for counsel, we need
     not and do not address whether the standard for a
     statement pre-Miranda is the same as that articulated
     in State v. Jennings, 2002 WI 44, 252 Wis. 2d 228, 647
     N.W.2d 142 and Davis v. United States, 512 U.S. 452
     (1994), or if the standard should differ when a
     defendant has not recently been told of his or her
     constitutional rights.

Supra, ¶2 n.2.

                                             18
                                                                       No.        2011AP2916-CR



sufficiently clear to a reasonable officer in Urban's position

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

        ¶36    Regardless of the surrounding circumstances, including

Edler's       previous      experience        with       Detective      Urban,        we   are

satisfied that Edler's statement, "can my attorney be present

for this," constituted an unambiguous, unequivocal invocation.

Our holding is consistent with the approaches of other courts

that    have    looked      at   similar      statements.           See,     e.g.,     United

States v. Lee, 413 F.3d 622 (7th Cir. 2005) (holding "can I have

a lawyer" was a valid invocation and that police should have

ended    the    interrogation         unless       they     clarified       the     suspect's

statement); United States v. Wysinger, 683 F.3d 784 (7th Cir.

2012)    (citing      its    decision      in      Lee     and   reiterating        that   the

phrase    "can I      have a        lawyer"     is    an    unequivocal,      unambiguous

request for counsel); State v. Dumas, 750 A.2d 420 (R.I. 2000)

(holding that the phrase "can I get a lawyer" amounted to a

colloquial request); Taylor v. State, 553 S.E.2d 598 (Ga. 2001)

(holding that the phrase "can I have a lawyer present when I do

that," when made in response to the police's request that a

suspect       tell    her    side     of    the      story,      was   an    unequivocal,

unambiguous request for an attorney); Commonwealth v. Hilliard,

613 S.E.2d 579 (Va. 2005) (holding that "can I get a lawyer in

here? . . . I already have a lawyer," in the circumstances, was

an unequivocal, unambiguous request for an attorney).

        ¶37    For the reasons stated above, we hold that Edler's

statement was an unequivocal, unambiguous request for counsel.

There     is     no    indication          that      after       Edler's     unequivocal,
                                              19
                                                                      No.     2011AP2916-CR



unambiguous request that Edler initiated further communications

with Urban to indicate a valid waiver under Edwards.                           Therefore,

any statements made by Edler after he requested his attorney in

the    car    on    the   way     to    the      sheriff's     department        must    be

suppressed.

                                  IV.    CONCLUSION

       ¶38    We first examine Edler's March 30 invocation in light

of the recent United States Supreme Court case Shatzer.                                  In

Shatzer the United States Supreme Court examined the presumption

in Edwards, that after a suspect validly invokes the right to

counsel, any subsequent waiver is invalid unless an attorney is

present      or    the    suspect       "initiates       further        communication,

exchanges, or conversations with the police."                        Edwards, 451 U.S.

at 484-85.         The Court in Shatzer explained that the Edwards

presumption        ends   when    the    suspect       has    been     outside     police

custody for 14 days.            Shatzer, 559 U.S. at 110.              Edler asks this

court not to adopt Shatzer and instead interpret the Wisconsin

Constitution        to    require       a     permanent        bar     on      subsequent

interrogation, or in the alternative, adopt a different test.

We    see    no    need   in     this   case      to   interpret        the     Wisconsin

Constitution to provide different protection than that provided

by    the    United   States      Supreme     Court's        interpretation       of    the

United States Constitution.             We therefore adopt the rule created

in Shatzer and, because 19 days had passed between when Edler

was released from custody and when he was reinterrogated, the

March 30 invocation does not bar the interrogation on April 20.


                                            20
                                                                No.   2011AP2916-CR



       ¶39   A separate basis for suppressing the statements may

exist even if the Edwards presumption no longer applied.                         If

Edler's      statement   in    the    police    car    on   April     20   was   an

unequivocal, unambiguous invocation of the right to counsel, the

Edwards presumption would begin again.                Given the circumstances

surrounding the invocation and the understanding that statements

beginning with the word "can" often constitute a request, we

hold that Edler's statement, "can my attorney be present for

this," was a valid invocation of the right to counsel.                           The

invocation re-starts          the   Edwards    presumption,     barring    Edler's
waiver of rights later that day because Edler was not provided

with   counsel    and    did    not   "initiate[]     further     communication,

exchanges, or conversations with the police."                     After Edler's

request for an attorney, police should have ceased questioning

him.    Because they did not, Edler's statements made after that

request must be suppressed.             His request was an unequivocal,

unambiguous invocation of his right to counsel.

       By the Court.— Affirmed and cause remanded.

       ¶40   MICHAEL J. GABLEMAN, J., did not participate.




                                        21
                                                                 No.    2011AP2916-CR.ssa



      ¶41    SHIRLEY S. ABRAHAMSON, C.J.                 (concurring).          I concur

in the mandate.           The defendant's statement is to be suppressed.

I join the part of the majority opinion concluding that Edler's

statement     in    the    police    car    was   an    unequivocal,          unambiguous

invocation of        his right       to    counsel     such    that     the    subsequent

waiver at the station was invalid under Edwards.1

      ¶42    A person being interrogated in custody does not have

to use the precise words "I want a lawyer" to invoke the right

to counsel.        In discussing whether a defendant's statement about

counsel is an unequivocal request for counsel, the Texas Supreme

Court wisely observed: "While police often carry printed cards

to ensure precise Miranda warnings, the public is not required
to   carry    similar       cards    so    they   can    give    similarly        precise

responses."2         This    court    should      follow      this     sage,   practical

advice.

      ¶43    I write separately because I do not agree with the

majority opinion that the court should fully adopt the 14-day

rule of Maryland v. Shatzer, 559 U.S. 98 (2010).

      ¶44    There is no need in the present case for the court to

decide     whether    to    adopt    the    Shatzer     rule.          The    defendant's

invocation of the right to counsel at the second interrogation

decides the present case.             The statements made after invocation

of the right to counsel must be suppressed.


      1
          Edwards v. Arizona, 451 U.S. 477 (1981).
      2
       In re H.V., 252 S.W.3d 319, 326 (Tex. 1998) (footnote
omitted).

                                            1
                                                            No.   2011AP2916-CR.ssa



      ¶45    If I were to reach the Shatzer issue, I would follow

Shatzer      to     the   extent     of    holding   that   law    enforcement's

subjecting a suspect——who has invoked his right to counsel and

has   been        released   from    custody——to     custodial     interrogation

within the Shatzer 14-day period violates Miranda3 and Edwards

unless the suspect reinitiates the conversation or a lawyer is

made available.

      ¶46    Law enforcement obligations under state law for the

first 14 days would thus be governed by and be in sync with the

bright-line rule set under federal law.4              I would adopt this 14-

day   prophylactic        rule     under   the   court's    superintending     and

administrative authority, Wis. Const. Art. VII, § 3(1).5


      3
          Miranda v. Arizona, 384 U.S. 436 (1966).
      4
       Nevertheless, I agree with Justice Thomas, who wrote in
Shatzer that "an otherwise arbitrary rule is not justifiable
merely because it gives clear instruction to law enforcement
officers."    Shatzer, 559 U.S. 98, 119 (2010) (Thomas, J.,
concurring).
      5
       See, e.g., In re Jerrell C.J., 2005 WI 105, ¶¶40-41, 283
Wis. 2d 145, 699 N.W.2d 110 (relying on Art. VII, § 3(1)).

     Citing numerous law review articles, Professor LaFave
discusses the criticism of the United States Supreme Court's
reliance on prophylactic rules rather than administratively
based rules as follows:

      In general, commentators have criticized the Court's
      explanation of its utilization of prophylactic rules
      (often   even     though  agreeing with   the   rules
      themselves).      The commentators cite the Court's
      failure to fully explain its authority to prescribe
      such rules, the Court's failure to fully explain the
      difference    (if    any)  between prophylactic   and
      administratively based per se rules, the Court's
      failure to provide clear guidelines as to when the
                                           2
                                                                    No.   2011AP2916-CR.ssa



     ¶47      I   would         not    adopt   Shatzer's     prophylactic      rule   that

after the 14-day period Edwards has no effect.6                           Under Edwards,

once a suspect invokes the right to counsel during custodial

interrogation,         a    subsequent         waiver   of   that    right    "cannot    be

established by showing only that he responded to further police-

initiated custodial interrogation even if he has been advised of

his rights."7

     ¶48      The Shatzer decision and today's majority opinion are

based       entirely       on     an    unsupported     generalization        about     all

suspects,         namely         that     a    14-day    break       in    custody      and

interrogation will somehow overcome the concern of coercion and

compulsion that is the basis for the Edwards line of cases.                             The

Shatzer Court speculated that "[i]t seems to us that" a period

of "14 days . . . provides plenty of time for the suspect to get

     imposition of a prophylactic rule is justified, the
     Court's inconsistency in its use of the "prophylactic"
     characterization in describing what appear to be
     functionally   similar  standards,   and  the   Court's
     failure to establish any significant guidelines for
     determining when safeguards provided by legislation
     are sufficient to replace the prophylactic standards.

1 Wayne R. LaFave, Crim. Proc. § 2.9(h) (3d ed. 2007 & Supp.
2012).
     6
       The Shatzer court explained that after a 14-day break in
custody, Edwards is no longer in effect but a defendant is "free
to claim the prophylactic protection of Miranda——arguing that
his waiver of Miranda rights was in fact involuntary under
Johnson v. Zerbst."   Shatzer, 559 U.S. at 110-11 n.7 (internal
citations omitted).
        7
       Edwards, 451 U.S. at 484. This court has stated that such
a waiver is presumed to be invalid.        State v. Harris, 199
Wis. 2d 227, 251-52, 544 N.W.2d 545 (1996).

                                                3
                                                        No.   2011AP2916-CR.ssa



reacclimated to his normal life, to consult with friends and

counsel, and to shake off any residual coercive effects of his

prior custody."8

     ¶49     I   agree   with   Justice   John   Paul   Stevens    that   this

speculation "may well prove inaccurate in many circumstances."9

Fourteen days is an arbitrary figure.10




     8
          Shatzer, 559 U.S. at 110 (2010).
     9
          Id. at 123-24 n.7 (Stevens, J., concurring).

     In Arizona v. Roberson, the United States Supreme Court
explained as follows:    "[T]o a suspect who has indicated his
inability to cope with the pressures of custodial interrogation
by requesting counsel, any further interrogation without counsel
having been provided will surely exacerbate whatever compulsion
to speak the suspect may be feeling." Arizona v. Roberson, 486
U.S. 675, 686 (1988).
     10
       The Shatzer court admitted that "while it is certainly
unusual for this Court to set forth precise time limits
governing police action, it is not unheard-of."      Shatzer, 559
U.S. 98, 110 (2010).     Ironically, the only case the Shatzer
court cites for its "unusual" decision to set forth a time limit
held that police must bring forth a person arrested without a
warrant to a magistrate judge within 48 hours to establish
probable cause for continued detention.    Shatzer, 559 U.S. 98,
110 (2010) (citing County of Riverside v. McLaughlin, 500 U.S.
44 (1991)). The McLaughlin Court recognized a presumption that
up to a 48-hour delay in holding the probable cause hearing
after   arrest  was   reasonable   and   hence   constitutionally
permissible.

     In McLaughlin, the Court required law enforcement to do
something within a short specified period of time in order to
protect the rights of the accused, while in Shatzer, the Court
concluded that if law enforcement refrains from doing something
for a sufficient period of time, the accused's rights have been
sufficiently respected.

                                      4
                                                 No.    2011AP2916-CR.ssa


     When police have not honored an earlier commitment to
     provide a detainee with a lawyer, the detainee likely
     will "understan[d] his (expressed) wishes to have been
     ignored" and "may well see future objection as futile
     and confession (true or not) as the only way to end
     his interrogation." . . . Simply giving a "fresh set
     of Miranda warnings" will not "'reassure' a suspect
     who has been denied the counsel he has clearly
     requested    that    his    rights    have    remained
                   11
     untrammeled.'"
     ¶50    As Justice Stevens wrote, Edwards may require a longer

period than 14 days, under the circumstances of a case, for a

court to conclude that a sufficient break in custody occurred to
dissipate     the   lingering   coercive   effects     of   the    prior

interrogation.12

     Still, in McLaughlin, the Court held that even if law
enforcement complied with the 48-hour mandate, the accused may
still prove a Constitutional violation. McLaughlin, 500 U.S. at
56-57 (1991).

     See Zadvydas v. Davis, 533 U.S. 678, 701, 712 (2001)
(citing McLaughlin, 500 U.S. at 56-58) (noting that the 48-hour
rule was based on the court of appeals' determination of the
time required to complete a probable cause hearing).         In
contrast, the 14-day period selected in Shatzer bears no
relationship   to   the   needs   of   law   enforcement,   the
characteristics of the suspect, or the circumstances that occur
during the 14 days.

     See also Jessica A. Davis, Casenote, Another Tweak to
Miranda: The Supreme Court Significantly Limits the Edwards
Presumption of Involuntariness in Custodial Interrogation, 36 S.
Ill. U. L.J. 593, 608 (2012) ("According to the majority,
fourteen days is sufficient for the coercive pressures to
custodial interrogation to disappear because it says so.").
     11
       Shatzer, 559 U.S. 98, 121-22 (2010) (Stevens, J.,
concurring) (citations omitted) (quoting Davis v. United States,
512 U.S. 452, 472-73 (1994) (Souter, J., concurring in
judgment); Roberson, 486 U.S. at 686).
     12
          As Justice Stevens commented:

                                  5
                                                         No.    2011AP2916-CR.ssa



        ¶51   If   a     court     is   not   willing   to     extend   Edwards

indefinitely and the court concludes that the coercive effects

of the prior interrogation may dissipate with time, then the

court     should       determine    whether   the   coercive     effects    have

dissipated in that particular case.                 A court should take an


     The most troubling aspect of the Court's time-based
     rule is that it disregards the compulsion caused by a
     second (or third, or fourth) interrogation of an
     indigent suspect who was told that if he requests a
     lawyer, one will be provided for him.      When police
     tell an indigent suspect that he has the right to an
     attorney, that he is not required to speak without an
     attorney present, and that an attorney will be
     provided to him at no cost before questioning, the
     police have made a significant promise. If they cease
     questioning and then reinterrogate the suspect 14 days
     later without providing him with a lawyer, the suspect
     is likely to feel that the police lied to him and that
     he really does not have any right to a lawyer.

Shatzer, 559 U.S. 98, 121 (2010) (Stevens, J., concurring).

     See   Kit   Kinports,    The  Supreme   Court's  Love-Hate
Relationship with Miranda, 101 J. Crim. L. & Criminology 375,
386 (2011) ("[O]nce a suspect is released from custody, she is
not entitled to state-provided counsel (assuming charges have
not yet been filed).       For those unable to afford private
lawyers, then, a fourteen-day break in custody does not provide
a meaningful opportunity to obtain legal advice.") (footnote
omitted).

     See also Illan M. Romano, Note & Comment, Is Miranda on the
Verge of Extinction? The Supreme Court Loosens Miranda's Grip in
Favor of Law Enforcement, 35 Nova L. Rev. 525, 535 (2011)
(presenting the following hypothetical application of Shatzer:
"This holding expressly permits police to engage in a tactic
where, once a suspect invokes his right to counsel, police
simply release the suspect, wait fourteen days, and try again
hoping this time the suspect is not intelligent enough to invoke
his right to counsel, which may not have been provided to him
the first time around.").

                                          6
                                                                               No.    2011AP2916-CR.ssa



individualized            approach       to    the        dissipation            of    the       coercive

effects      of    the     prior       interrogation,            not       a     generalized            one.

Under these circumstances, the court should hold that after the

14-day      period        ends,    the       presumption             established            by    Edwards

continues and the State has the burden of proving by clear and

convincing         evidence       that        time       has     dissipated            the        coercive

effects of the prior interrogation in that case.

       ¶52    In    these        situations,            the    court       should       consider         the

totality     of     circumstances             including          the       age,       education,        and

intelligence        of     the    suspect;          the       physical,        psychological             and

emotional     condition           of    the    suspect;          and       the       suspect's      prior

experience with police to determine whether the coercive effects

of    the    prior        interrogation         have          dissipated.              The       personal

characteristics of the suspect must be viewed along with the

police tactics used, such as the time between interrogations and

length of the interrogations, the general conditions under which

the    statements          were        made,    the           physical         and     psychological

pressures brought to bear on the suspect, the inducements and

strategies         used    by     law       enforcement,             the    prior       relationship
between      the    interrogating             officer          and    the      suspect,           and   the

circumstances         ensuing          in     the       period       between          the        suspect's
exercising the right to counsel and the re-interrogation.

      ¶53     Examining whether the coercive effects of the prior
interrogation have dissipated comports with the genuine concern

for individual voluntariness required by Miranda and Edwards,
rather than a blanket generalization about human reaction to


                                                    7
                                                                   No.    2011AP2916-CR.ssa



subsequent          or     repeated       interrogations,      and          assists      law

enforcement officers in governing their conduct.13

        ¶54    In the present case, after validly invoking his right

to counsel with regard to the arson investigation, the 17-year-

old defendant was released from custody.                    Then, 19 days later——

after        law    enforcement     had     covertly      placed     a     wire    on    the

defendant's young friend——the same detective whom the defendant

had previously refused to talk to showed up at his home to

arrest him again to discuss the same investigation.                                 As the

defendant was led away to the squad car, his father told him to

be honest and to cooperate with the detectives.

      ¶55      We know that at no time was the defendant provided an

attorney       as    he   requested   during     the     custodial        interrogation.

The   State        has    not   suggested    that   the    defendant        "initiate[d]

further       communication,       exchanges,       or    conversations           with   the

police."14

      ¶56      Further      inquiry   is     necessary     about         this   particular

defendant and the circumstances, beyond just saying that 14 days
passed, before I can join an opinion concluding, as a matter of

law, that the coercive effects of the prior interrogation had
dissipated.

      ¶57      For the reasons set forth, I write separately.



        13
       See   Hannah   Misner,  Comment, Maryland v.  Shatzer:
Stamping a Fourteen-Day Expiration Date on Miranda Rights, 88
Denv. U. L. Rev. 289, 305 (2010).
        14
             Edwards, 451 U.S. at 485.

                                             8
                                                                    No.   2011AP2916-CR.akz



        ¶58    ANNETTE KINGSLAND ZIEGLER, J.                    (concurring in part,

dissenting       in    part).        I   concur      because        I    agree    with    the

majority's adoption of Maryland v. Shatzer, 559 U.S. 98 (2010).

See   majority        op.,    ¶31.       I    dissent    and    write      separately      to

discuss       the     majority       opinion's       lack      of       regard    for     the

fundamental question presented in this case: what is the legal

standard to be applied when a suspect makes a statement about

counsel       post-custody,      pre-Miranda         warnings,      pre-interrogation,

and pre-waiver of Miranda rights.                    Miranda v. Arizona, 384 U.S.

436 (1966).           In my view, we accepted certification to answer

this question.           Instead, the majority opinion merely restates

the previously adopted Davis standard as if Edler's statement

was      made         post-custody,           post-Miranda          warnings,        during

interrogation, and after waiver of Miranda rights.                                Davis v.

United States, 512 U.S. 452, 459 (1994).                       It was not.        We should

answer the fundamental question presented and provide guidance

for   law     enforcement,       courts,       and   counsel,       as    this    issue   is

likely to recur especially in light of Shatzer and its impact on

Edwards v. Arizona, 451 U.S. 477 (1981).

        ¶59    Here,    the     issue        presented   is      whether,        under    the

circumstances, Edler's question "Can my attorney be present for

this?" constitutes an invocation of the right to counsel.                                 In

response to this question, Detective Urban responded "Yes he

can."     About 20 minutes after making that statement, Edler was

read his Miranda rights.                 While his rights were being read,

Edler interrupted Urban and stated "If the lawyer—if I request a

lawyer, does that mean you still have to bring me into custody
                                               1
                                                                      No.    2011AP2916-CR.akz



and I have to go sit in the jail?"                   Urban told Edler that he was

already     in   custody    and    that       Urban       needed      to    read       the    full

Miranda rights before they could talk further.                             Urban read Edler

his Miranda rights in their entirety.                     Edler waived his right to

counsel and made incriminating statements.

      ¶60    Approximately three weeks earlier, Edler was arrested,

read his Miranda rights, and unambiguously invoked his right to

counsel by stating "From this point on, I'd like to have a

lawyer    here."        Urban     scrupulously        honored         that       request       and

ceased any questioning.             Thus, Edler knew how to unambiguously

invoke    his right to counsel             and      knew     that     questioning would

cease if he so requested counsel.                     Urban also knew that Edler

was   capable      of    invoking       his       right    to    counsel,             and    Urban

demonstrated      that    he    would     scrupulously          honor        a   request       for

counsel.

      ¶61    Simply stated, my dissent distils into the following

four points, which are interrelated: (1) the majority's analysis

has not adhered to the proper de novo standard of review; (2)

the   majority     muddies       the     waters       with      respect          to     existing
precedent, the "reset" for interrogation permitted by Shatzer,

and the impact of Shatzer on Edwards; (3) the majority does not

provide     sufficient         analysis       regarding         how     or       whether       law

enforcement      may     clarify       such       pre-Miranda         questions         from     a

suspect; and (4) this issue is ripe for determination so that

law enforcement, litigants, and courts will know how to evaluate

such statements.

                               I. FACTUAL BACKGROUND
                                              2
                                                             No.   2011AP2916-CR.akz



        ¶62   The     facts     are     undisputed.     On    March     30,   2011,

Detective Urban met with Edler to discuss a burglary.                         Urban

read Edler his Miranda rights and interrogated him, and Edler

made incriminating statements about the burglary.                   After a short

break, Urban asked Edler about two arsons that were unrelated to

the burglary.          At this point, Edler successfully invoked his

right to counsel by stating "From this point on, I'd like a

lawyer here."         Urban respected Edler's invocation and ceased the

interrogation.         In fact, after Edler made this statement, he

began to talk again and Urban told him "to be quiet" because he

had     asked   for     a     lawyer.      In   other   words,     in   the   first

interrogation, Urban scrupulously honored Edler's invocation of

counsel.

        ¶63   Edler spent that night in jail and requested to meet

with Urban the next day.                After a brief conversation about the

burglary charge, Urban asked Edler if he had anything to say

about the arsons.           Edler responded that "I honestly don't have

anything to say about that."                Urban again scrupulously honored

Edler's wish to remain silent.
        ¶64   On April 1, 2011, Edler was charged with burglary,

made his initial appearance with an attorney from the Public
Defender's office, and was released from custody on a signature

bond.     On April 4, 2011, Edler was appointed a public defender
on the burglary charge.

      ¶65     Almost three weeks later, on April 20, 2011, Edler was

arrested for arson.             As Edler was being arrested, his father

urged him to be honest and cooperate with the police.                    Edler was
                                            3
                                                                     No.    2011AP2916-CR.akz



handcuffed, placed in the back of a squad car, and transported

to the police station.                  Edler was not read his Miranda rights at

this point.         About five minutes into the 20 minute car ride to

the station, Edler asked "Can my attorney be present for this?"

Urban responded "Yes he can."                     Edler did not ask any follow up

questions or make further statements about an attorney during

the    remaining       car      ride,      and     Urban    did     not    ask    Edler     any

questions about the burglary or the arsons during the car ride.

       ¶66    At the police station, Urban read Edler his Miranda
rights.       As Edler was read the portion of his Miranda rights

regarding      his    right        to    counsel,       Edler   interrupted       Urban     and

asked "If the lawyer—if I request a lawyer, does that mean you

still have to bring me into custody and I have to go sit in the

jail?"       Urban responded that Edler was already in custody and

that he would be willing to discuss the issue further after

reading the rights.               Urban then reread the Miranda warnings in

its entirety to Edler.                   Edler waived his rights.                Urban asked

Edler "realizing that you have these rights, are you now willing

to answer questions?"                   Edler replied "yeah."              Edler then made

incriminating statements to Urban.

                                  II. STANDARD OF REVIEW

       ¶67    I agree with the majority that the standard of review

is    two-fold.        We    uphold        the    trial    court's       findings    of    fact

unless       they     are         clearly        erroneous,        and     we    apply      the

constitutional         principles          to    those     facts    independently         while

benefiting      from      the     trial     court's       interpretation.           State   v.

Hambly,      2008    WI     10,    ¶16,     307       Wis. 2d 98,    745    N.W.2d 48.        I
                                                  4
                                                                   No.    2011AP2916-CR.akz



disagree with the majority's application of this standard of

review.

       ¶68   The trial court did not engage in fact finding that

required     discretionary         determinations           regarding       credibility,

demeanor, or which version of the facts to accept.                             We accept

the facts as the trial court found them.                          We then engage in a

de novo review of the legal standard the trial court applied.

Because this legal standard has never been determined, certainly

no fault of the trial court, the trial court was without a

specific     legal    standard     to     apply     when     it    reached     its   legal

conclusion.      If     the    trial      court     applied        the    correct    legal

analysis, we should adopt that standard.                          If the trial court

should have applied a different legal analysis, we should set

forth that rule.       The majority does neither.

       ¶69   While     I      do    not      quarrel        with      the     majority's

determination that a question such as "Can my lawyer be present

for this?" could be an unambiguous request for counsel under

certain circumstances, another court could come to the opposite

conclusion     just    as   easily      in       different    circumstances.           Law

enforcement, courts, and litigants expect our opinions to give

them   the    necessary       tools     to   do     their    jobs        properly.     The

majority opinion does not provide that guidance.                             Because the

mere mention of an attorney is not an invocation of counsel, it

is   important   to clarify         what     about    Edler's       question     meets a

standard applicable to pre-Miranda invocations.                             The majority

specifically does not extend the Davis standard to this pre-


                                             5
                                                           No.   2011AP2916-CR.akz



Miranda scenario,1 it does not clarify what legal standard should

be applied, nor does it conclude that this statement is always

an invocation of counsel.           See majority op., ¶35.             Hence, the

applicable    legal    standard     remains     unanswered       for    statements

regarding counsel when the suspect is in custody, has not been

given the Miranda warnings, is not yet being interrogated, and

has not waived his or her Miranda rights.2              See majority op., ¶¶2

n.2, 34 n.12.    We can do better.

             III. PRECEDENT, SHATZER, AND OFFICER CONDUCT
                                  A. Precedent

      ¶70   Precedent    makes     it    less    than    clear    that      Edler's

question "Can my attorney be present for this?" is sufficient to

invoke his right to counsel.            "[I]f a suspect makes a reference

to   an   attorney    that   is    ambiguous     or     equivocal      in   that   a


      1
       Davis would be the rule to apply here when a suspect has
been given Miranda rights, has waived them, and is being
interrogated. Davis v. United States, 512 U.S. 452, 459 (1994);
Miranda v. Arizona, 384 U.S. 436 (1966).    Edler made no such
statement regarding an attorney after he waived his Miranda
rights.
      2
       Though Wisconsin has not previously decided whether the
Davis standard applies to statements made before Miranda
warnings are given, other courts have faced this question. See,
e.g., United States v. Rodriguez, 518 F.3d 1072, 1079 n.6, 1080
(9th Cir. 2008) (listing 10 cases that have considered the
standard applicable to pre-Miranda invocations and concluding
that Davis did not supersede Ninth Circuit case law requiring
clarification of ambiguous statements prior to obtaining a
Miranda waiver); Harvey Gee, An Ambiguous Request for Counsel
Before, and Not After a Miranda Waiver: United States v.
Rodriguez, United States v. Fry and State v. Blackburn, 5 Crim.
L. Brief 51 (2009) (discussing standards for pre-Miranda
invocations).

                                        6
                                                                        No.    2011AP2916-CR.akz



reasonable       officer      in    light      of     the   circumstances            would     have

understood only that the suspect might be invoking the right to

counsel,        our     precedents        do     not    require       the          cessation      of

questioning."           Davis, 512 U.S. at 459.                  The majority does not

conclude        that    the   question         "Can    my   attorney          be    present      for

this?" is always an invocation of counsel.                              See majority op.,

¶35.       In    fact,    courts         often   conclude        that     such       a    question

regarding counsel is not an invocation, even if it is asked

after the Miranda warnings were given.3
       ¶71      For example, in State v. Ward, we concluded that where

the    defendant        asked      the    police       whether    she         should      call    an

attorney, that question was equivocal and insufficient to invoke

her right to counsel.                2009 WI 60, ¶43, 318 Wis. 2d 301, 767

N.W.2d 236.           See also, Halbrook v. State, 31 S.W.3d 301, 302-04

(Tex. Ct. App. 2000) (holding that the question "Do I get an

opportunity to have my attorney present?" was ambiguous under

Davis); United States v. Doe, 170 F.3d 1162, 1166 (9th Cir.

1999) (concluding that defendant's question "What time will I

see a      lawyer?"      was ambiguous           under      Davis);      United          States v.

       3
       A question, such as "Can I get a lawyer?" may be
sufficiently clear to invoke the right to counsel in the right
circumstances.    The majority opinion should not be read to
conclude that statements starting with "Can I" and including the
word "lawyer" are all unambiguous and unequivocal requests for
counsel.    See majority op., ¶36.      See also Marcy Strauss,
Understanding Davis v. United States, 40 Loy. L.A. L. Rev. 1011,
1037 (2007) ("The question, 'Can I get a lawyer?' has received a
more checkered reception.   Many courts have found this type of
question to be ambiguous, and a way of simply asking for
clarification of one's rights."); Annual Review of Criminal
Procedure, 40 Geo. L.J. Ann. Rev. Crim. Proc. 199-202 (2011).

                                                 7
                                                                No.   2011AP2916-CR.akz



Younger, 398 F.3d 1179, 1187 (9th Cir. 2005) (concluding that

defendant did not sufficiently invoke his right to counsel when

he asked "[b]ut, excuse me, if I am right, I can have a lawyer

present through all this, right?") abrogated in part on other

grounds, United States v. Vongxay, 594 F.3d 1111, 1116 (9th Cir.

2010); Commonwealth v. Redmond, 568 S.E.2d 695, 700 (Va. 2002)

(holding that "Can I speak to my lawyer?                      I can't even talk to

[a] lawyer before I make any kinds of comments or anything?" was

ambiguous and equivocal, and therefore insufficient to invoke

the defendant's right to counsel); Marcy Strauss, Understanding
Davis   v.    United       States,   40    Loy.   L.A.   L.    Rev.   1011,    1035-37

(2007) (reporting that courts often conclude questions about a

lawyer are ambiguous).

     ¶72     Courts frequently            conclude    that    even    fairly   pointed

statements about obtaining a lawyer, as opposed to questions,

are nevertheless ambiguous and equivocal.                       For instance, the

Court in Davis concluded that the statement "Maybe I should talk

to a lawyer" was ambiguous and therefore did not constitute an

invocation.         512 U.S. at 462.        Applying Davis, we held in State

v. Jennings, that the statement "I think maybe I need to talk to

a lawyer" was insufficient to invoke the right to counsel.                        2002

WI   44,     ¶36,    252    Wis. 2d 228,        647   N.W.2d 142.        As    another

example, in State v. Long, the court of appeals concluded that

the defendant's statement "My attorney told me I shouldn't talk

unless he is here" was an ambiguous and equivocal statement.




                                            8
                                                            No.   2011AP2916-CR.akz



190 Wis. 2d 386, 397, 526 N.W.2d 826 (Ct. App. 1994).4                   See also

State     v.   Parker,   886 S.W.2d    908,    918   (Mo.    1994)   (concluding

defendant's statement that he "ought to talk to an attorney" was

not unambiguous invocation); Commonwealth v. Jones, 786 N.E.2d

1197, 1206 (Mass. 2003) (concluding defendant's statement that

he was "going to need a lawyer sometime" did not constitute an

unambiguous request for an attorney); Baker v. State, 214 S.W.3d

239, 243 (Ark. 2005) (concluding defendant's statements "I don't

feel that I can talk to you without an attorney sitting right

here to give——have them give me some legal advice" and "I think

I'm   going     to   need   one.   I   mean,   it    looks    like    that"   were

ambiguous).

      ¶73      Significantly, the cases relied upon by the majority

are clearly distinguishable from the facts and circumstances in

the case at issue.          See majority op., ¶36.      The majority opinion
relies upon Taylor and Lee to support its conclusion that "Can

my attorney be present for this?" is an invocation of counsel.


      4
       Two recent court of appeals cases provide persuasive
authority reaffirming Wisconsin's adherence to a strict standard
that a suspect must meet to invoke his or her Miranda rights.
In State v. Smith, the court of appeals held that the defendant
did not invoke his right to remain silent where he stated "I
don't want to talk about this," referring to a specific line of
questioning, but where he also indicated a willingness to
continue discussing other matters. Smith, No. 2012AP520-CR,
unpublished slip op., ¶¶8-10 (Wis. Ct. App. Jan. 23, 2013). In
State v. Cummings, the court of appeals held that the defendant
did not invoke his right to remain silent where he made the
following statement during an interrogation: "Well, then, take
me to my cell."    Cummings, No. 2011AP1653-CR, unpublished slip
op., ¶¶8-9 (Wis. Ct. App. Jan. 10, 2013).

                                       9
                                                                       No.     2011AP2916-CR.akz



Taylor v. State, 553 S.E.2d 598 (Ga. 2001); United States v.

Lee, 413 F.3d 622 (7th Cir. 2005).                       However, in both Taylor and

Lee, unlike the case at hand, the statements were made post-

custody,    post-Miranda           warnings,            and     during         interrogation.

Taylor, 553 S.E.2d at 601-02; Lee, 413 F.3d at 624.                               Further, in

Taylor   and    Lee,    unlike     the       case       at    issue,    the     court     relied

heavily on the fact that law enforcement actually discouraged

the suspects from obtaining a lawyer.                           Taylor, 553 S.E.2d at

602; Lee, 413 F.3d at 627.                Law enforcement did not engage in

any such conduct in the case at issue.

      ¶74   Other cases relied upon by the majority are likewise

distinguishable especially due to the fact that the suspects'

questions were asked post-Miranda warnings.                            In State v. Dumas,

the court stated that the post-Miranda question "'Can I get a

lawyer?' could be sufficiently clear in some circumstances to

meet [the Davis] standard."               750 A.2d 420, 422, 425 (R.I. 2000)

(emphasis added).         However, the Dumas court concluded that the

defendant's     question      in    and       of    itself      did    not     amount     to    an

invocation.        It   remanded        the    matter         for   the      trial     court    to

consider the circumstances surrounding the defendant's question,

including      "the     responses       of     the       officers       and      any    further

utterances by defendant."               Id. at 425.            Here, the majority does

not   remand    this     case      to    the        trial      court      to    consider       the

officer's actions and further utterances by the defendant.                                     The

majority    also      cites   Wysinger             as   support        for     its     position.

United States v. Wysinger, 683 F.3d 784, 795 (7th Cir. 2012).

While it is true that Wysinger cites Lee, a case wherein the
                                              10
                                                               No.   2011AP2916-CR.akz



post-Miranda question "Can I have a lawyer?" was deemed to be an

unequivocal      request    for    counsel,     the    facts    in    Wysinger       are

distinguishable from the facts before this court.                      Id. (quoting

United States v. Lee, 413 F.3d 622, 624, 626 (7th Cir. 2005)).

In fact, in Wysinger, the court concluded that the suspect's

pre-Miranda      question    "Do    I   need    a     lawyer    before     we   start

talking?" was insufficient to invoke his right to counsel.                           683

F.3d at 794-95.       See also Commonwealth v. Hilliard, 613 S.E.2d

579 (Va. 2005) (holding that post-Miranda statement "Can I get a

lawyer in here?" was sufficient to invoke the right to counsel).

     ¶75   I dissent because the majority opinion could be viewed

as implicitly overruling well-established case law and because

the cases cited by the majority opinion are distinguishable.                         If

the majority intends to provide more protections to suspects by

altering   the    standard    to    invoke     the    right    to    counsel    or   by

tethering a subsequent interrogation to a previous arrest, the

majority should make that clear.5               In any event, the majority

     5
       In some cases, the Wisconsin Constitution has been
interpreted to provide greater protections than the United
States Constitution.   For example, in United States v. Patane,
542 U.S. 630 (2004), the Supreme Court concluded that "the fruit
of the poisonous tree doctrine does not extend to derivative
evidence discovered as a result of a defendant's voluntary
statements obtained without Miranda warnings." State v. Knapp,
2005 WI 127, ¶1, 285 Wis. 2d 86, 700 N.W.2d 899.    The court in
Knapp concluded that under the Wisconsin Constitution, the
exclusionary rule barred physical fruits obtained from a
deliberate Miranda violation. Id., ¶2. However, this court has
previously determined that "[w]e cannot discover any meaningful
difference   between  the   state   and  federal   constitutional
protections against compulsory self-incrimination."     State v.
Jennings, 2002 WI 44, ¶42, 252 Wis. 2d 228, 647 N.W.2d 142.

                                        11
                                                              No.    2011AP2916-CR.akz



should outline the standard to be used when evaluating these

invocations, especially given Shatzer and the likelihood that

this       scenario     will    recur.        Unfortunately,        the    majority's

decision is cabined to this one defendant's assertion, on this

day, under these circumstances.

                               B. Maryland v. Shatzer

       ¶76    Moreover,        the   majority    opinion    adopts        Shatzer   but

lacks a thorough discussion of Shatzer and its limitation of

Edwards.6         See majority op., ¶31.          Specifically, under Shatzer,

the rule of Edwards——that a defendant who has invoked the right

to   counsel       is   not    subject   to     further    interrogation——is        not

applicable if the defendant has been out of custody for 14 days.

Shatzer, 559 U.S. at 111-12 ("[W]hen it is determined that the

defendant pleading Edwards has been out of custody for two weeks

before      the    contested     interrogation,     the    court    is     spared   the

fact-intensive inquiry into whether he ever, anywhere, asserted


       6
       Though the majority opinion describes the rule of Shatzer
as a constitutional rule, the court in Shatzer states that "[w]e
have frequently emphasized that the Edwards rule is not a
constitutional mandate, but judicially prescribed prophylaxis."
Maryland v. Shatzer, 559 U.S. 98, 105 (2010); Edwards v.
Arizona, 451 U.S. 477 (1981).     Logically, any changes in the
Edwards rule would similarly result in judicially-prescribed
rules.   See also Dickerson v. United States, 530 U.S. 428, 446
(2000) (Scalia, J. dissenting) (stating that the majority
opinion in Dickerson describes Miranda as a constitutional
decision and as constitutionally based, but never says that
violating Miranda violates the Constitution).        Clearly the
language   in  the   Fifth  Amendment   of  the   United   States
Constitution does not reference a 14-day break in custody.
These rules are instead prophylactic protections pertaining to
the Fifth Amendment.

                                          12
                                                                    No.    2011AP2916-CR.akz



his     Miranda     right     to    counsel.").            Thus,    Shatzer       seemingly

limited the Edwards prohibition on a subsequent interrogation.

In my view, the majority opinion could be viewed as one which

diminishes the holding in Shatzer because it relies so heavily

on Edler's post-Miranda invocation of counsel three weeks prior

and on the fact that the same officer was involved in both

arrests.

        ¶77    In this case, Edler had been out of custody for 19

days when he was arrested on April 20, 2011, for arson.                                    Under

the rule of Shatzer, the break in custody operated to reset the
opportunity         for     law      enforcement           to      interrogate          Edler.

Nonetheless,        the     majority       focuses        almost     entirely         on    the

previous       invocation     of     counsel        and    the    fact    that    the      same

officer was involved in both arrests.                       Majority op., ¶35.              The

analysis       of   whether       Edler   invoked         his    right    to    counsel       by

stating "Can my attorney be present for this?" should seemingly

focus     on    the    facts       and    circumstances           surrounding         Edler's

statement      as   they    existed       on   April      20,    2011,     rather      than   a

residual invocation from 21 days earlier.                           In relying on the

facts    related      to    the    previous         interrogations        and    on    Urban's

knowledge of the previous interrogations, the majority opinion

could be diminishing the clean break rule of Shatzer.                                 Instead,

the majority opinion could be viewed as reviving the Edwards

rule of continued invocation of counsel, despite the rule of

Shatzer.       I would hope for more discussion regarding the legal

implications of Shatzer and of a previous invocation of counsel.


                                               13
                                                                        No.    2011AP2916-CR.akz



       ¶78     Given the majority's analysis, what place does Shatzer

hold    in     our    jurisprudence?               Is     the   majority       elevating            the

Edwards continued invocation rule over the Shatzer clean break

rule?     Is Wisconsin adopting its own version of Shatzer/Edwards?

Does the       majority         conclude the           question     "Can      my    attorney         be

present for this?" in and of itself, is an invocation of the

right to counsel?                 Does the majority limit its analysis to a

situation where the same officer is involved in both arrests?

                                      C. Officer Conduct

       ¶79     Similarly, the majority's analysis of how a reasonable

officer      would        understand        Edler's      question      turns       on    knowledge

gained    by     Urban      three      weeks      earlier,      when    Edler       invoked         his

right to counsel.               See majority op., ¶35.              Because the majority
makes     much       of    the       fact    that       Urban   was     involved          in    both

interrogations, the majority opinion is further limited.                                            Id.

Unfortunately,            the     majority        does    not   clarify        why      it     is    so

focused on Urban's knowledge from three weeks prior.

       ¶80     Considering           that      the       circumstances         of       the    prior

interrogation         are       seminal      to    the    majority's       analysis,           it    is

curious that the majority attaches no weight to the fact that

Urban scrupulously honored Edler's prior invocation.                                     Why does

the majority assume that Urban has now failed to honor a request

for    counsel       when       he    previously         demonstrated         that       he    would

scrupulously honor such a request?                         See People v. Gonzalez, 104

P.3d    98,    107        (Cal.      2005)    (stating       that      where       interrogating

officers knew the suspect had been read his Miranda rights on a

prior occasion, "the police could reasonably have assumed that
                                                  14
                                                                      No.    2011AP2916-CR.akz



defendant       was   capable    of   making         an    unequivocal         request    for

counsel if he so desired").7                 Under the majority's analysis,

Urban's knowledge that Edler was capable of invoking his right

to counsel and         Urban's     history      of    honoring         an    invocation    of

counsel deserve no consideration.

        ¶81    In the earlier interrogation, Urban respected Edler's

invocation by ceasing the interrogation, and when Edler made

further statements, Urban acknowledged the invocation and told

Edler "to be quiet" because he had invoked his right to counsel.

In this subsequent arrest, about five minutes into the car ride,

Edler       asked   "Can   my   attorney     be      present         for    this?"      Urban

responded      "Yes   he   can."      Compared            to   the    earlier      response,

Urban's latter response suggests that he understood Edler to be

asking a question          about his       rights         rather      than    invoking    his

right to counsel.

    ¶82        Unlike law enforcement in Taylor and Lee, Urban did

not attempt to dissuade Edler from obtaining a lawyer.                                  Edler

asked "Can my lawyer be present for this?" about five minutes




        7
       See also State v. Markwardt, 2007 WI App 242, ¶36, 306
Wis. 2d 420, 742 N.W.2d 546 (stating that the rules for
invocation of the right to remain silent, which are derived from
Davis, do not leave room for reasonable competing inferences:
"[A]n assertion that permits reasonable competing inferences
demonstrates that a suspect did not sufficiently invoke the
right to remain silent").

                                           15
                                                               No.    2011AP2916-CR.akz



into the 20 minute car ride before any interrogation.8                               Here,

Urban       could   very   well    have   understood    Edler       to    be    asking    a

question about his rights.

      ¶83      Under Davis and Jennings, an officer is not required

to stop an interrogation or to ask follow up questions about

counsel if the suspect makes an ambiguous statement about an

attorney,       but    this    court    has   suggested      that    it    is    a    good

practice.       See Jennings, 252 Wis. 2d 228, ¶32.                  Should we adopt

a rule requiring law enforcement to clarify such pre-Miranda

questions?            Again,      the   majority     opinion       passes       on    this

opportunity to provide such guidance to law enforcement.

      ¶84      From Urban's perspective, the statement made by Edler

at   the     police    station,     whether     he   would   sit     in   jail       if   he

requested a lawyer, likely clarifies that Edler did not invoke


        8
       The timing of Edler's question "Can my attorney be present
for this?" could support that it was a clarification of his
rights and not an invocation.       See Davis, 512 U.S. at 461
(stating that the Court is "unwilling to create a third layer of
prophylaxis to prevent police questioning when the suspect might
want a lawyer").   For example, in State v. Fischer, before the
police read the defendant his Miranda rights and before
interrogation began, the defendant stated that if the officers
read him his rights, he would not answer questions and would
request an attorney.   2003 WI App 5, ¶19, 259 Wis. 2d 799, 656
N.W.2d 503.   The court held that a "conditional and futuristic
request for counsel is a statement that a reasonable officer in
light of the circumstances would have understood only that [the
defendant] might be invoking the right to counsel." Id. Since
Edler's statement was made 20 minutes prior to the start of
interrogation, Edler's statement could be viewed as conditional
and futuristic similar to the statement in Fischer.           See
majority op., ¶32 n.11 (declining to clarify temporal standard
that was left unsettled by State v. Hambly, 2008 WI 10, 307
Wis. 2d 98, 745 N.W.2d 48).

                                           16
                                                          No.   2011AP2916-CR.akz



his right to counsel in the car.              The majority opinion lacks any

analysis of Edler's question regarding counsel at the station,

during the time when Urban was reading the Miranda warnings, or

his    waiver    of   his   Miranda   rights.       The   majority    does    not

consider how Urban made clear that he was not going to engage in

discussion with Edler until he finished reading him his rights

and Edler waived his rights.          The majority does not discuss how

Edler, not Urban, reinitiated the conversation by asking Urban a

question.       Urban was not interrogating Edler during the car ride

or while he was reading the Miranda warnings.
       ¶85   As Edler had an attorney on a pending burglary charge,

his question "Can my attorney be present for this?" may have

been    clarifying     whether   that        particular   attorney    could    be

present for the forthcoming interrogation, even though he did

not yet have an attorney on the uncharged arson.                 He also might

have been asking whether he was entitled to have any attorney

present during the interrogation.

       ¶86   Given the totality of the circumstances, the majority

is too quick to conclude that law enforcement would objectively

know that the question "Can my lawyer be present for this?" was

an unambiguous invocation of counsel and that law enforcement

erred by giving Edler his Miranda rights and accepting Edler's

waiver.      I do not conclude that a reasonable law enforcement

officer, particularly one who is aware that Edler is capable of

invoking his rights, would believe that the question "Can my

attorney be present for this?" was an unambiguous request for

counsel.     Our court should provide guidance to law enforcement
                                        17
                                                                          No.    2011AP2916-CR.akz



by   illuminating          the    standard       applicable          to    a    statement      made

post-custody, pre-Miranda warnings, pre-interrogation, and pre-

waiver of Miranda rights.

                                       IV. CONCLUSION

        ¶87    I   readily       concede        that    Edler's      question         might    have

been    a     poorly-worded         request       for     an    attorney.              Under    the

totality of the circumstances, however, it is just as likely

that    Edler's       question      was     a    clarification            of    his    rights    or

something else.               Precedent does not require the cessation of

interrogation when a reasonable law enforcement officer believes

the suspect might be invoking the right to counsel.                                    See Davis,
512 U.S. at 459.

        ¶88    I dissent because the majority opinion neither extends

Davis to Edler's statement nor enunciates the standard to apply.

Simply stated, the majority opinion leaves open questions that

are likely to recur.                The majority opinion has not concluded

that the "unambiguous and unequivocal" objective standard from

Davis         applies      post-custody,               pre-Miranda             warnings,       pre-

interrogation, and pre-waiver of Miranda rights.                                     The majority

opinion        does     not      determine        whether       interrogation           must    be

impending for a suspect to invoke his right to counsel.                                         The

majority       opinion        leaves      open        whether       law    enforcement         must

clarify a potential request for counsel under these pre-Miranda

circumstances.             It     remains       unknown        whether         law    enforcement

should ever clarify a potential request by reading the suspect

the Miranda warnings.               The law is now less clear regarding the

implications          of   Shatzer     on       Edwards.        I    write       separately      to
                                                 18
                                             No.   2011AP2916-CR.akz



highlight that our court should be analyzing these issues with

regard to Edler's question, which was made post-custody, pre-

Miranda warnings, pre-interrogation, and pre-waiver of Miranda

rights.    We should clarify the law.

     ¶89   For the foregoing reasons, I respectfully concur in

part and dissent in part.




                                 19
    No.   2011AP2916-CR




1
