State v. Brockdorf

Decision Date28 June 2006
Docket NumberNo. 2004AP1519.,2004AP1519.
Citation717 N.W.2d 657,2006 WI 76
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Vanessa BROCKDORF, Defendant-Respondent-Petitioner.
CourtWisconsin Supreme Court

For the defendant-respondent-petitioner there were briefs by Martin E. Kohler, Brian Kinstler, and Kohler & Hart, L.L.P., Milwaukee, and oral argument by Brian Kinstler.

For the plaintiff-appellant the cause was argued by Daniel J. O'Brien, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.

An amicus curiae brief was filed by Aaron Nisenson, Alexandria, VA, and Jonathan Cermele and Eggert & Cermele, S.C., Milwaukee, on behalf of the International Union of Police Associations, AFLCIO.

An amicus curiae brief was filed by Gordon E. McQuillen, Madison, on behalf of the Wisconsin Professional Police Association/Law Enforcement Employee Relations Division.

¶ 1 JON P. WILCOX, J

The defendant, Milwaukee Police Officer Vanessa Brockdorf (Brockdorf), seeks review of an unpublished decision of the court of appeals,1 which reversed an order of the Milwaukee County Circuit Court, Frederick C. Rosa, Judge, suppressing a statement Brockdorf made to Detective Michele Harrison (Harrison) of the Internal Affairs Division (IAD) of the Milwaukee Police Department (MPD).

¶ 2 Brockdorf contends that the United States Supreme Court decision of Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), requires the suppression of a police officer's incriminating statement given in an internal investigation when the officer has the subjective belief that she must answer questions in an internal investigation or lose her job and that belief is objectively reasonable.

¶3 Today, we adopt a two-pronged subjective/objective test for determining whether, as a matter of law, an officer's statements given in a criminal investigation are coerced and involuntary, and therefore subject to suppression under Garrity. Under this test, we examine the totality of the circumstances, but an express threat of job termination or a statute, regulation, rule, or policy in effect at the time of the questioning which provides for an officer's termination for failing to answer the questions posed, will be a sufficient circumstance to constitute coercion in almost any conceivable situation. Using this analysis, we conclude Brockdorf's incriminating statement was not unconstitutionally coerced under the Fifth Amendment, and Garrity immunity does not apply. As such, we affirm the decision of the court of appeals.

I

¶4 On December 15, 2003, the State filed a criminal complaint against Brockdorf and her then-partner Officer Charlie Jones, Jr. (Jones) alleging various charges related to an alleged beating of a shoplifting suspect on September 14, 2003, and the investigation that followed. Specifically, Brockdorf was charged with obstructing Harrison by knowingly giving false information to her with the intent to mislead, contrary to Wis. Stat. § 946.41(1) (2003-04). Jones was charged with battery and two counts of obstructing an officer by providing false information.

¶5 On the evening of September 14, Brockdorf and Jones responded to a shoplifting complaint at a Kohl's Department Store on South 27th Street in Milwaukee. When the officers arrived at the store, they met with Kohl's loss prevention supervisor and the suspect, Gilberto Palacios (Palacios). While Brockdorf interviewed store personnel, Jones took Palacios outside, as Palacios was agitated and loud in the store. Palacios was placed in the squad car, and the officers drove to a nearby Noodles restaurant. Brockdorf went into the restaurant to place a takeout order. While she was inside ordering, several witnesses observed Jones take Palacios out of the squad car, repeatedly punch him in the head, and then place him back in the squad car. When Brockdorf returned, Jones was out of breath, and he told her that the suspect had tried to kick out the squad car windows and had ripped his shirt. The officers returned to Kohl's parking lot, at which time they called for a sergeant. The responding sergeant was told that the scuffle between Jones and Palacios had occurred at Kohl's. Brockdorf and Jones then transported Palacios to the hospital.

¶ 6 In response to a citizen's complaint about the incident at Noodles, the MPD initiated a criminal investigation. Harrison, an IAD detective who works solely in criminal investigations, first spoke with Brockdorf on September 19, 2003, at Brockdorf's home. At that time, Brockdorf stated that when she exited Kohl's, she noticed Palacios' shirt was ripped. Jones told her that the shirt ripped while Palacios was knocking over mannequins in the store. The officers then called for a sergeant, who directed them to take Palacios to a hospital. Brockdorf stated that she then drove to Noodles, went inside to order food, and when she returned Jones told her that Palacios had tried to kick out the windows in the squad car. Brockdorf then proceeded on to the hospital.

¶ 7 On October 3, 2003, Harrison again spoke with Brockdorf at the Milwaukee Police Academy on Teutonia Avenue. Although the parties dispute the details of what occurred on that date, Brockdorf eventually changed her story, telling Harrison that she and Jones had gone to Noodles before the sergeant was called, and the alleged beating occurred at that location.

¶ 8 After the criminal complaint was filed, Brockdorf filed a motion to suppress the statement she gave on October 3.2 She argued the statement was not voluntary under Garrity. The Milwaukee County Circuit Court, Frederick C. Rosa, Judge, presiding, held a hearing on April 2, 2004, at which both Brockdorf and Harrison appeared.

¶9 Brockdorf testified that when she arrived at work on October 3, a sergeant informed her that internal affairs wanted to meet with her. She reported immediately to the IAD office located on the third floor of the Police Academy and met with Harrison and Detective Ivan Wick (Wick) who wanted to "requestion [her] regarding the battery, regarding [her] partner." Brockdorf testified that she told them she did not want to talk without a union representative present. Further, she testified that she sat for an hour before she said anything and that both detectives told her "[i]f you don't talk now, you're going to get charged with obstructing." Brockdorf said she did not want to get charged with obstructing, so she decided to answer the detectives' questions.

MR. KOHLER (COUNSEL FOR BROCKDORF): Did you feel as a police officer you had to answer their questions?

BROCKDORF: Yes. Because I would have been charged with obstructing if I didn't.

Q: Is that the only reason you answered their questions?

A: Yes.

Q: Did you think what would happen to you if you were charged with obstructing?

A: Well, they always say in the academy that you get fired for lying, that it's a grave disqualification.

. . . .

Q: Other than being charged, did you fear for your job at that point?

A: Yes, because I didn't—first I wasn't the target, and then all of a sudden I became the target of this investigation.

Q: What did you think was going to happen to you if you didn't talk to them, other than being charged with obstructing?

A: I figured I'd later be fired.

Q: So are those the two reasons why you consented to the interview?

A: Yes.

¶10 On cross-examination, Deputy District Attorney Jon N. Reddin asked Brockdorf the following:

MR. REDDIN: Did either Officer Wick or Officer Harrison tell you that you'd be fired if you didn't talk to them?

BROCKDORF: No, they just said I'd be charged with obstructing.

Brockdorf also indicated that she believed she would be charged with obstructing for not telling the truth. On redirect, Brockdorf then insisted that she believed she would be charged with obstructing if she did not answer the questions posed to her.

¶11 Harrison described the events of October 3 differently. She testified that when she met with Brockdorf, she advised her about the nature of the investigation. That is, the detectives wanted to question her regarding the use of force complaint and that she was not the target of the investigation. Specifically, Harrison said that there were some inconsistencies in Brockdorf's statement and other facts discovered during the course of the investigation that made a second interview necessary, but Harrison did not believe Brockdorf had been untruthful prior to the interview. Harrison testified that she recalled Brockdorf asking if she should call for union representation; she told Brockdorf it was up to her to make that decision. Brockdorf did not call a union representative and subsequently gave a statement in which she essentially admitted her first statement was untrue. Harrison further stated that she never told Brockdorf that she would be terminated or charged with obstructing for refusing to give a statement. Indeed, Harrison testified that she advises everyone she talks to that they may choose not to answer any of the questions asked of them. Finally, she conceded that Brockdorf was not offered Garrity immunity, nor had she ever heard of such a concept.

¶12 The circuit court granted the suppression motion in a written decision issued April 21, 2004. The court concluded that when looking at the totality of the circumstances, Brockdorf's subjective fear that her job was on the line was well-founded. Further, the court determined that despite Harrison's statements to the contrary, Brockdorf was a target of the investigation, and it was not unreasonable for Brockdorf to believe that a failure to answer questions during an internal investigation could result in termination. Pursuant to Garrity and Oddsen v. Board of Fire & Police Commissioners for the City of Milwaukee, 108 Wis.2d 143, 321 N.W.2d 161 (1982), the court held that a statement made under the circumstances was the product of a coercive choice and Brockdorf was...

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