State v. Cole, 2007AP2472-CR.

• Decision Date: 13 November 2008
• Docket Number: No. 2007AP2472-CR.,2007AP2472-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Willie B. COLE, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

762 N.W.2d 711

2008 WI App 178

STATE of Wisconsin, Plaintiff-Respondent, v. Willie B. COLE, Defendant-Appellant.

No. 2007AP2472-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs July 2, 2008.

Opinion Filed November 13, 2008.

On behalf of the defendant-appellant, the cause was submitted on the briefs of Scott A. Szabrowicz, Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Stephen W. Kleinmaier, asst. attorney general, and J.B. Van Hollen, attorney general.

Before HIGGINBOTHAM, P.J., VERGERONT and LUNDSTEN, JJ.

¶ 1 VERGERONT, J

Willie Cole appeals a judgment of conviction for substantial battery and two counts of intimidation of a witness, challenging the court's denial of two suppression motions. First, he contends the circuit court erred in denying his motion to suppress a letter that he wrote, which he mistakenly addressed to a residence that happened to be the home of a law enforcement officer. He asserts the officer was acting in her official capacity when she opened the letter and the warrantless search violated the Fourth Amendment guarantee against unreasonable searches. We agree with the circuit court that the evidence establishes that the officer acted in a private capacity, not in her official capacity, when she opened the letter. Therefore there was no Fourth Amendment violation. Accordingly, we affirm the circuit court's ruling denying Cole's motion to suppress evidence.

¶ 2 Second, Cole contends the circuit court erred in denying his motion to suppress statements made during a custodial interrogation initiated by the police with respect to the intimidation of witness charges. He asserts he had invoked his Fifth Amendment/ Miranda right to counsel in a previous custodial interview when he was arrested on the battery charge and had remained continuously in custody. According to Cole, the court impermissibly shifted the State's burden of proof on this issue to him. We agree with Cole that the circuit court erred in its allocation of the burden of proof. We conclude that, when a defendant gives the State timely notice that he or she claims that a custodial statement is inadmissible because of a prior invocation of the Fifth Amendment/ Miranda right to counsel, the State has the burden of proving that the defendant previously waived that right. We also conclude a remand is necessary for the circuit court to decide this motion with the correct burden of proof. Accordingly, we reverse the court's ruling on this motion and we remand for further proceedings consistent with this opinion.

¶ 3 Because we reverse the circuit court's ruling on the motion to suppress Cole's statement and remand, we conditionally reverse the judgment of conviction, with instructions to the court set forth in paragraphs 43 and 44 of this opinion.

BACKGROUND

¶ 4 In February 2006, Cole was arrested for battery against his wife. He was charged with substantial battery in violation of WIS. STAT. § 940.19(2) (2005-06)¹ and ordered to have no contact with his wife while the charge was pending.

¶ 5 While awaiting trial, Cole made several phone calls and sent several letters to family members, instructing them to prevent his wife from appearing at his trial. One of those letters was written to his daughter, Charnaye Cole, who apparently lived at 3431 North 44th Street. However, the envelope to this letter, while containing Charnaye Cole's name, was addressed to 3431 North 49th Street. That was the residence of Mariellen Kostopulos, a Milwaukee County Sheriff's Department detective. Detective Kostopulos opened the letter and began reading it. Subsequently she gave the letter to the district attorney prosecuting the battery case against Cole.

¶ 6 Milwaukee Police Department Officer Adam Riley was assigned to investigate the letters and phone calls. He went to interview Cole on April 24, 2006, at the Milwaukee House of Corrections, where Cole was in custody pending his trial on the substantial battery charge. Officer Riley told Cole he was there regarding the letter Cole had sent to his daughter. Officer Riley advised Cole of his Miranda rights² and Cole said he understood his rights, agreed to answer questions, and signed a statement to that effect. Cole answered the officer's questions about the letter. The officer did not ask Cole any questions about the battery case, but Cole on his own started to talk about the facts of that case. The officer summarized in a handwritten statement what Cole said, both about the letter and the battery case. After the officer read the statement to Cole, Cole looked the statement over and signed it.

¶ 7 Cole was subsequently charged with two counts of intimidation of a witness in violation of WIS. STAT. § 940.43(7). That case was joined with the substantial battery case.

¶ 8 Cole filed two suppression motions. In the first motion he sought to suppress his letter to his daughter on the ground that, because Detective Kostopulos opened the letter without a warrant, it was an unlawful search under the Fourth Amendment to the United States Constitution. In the second motion he sought to suppress the statement he made to Officer Riley. Cole asserted that he had invoked his Miranda right to counsel during his arrest for battery in February when Officer Angela Gonzalez attempted to interview him and that he was assigned an attorney. Therefore, Cole argued, Officer Riley's subsequent questioning of him without counsel present violated his rights under the Fifth Amendment to the United States Constitution.

¶ 9 After an evidentiary hearing, the circuit court denied both motions. It found that Detective Kostopulos opened the letter in her private capacity as a citizen and not in her official capacity as a detective. Therefore, the court concluded, the Fourth Amendment protection against unreasonable searches and seizures did not apply and no warrant was required. The court denied Cole's motion to suppress his statement to Officer Riley because it found Cole had not invoked the Fifth Amendment/ Miranda right to counsel when he was arrested on the battery charge. Thereafter, Cole pleaded guilty to one count of substantial battery and two counts of intimidating a witness.

DISCUSSION

¶ 10 On appeal, Cole challenges the circuit court's denial of both motions. When we review a circuit court's disposition of a motion to suppress evidence on constitutional grounds, we accept the court's findings of fact unless they are clearly erroneous, and we review de novo the application of constitutional principles to the facts. See State v. Dagnall, 2000 WI 82, ¶¶ 26-27, 236 Wis.2d 339, 612 N.W.2d 680.

I. Motion to Suppress Cole's Letter

¶ 11 Cole contends the court erred in denying his motion to suppress his letter because the evidence shows that Detective Kostopulos was acting in her official capacity when she opened the letter.

¶ 12 The Fourth Amendment's protection against unreasonable searches and seizures applies only to government action, not to private searches. State v. Payano-Roman, 2006 WI 47, ¶ 17, 290 Wis.2d 380, 714 N.W.2d 548. "Once the State raises the issue, asserting that a search is a private search, the defendant has the burden of proving by a preponderance of the evidence that government involvement in a search or seizure brought it within the protections of the Fourth Amendment." Id., ¶23.³ In deciding whether a search is a private search or a government search, the court is to consider the totality of the circumstances. Id., ¶ 21.

¶ 13 There appears to be no Wisconsin case addressing the issue when an off-duty law enforcement officer acts in a private capacity rather than as a government agent for purposes of the Fourth Amendment. However, there appears to be general agreement in other jurisdictions that have considered the issue that "[government] involvement [in a search] is not measured by the primary occupation of the actor, but by the Capacity [sic] in which he acts at the time in question"; therefore, an off-duty officer acting in a private capacity in making a search does not implicate the Fourth Amendment. State v. Pearson, 15 Or.App. 1, 514 P.2d 884, 886 (1973). Accord United States v. Ginglen, 467 F.3d 1071, 1074-76 (7th Cir. 2006); United States v. Couch 378 F.Supp.2d 50, 58 (N.D.N.Y.2005); State v. Walker, 236 Neb. 155, 459 N.W.2d 527, 533 (1990); State v. Castillo, 108 Idaho 205, 697 P.2d 1219, 1221 (Ct.App.1985); People v. Luetkemeyer, 74 Ill.App.3d 708, 30 Ill. Dec. 462, 393 N.E.2d 117, 120 (1979); State v. Woods, 790 S.W.2d 253, 257 (Mo. Ct.App.1990); State v. Andrews, 33 Conn. App. 590, 637 A.2d 787, 790-91 (1994); People v. Wolder, 4 Cal.App.3d 984, 84 Cal.Rptr. 788, 793 (1970). We agree with this conclusion. We therefore examine the totality of the circumstances, see Payano-Roman, 290 Wis.2d 380, ¶21, 714 N.W.2d 548, to determine whether Detective Kostopulos was acting in her private capacity as a citizen or in her official capacity as a detective for the sheriff's department when she opened Cole's letter.

¶ 14 At the suppression hearing, Detective Kostopulos testified that the letter from Cole was among several letters delivered on that particular day to the mail slot in the wall of her residence. After returning from work that day she began opening the mail. Because she assumed Cole's letter was for her, she did not check to see the name or address on the envelope before opening it and beginning to read. When she read something about contacting someone not to appear in court, she realized the letter was not intended for her and that it concerned intimidation of a witness. At that point she turned over the envelope and saw that the sender was Willie Cole. When she returned to work on Monday morning she entered Willie Cole's name into the CCAP database and found that he had a court date scheduled. She contacted the district attorney prosecuting the case, gave that attorney the letter, and did nothing further on the matter...