State v. Edler

• Citation: 350 Wis.2d 1,2013 WI 73,833 N.W.2d 564
• Decision Date: 12 July 2013
• Docket Number: No. 2011AP2916–CR.,2011AP2916–CR.
• Parties: STATE of Wisconsin, Plaintiff–Appellant, v. Andrew M. EDLER, Defendant–Respondent.
• Court: United States State Supreme Court of Wisconsin

350 Wis.2d 1

833 N.W.2d 564

2013 WI 73

STATE of Wisconsin, Plaintiff–Appellant,

v.Andrew M. EDLER, Defendant–Respondent.

No. 2011AP2916–CR.

Supreme Court of Wisconsin.

Decided April 10, 2013.

Argued July 12, 2013.

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.

N. PATRICK CROOKS, J.

[350 Wis.2d 3]¶ 1 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.

¶ 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 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, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). In Shatzer the United States Supreme Court examined the presumption in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (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, 101 S.Ct. 1880. 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, 130 S.Ct. 1213. 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 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 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.

¶ 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

¶ 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

[350 Wis.2d 9]¶ 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 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, 101 S.Ct. 1880.

¶ 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...