State v. Harris

Decision Date07 April 2017
Docket NumberCase No.: 2014AP1767-CR
Citation892 N.W.2d 663,374 Wis.2d 271
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Brian I. HARRIS, Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the defendants-appellant-petitioners, there was a brief by Kathleen M. Quinn and Kathleen M Quinn Attorney at Law, Milwaukee, and oral argument by Kathleen M. Quinn.

For the plaintiff-respondent the cause was argued by David H. Perlman, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

DANIEL KELLY, J.

¶1 The question before the court is whether the State compelled Petitioner, Brian Harris, to be a witness against himself in violation of the Fifth Amendment to the United States Constitution and article I, section 8 of the Wisconsin Constitution.1

I. BACKGROUND

¶2 In the early morning hours of August 13, 2011, a Kenosha resident awoke to loud, metallic-sounding noises coming from an adjacent residence. When the noises persisted for several minutes, a neighbor called the police.

¶3 Officer Justin Niebuhr of the Kenosha Police Department responded and met with the caller. Both could hear the sound of metal clanging coming from inside the neighboring residence. Officer Niebuhr approached the front door of the supposedly-vacant residence and found it locked, and upon looking through a window saw only darkness. In the process of examining the exterior of the residence, Officer Niebuhr noticed the screen was off the unlatched kitchen window.

¶4 After backup arrived, Officers Niebuhr and Arturo Gonzalez entered the residence and traced the noises to the basement. Two additional officers responded to the scene and "cleared" the main and upstairs floors of the residence. Officers Niebuhr and Gonzalez went down to the basement where they found Mr. Harris secreted in a crawl space under the stairs. Strewn about him were copper

piping, a flashlight with a red lens, and a duffle bag containing a saw and replacement blades, a bolt-cutter type instrument, and some crowbars. Mr. Harris' outfit included a pair of black work gloves. The officers took Mr. Harris into custody and eventually placed him in Officer Niebuhr's squad car.

¶5 While still in the squad car in front of the residence, Mr. Harris commenced an unprompted narrative of his criminal activities. Mr. Harris told Office Niebuhr he had been homeless for approximately seven years, he frequently went into vacant homes to sleep, and he often committed misdemeanor crimes to get items to sell. He said this was his plan for the copper

piping. Neither Officer Niebuhr, nor any of the other officers present, were questioning Mr. Harris when he made these statements. Officer Niebuhr confirmed he neither said nor did anything of a threatening nature to prise out Mr. Harris' statements, nor did he promise Mr. Harris anything in exchange for them. Officer Niebuhr did not give Mr. Harris a Miranda 2

warning before he made these statements.

¶6 Later that morning, Detective Chad Buchanan of the Kenosha Police Department went to the Kenosha County Jail to interview Mr. Harris. He met Mr. Harris at about 9:00 a.m. in the common area, just outside the interview rooms. What occurred next is not entirely clear, but Detective Buchanan asked a question to the effect of "Would you like to give me a statement?"3 Mr. Harris responded: "They caught me man, I got nothing else to say." Detective Buchanan did not inform Mr. Harris of his Miranda rights prior to speaking with him.

¶7 The State charged Mr. Harris with burglary, possession of burglarious tools, criminal damage to property, and criminal trespass, each as a repeater. Mr. Harris brought a suppression motion to prevent the State from using his "they caught me" statement at trial.4 The circuit court found that "Detective Buchanan's intent was to ask the defendant to come to the interview rooms for an interview and ... the question was, would you like to give a statement?" The circuit court said the expected response to this question would have been "yes, I'll give a statement or, no, I won't give a statement." Consequently, the circuit court found no violation of Mr. Harris's right to be free from self-incrimination, and so denied the suppression motion. The State used his statement at trial, following which the jury found Mr. Harris guilty on all four counts.

¶8 Mr. Harris timely appealed his conviction. In a published decision, the court of appeals affirmed. It noted the confusion over the precise wording of the question that preceded Mr. Harris's "they caught me" statement, but found it unimportant to the outcome. The court of appeals concluded that, whatever the exact wording, it was "not reasonably likely to elicit an incriminating response; [and] thus, the communication did not constitute interrogation and Miranda warnings were not required."5

II. STANDARD OF REVIEW

¶9 We employ a two-step process in reviewing a circuit court's denial of a motion to suppress. State v. Eason , 2001 WI 98, ¶9, 245 Wis.2d 206, 629 N.W.2d 625. First, we review the circuit court's factual findings and uphold them unless they are clearly erroneous. Id .6 Second, we apply constitutional principles to those facts de novo , without deference to the courts initially considering the question, but benefitting from their analyses. In re Commitment of Mark , 2006 WI 78, ¶12, 292 Wis.2d 1, 718 N.W.2d 90 ("We also review, de novo, the application of constitutional principles to established facts."); State v. Hansford , 219 Wis.2d 226, 234, 580 N.W.2d 171 (1998) ("Although we review questions of law de novo, we benefit from the analyses of the circuit court and the court of appeals.").

III. DISCUSSION

¶10 Mr. Harris presents a single question for our consideration: Whether the State compelled him to be a witness against himself by using his answer to Detective Buchanan's question at trial.7 A simple question like "Would you like to give me a statement?" may seem an unlikely candidate for a constitutional violation, but as our analysis here demonstrates, we are unstinting in our protection of criminal defendants' rights.

¶11 There is history behind the protection against self-incrimination, history that reminds us of why that barrier is so important. It is born of experience, and responds to the dangers inherent in the inquisitorial method of questioning suspects:

The maxim Nemo tenetur seipsum accusare ,’[8 ] had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which [have] long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, [were] not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, ... made the system so odious as to give rise to a demand for its total abolition.

Brown v. Walker , 161 U.S. 591, 596–97, 16 S.Ct. 644, 40 L.Ed. 819 (1896).9 The ease with which innocent questions can become inquisitorial requires that this protection apply to criminal suspects whether they are inside or outside of the courtroom: "[T]he privilege against self-incrimination protects individuals not only from legal compulsion to testify in a criminal courtroom but also from ‘informal compulsion exerted by law-enforcement officers during in-custody questioning.’ " Pennsylvania v. Muniz , 496 U.S. 582, 589, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (quoting Miranda v. Arizona , 384 U.S. 436, 461, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). Thus, our constitutional protection against self-incrimination is called to duty whenever the State interrogates a suspect in police custody. See Miranda , 384 U.S. 436, 86 S.Ct. 1602 ; see also State v. Armstrong , 223 Wis.2d 331, ¶29, 588 N.W.2d 606 (1999).

¶12 This freedom from compelled self-incrimination is one of the nation's "most cherished principles." Miranda , 384 U.S. at 458, 86 S.Ct. 1602. We are sufficiently solicitous of this protection that we guard it by patrolling a generous buffer zone around the central prohibition.

A. Procedural Requirements

¶13 The most important aspect of that buffer is the right to remain silent while in police custody. We actualize the right by requiring the State's agents, before conducting an in-custody interrogation, to formally instruct the suspect of his constitutional rights and then conduct themselves according to how he elects to preserve or waive them. Thus, a suspect must

be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Miranda , 384 U.S. at 479, 86 S.Ct. 1602.

¶14 This procedural safeguard arose out of an understanding that custodial interrogations present a uniquely intimidating atmosphere that can interfere with a suspect's exercise of his rights: "The concern of the Court in Miranda was that the ‘interrogation environment’ created by the interplay of interrogation and custody would ‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege against compulsory self-incrimination." Rhode Island v. Innis , 446 U.S. 291, 299, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (quoting Miranda , 384 U.S. at 457–58, 86...

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11 cases
  • State v. Dobbs
    • United States
    • Wisconsin Supreme Court
    • 3 Julio 2020
    ...interrogation can take two forms: express questioning or its functional equivalent. See State v. Harris, 2017 WI 31, ¶15, 374 Wis. 2d 271, 892 N.W.2d 663 ; see also Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) ("[T]he term ‘interrogation’ under Miranda ref......
  • State v. Garcia
    • United States
    • Wisconsin Court of Appeals
    • 7 Octubre 2020
    ...the circumstances.10 With respect to constitutional claims, we "employ a two-step process." State v. Harris , 2017 WI 31, ¶9, 374 Wis. 2d 271, 892 N.W.2d 663 ; State v. Martwick , 2000 WI 5, ¶16, 231 Wis. 2d 801, 604 N.W.2d 552. "First, we review the circuit court's factual findings and uph......
  • State v. Romero
    • United States
    • New Mexico Supreme Court
    • 27 Diciembre 2018
    ...¶ 16, 150 N.M. 683, 265 P.3d 734 (internal quotation marks and citation omitted); see also State v. Harris , 2017 WI 31, ¶ 46, 374 Wis.2d 271, 892 N.W.2d 663 (stating that the Fifth Amendment to the United States Constitution protects an individual from interrogation compelled by law enforc......
  • State v. Keding
    • United States
    • Wisconsin Court of Appeals
    • 31 Agosto 2023
    ...but also from informal compulsion exerted by law[ ]enforcement during in-custody questioning." State v. Harris, 2017 WI 31, ¶11, 374 Wis.2d 271, 892 N.W.2d 663 (citation To secure the privilege against compelled self-incrimination, a suspect has the right to remain silent while in police cu......
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2 books & journal articles
  • Litigating miranda rights
    • United States
    • James Publishing Practical Law Books Archive Suppressing Criminal Evidence - 2020 Contents
    • 31 Julio 2020
    ...Miranda warnins is a violation and suppressed the subsequent Mirandized statement. Wisconsin, on the other hand, in State v. Harris , 892 N.W.2d 663 (Wisc.2017), found this to be a preliminary question for which warnings were unnecessary. In reaching this conclusion, the court considered th......
  • Litigating miranda rights
    • United States
    • James Publishing Practical Law Books Suppressing Criminal Evidence Confessions and other statements
    • 1 Abril 2022
    ...Miranda warnings is a violation and suppressed the subsequent Mirandized statement. Wisconsin, on the other hand, in State v. Harris , 892 N.W.2d 663 (Wisc. 2017), found this to be a preliminary question for which warnings were unnecessary. In reaching this conclusion, the court considered ......

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