State v. Keding

Docket Number2022AP1373-CR,2022AP1374-CR
Decision Date31 August 2023
PartiesState of Wisconsin, Plaintiff-Respondent, v. Kale K. Keding, Defendant-Appellant.
CourtWisconsin Court of Appeals

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

APPEAL from judgments of the circuit court for Wood County Nos 2021CM318, 2021CM617: NICHOLAS J. BRAZEAU, JR., Judge.

GRAHAM, J. [1]

¶1 Kale Keding appeals judgments of conviction that were entered by the circuit court following Keding's no-contest pleas in two misdemeanor cases that have been consolidated for purposes of appeal: a judgment of conviction for possessing a controlled substance (Wood County case No. 2021CM318, the "possession case"); and a judgment of conviction for bail jumping (Wood County case No. 2021CM617, the "bail jumping case"). On appeal, Keding challenges the order in the possession case that denied his motion to suppress statements he made at the police station after his arrest for possessing a controlled substance.

¶2 For reasons explained in greater detail below, I conclude that the circuit court erred when it denied Keding's motion to suppress the statements he made at the police station. The State has not attempted to prove that the error was harmless, and I accept the State's silence on this point as a concession that it was not. I therefore reverse the judgment in case No. 2021CM318.

¶3 Turning to the bail jumping case, Keding does not explain how his challenge to an order in the possession case could result in reversal of his conviction for bail jumping, nor does he make any other argument about the propriety of the judgment in that case. I therefore affirm the judgment in case No 2021CM617.

BACKGROUND

¶4 Following a traffic stop, Keding was arrested for possession of a controlled substance. The State filed case No 2021CM318, which charged him with possession of cocaine contrary to WIS. STAT. § 961.41(3g)(c). Keding moved to suppress the inculpatory statements he made at two different points during his arrest and booking: certain statements he made to Officer Libby Abel at the scene of the arrest; and other statements he made to Officer Mack Scheppler at the police station as he was being booked. Abel and Scheppler both testified during the hearing on the motion to suppress, and body camera footage capturing the interactions between Keding and the officers was introduced into evidence. The following summary of undisputed facts is derived from the testimony and exhibits presented at the hearing and is consistent with the circuit court's findings of fact.

¶5 At approximately 4:00 a.m. on May 30, 2021, Abel initiated a traffic stop of a vehicle with a nonfunctioning brake light. Keding was one of the vehicle's three occupants, and was sitting in the back seat.

¶6 For reasons that are not material to this appeal, Abel called for backup and a K9 unit, and the police dog alerted to the presence of a controlled substance in the vehicle. Officers asked the three occupants to step out of the vehicle and patted them down for weapons. During a search of the vehicle, officers located a small bag containing a substance that officers believed to be cocaine in the front passenger-side door.[2] All three of the vehicle's occupants denied ownership of the bag, and they likewise denied knowledge of its contents. Abel stated that she would be charging all three occupants with possession of a controlled substance, and that each was free to call for a ride.

¶7 Shortly thereafter, the driver told Abel that he had witnessed Keding using what he believed to be cocaine earlier that night, and he speculated that the bag found in the vehicle might belong to Keding. Following that statement, Abel approached Keding as he waited for his ride and resumed questioning him. Keding made a series of inculpatory statements, including that he had struggled with substance abuse in the past, that he had "snorted an Adderall" earlier that evening, and that his nose was runny as a result. Abel told Keding that she was placing him under arrest, and she told the driver and the other passenger that they would not be charged.

¶8 Abel then transported Keding to the police station. While Keding was waiting in the booking area, Abel performed a preliminary test on the substance that had been found in the vehicle, and the results indicated that the substance was cocaine.

¶9 Abel returned to the booking area and initiated an exchange with Keding. During the exchange, Abel stated that she wanted to ask him additional questions and had to give him Miranda warnings;[3] however, before Abel could give those warnings, Keding indicated that he wanted an attorney:

Abel: So, I would like to ask you more questions okay, but because you're in custody, I'd have to read you your Miranda rights, okay? Do you think you'd be willing to answer questions or are you thinking no already?
Keding: Um, seeing as how I got arrested, I'm going to need a lawyer. So.
Abel: Okay. Okay. So, you're wishing to remain silent?
Keding: I don't want to but I guess I'm going to have to.

¶10 Abel responded in the affirmative and ceased all questioning. As a result of the above-described exchange, Keding was not given Miranda warnings at any time during the booking procedure. Most pertinent here, he was not advised that he had the right to remain silent, and that anything he said could be used against him in a court of law. See Miranda v. Arizona, 384 U.S. 436, 479 (1966).

¶11 Moments later, Scheppler observed Keding throw an item into a trash can. Scheppler, who was aware that Keding had not been given Miranda warnings and had invoked his right to counsel and his right to remain silent, initiated the following exchange:

Scheppler: What did you toss in there?
Keding: A Kleenex. It might have some residue for you.
Scheppler: Alright. [chuckles]

¶12 Forty seconds passed. Based on the video footage, it appears that Scheppler left the booking area for at least a portion of that 40-second period while Keding mused about the crime lab's procedures for testing controlled substances. Scheppler then returned to the booking area and engaged Keding in the following exchange:

Scheppler: So, you were saying some residue might be on the Kleenex or what?
Keding: In the snot. There's going to be a little cocaine in there.
Scheppler: Some cocaine?
Keding: Yeah, I did some at the bar. I forgot about it because I like had drinks and like drinking impairs your-so that's all I'm going to give you.

¶13 Scheppler was asked about these exchanges at the suppression hearing, and he testified as follows. When he asked what Keding had discarded, his question was not for the "purpose[] of gathering evidence," and Scheppler did not "believe [he] was asking anything related to the offense[.]" Scheppler did not expect that Keding's response would be about "residue," and he was surprised by that response. Regarding the follow-up questions about the residue, Scheppler testified that he "repeated some of the statements that [Keding] made," and that he did so because he was "curious" what Keding meant "when he said residue" and "what the Kleenex might have tested for." At that point, Scheppler was "just trying to have a conversation" with Keding "about the cocaine."

¶14 As noted, the State charged Keding with possession of cocaine (case No. 2021CM318), and he was released on bail. Keding was later arrested for violating the conditions of his bail, and the State issued a complaint (case No. 2021CM617) that charged him with misdemeanor bail jumping.

¶15 Meanwhile, in the possession case, Keding filed a motion to suppress, which challenged the admission of the inculpatory statements Keding made to Abel at the scene of the arrest. The State conceded that the statements should be suppressed, and the circuit court granted that portion of Keding's motion. I therefore discuss Keding's statements to Abel no further.

¶16 Keding's motion to suppress also challenged the admission of the statements Keding made to Scheppler at the police station regarding the tissue Keding had thrown away. Keding argued that Scheppler's questioning constituted interrogation, and that he was interrogated without receiving Miranda warnings and after he unequivocally invoked his right to counsel. He argued that the statements should be suppressed because their introduction at trial would violate the Fifth Amendment to the United States Constitution.

¶17 The circuit court denied Keding's motion with respect to those statements. The court determined that Keding had not been given Miranda warnings, that he had unequivocally invoked his right to counsel, and that all further interrogation had to cease. However, the court concluded that Scheppler's questioning did not constitute interrogation. It determined that the inquiry about what Keding had thrown in the trash was "reasonable," and that Keding's statement in response was "voluntary" and "not elicited by the questioning of the officer." It also determined that Scheppler's follow-up inquiries merely confirmed Keding's "weird" response. Accordingly, the court declined to suppress the statements Keding made to Scheppler at the police station.

¶18 Seven days later, Keding entered a plea agreement with the State. Pursuant to the agreement, the State amended the charge of possession of cocaine to possession of a controlled substance contrary to WIS. STAT. § 961.41(3g)(b), and Keding pled no contest to the amended charge in the possession case and the charge in the bail jumping case. Pursuant to a joint sentencing recommendation, the circuit court withheld sentence and imposed one year of probation in both cases.

DISCUSSION

¶19 Keding appeals both judgments of conviction. In his appellate briefing,...

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