State v. Kiekhefer, No. 96-2052-CR

CourtCourt of Appeals of Wisconsin
Writing for the CourtANDERSON
Citation569 N.W.2d 316,212 Wis.2d 460
Decision Date29 May 1997
Docket NumberNo. 96-2052-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Scott KIEKHEFER, Defendant-Appellant. . Oral Argument

Page 316

569 N.W.2d 316
212 Wis.2d 460
STATE of Wisconsin, Plaintiff-Respondent,
Scott KIEKHEFER, Defendant-Appellant.
No. 96-2052-CR.
Court of Appeals of Wisconsin.
Oral Argument May 29, 1997.
Opinion Released July 23, 1997.
Opinion Filed July 23, 1997.

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[212 Wis.2d 464] On behalf of the defendant-appellant, the cause was submitted on the briefs and oral argument of Linda Hornik of Milwaukee.

On behalf of the plaintiff-respondent, the cause was submitted on the briefs of James E. Doyle, Attorney General, and Gregory M.

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Posner-Weber, Assistant Attorney General. Oral argument was by Gregory M. Posner-Weber.



Scott Kiekhefer appeals from a judgment of conviction for possession of THC (marijuana) with intent to deliver in violation of § 161.41(1m)(h), STATS., 1993-94. Judgment was entered after Kiekhefer pled no contest. On appeal, Kiekhefer maintains that the trial court erred when it [212 Wis.2d 465] denied his motion to suppress statements made to the police prior to receiving his Miranda 1 warnings, the physical evidence obtained therefrom and his subsequent written statement. We hold, and the State concedes, that Kiekhefer's unwarned statements must be suppressed. We further conclude that those unwarned statements were not voluntarily made, and consequently, the physical evidence derived from those statements must be suppressed. Finally, because the subsequent written statement was not so attenuated from the prior illegal police activity as to dissipate the taint, it must also be suppressed. We therefore reverse the judgment of conviction and remand for further proceedings consistent with this opinion.


According to the testimony of the agents, they received information that Kiekhefer might be holding a large amount of marijuana and some guns for Darryl Wisneski. 2 The word was that Wisneski might attempt to move the dope because he suspected that Kiekhefer's home was going to be raided. Surveillance was set up at Kiekhefer's home to watch for Wisneski. On March 6, 1995, one of Wisneski's vehicles pulled into the area of Kiekhefer's home and a person matching Wisneski's description entered the house. When Wisneski left the house the agents pursued him, but he eluded them.

At that point, the agents decided that they would try to do a consensual search of the Kiekhefer home. According to deputy Brian Londre, he and agent Joseph Zbleskwski knocked on the door and Shirley [212 Wis.2d 466] Kiekhefer, Kiekhefer's mother, allowed them into the kitchen. The two agents never asked Shirley for consent to search her house, but she agreed to let them speak to Kiekhefer if she could come along. They walked through a kitchen door to a work area which contained the bedroom door to Kiekhefer's room. The door was closed.

Londre and Zbleskwski smelled the odor of burning marijuana, so they called for the other two agents to secure the residence. Zbleskwski testified that they wanted to secure the residence because they believed they had probable cause to secure a warrant.

After a brief discussion and without announcing, the four agents opened the door to Kiekhefer's room and walked in. Kiekhefer's friend Keith Christensen was present; the agents immediately handcuffed and patted down both individuals. Prior to any discussion of consent to search, Zbleskwski asked if there were any controlled substances in the room. Kiekhefer gestured to a joint in the ashtray. Zbleskwski asked if there was more; Kiekhefer initially said no, but then stated there was a bag of marijuana in his dresser.

Zbleskwski next asked for permission to search the remainder of the room. He "may have" said "we can do this the hard way or we can do this the easy way." He did tell Kiekhefer "we can get a warrant if we need to." Christensen testified that Sergeant Carlson said there were a couple of ways they could go about it: "We can do this easy, you can allow me to or we can do this hard, and then in which case we'll tear this place apart." According to Christensen, Carlson made a point to say it would be easier if Kiekhefer cooperated, but if they got a search warrant, then they would search and tear up the entire house.

[212 Wis.2d 467] Consequently, at 6:25 p.m., Kiekhefer gave them permission to search. After that, Zbleskwski asked if there was any other marijuana in the room. Kiekhefer disclosed

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the location of a gym bag in the closet which contained fourteen pounds of marijuana. The agents then searched the room and uncovered an unloaded assault rifle and another unloaded gun, both packaged in styrofoam.

After Kiekhefer disclosed the whereabouts of the marijuana and the agents searched his room, Zbleskwski read him the Miranda warnings at 6:30 p.m. Initially, Kiekhefer did not wish to speak to the agents. Approximately two hours later, he changed his mind, the warnings were reread and at that point Kiekhefer gave a written statement.

Subsequently, Kiekhefer was charged, as a party to the crime, with one count of possession of a controlled substance, in an amount greater than 2500 grams, contrary to §§ 161.41(1m)(h)3, 161.14(4)(t) and 939.05, STATS., 1993-94; and two counts of possession of drug paraphernalia contrary to § 161.573, STATS., 1993-94. Kiekhefer waived the preliminary hearing and was bound over for trial.

Kiekhefer filed a motion to suppress all evidence seized from the Kiekhefers' residence, as well as his statements made during the search. Kiekhefer's motion was subsequently denied. Thereafter, on October 31, 1995, Kiekhefer entered a plea of no contest to possession of a controlled substance, and the two counts for possession of drug paraphernalia were dismissed. Kiekhefer received a three-year prison sentence, was ordered to obtain drug and alcohol assessment and counseling, was fined $1000 and his driver's license was revoked for six months. Kiekhefer appeals.


Miranda Violation

We will address the Miranda violation first. Upon entering the bedroom, the agents handcuffed Kiekhefer and Christensen and immediately began questioning Kiekhefer about the location of any controlled substances in the room. The interrogation occurred prior to any discussion of consent to search and before Kiekhefer and Christensen received Miranda warnings. Only after the agents had recovered all of the marijuana and had searched the room (uncovering two weapons) did they read Kiekhefer the Miranda warnings. Zbleskwski testified that the warnings were given approximately fifteen minutes after they entered the room; two hours later, Kiekhefer gave a written statement. Kiekhefer argues for suppression of all of this evidence under the Fifth Amendment.

The State concedes suppression of Kiekhefer's unwarned statements based on the Miranda violation. The State nevertheless maintains that under Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Miranda exclusionary rule does not apply to physical evidence proximately derived from an unwarned, yet voluntary, statement. Although Elstad dealt with subsequent statements obtained after administering Miranda warnings, the State asks this court to take Elstad one step further to allow for the admission of the physical evidence as well. This is an issue of first impression in Wisconsin; 3 however[212 Wis.2d 469] , the facts of this case compel us to decline the State's invitation.

Miranda presumes that an interrogation in certain custodial circumstances is inherently coercive and that statements made under those conditions are inadmissible unless the suspect is administered his or her Miranda rights and freely decides to forego

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those rights. See Elstad, 470 U.S. at 305, 105 S.Ct. at 1290-91 (citing New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 2630-31, 81 L.Ed.2d 550 (1984)). The failure to provide Miranda warnings creates a "bright-line, legal presumption of coercion, requiring suppression of all unwarned statements." Elstad, 470 U.S. at 306 n. 1, 105 S.Ct. at 1292 n. 1. Nevertheless, "[i]t is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period." 4 Elstad, 470 U.S. at 309, 105 S.Ct. at 1293. "Though Miranda [212 Wis.2d 470] requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn ... solely on whether it is knowingly and voluntarily made." Id.

The first step in the Elstad analysis requires the reviewing court to " 'determine whether the statement made by a defendant before the Miranda warning was actually coerced in violation of the fifth amendment.' " United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1049 (9th Cir.1990) (quoted source omitted). This inquiry is critical because where there is no evidence of coercion, "the object of the fifth amendment--assuming trustworthiness of evidence introduced at trial--is not served by barring admission of the derivatively obtained evidence or statements." Id. at 1048. If the court finds that the statement was voluntary, despite having been obtained in technical violation of Miranda, it then " 'should suppress the statement given after the Miranda warning only if it finds that the subsequent statement was not voluntarily made.' " Gonzalez-Sandoval, 894 F.2d at 1049 (quoted source omitted).

In determining whether a statement (confession) was voluntary, courts must independently examine the record and apply the totality of circumstances test. See Arizona v. Fulminante, 499 U.S. 279, 286-87, 111 S.Ct. 1246, 1252-53, 113 L.Ed.2d 302 (1991). [212 Wis.2d 471] "In examining all the surrounding circumstances to determine if in fact the consent to...

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