State v. Martin, Appeal No. 2010AP505-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: CURLEY
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Randy L. Martin, Defendant-Appellant.
• Docket Number: Cir. Ct. No. 2008CF5903,Appeal No. 2010AP505-CR
• Decision Date: 03 May 2011

State of Wisconsin,
Plaintiff-Respondent,
v.
Randy L. Martin,
Defendant-Appellant.

Appeal No. 2010AP505-CR
Cir. Ct. No. 2008CF5903

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT I

May 3, 2011

A. John Voelker
Acting Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

APPEAL from a judgment and orders of the circuit court for Milwaukee County: KEVIN E. MARTENS, Judge. Affirmed.

Before Curley, P.J., Kessler and Brennan, JJ.

¶l CURLEY, P.J. Randy L. Martin appeals the judgment convicting him of being a felon in possession of a firearm and for carrying a concealed

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weapon. See WIS. STAT. §§ 941.29(2), 941.23 (2007-08).¹ He also appeals the orders denying his motion to suppress evidence and his motion for reconsideration. Martin argues that the trial court erred in denying his motion to suppress statements he made to police because: an officer asked him questions likely to elicit incriminating responses while he was in police custody without giving him his Miranda ² warnings; the conversation between Martin and police was an "interrogation" for Miranda purposes even if Martin initiated it; and the resulting error was not harmless. Martin additionally argues that the trial court erred in denying his motion to suppress the handgun found in his car shortly after his arrest because it resulted from an unconstitutional, warrantless search. We affirm.

I. Background.

¶2 On November 14, 2008, Milwaukee Police Sergeant James Fidler observed an altercation involving Martin and another driver. Fidler had pulled up to an intersection where traffic had stopped at a red light when he observed Martin get out of his car and yell in the direction of a car ahead of him. As Martin walked toward the car ahead of him, the driver of that vehicle stepped outside. Martin pulled what looked like a weapon out of his coat pocket, pointed it at the other driver, and said, "I have something for you." At that point, the other driver motioned to Fidler and Martin put the object inside his pocket and walked back to his car.

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¶3 Sergeant Fidler promptly arrested Martin for disorderly conduct and searched him. Fidler recovered an expandable baton from Martin's front coat pocket and a knife from Martin's waistband.

¶4 Two other Milwaukee police officers, Hollis Smith and Andrew Moutry, stopped to assist Sergeant Fidler. Fidler told Smith to search Martin's car. Smith consequently asked the passenger seated in Martin's car—LeRoy Henry—to step out and proceeded to search the car while Fidler stayed with Martin. Smith pulled out a plastic storage drawer located under the front passenger seat and found a loaded.22-caliber handgun inside.

¶5 Officer Smith showed the weapon to Martin and Henry. He then asked Martin and Henry whether either of them owned the gun. Both denied any knowledge of it. Officer Smith then turned to handcuff Henry. As Martin saw this happening, he asked Smith why he was arresting Henry. Smith explained that he was arresting Henry for carrying a concealed weapon. Martin asked the officers if they would let Henry go if Martin said the gun was his. Officer Smith replied: "I don't want you to say it's yours if its not. I just want the truth, is the gun yours." Martin responded, "yeah, it's mine if you let my uncle go."³ Officer Smith then asked Martin to describe the weapon. Smith said he did so to prevent Martin from falsely confessing:

I just wanted the truth. I didn't want him to say the gun was his just to get his uncle out of trouble, and by him describing the gun to me that satisfied me that he had personal knowledge or intimate knowledge of this weapon and knew about it.

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¶6 Martin said that the gun was a "black 22-caliber hand gun." His description was correct: the gun was in fact a.22-caliber, and, according to Smith, this would not have been obvious to someone who was not closely familiar with the gun.

¶7 Prior to this conversation, none of the officers on the scene gave Martin any warnings pursuant to Miranda.

¶8 Martin was subsequently charged with being a felon in possession of a firearm and for carrying a concealed weapon. Martin moved to suppress his admission that the gun was his, his description of the gun, and the gun itself at trial. The trial court denied Martin's motion, and Martin's statements and the gun were entered into evidence at trial. A jury found Martin guilty on both counts.

¶9 After trial, and prior to sentencing, Martin moved for reconsideration of his search and seizure motion based on Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009), which created a new rule for searches incident to arrest after Martin's trial. The trial court denied the motion, and Martin now appeals.

II. Analysis.

¶10 On appeal, Martin argues that the trial court erred in denying his motion to suppress statements he made to police because: an officer asked him questions likely to elicit incriminating responses while he was in police custody without giving him his Miranda warnings; the conversation between Martin and police was an "interrogation" for Miranda purposes even if Martin initiated it; and the resulting error was not harmless. Martin additionally argues that the trial court erred in denying his motion to suppress the handgun found in his car shortly after

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his arrest because it resulted from an unconstitutional, warrantless search. We disagree and discuss each argument in turn.

A. The trial court did not err in denying Martin's motion to suppress his statements.

¶11 We turn first to Martin's argument that the trial court erred in denying his motion to suppress statements he made to police while in custody. The Fifth Amendment to the United States Constitution provides that no "'person... shall be compelled in any criminal case to be a witness against himself.'" See, e.g., State v. Cunningham, 144 Wis. 2d 272, 276, 423 N.W.2d 862 (1988). "In Miranda [v. Arizona, 384 U.S. 436 (1966)], the Supreme Court established that the State may not use a suspect's statements stemming from custodial interrogation unless" it "demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." State v. Fischer, 2003 WI App 5, ¶21, 259 Wis. 2d 799, 656 N.W.2d 503. "Included among those safeguards are the now-familiar Miranda warnings." Id. Thus, the issue is whether a custodial interrogation actually occurred, because " Miranda warnings need only be administered to individuals who are subjected to custodial interrogation." Id., ¶22. The State must establish whether a custodial interrogation took place by a preponderance of the evidence. Id.

¶12 Whether the trial court correctly concluded that a custodial interrogation did not take place in this case is a mixed question of fact and law. See Cunningham, 144 Wis. 2d at 281-82. We review the circuit court's findings of fact under the clearly erroneous standard. State v. Armstrong, 223 Wis. 2d 331, 352, 588 N.W.2d 606 (1999). The ultimate question of whether the facts constitute an interrogation, however, is a question of law we review de novo.

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Cunningham, 144 Wis. 2d at 282; State v. Coerper, 199 Wis. 2d 216, 222, 544 N.W.2d 423 (1996).

¶13 Because the parties do not dispute that Martin was in custody when he claimed that the gun was his, and because they do not dispute that Martin did not receive Miranda warnings, the sole issue before us is whether Smith "interrogated" Martin. See Fischer, 259 Wis. 2d 799, ¶¶22-23 ("Custodial interrogation" for Miranda purposes "generally means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her...