State v. Harris
State v. Harris
Opinion of the Court
¶ 1. Brian Harris appeals from a judgment of conviction for burglary, possession of bur
Background
¶ 2. Officer Justin Niebuhr and Detective Chad Buchanan, both of the city of Kenosha police department, were the only witnesses to testify at the suppression hearing. Their relevant, undisputed testimony is as follows.
¶ 3. Niebuhr responded to a report of a possible burglary in progress at a townhouse. At the residence
¶ 4. Niebuhr observed the townhouse was dark inside and appeared vacant. The front and back doors were locked, but a window was "cracked and . . . the latch was undone," so that the window could be opened from the outside. Niebuhr requested backup and eventually gained entry into the townhouse. The clinking noises stopped as the officers moved through the townhouse. Niebuhr and another officer went to the basement, which was from where Niebuhr believed the noises had originated. Using a flashlight while descending the stairs, Niebuhr observed shoes sticking out from underneath another staircase. The officers demanded that anyone in the basement show themselves. Receiving no response, the officers approached the pair of shoes, which belonged to Harris. Harris slowly came out as the officers confronted him.
¶ 5. The officers handcuffed Harris, Niebuhr believes "almost immediately." Niebuhr engaged in "basic questioning" of Harris "trying to find out who he was and, you know, if he lived there, why he was in the building." Though Niebuhr did not recall the exact questions he asked Harris, he described his communications as being a "who you are, what are you doing down here kind of conversation." Also after handcuffing Harris, Niebuhr looked around the basement "for a few minutes," observing "copper piping laying on the ground that was previously up on the ceiling," "a gray duffle bag on the floor . . . contain [ing] a saw and some replacement blades, a bolt cutter-type instrument, some crowbars," and "a flashlight on the floor that had a red lens over the light bulb spot." Harris was even
¶ 6. Having received Harris's name either directly from Harris or from an "ID" found on him, Niebuhr procured a "mugshot" of Harris. Niebuhr then attempted to get in contact with the owner of the townhouse and was in the process of completing paperwork when Harris, from the back of the squad car, began telling Niebuhr
that he's been homeless for approximately seven years; that he frequently goes into vacant houses to sleep; that he was going to take the copper piping and sell it for money for food, and that he often commits misdemeanor crimes to get items to sell for food ... to get by.
Neither Niebuhr nor any other officers were asking Harris any questions when Harris made these comments, and Niebuhr confirmed he never made any threats or promises to Harris in order to induce him to make the comments.
¶ 7. Buchanan testified that he spoke with Harris on the main floor of the Kenosha county jail "just outside where the interview rooms are located." Harris had been brought there, unhandcuffed, by a guard in the jail. On direct examination, the prosecutor asked Buchanan how communication with Harris began. The following exchange took place:
[Buchanan]: I went there with the intention of asking Mr. Harris if he would like to come with me to the detective bureau to be interviewed. I asked him if he would, and he stated to me something to the effect that they caught me, what's the point.
*784 [Prosecutor]: Now, in your report you indicated, I got caught, man, that is there's nothing else to say, something of that nature?
[Buchanan]: I think if that is what it says in my report, that's what he said.
Neither Niebuhr nor Buchanan had provided Harris with the Miranda warnings prior to Harris making his various comments.
¶ 8. The circuit court denied Harris's suppression motion and permitted the State to use Harris's comments at trial. A jury found Harris guilty on all four counts, and he appeals. Additional facts will be set forth as necessary.
Discussion
¶ 9. In reviewing the propriety of a circuit court's denial of a motion to suppress evidence, we uphold the court's factual findings unless they are clearly erroneous, but we independently review whether the facts satisfy the constitutional standard at issue. See State v. Hambly, 2008 WI 10, ¶ 49, 307 Wis. 2d 98, 745 N.W.2d 48. The State bears the burden of "establishing] by a preponderance of the evidence whether a custodial interrogation took place." State v. Armstrong, 223 Wis. 2d 331, 345, 588 N.W.2d 606 (1999). It is also the State's burden to prove the admissibility of evidence after the primary taint of a constitutional violation has been established. See State v. Walker, 154 Wis. 2d 158, 186, 453 N.W.2d 127 (1990), abrogated, in part, on other grounds by State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 N.W.2d 775.
¶ 10. Harris contends his comments to Niebuhr and Buchanan should have been suppressed and
Harris's comments to Officer Niebuhr
¶ 11. Harris insists his comments made to Niebuhr in the squad car were "the product of unwarned custodial interrogation," and were not sufficiently attenuated from Niebuhr's questioning in the townhouse basement "so as to purge the statements of the taint of the police misconduct." The State concedes Niebuhr engaged in unlawful custodial interrogation in the basement, but asserts that "the illegal activity . . . had ended and any semblance of an interrogation had been concluded by the time Harris was placed in the police squad."
¶ 12. Based upon the State's concession, we accept, without deciding, that Niebuhr's basement questioning of the handcuffed Harris constituted custodial interrogation, making Niebuhr's questioning illegal due to Niebuhr's failure to provide Harris the Miranda warnings. We nonetheless conclude the circuit court did not err in denying Harris's motion to suppress his inculpatory squad car comments because Harris's
¶ 13. "The primary concern in attenuation cases is whether the evidence objected to was obtained by exploitation of a prior police illegality or instead by means sufficiently attenuated so as to be purged of the taint." State v. Anderson, 165 Wis. 2d 441, 447-48, 477 N.W.2d 277 (1991). In answering the attenuation question, we are to consider "the temporal proximity of the official misconduct and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct." Id. at 448. If the evidence was "obtained by means sufficiently distinguishable from the prior" unlawful police conduct, the evidence may be properly admitted. Id.
¶ 14. We first consider the temporal proximity between Niebuhr's questioning of Harris in the townhouse basement and Harris's inculpatory comments in the squad car. The testimony is unclear as to the precise length of time between these two events, including whether the questioning occurred before or after Niebuhr looked around the basement "for a few minutes," and the circuit court made no findings as to temporal proximity. Nonetheless, it appears the length of time likely was no more than a matter of minutes. See State v. Artic, 2010 WI 83, ¶ 76, 327 Wis. 2d 392, 786 N.W.2d 430 (deducing the length of time from various factors in the record, the court said "although the time span is unclear, it appears from the record that it was not more than about five minutes").
¶ 15. There is no hard and fast rule for whether a particular length of time is too long or too short. See United States v. Conrad, 673 F.3d 728, 733 (7th Cir.
¶ 16. "To constitute sufficient intervening circumstances" — the second consideration — "the interim facts or evidence must show a 'discontinuity'" between the illegal act and Harris's inculpatory comments "such that the original illegality is weakened and attenuated." See id., ¶ 85. Here, after Niebuhr questioned Harris in the basement, Harris was walked up the stairs and out of the townhouse, and placed into the squad car — a location different from where the questioning had occurred. See id., ¶ 89 (concluding that the upstairs unit of the two family residence — the site of the challenged consensual search — was sufficiently separate from the downstairs unit, into which the officers unlawfully entered, to support attenuation). Niebuhr secured a "mugshot" of Harris, and became occupied with efforts to contact the owner of the townhouse and complete paperwork. Only then— completely removed from verbal engagement by any
¶ 17. The third consideration — "the purpose and flagrancy of the official misconduct" — "is 'particularly' important because it goes to the heart of the exclusionary rule's objective of deterring unlawful police conduct." Anderson, 165 Wis. 2d at 448; see also Artic, 327 Wis. 2d 392, ¶ 91 (citations omitted); Conrad, 673 F.3d at 735 (referring, for this same reason, to this third consideration as "the most important"). Courts consider whether an officer's unlawful actions amounted to "bad faith exploitation of the situation." Artie, 327 Wis. 2d 392, ¶ 105 (citation omitted). Nothing in the facts of record suggests that occurred here.
¶ 18. In this case, the basement was dark, the metal clinking sounds stopped as officers moved about the townhouse, and the person making the sounds could well have possessed a potentially dangerous object that made the sounds. Harris was hiding and not responding to the officers' request for anyone in the basement to respond; he then slowly emerged as the officers confronted him. The officers acted in a reason
¶ 19. We conclude Harris's comments in the squad car were sufficiently attenuated from Niebuhr's unlawful basement questioning so as to be purged of the taint of that illegality. See Anderson, 165 Wis. 2d at 447-48. The circuit court did not err in denying Harris's request to suppress these comments and permitting the State to use them at trial.
¶ 20. "Miranda warnings need only be administered to individuals who are subjected to a custodial interrogation." Armstrong, 223 Wis. 2d at 344-45. The State concedes Harris was in custody when he made his remark to Buchanan at the jail, but argues the remark was not the product of interrogation by Buchanan. We agree.
¶ 21. "Interrogation" refers to "words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (emphasis omitted). At the jail, a guard brought an unhandcuffed Harris to Buchanan at a location on the main floor of the jail just outside where interview rooms are located. Buchanan testified at the suppression hearing:
I went there with the intention of asking Mr. Harris if he would like to come with me to the detective bureau to be interviewed. I asked him if he would, and he stated to me something to the effect that... I got caught, man, that is there's nothing else to say ....
In its oral ruling at the end of the hearing, the circuit court stated:
Detective Buchanan's intent was to ask the defendant to come into the interview rooms for an interview and ask the statement or the question was, would you like to give a statement? And the defendant said, I got caught, man, I have nothing else to say. Again, if that simple statement was — would be viewed as either the pressure or the unlawful question to the defendant,*791 there would be no way to initiate the whole concept of giving a statement. I'm satisfied that. . . the statement was voluntarily [sic]. If there was going to be a statement, it would have been in the interview room and the defendant's response would have — -the response to the question by the detective might very well have been, yes, I'll give a statement or, no, I won't give a statement. But the defendant again voluntarily said, 1 got caught, man, I have nothing else to say.
¶ 22. We note that Buchanan's testimony is unclear as to the precise words Buchanan spoke to Harris. The testimony indicates Buchanan uttered words effectively asking Harris if Harris would like to come with him to the detective bureau to be interviewed. The circuit court indicated in its ruling that Buchanan asked Harris "would you like to give a statement" — words Buchanan never used in his testimony, but which, in one sense, reasonably could be considered a shorthand phrasing of Buchanan's testimony. Thus, whether as a summary of Buchanan's actual testimony or as an erroneous recollection of it,
¶ 23. In denying the suppression motion, the circuit court ultimately, if implicitly, found that the message Buchanan conveyed to Harris was a procedural one that an objective listener would have interpreted as an invitation for a simple "yes"/"no"-type response indicating Harris's willingness or lack thereof to cooperate with Buchanan by providing a formal statement — not an invitation for Harris to blurt out a substantively incriminating response right then and there.
¶ 24. As the court observed, without some latitude to inquire as to whether a defendant would be willing to cooperate in providing a formal statement— "there would be no way to initiate the whole concept of giving a statement." While one could argue, from a practical standpoint, Buchanan should have just "played it safe" and provided Harris the Miranda warnings prior to saying a single word to him, Buchanan's
¶ 25. We conclude the circuit court did not err in denying Harris's motion to suppress his remark to Buchanan and permitting the State to use it at trial because Buchanan's communication to Harris was not reasonably likely to elicit an incriminating response; thus, the communication did not constitute interrogation and Miranda warnings were not required.
By the Court. — Judgment affirmed.
Miranda v. Arizona, 384 U.S. 436 (1966).
The circuit court did not draw this mischaracterization of Buchanan's testimony from whole cloth. In arguments following testimony at the suppression hearing, the prosecutor five times and defense counsel four times restated Buchanan's communication to Harris at the jail as: "[W]ould you like to give a statement?" It is not clear from the record why the prosecutor began this chain of mischaracterizing Buchanan's testimony; but it is not surprising that by the time the court made its oral ruling, the court may have been "remembering" Buchanan's testimony in the manner the prosecutor and defense counsel repeatedly mischaracterized it.
From Buchanan's undisputed testimony, the circuit court found that Harris in fact responded to Buchanan's communication to him with "I got caught, man, I have nothing else to say." The fact that Harris actually responded to Buchanan's communication with a "no"-type response like this, instead of a substantive statement related to Harris's presence in the townhouse, supports the court's implicit finding that the message Buchanan conveyed to Harris was a procedural one that merely sought a "yes"/"no"-type response.
Reference
- Full Case Name
- State of Wisconsin, Plaintiff-Respondent v. Brian I. Harris
- Cited By
- 8 cases
- Status
- Published