Case Number: 2015AP002506-CR

Judge: PATIENCE DRAKE ROGGENSACK

Court: SUPREME COURT OF WISCONSIN

Plaintiff's Attorney: Amy C. Miller, assistant solicitor general, Brad D. Schimel, attorney general, Misha Tseytlin, solicitor general, and Ryan J. Walsh, chief deputy solicitor general

Defendant's Attorney: Leon W. Todd, assistant state public defender.

Description: This case arises from two crimes committed in July
2013. On July 12, 2013, M.R. was assaulted by a male suspect
with a knife while walking her dog in Richfield Historical Park
in the Village of Richfield. M.R. was tackled to the ground and
suffered several knife wounds before disarming the suspect, who
fled the scene in a blue Dodge Caravan. Three days later, on
July 15, 2013, Jessie Blodgett, a friend and former girlfriend
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of Bartelt, was found dead in her home in the City of Hartford.
According to preliminary autopsy findings, the cause of death
was ligature strangulation.
¶6 As of July 16, 2013, Clausing and Detective Richard
Thickens of the Hartford Police Department had identified
Bartelt as a person of interest in the attack on M.R. Earlier
that month, a deputy had noticed a blue Dodge Caravan at the
same park and had run the license plate, which revealed that the
vehicle was registered to Bartelt's parents. Police learned
that the Bartelts had a son, and were then able to match
Bartelt's photograph from the Wisconsin Department of
Transportation with the composite sketch drawn at M.R.'s
direction. Clausing contacted Bartelt around 5:00 p.m. on July
16, and told him that the police were investigating an incident,
and that they needed to speak with him. Bartelt was "very
compliant," and agreed to meet with detectives at the Slinger
Police Department.
¶7 The Slinger Police Department is located inside a
municipal building that it shares with various other offices and
departments. There is one main entrance to the building. Once
inside, a separate entrance leads to the police department.
Neither the main door to the building nor the door to the police
department is secured during normal business hours, and there
are no metal detectors or other security screening devices.
Inside the police department, another door leads to the
"internal portion" of the department. This door is locked from
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the outside, but one can freely exit. The interview room is
located about twenty-five feet inside this secured area. The
room is thirteen and one-half feet by ten and one-half feet, and
contains a table, three chairs and a window. The room can be
accessed by either of two doors, neither of which can be locked.
¶8 Bartelt was dropped off by two friends at the Slinger
Police Department around 5:12 p.m. His friends waited outside.
Clausing testified that Bartelt was escorted to the interview
room but was not searched. Bartelt chose the seat on the far
side of the table, while Clausing sat at the end, and Walsh sat
opposite Bartelt. Clausing and Walsh were wearing civilian
clothes; however, they both had their badges displayed on their
belts, as well as their service weapons. Clausing testified
that one of the doors to the room was left open. Unbeknownst to
Bartelt, the interview was recorded by both audio and visual
means.
¶9 Clausing began the interview by telling Bartelt that
he was not in trouble, he was not under arrest, and he could
leave at any time. Clausing did not read Bartelt his Miranda
rights. Bartelt, who had just come from the Blodgett residence
to pay his respects to the family, believed the police were
meeting with him about Blodgett's murder. However, Clausing
explained that law enforcement was investigating an attack that
had occurred at Richfield Historic Park on the previous Friday.
Bartelt was asked a number of preliminary questions and
initially denied any involvement. Bartelt stated that he had
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been with his girlfriend on the day in question, although he
could not "remember any specifics." Clausing then explained
that cell phones "are kind of like GPS's," and told Bartelt, "I
don't want any lies."
¶10 Clausing then observed some scrapes and a cut on
Bartelt's hand and arm. Bartelt stated he did not remember how
he scraped his arm, but that he had stabbed his hand "with a
screw at work." The following exchange then occurred:
DET. CLAUSING: . . . So what do you think evidence is?
MR. BARTELT: Incriminating items, documents.
DET. CLAUSING: First -- but I'm more of a nutsand-bolts type of guy. Like, what would you consider to be evidence?
MR. BARTELT: Well --
DET. CLAUSING: Fingerprints?
MR. BARTELT: Yeah.
DET. CLAUSING: Okay. Fibers? Hairs?
MR. BARTELT: Yeah.
DET. CLAUSING: Any DNA? You know, footwear impressions?
MR. BARTELT: Yeah.
DET. CLAUSING: Witness statements, right? Video surveillance, stuff like that, right?
MR. BARTELT: Yeah.
DET. CLAUSING: Is there any evidence that we just talked about which would show that you would be in this park at the time of this incident that had occurred? Is there any evidence out there that would show that?
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MR. BARTELT: I don't think so . . . What is this about?
¶11 After reminding Bartelt that police were investigating
an incident at Richfield Historical Park, Clausing said, "What
if I were to tell you that there might be something that links
you there." Clausing then proceeded to explain "Locard's
exchange principle," which holds that the perpetrator of a crime
will bring something into the crime scene——such as fingerprints,
sweat, DNA, or clothing fibers——and leave it behind. The
detectives added that they had found evidence "from the person
that was out there," which needed to be analyzed by the state
crime laboratory.
¶12 Clausing next told Bartelt that they had an
eyewitness, stating, "I would hate to put down your picture in
front of the eyewitness and have them say, that's the guy that
was out there." Further, Clausing stated, "I can prove that you
were out there. It's not just a tip. I can prove it. And all
I'm getting at is that if you were out there, just talk to us
about what happened or what you saw or what you observed or
whatever." Walsh told Bartelt they knew that his vehicle had
been spotted at the park on several occasions when Bartelt was
supposed to be at work. Bartelt admitted that he had been laid
off for several months, and that the injury was actually the
result of a cooking accident.
¶13 At this time Clausing moved his chair closer to
Bartelt. When Clausing's face was about two feet from
Bartelt's, Clausing told him, "No more lies. It just makes
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things worse. It is spiraling out of control right now . . . .
Nobody in their right mind would lie about cutting themselves if
it happened at home cooking . . . . What happened? Just be
honest." Bartelt admitted that he had been to the park before
and that he had seen the sketch on television, but that "it
wasn't me."
¶14 Walsh then urged Bartelt to help bring closure to M.R.
"Daniel, the truth is going to help us bring some resolution to
this for everybody involved . . . . We have one scared person
out there right now . . . and the easiest way to put some
resolution to this is [for] the [ ] person that did this to take
responsibility." Walsh added that he could understand why
someone would do this, "especially if the person that did it
explains to us what they were thinking, where they were in their
life." For example, Bartelt had lost his job and hid that from
his parents, and he had dropped out of college after only one
semester. Walsh stated that "when things are not going well for
people, they do things that are very out of character." He
added, "I think you are a good person . . . [g]ood people can
explain things away and we can understand why they do things.
So tell us about the park."
¶15 Following a lengthy narrative from Clausing about the
two types of people in this situation——those who take
responsibility and those who say "prove it"——Bartelt admitted to
being at the park and going "after that girl" because he "wanted
to scare someone." Bartelt told the officers that he had been
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reading when he saw M.R., and in the "spur of the moment," he
decided to "run at her and knock her down and scare her."
Bartelt admitted there was no real explanation or motive for the
attack; he was "just numb" and scared because "life scares me."
Bartelt targeted M.R. because "[t]here was no one else there."
Following this admission, Clausing asked Bartelt if he would be
willing to provide a written statement of confession. Walsh
explained that the written statement would be Bartelt's chance
to apologize. When Bartelt asked what would happen after he
gave his statement, Clausing responded, "I can't say what
happens then. We'll probably have more questions for you, quite
honestly." Clausing later testified that, once Bartelt had
confessed, he "was going to be under arrest, and he probably
wasn't free to get up and leave."
¶16 It was at this point that Bartelt asked, "Should I or
can I speak to a lawyer or anything?" Clausing told him, "Sure,
yes. That is your option." Bartelt responded, "I think I'd
prefer that." At 5:45 p.m., roughly 33 minutes after Bartelt
arrived at the station for questioning, Clausing and Walsh
suspended the interview, took Bartelt's cell phone, and left the
room. When the detectives returned seven or eight minutes
later, Clausing told Bartelt he was under arrest, handcuffed
him, and searched him. Bartelt was then transported to the
Washington County Jail.
¶17 Clausing testified that, during the course of the
interview, both he and Walsh spoke in a conversational tone,
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which did not change even after Bartelt's admission. Neither
detective ever made reference to or unholstered their weapons.
Bartelt never asked to use the restroom or take a break. At one
point during the interview Clausing gave Bartelt permission to
answer his cell phone, which Bartelt declined to do.
¶18 The following day, on July 17, 2013, Bartelt was
brought to the interview room at the Washington County Sheriff's
Department to be questioned by Thickens and Detective James Wolf
regarding his relationship with Blodgett. Before commencing
with questioning, Thickens read Bartelt his Miranda rights,
which Bartelt knowingly and voluntarily waived.
¶19 Bartelt was questioned for approximately 90 minutes
about his relationship with Blodgett and his whereabouts on the
day of Blodgett's death. Bartelt denied being at the Blodgett
residence on July 15, 2013, or having any knowledge of
Blodgett's death. Bartelt stated that on the morning of July 15
he had left his house at 6:30 a.m. and drove "all over" before
spending a few hours at Woodlawn Union Park. Bartelt then asked
for an attorney, at which point the questioning stopped.
¶20 Thickens later drove to Woodlawn Union Park to
investigate, and in doing so he collected garbage from the
park's receptacles. In one container he found a Frosted Mini
Wheats cereal box containing paper toweling, numerous types of
rope and tape, and antiseptic wipes with red stains. One of the
ropes later revealed DNA that belonged to both Bartelt and
Blodgett, and which matched the ligature marks on Blodgett's
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neck. Another rope matched the ligature marks on her wrists and
ankles. Based on this evidence and the confession Bartelt made
during his first interview, Bartelt was charged with attempted
first-degree intentional homicide, first-degree reckless
endangerment, and attempted false imprisonment for the attack on
M.R., as well as first-degree intentional homicide for the
murder of Blodgett.
¶21 Bartelt moved to suppress his statements, and any
evidence derived from them, on the grounds that the officers had
violated his Miranda rights when they questioned him. The
circuit court denied Bartelt's motion, concluding that at the
time of his July 16, 2013, interview, Bartelt had voluntarily
agreed to speak with police. The circuit court concluded that
Bartelt was not in custody until after he had requested an
attorney, roughly ten minutes after his confession. Therefore,
no Miranda warnings were necessary with respect to the July 16
interview, and police were free to initiate questioning on July
17 because "an assertion of Miranda . . . which a person makes
while they are not in custody, does not prospectively prohibit
law enforcement from attempting to interview an individual
later." Further, with respect to the July 17 interview, the
circuit court found that Bartelt was properly given his Miranda
warning, which he voluntarily waived.
¶22 Following the denial of Bartelt's suppression motion,
the circuit court ordered that the Blodgett homicide charge be
separated from the charges related to M.R. After a seven-day
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jury trial, Bartelt was found guilty of Blodgett's murder.
Consequently, he was sentenced to life imprisonment without the
possibility of release to extended supervision. Shortly
thereafter, the parties reached a plea agreement regarding the
attempted murder, reckless endangerment, and false imprisonment
charges. In exchange for Bartelt's guilty plea to first-degree
reckless endangerment, the State agreed to dismiss and read-in
the remaining counts, and Bartelt was sentenced to five years'
imprisonment and five years' extended supervision consecutive to
his life sentence.
¶23 Bartelt appealed his murder conviction on the grounds
that the circuit court improperly denied his suppression motion.
Specifically, Bartelt argued that once he confessed to attacking
M.R., a reasonable person in his circumstances would have
believed he was not free to leave the station, thereby
transforming the non-custodial interview into a custodial
interrogation. Bartelt therefore argued that all statements
made after his admissions about M.R. were inadmissible under the
principles of Miranda and Edwards. As a consequence, Bartelt
alleges that detectives violated his Fifth Amendment rights when
they approached him to question him about Blodgett's murder
without counsel being present. Under the exclusionary rule,3
3 The exclusionary rule was first adopted by the United States Supreme Court in Weeks v. United States, 232 U.S. 383 (1914), which held that evidence obtained in violation of the Fourth Amendment is inadmissible. This holding was expanded to include state court proceedings in Mapp v. Ohio, 367 U.S. 643 (1961). However, Wisconsin courts have aligned themselves with (continued)
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Bartelt alleged that all derivative evidence discovered as a
result of his statements should have been suppressed.4
¶24 The court of appeals rejected Bartelt's arguments and
affirmed the circuit court's judgment. Bartelt sought review,
which we granted. For the reasons explained below, we affirm
the court of appeals.
II. DISCUSSION
A. Standard of Review
¶25 A determination of when custody begins presents a
question of constitutional fact that we review under a two-part
standard. State v. Jennings, 2002 WI 44, ¶20, 252 Wis. 2d 228,
647 N.W.2d 142. The circuit court's findings of historical fact
will be upheld unless they are clearly erroneous. State v.
Henderson, 2001 WI 97, ¶16, 245 Wis. 2d 345, 629 N.W.2d 613.
Whether those findings support a determination of custody for
purposes of Miranda is a question of law that we independently
review. Id.
B. Miranda and Custody
¶26 The Fifth Amendment of the United States Constitution
states that "[no person] shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
the federal rule since long before the Mapp holding. See Hoyer v. State, 180 Wis. 407, 417, 193 N.W. 89 (1923).
4 See State v. Knapp, 2005 WI 127, ¶2, 285 Wis. 2d 86, 700 N.W.2d 899 ("Where physical evidence is obtained as the direct result of an intentional Miranda violation, we conclude that our constitution requires that the evidence must be suppressed.").
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liberty, or property, without due process of law . . . ." We
have interpreted Article I, Section 8(1)5 of the Wisconsin
Constitution consistent with the United States Supreme Court's
interpretation of the Fifth Amendment. State v. Ward, 2009 WI
60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236.
¶27 In 1966, the Supreme Court held that the Fifth
Amendment requires law enforcement to inform suspects of their
rights to remain silent and to have an attorney present during
custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 458
(1966).6 These warnings are required because "[t]he
circumstances surrounding in-custody interrogation can operate
very quickly to overbear the will of [the suspect]." Id. at
469; see also State v. Quigley, 2016 WI App 53, ¶31, 370
Wis. 2d 702, 883 N.W.2d 139 ("[W]hen a suspect is in police
custody, there is a heightened risk of obtaining statements that
'are not the product of the suspect's free choice.'" (internal
citation omitted)).
5 Article I, Section 8(1) reads: "[n]o person may be held to answer for a criminal offense without due process of law . . . ."
6 "[The 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. If the accused indicates that he or she wishes to remain silent, questioning must stop. If he or she requests counsel, questioning must stop until an attorney is present. Id. at 474.
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¶28 In Edwards, the Supreme Court added a second layer of
protection to the Miranda right to counsel by fashioning a
bright-line rule requiring law enforcement to immediately cease
questioning once a suspect has asserted his or her right to
counsel during a custodial interrogation. Further,
[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.
Edwards v. Arizona, 451 U.S. 477, 484 (1981). Stated otherwise,
once a suspect has invoked his Fifth Amendment right to counsel,
the Miranda-Edwards rule prohibits police from engaging in
subsequent, uncounseled interrogations regarding the same or
separate investigations. Arizona v. Roberson, 486 U.S. 675,
677-78 (1988).7
¶29 Over the years, particular emphasis has been placed on
when a suspect may effectively invoke his or her Fifth Amendment
rights. Miranda stated that "[a]n individual need not make a
pre-interrogation request for a lawyer. While such request
affirmatively secures his right to have one, his failure to ask
for a lawyer does not constitute a waiver." Miranda, 384 U.S.
at 470. The Supreme Court later clarified this statement,
noting that the Court has "never held that a person can invoke 7 However, if it is the accused who initiates further communication with the police, courts typically will conclude that a valid waiver has been made. State v. Kramar, 149 Wis. 2d 767, 785-86, 440 N.W.2d 317 (1989).
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his Miranda rights anticipatorily, in a context other than
'custodial interrogation' . . . ." McNeil v. Wisconsin, 501
U.S. 171, 182 n.3 (1991). The Court continued:
If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect.
Id.
¶30 These Supreme Court decisions explain that the right
to counsel may not be invoked until a suspect is "in custody."
Wisconsin courts interpret Article I, Section 8 of the Wisconsin
Constitution consistent with the Supreme Court's interpretation
of the Fifth Amendment. "Miranda and its progeny are aimed at
dispelling the compulsion inherent in custodial surroundings.
Thus, the Miranda safeguards apply only to custodial
interrogations" under both constitutions. State v. Pheil, 152
Wis. 2d 523, 530-31, 449 N.W.2d 858 (Ct. App. 1989) (citation
omitted).8 "[U]nless a defendant is in custody, he or she may
not invoke the right to counsel under Miranda." State v. 8 This exact language has been cited in numerous subsequent decisions. See, e.g., State v. Kramer, 2006 WI App 133, ¶9, 294 Wis. 2d 780, 720 N.W.2d 459 (quoting State v. Hassel, 2005 WI App 80, ¶9, 280 Wis. 2d 637, 696 N.W.2d 270).
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Kramer, 2006 WI App 133, ¶9, 294 Wis. 2d 780, 720 N.W.2d 459.
We therefore turn our attention to what "in custody" means such
that an invocation of the right to counsel becomes immediately
effective.
¶31 In Miranda, the Supreme Court defined custodial
interrogation as "questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way."
Miranda, 384 U.S. at 444. The test to determine whether a
person is in custody under Miranda is an objective test. State
v. Lonkoski, 2013 WI 30, ¶27, 346 Wis. 2d 523, 828 N.W.2d 552.
The inquiry is "whether there is a formal arrest or restraint on
freedom of movement of a degree associated with a formal
arrest." Id. (quoting State v. Leprich, 160 Wis. 2d 472, 477,
465 N.W.2d 844 (Ct. App. 1991)); see also California v. Beheler,
463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon v.
Mathiason, 429 U.S. 492, 495 (1977)). Looking at the totality
of the circumstances, courts will consider whether "a reasonable
person would not feel free to terminate the interview and leave
the scene." State v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278,
816 N.W.2d 270 (citing Thompson v. Keohane, 516 U.S. 99, 112
(1995)).
¶32 We consider a variety of factors to determine whether
under the totality of the circumstances a reasonable person
would feel at liberty to terminate an interview and leave. Such
factors include: the degree of restraint; the purpose, place,
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and length of the interrogation; and what has been communicated
by police officers. State v. Blatterman, 2015 WI 46, ¶¶30, 31,
362 Wis. 2d 138, 864 N.W.2d 26. "When considering the degree of
restraint, we consider: whether the suspect is handcuffed,
whether a weapon is drawn, whether a frisk is performed, the
manner in which the suspect is restrained, whether the suspect
is moved to another location, whether questioning took place in
a police vehicle, and the number of officers involved." State
v. Morgan, 2002 WI App 124, ¶12, 254 Wis. 2d 602, 648 N.W.2d 23.
¶33 If we determine that a suspect's freedom of movement
is curtailed such that a reasonable person would not feel free
to leave, we must then consider whether "the relevant
environment presents the same inherently coercive pressures as
the type of station house questioning at issue in Miranda."
Howes v. Fields, 565 U.S. 499, 509 (2012). In other words, we
must consider whether the specific circumstances presented a
serious danger of coercion, because the "freedom-of-movement
test identifies only a necessary and not a sufficient condition
for Miranda custody." Id. (citation omitted). Importantly, a
noncustodial situation is not converted to one in which Miranda
applies simply because the environment in which the questioning
took place was coercive. Mathiason, 429 U.S. at 495. "Any
interview of one suspected of a crime by a police officer will
have coercive aspects to it . . . [b]ut police officers are not
required to administer Miranda warnings to everyone whom they
question." Id. Therefore, "Miranda warnings are not required
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'simply because the questioning takes place in the station
house, or because the questioned person is one whom the police
suspect.'" Beheler, 463 U.S. at 1125 (citing Mathiason, 429
U.S. at 495).9 And finally, "the initial determination of
custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either
the interrogating officers or the person being questioned."
Stansbury v. California, 511 U.S. 318, 323 (1994).
C. Bartelt and Custody
¶34 We now turn to whether, under the totality of the
circumstances of this case, Bartelt was in custody at any time
prior to Clausing taking his cell phone and telling him to
remain in the interrogation room. Although the parties agree
that the interview was not initially custodial, Bartelt argues
that his confession to the attack on M.R. transformed his
custody status into one in which a reasonable person would not
have felt free to leave. As a result, all further questioning
should have ceased once Bartelt invoked his right to counsel.10
9 The oft-used example of a situation in which one is physically detained but not in custody is that of a Terry stop or roadside traffic stop. See Terry v. Ohio, 392 U.S. 1 (1968); Berkemer v. McCarty, 468 U.S. 420 (1984). In Berkemer, the Supreme Court analogized traffic stops to Terry stops, concluding that the "noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda." Berkemer, 468 U.S. at 440.
10 This argument assumes, although we do not decide, that Bartelt's request for counsel was unequivocal.
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Accordingly, Bartelt alleges his constitutional rights were
violated when detectives from the City of Hartford approached
him the following day about the murder of Blodgett without
counsel present. Bartelt therefore argues that, under the
exclusionary rule, all statements made during the July 17
interview and the evidence that was derived from those
statements must be suppressed.
¶35 First, we consider the circumstances surrounding
Clausing and Walsh's interrogation of Bartelt. Second, given
those circumstances, we consider whether a reasonable person in
Bartelt's position would have felt that he or she was at liberty
to terminate the interview and leave. "Once the scene is set
and the players' lines and actions are reconstructed, [we] must
apply an objective test to resolve 'the ultimate inquiry':
'[was] there a "formal arrest or restraint on freedom of
movement" of the degree associated with a formal arrest[?]'"
Keohane, 516 U.S. at 112 (quoting Beheler, 463 U.S. at 1125)
(quoting Mathiason, 429 U.S. at 495); see also Lonkoski, 346
Wis. 2d 523, ¶27.
¶36 As to Bartelt's custody status, the parties agree that
Bartelt was not in custody at the beginning of the interview and
up until the point that he confessed to attacking M.R. Bartelt
came to the Slinger Police Department voluntarily. He was
dropped off by two friends who waited for him in the parking
lot, indicating that a reasonable person in Bartelt's position
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would have believed he or she would be free to leave at the end
of the interview.
¶37 Once inside the building, Bartelt was taken through a
secured door, locked from the outside only, to the internal
portion of the police department. He was then led to an
interview room that had two doors, neither of which could be
locked, and one of which was left ajar during the interview
itself. See Lonkoski, 346 Wis. 2d 523, ¶¶30-32 (holding that
where defendant voluntarily came to police department, interview
room was locked for entry purposes only, and door was repeatedly
opened, defendant was not in custody). The detectives did not
search Bartelt, and he was not restrained in any way. All of
these circumstances imply he was not in custody. Id., ¶32
(holding that lack of handcuffs and failure to search indicates
lack of custody).
¶38 At the outset of the interview, Clausing told Bartelt
that he was "not in trouble" and that he was "not under arrest."
See Mathiason, 429 U.S. at 495 (considering that defendant came
to police department voluntarily and was immediately informed
that he was not under arrest were indicative of lack of
custody). Bartelt showed that he understood that when he nodded
and responded, "that's good." Clausing further advised Bartelt
that he could "get up and walk out of here any time [he]
want[ed]." See Quigley, 370 Wis. 2d 702, ¶¶40-41 (holding that
a police officer's advisements that an interviewee was not under
arrest and was free to leave are "of substantial importance,"
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and further concluding that a suspect's acknowledgement and lack
of objection are "highly significant"). Additionally, Clausing
testified that neither he nor Detective Walsh ever raised their
voice or made a show of authority, such as referencing or
removing their weapons.11 Lonkoski, 346 Wis. 2d 523, ¶32. When
Bartelt's phone rang, he was given the opportunity to answer it.
See United States v. LeBrun, 363 F.3d 715, 722 (8th Cir. 2004)
("While the mere possession of a cellular phone without more
will not transform a custodial interrogation into a noncustodial
one, it is relevant to the question of whether the interview was
coercive and whether a reasonable person in the same
circumstances would feel restrained."). And finally, the
interview lasted only thirty-five minutes. Lonkoski, 346
Wis. 2d 523, ¶31 (holding that a "relatively short" interview of
approximately thirty minutes indicated lack of custody). We
agree that these factors support the conclusion that, prior to
his confession, there was no restraint on Bartelt's freedom to
the degree associated with an arrest.
¶39 Nonetheless, Bartelt argues that, as the interview
progressed, he was increasingly treated as though he were the
target of a serious felony investigation. At the outset of the
interview, Clausing told Bartelt that he was investigating an
11 At one point, having caught Bartelt in a lie about his employment and the nature of the cut on his hand, Clausing moved his chair closer to Bartelt, from approximately four or five feet away to within two feet. The ambiance of the interview remained otherwise unchanged.
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"incident" that had occurred in Richfield Historical Park on the
previous Friday. He did not specify the nature of the incident,
nor did he accuse Bartelt of being involved. However, after
Bartelt's initial denials and hesitations, the detectives began
to insinuate that not only had Bartelt been at the park, but
that they suspected——and indeed had evidence——that Bartelt was
involved in an attack in the park. The detectives said they
knew what happened and just wanted to understand why. Clausing
testified that he and Walsh were attempting to minimize
Bartelt's moral liability by offering justifications for his
behavior. Bartelt argues that the inherently coercive nature of
the interview, coupled with the fact that the detectives
essentially told Bartelt they believed he was guilty, created an
environment such that from the moment Bartelt confessed, no
reasonable person would have felt free to leave.
¶40 The court of appeals acknowledged that the detectives
"applied some psychological pressures on Bartelt to persuade him
to confess . . . ." State v. Bartelt, 2017 WI App 23, ¶35, 375
Wis. 2d 148, 895 N.W.2d 86. We agree that this factor tends to
favor custody. However, when combined with all of the other
circumstances present here,12 neither the use of certain
interrogation techniques nor that the interview took place at a
police station is enough to conclude that Bartelt could not have
terminated the interview and left, even after his confession.
12 See supra ¶¶35-36.
No. 2015AP2506-CR


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¶41 In support of this conclusion, the court of appeals
cited to an Eighth Circuit decision, United States v. LeBrun,
which itself relied heavily on both Mathiason and Beheler. In
LeBrun, the suspect in a felony murder voluntarily agreed to
accompany police to a nearby patrol office. As they arrived,
LeBrun was told that he was not under arrest, that he was free
to terminate the interview at any time, and that he was free to
leave at any time. LeBrun, 363 F.3d at 718. LeBrun was led to
a windowless interview room, where the police used psychological
ploys to facilitate a confession. For example, the agents told
LeBrun that he was the prime suspect, and that they had
significant evidence against him. However, at no point did the
officers shout or use physical force, and LeBrun was not
restrained in any way.
¶42 After thirty-three minutes of questioning, LeBrun
confessed to the crime. Id. In concluding that LeBrun was not
in custody before, during, or after his confession, the Eighth
Circuit reiterated that "[n]ot every confession obtained absent
the Miranda warnings is inadmissible." Id. at 720 (citing
Mathiason, 429 U.S. at 495). The critical inquiry, the court
concluded, "is not whether the interview took place in a
coercive or police dominated environment, but rather whether the
defendant's 'freedom to depart was restricted in any way.'" Id.
(citing Mathiason, 429 U.S. at 495).13 "In answering this 13 In Mathiason, a police officer contacted Mathiason after he had been identified as a potential suspect by a burglary victim. The officer asked Mathiason where it would be (continued)
No. 2015AP2506-CR


24

question, we look at the totality of the circumstances while
keeping in mind that the determination is based 'on the
objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers
or the person being questioned.'" Id. (citing Stansbury, 511
U.S. at 322-23). The Eighth Circuit concluded that "the
purportedly coercive aspects of [the] interview are largely
irrelevant to the custody determination and that the district
court erred in giving such great weight to certain
facts . . . ." Id. at 720-21.
¶43 This issue was similarly discussed in Beheler, where
the defendant, having been told he was not under arrest,
convenient to meet, and they agreed to meet at the state patrol office. Once Mathiason arrived, the officer led Mathiason to an office, where he was told that he was not under arrest. During the course of the interview, the officer told Mathiason that he was a suspect and falsely indicated that police had discovered his fingerprints at the scene of the crime. The Supreme Court of Oregon overturned Mathiason's conviction, holding that the interrogation took place in a coercive environment such that Mathiason was in custody. The Supreme Court of the United States reversed:
[T]here is no indication that the questioning took place in a context where respondent's freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a ½-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody "or otherwise deprived of his freedom of action in any significant way."
Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
No. 2015AP2506-CR


25

accompanied police to the station for questioning. Beheler was
not provided a Miranda warning, and he ultimately confessed
during the course of the thirty-minute interview. The Supreme
Court concluded that, given the totality of the circumstances,
Beheler was neither taken into custody nor significantly
deprived of his freedom of action. In so holding, the Court
reiterated that a noncustodial situation is not converted to a
custodial situation simply because the questioning took place in
a coercive environment. Beheler, 463 U.S. at 1124 (citing
Mathiason, 429 U.S. at 495).
¶44 As the court in LeBrun aptly noted, "Mathiason and
Beheler teach us that some degree of coercion is part and parcel
of the interrogation process and that the coercive aspects of a
police interview are largely irrelevant to the custody
determination except where a reasonable person would perceive
the coercion as restricting his or her freedom to depart."
LeBrun, 363 F.3d at 721. Furthermore, presenting a suspect with
incriminating suggestions does not automatically convert an
interview into a custodial interrogation. United States v.
Jones, 523 F.3d 1235, 1241 (10th Cir. 2008).
¶45 Given the totality of the circumstances presented
herein, we conclude that Bartelt was not in custody at the time
of his confession.
¶46 We now turn to Bartelt's argument that from the moment
of his confession no reasonable person in his position would
have felt free to terminate the interview and leave. In
No. 2015AP2506-CR


26

answering this inquiry, the court of appeals focused on whether,
given the totality of the circumstances, the environment of the
interview after Bartelt's confession "present[ed] the same
inherently coercive pressures as the type of station house
questioning at issue in Miranda." Howes, 565 U.S. at 509. The
court of appeals concluded:
[A] defendant making an incriminating statement does not necessarily transform a noncustodial setting to a custodial one. Indeed, "no Supreme Court case supports [the] contention that admission to a crime transforms an interview by the police into a custodial interrogation."
Bartelt, 375 Wis. 2d 148, ¶40 (citing Locke v. Cattell, 476 F.3d
46, 53 (1st Cir. 2007)).
¶47 As an issue of first impression in Wisconsin courts,
the court of appeals relied on several out-of-state and federal
court decisions, including LeBrun, supra. Ultimately, the court
concluded that while a confession is undoubtedly one of the
circumstances we must consider, Miranda is specifically
"concerned 'with a type of interrogation environment created by
the police' and it is this 'atmosphere created by the
authorities for questioning' that necessitates Miranda
warnings." Bartelt, 375 Wis. 2d 148, ¶46 (citing State v.
Clappes, 117 Wis. 2d 277, 283, 344 N.W.2d 141 (1984)). As the
court of appeals noted, Miranda itself stated that Miranda
warnings are required "when an individual is taken into custody
or otherwise deprived of his freedom by the authorities in any
significant way and is subjected to questioning." Bartelt, 375
Wis. 2d, ¶47 (citing Miranda, 384 U.S. at 478). Therefore, the
No. 2015AP2506-CR


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court of appeals focused on whether the atmosphere of Bartelt's
interview changed after his confession such that a reasonable
person would not feel free to leave. Considering the totality
of the circumstances, Bartelt's confession was not immediately
associated with a restraint on freedom of movement of the degree
associated with an arrest.
¶48 First, we note that both before and after Bartelt's
confession, Clausing and Walsh spoke in a conversational tone.
United States v. Chee, 514 F.3d 1106 (10th Cir. 2008)
(concluding, in part, that tone of interview, unchanged even
after confession to a serious crime, indicates lack of custody).
Although Clausing moved his chair closer to Bartelt after
catching Bartelt in a series of lies, the discussion otherwise
was not aggressive or confrontational. Thomas v. State, 55 A.3d
680, 696 (Md. 2012) (holding that a confession does not per se
render a suspect in custody, especially where the atmosphere of
the room never changed); Commonwealth v. Hilton, 823 N.E.2d 383,
396 (Mass. 2005) ("[A]n interview does not automatically become
custodial at the instant a defendant starts to confess.").
Rather, following Bartelt's admission, the detectives simply
continued to ask for details about the attack, which Bartelt
continued to supply. United States v. Caiello, 420 F.2d 471,
473 (2d Cir. 1969) (stating that it is the presence or absence
of compelling pressures that renders an interview custodial);
State v. Lapointe, 678 A.2d 942, 958 (Conn. 1966) ("While we
agree that admissions of culpability may lead the police either
No. 2015AP2506-CR


28

to arrest a suspect or to place restraints on his freedom
approximating an arrest, the police in this case never altered
the circumstances of their interviews of the defendant in such a
way that his initial noncustodial status became custodial.").
¶49 Second, that Bartelt was arrested at the end of his
interview does not necessarily mean that he was in custody at
any point prior to his arrest. Thomas, 55 A.3d at 692 (noting
that when a suspect is arrested at the end of an interview that
does not demonstrate that he was in custody prior to the
arrest); Chee, 514 F.3d at 1114 (concluding that until a suspect
who has confessed to a crime is arrested, he is merely subject
to arrest). Stated otherwise, although Clausing and Walsh
clearly suspected Bartelt and had enough evidence to arrest him
when he confessed, that in itself did not restrain Bartelt's
freedom of movement. Indeed, the defendants in Chee, Beheler,
and Mathiason were permitted to go home following their
incriminating statements. See Stansbury, 511 U.S. at 325 ("Even
a clear statement from an officer that the person under
interrogation is a prime suspect is not, in itself, dispositive
of the custody issue, for some suspects are free to come and go
until the police decide to make an arrest.").
¶50 On review, Bartelt argues that the court of appeals
ignored the "many more cases" from other jurisdictions that have
gone the other way. Specifically, Bartelt points to several
cases indicating that, after confession to a serious crime, a
person should generally be considered to be in custody for
No. 2015AP2506-CR


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Miranda purposes, regardless of whether the confession altered
the atmosphere of the interrogation. See State v. Pitts, 936
So. 2d 1111 (Fla. Dist. Ct. App. 2006); Jackson v. State, 528
S.E.2d 232 (Ga. 2000); People v. Ripic, 587 N.Y.S.2d 776 (N.Y.
App. Div. 1992); People v. Carroll, 742 N.E.2d 1247 (Ill. Ct.
App. 2001); Commonwealth v. Smith, 686 N.E.2d 983 (Mass. 1997);
Kolb v. State, 930 P.2d 1238 (Wyo. 1996); Ackerman v. State, 774
N.E.2d 970 (Ind. Ct. App. 2002).
¶51 Bartelt contends that the court of appeals erred in
relegating its discussion of these cases to a footnote, in which
it asserted that at least two of the cases are not persuasive
because they treat a defendant's confession as dispositive. We
disagree with Bartelt because the aforementioned cases are
readily distinguishable. Furthermore, it is law enforcement's
conduct that determines whether a suspect has been taken into
custody. As we have explained above, whether a suspect is in
custody is a fact-specific inquiry where the totality of the
circumstances must be evaluated in full. The totality of the
circumstances herein differ from those in the cases Bartelt
cites.
¶52 Although the specific question we address today——
whether confession to a serious crime transforms a noncustodial
interview into a custodial interrogation in these circumstances—
—is an issue of first impression in Wisconsin, Bartelt contends
that our decision in State v. Koput, 142 Wis. 2d 370, 418 N.W.2d
804 (1988), supports the conclusion that no reasonable person
No. 2015AP2506-CR


30

would have felt free to leave following his confession to a
serious, violent crime. In Koput, we considered whether a
defendant, who had arrived for questioning at 9:30 a.m., was in
custody by the time he gave an inculpatory statement at 4:15
p.m. Based on the totality of the circumstances, we concluded
that Koput was not in custody "until after his confession,
sometime after 4:15 PM." Id. at 380.14 As the court of appeals
correctly noted, Koput does not stand for the proposition that
it was the confession itself which transformed Koput's custody
status. Rather, it was the combination of circumstances after
the confession that amounted to custody.
¶53 We therefore conclude that although an admission of
guilt to a serious crime is a factor to consider in a custody
analysis, Bartelt's admission to attacking M.R. was not enough
to transform his status to that of "in custody" given the
totality of the circumstances. Because Bartelt was not in
custody when he asked about counsel, his Fifth Amendment right
to counsel did not attach.

Outcome: There were two issues on this appeal. First, we
considered whether Bartelt was in custody for the purposes of
Miranda once he confessed to attacking M.R. We concluded that,
in light of the totality of the circumstances, Bartelt's
confession did not transform his status to that of "in custody."
Rather, Bartelt was not in custody until Detectives Clausing and
Walsh took his cell phone, approximately ten minutes after his
confession, and instructed him to remain in the interview room.
Second, because we determine that Bartelt was not in custody
until this point, which was after his alleged request for
counsel, we need not and do not reach the issue of whether his
alleged request for counsel was unequivocal.
By the Court.—The decision of the court of appeals is
affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: