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  • Kathryn Canning

Confessing to a Serious Crime

Updated: Oct 23, 2023

There has been a debate on whether there is a split between state courts on the issue of what makes a suspect “in custody”. Some state courts say that a suspect is “in custody” when a suspect confesses to a serious crime because at that point a reasonable person would know that he is not free to leave. However, majority of state courts say the interrogation remains non-custodial even after the suspect confesses, unless other circumstances of the interrogation have changed. This debate has recently has been petitioned to the Supreme Court.

Petitioner claims in his Petition for a Writ of Certiorari that the Wisconsin Supreme Court erred in concluding that, in light of the totality of the circumstances, his confession did not transform his status to that of “in custody”, and because he was not in custody when he asked about his right to counsel, his Fifth Amendment right to counsel did not attach.

In my opinion, this is a “fact bound” case, the Wisconsin Supreme Court appropriately decided the custody standard. Petitioner argues there is a split over whether a non-custodial interrogation at a police station becomes custodial once the defendant confesses to a serious crime. However, a split over a fairly arcane statutory point with most circuits lined up on one side and only two on the other side is not really a split.

In my opinion, Wisconsin has a strong claim that petitioner misunderstands the holdings of the courts from the four states petitioner claims are on the other side of the split. Wisconsin asserts correctly that the Florida Supreme Court did not address petitioner’s issue in Roman v. Florida, 475 So. 2d 1228 (Fla. 1985). The court only resolved the issue of whether the defendant was not in custody before giving a confession, not whether the defendant’s confession places him in custody. Also, petitioner claims the Massachusetts Supreme Judicial Court in Massachusetts v. Hilton, 823 N.E.2d 383 (Mass. 2005) supports his position. In Hilton, the police began asking detailed questioning to the defendant after her general confession, which transformed the previously sympathetic interview into a custodial interrogation. However, petitioner is mistaken because the court determined if the defendant’s confession proceeded with any change in the tenor of the questioning or any apparent change in her status, which does not follow petitioner’s approach. Further, petitioner has a weak argument that the Texas court in Dowthitt v. Texas, 931 S.W.2d 244, 256–57 (Tex. Ct. Crim. App. 1996) held that the defendant’s confession converted a non-custodial encounter into a custodial one. Petitioner ignored the reasoning to why defendant’s confession converted a non-custodial encounter into a custodial one. The court looked at various factors and held that given the length of the interrogation and the high degree of police control over the defendant by accompanying the defendant at restroom breaks, as well as ignoring requests to see his wife, were coercive to establish custody. Last, petitioner’s claim is unclear that the court in Vermont v. Muntean, 12 A.3d 518, 528–29 (Vt. 2010) held that a reasonable defendant would not feel free to leave. Wisconsin did not erroneously shift Vermont to the opposite side of the split. Similar to the court in Texas, the court in Vermont looked at various factors and held that the physical setting of the interview, when combined with the fact that the defendant was never told he could leave, was repeatedly told from the detective that he was guilty, and was immediately confronted with evidence, strongly suggests the defendant would have not felt free to leave.

Overall, petitioner cites cases that are distinguishable from his case. Unlike how most state courts petitioner cites resolve the issue of whether a defendant is in custody before a confession, the issue in petitioner’s case is whether he was in custody after his confession.

As to petitioner’s second claim that the Wisconsin Supreme Court’s decision is wrong seems vague. Petitioner argues that Wisconsin’s error stems from its mistaken view that the police did nothing to change a non-custodial situation into a custodial one. Petitioner claims the police did something extremely significant by interrogating petitioner, and petitioner’s confession changed the objective circumstances of the encounter. Petitioner’s argument is vague because the standard is whether the objective circumstances of the interrogation would make a reasonable person believe he or she was not free to leave the interrogation. Petitioner does not make clear what were the objective circumstances of the interrogation that would change a non-custodial situation into a custodial one. Courts have to decide these issues largely on the facts. Thus, petitioner does not give any persuasive factors that would change a non-custodial situation into a custodial one or argue against any of the non-custody factors that Wisconsin listed.

Furthermore, petitioner has a weak argument in stating that after the confession, the demeanor of the police may be just as polite and non-confrontational before the confession, but it does not change the fact that after a defendant confesses to a serious crime the police will not let the defendant walk out of the police station. Petitioner’s argument is weak because a change in the demeanor of the police after the defendant confesses is of significance. A confession is one of the circumstances to consider, but Miranda is specifically concerned about whether the relevant environment presents coercive pressures that changed after his confession.

In addition, petitioner has a weak argument in stating that the Wisconsin Supreme Court’s decision gives the police a horrible set of incentives. Petitioner ignores that police can have valid reasons to not give Miranda warnings. For example, the police can bring a suspect in for questioning and conclude after questioning that the suspect is no longer a suspect. Also, police can have reasons to not honor the suspect’s request for counsel if a suspect is not in custody.

As to petitioner’s third claim that this case is an excellent vehicle is not compelling. The Wisconsin Supreme Court did not need to reach the issue of whether his comments about an attorney constituted an unequivocal request for counsel because petitioner made comments about an attorney only before the detectives placed him in custody. However, petitioner brought up a strong argument made from the two dissenting Justices of the Wisconsin Supreme Court. If the customer then said, “Okay, I think I’d prefer a Miller Lite,” no reasonable person would think this was a request for anything other than Miller Lite. However, Wisconsin made a strong argument as well arguing that while petitioner might have indicated he wished to speak to counsel, petitioner might also have been merely thinking about it.

In conclusion, the Supreme Court of the United States should deny petitioner’s Petition. Petitioner’s case raises an important issue, but there is an overwhelming majority of courts that have agreed with how the Wisconsin Supreme Court resolved this conflict. Further, there is only two cases that follow petitioner’s approach, which are old precedents. Thus, there is no important lower court conflict, and Wisconsin Supreme Court’s holding that petitioner did not automatically place himself into custody by confessing turned largely on the facts of this case.


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