State v. Gene A. Wiltgen

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 15, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP989-CR Cir. Ct. No. 2022CF348

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GENE A. WILTGEN,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for La Crosse County:
RAMONA A. GONZALEZ, Judge. Affirmed.

Before Graham, Nashold, and Taylor, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Defendant Gene A. Wiltgen appeals a judgment of
conviction for operating a motor vehicle with a prohibited alcohol concentration as
No. 2024AP989-CR

a fourth offense under WIS. STAT. §§ 346.63(1)(b) and 346.65(2)(g) (2023-24).1
In the circuit court, Wiltgen moved to suppress certain statements and physical
evidence based on an alleged unconstitutional interrogation in violation of the
Fifth and Fourteenth Amendments of the United States Constitution, Article I,
Section 8 of the Wisconsin Constitution, and State v. Knapp, 2005 WI 127, 285
Wis. 2d 86, 700 N.W.2d 899. The circuit court denied Wiltgen’s motion.

¶2 On appeal, Wiltgen argues that the circuit court made erroneous
findings of fact that resulted in the court concluding that no unconstitutional
interrogation occurred. Specifically, Wiltgen alleges that the arresting officer
intentionally and unconstitutionally delayed placing him in custody in order to
interrogate him, in violation of his right against self-incrimination as protected by
Knapp and by Article I, Section 8 of the Wisconsin Constitution. We conclude
that no constitutional violation occurred because, based on the undisputed facts,
Wiltgen was not in custody during the officer’s questioning of him prior to his
arrest. Accordingly, we affirm.

BACKGROUND

¶3 The following facts are derived from a combination of sources,
including the criminal complaint; the testimony of police officer Trenton Benning,
who responded to the accident and testified at an evidentiary hearing concerning a

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP989-CR

different motion to suppress evidence not at issue in this appeal;2 audiovisual
evidence captured by Benning’s officer-worn body camera that recorded the
entirety of the interaction between him and Wiltgen; and the circuit court’s factual
findings as stated in its decision to deny the motion.

¶4 Benning testified as follows. Late in the evening on May 3, 2022,
Benning was on duty as a police officer with the City of La Crosse when he
received a dispatch call concerning a vehicle that had driven off the roadway. At
the time of the incident, Benning had been a police officer for approximately one
year. When Benning responded to the location, an eyewitness pointed to a vehicle
that had driven off the road and crashed into a wooded area and dirt embankment.
The vehicle was visible by its taillights. Given the nature of the accident, Benning
believed the vehicle occupants could be injured, and he ran to the vehicle for the
purpose of possibly rendering aid. As he approached the vehicle, Benning saw
that the driver-side front and rear doors were buried in dirt. Benning illuminated
the interior of the vehicle with his flashlight and saw only one individual, later
identified as Wiltgen, sitting in the passenger seat. Benning attempted to
communicate with Wiltgen through the driver-side window, but he did not receive
audible responses from Wiltgen. Benning observed that Wiltgen’s nose was
bleeding. Because the front passenger door was also buried in dirt, Benning had to
force open the passenger door to reach Wiltgen and to determine whether Wiltgen

2
Earlier in the circuit court proceedings, Wiltgen filed a separate motion to suppress
evidence alleging that Benning lacked reasonable suspicion or probable cause when he opened
Wiltgen’s front passenger-side car door. The court held an evidentiary hearing on the motion, at
which the State called Benning as a witness and elicited testimony from him. Because the motion
involved only what occurred prior to and including Benning opening the vehicle door, the parties
solicited only limited testimony from Benning. The circuit court denied the motion, which is not
at issue in this appeal.

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No. 2024AP989-CR

was injured. When Benning opened the door, he smelled a strong odor of alcohol
in the car. As Benning spoke with Wiltgen, he observed that Wiltgen’s speech
was slurred and that his eyes were red, bloodshot, and glassy.

¶5 The audiovisual footage from Benning’s body camera shows the
following after Benning opened the passenger-side door of Wiltgen’s car and
began interacting with Wiltgen. Wiltgen indicated that he was not hurt, and
Benning asked if Wiltgen would get out of the car. Both Benning and Wiltgen
walked through the woods to the road. Benning questioned Wiltgen about the
accident, where he was coming from and going, and whether he had consumed
any alcoholic beverages. Wiltgen said that he was driving the vehicle and that
nobody else was in the vehicle at the time of the accident. He also said that he had
consumed two beers between 4:00 and 7:00 p.m. at one establishment and then
three more beers and two mixed drinks at another establishment before heading
home. Wiltgen agreed to perform standardized field sobriety tests, but he began to
report back and rib pain. Benning asked Wiltgen repeatedly whether Wiltgen
wanted to be medically evaluated, but Wiltgen initially refused. Because of
Wiltgen’s reported pain, Benning asked Wiltgen to perform limited field sobriety
tests, including the horizontal gaze nystagmus test and reciting the alphabet.
Wiltgen also agreed to submit to a preliminary breath test which registered a
breath alcohol level of 0.189g/100mL. Benning placed Wiltgen under arrest for
operating a motor vehicle while intoxicated (“OWI”).

¶6 Benning read to Wiltgen the Informing the Accused form, and
Wiltgen consented to a chemical test of his blood, which yielded a result of
0.21g/100mL, higher than the 0.02g/100mL limit applicable to Wiltgen due to
previous convictions for OWI. Wiltgen was charged with OWI as a fourth offense

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No. 2024AP989-CR

and operating with a prohibited alcohol concentration (“PAC”) as a fourth offense
pursuant to WIS. STAT. §§ 346.63(1)(a), (b) and 346.65(2)(am)4.

¶7 As noted, during the court proceedings, Wiltgen filed numerous
motions to suppress evidence on various legal grounds, only one of which is at
issue here. In that motion, Wiltgen alleged that Benning violated Wiltgen’s right
against self-incrimination, as protected by the Fifth and Fourteenth Amendments
of the United States Constitution and Article I, Section 8 of the Wisconsin
Constitution, by conducting an unlawful interrogation. Wiltgen asserted that
Benning had already made the decision to arrest Wiltgen before interrogating him,
and that he intentionally delayed placing Wiltgen under arrest to avoid reading
Wiltgen the Miranda warnings.3 Wiltgen sought to suppress all statements and
other evidence derived from the alleged unconstitutional interrogation, including
the results of the chemical test of Wiltgen’s blood, under the exclusionary rule and
the fruit of the poisonous tree doctrine as set forth by our supreme court under the
circumstances in Knapp.

¶8 Due to the proximity to trial, which the circuit court declined to
adjourn to a later date, the court determined that it would decide the motion based
on its review of the body camera footage and the written submissions of the parties
and only take additional evidence if requested by the State. Neither party objected
to the court’s proposed method of considering and deciding the motion. The court
reviewed the parties’ submissions and the audiovisual evidence, made findings of

3
In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court
concluded that the Fifth Amendment to the United States Constitution requires law enforcement
to inform suspects prior to custodial interrogations of their right to remain silent, that anything
they say may be used against them, and their right to have an attorney present.

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No. 2024AP989-CR

fact based on the audiovisual evidence, and issued a written decision denying the
motion.

¶9 Wiltgen pled no contest to operating a motor vehicle with a PAC as
a fourth offense. The circuit court found Wiltgen guilty of the offense and entered
a judgment of conviction, in which the court withheld sentence and placed
Wiltgen on 18 months of probation and stayed the sentence pending appeal.
Wiltgen appeals the judgment of conviction.

DISCUSSION

¶10 On appeal, Wiltgen argues that his right against self-incrimination
under Article 1, Section 8 of the Wisconsin Constitution was violated and that the
circuit court erred in denying his suppression motion. Wiltgen asserts that the
court erred in its factual finding that Benning did not commit a constitutional
violation during his OWI investigation. Specifically, Wiltgen asserts that the court
did not consider the entirety of the facts known to Benning at the time of
Wiltgen’s alleged interrogation, including that Wiltgen had slurred speech,
bloodshot eyes, an odor of intoxicants, and difficulty ambulating and that Wiltgen
was involved in a serious motor vehicle accident.4 Wiltgen argues that the court’s

4
In support of his argument that the circuit court erred in not considering all of the facts
known to Benning at the time of his questioning of Wiltgen, Wiltgen also alleges that all of these
observations were made in the context of Wiltgen being subject to a 0.02g/100mL alcohol
restriction. However, Wiltgen does not allege or provide a record cite that Benning was aware of
this restriction prior to his questioning of Wiltgen. This court need not consider arguments that
are unsupported by adequate citations to the record or are otherwise undeveloped, and we decline
to do so here. See Dieck v. Unified Sch. Dist. of Antigo, 157 Wis. 2d 134, 148 n.9, 458 N.W.2d
565 (Ct. App. 1990) (unsupported factual assertions).

(continued)

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No. 2024AP989-CR

resulting findings of fact were incorrect and led the court to err in concluding that
no unconstitutional interrogation occurred and in denying Wiltgen’s motion to
suppress evidence.

¶11 As we explain in greater depth below, Wiltgen’s arguments about
the circuit court’s findings of fact and Benning’s intent have no bearing on the
dispositive issue in this case. An officer is not required to read Miranda warnings
unless a defendant is in custody, and Wiltgen’s appellate briefing does not
meaningfully address the legal standard for custody. Based on the factual record,
which is not subject to any reasonable dispute, we conclude that Wiltgen was not
in custody at the time Benning questioned him. We therefore reject Wiltgen’s
arguments.

I. Standard of Review and Governing Legal Principles

¶12 Both the Fifth Amendment of the United States Constitution and
Article I, Section 8 of the Wisconsin Constitution provide that no person shall be
compelled to incriminate themselves without the due process of law. State v.
Bartelt, 2018 WI 16, ¶26, 379 Wis. 2d 588, 906 N.W.2d 684.5 The constitutional

Wiltgen additionally refers to the circuit court’s consideration of Benning’s reference to
the number “55” to dispatch during this incident. The court found that this reference did not
indicate that Wiltgen was an intoxicated driver as Wiltgen alleges, but rather referred to
Benning’s police unit. On appeal, Wiltgen does not assert that this was an erroneous factual
finding, and we do not address it further.
5
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, liberty, or
property, without due process of law.” Article I, Section 8 of the Wisconsin Constitution states
that “[n]o person may be held to answer for a criminal offense without due process of law.” With
exceptions, our supreme court has generally interpreted this provision of our state 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.

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No. 2024AP989-CR

right against self-incrimination requires that law enforcement officers inform
suspects of their rights to remain silent and to have an attorney present during
custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Because
“Miranda and its progeny are aimed at dispelling the compulsion inherent in
custodial surroundings,” the Miranda safeguards apply “only to custodial
interrogations under both the U.S. and Wisconsin constitutions.” Bartelt, 379
Wis. 2d 588, ¶30 (citation omitted). When a person is subjected to a custodial
interrogation, “[i]f the warnings are not given, any statements made are
inadmissible in court.” State v. Halverson, 2021 WI 7, ¶1, 395 Wis. 2d 385, 953
N.W.2d 847. Our supreme court has also concluded that “physical evidence
obtained as the direct result of an intentional Miranda violation is inadmissible
under Article 1, Section 8 of the Wisconsin Constitution.” Knapp, 285 Wis. 2d
86, ¶83.

¶13 Determining whether a custodial interrogation occurred is the first
step in an inquiry of whether statements and other evidentiary “fruits” were
obtained in violation of Miranda and must be excluded from evidence. Here, this
inquiry centers on whether, prior to Wiltgen’s arrest, he was in custody and
interrogated for purposes of Miranda. See State v. Mosher, 221 Wis. 2d 203, 211,
584 N.W.2d 553 (Ct. App. 1998).

¶14 A determination of whether a suspect is in custody 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 generally be upheld unless the findings are
clearly erroneous. State v. Henderson, 2001 WI 97, ¶16, 245 Wis. 2d 345, 629
N.W.2d 613. “[A] determination of custody for purposes of Miranda is a question
of law that we independently review.” Bartelt, 379 Wis. 2d 588, ¶25.

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No. 2024AP989-CR

II. The Application of Miranda

¶15 Wiltgen argues that all of his statements prior to his arrest and the
physical evidence obtained as a result of his statements should be suppressed
because he was unconstitutionally interrogated. As explained below, this
argument collapses because of several foundational cracks, including Wiltgen’s
misinterpretation of Knapp and the inapplicability of Miranda prior to Wiltgen’s
arrest.

A. Knapp is Distinguishable

¶16 Wiltgen’s argument that the evidence should have been suppressed
centers on Knapp, which he asserts is on “all fours” with Wiltgen’s circumstances.

¶17 In Knapp, the arresting officer entered the defendant’s apartment
with a warrant for the defendant’s arrest because of a parole violation. Knapp,
285 Wis. 2d 86, ¶¶6-7. The officer indicated to the defendant through an interior
door that the defendant needed to open the door because the officer had a warrant
for the defendant’s arrest. Id., ¶7. After entering the defendant’s apartment, the
defendant and the officer went into the defendant’s bedroom so that the defendant
could put on his shoes. Id., ¶8. The officer began asking the defendant about the
clothes the defendant was wearing the previous night because, unbeknownst to the
defendant, the defendant was a suspect in a murder which had occurred earlier that
day. Id. The defendant pointed to a pile of his clothes on the floor, which the
officer seized. Id. Included in the seized clothing was a sweatshirt, a portion of
which contained human blood. Id., ¶9. The defendant was eventually charged
with first degree intentional homicide, and he moved to suppress evidence,
including the sweatshirt. Id., ¶13.

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No. 2024AP989-CR

¶18 At the evidentiary hearing on that motion, the officer testified that
the defendant was in the officer’s custody when they were in the defendant’s
apartment. Id., ¶13. The officer also testified that he intentionally sought to
interrogate the defendant without reading the defendant his Miranda rights in
order to “seek[] information” about the murder and to “keep the lines of
communication open” because the officer knew that, if he had Mirandized the
defendant, the defendant might not make a statement. Id., ¶¶13, 14. The motion
was denied by the circuit court, and the issue eventually reached our supreme
court. Id., ¶15.

¶19 In the supreme court proceedings, the parties agreed that the
sweatshirt was seized as a direct result of an intentional Miranda violation, and
the sole legal issue that remained concerned whether the physical evidence that
resulted from the intentional Miranda violation should be suppressed under either
the Wisconsin or United States Constitutions. Id., ¶20.

¶20 Our supreme court determined that, because of the intentional nature
of the Miranda violation, combined with the strong need to deter such conduct in
the future and to preserve judicial integrity, the physical evidence (i.e., the
sweatshirt) and the testimonial evidence that was obtained must be excluded from
evidence under Article 1, Section 8 of the Wisconsin Constitution. Id., ¶¶73, 79,
82, 83. Wiltgen argues for the same result here.

¶21 But Knapp is inapposite to the factual and legal issues here. To
underscore, it was undisputed in Knapp that the defendant was in custody at the
time the officer interrogated him. Id., ¶¶13-14. We note that an arrest is not the
sole event triggering custody under Miranda; a suspect can also be in custody for
Miranda purposes if there is a “restraint on freedom of movement of the degree

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No. 2024AP989-CR

associated with a formal arrest.” State v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d
523, 828 N.W.2d 552 (citation omitted). Further, because the Knapp parties
conceded that an intentional Miranda violation had occurred, the only issue in
Knapp was whether the physical evidence that resulted from the violation should
be suppressed under either the United States or Wisconsin Constitutions. Knapp,
285 Wis. 2d 86, ¶20.

¶22 There is no such concession here. The State’s first argument in its
response brief on appeal is that Wiltgen was not in custody prior to his arrest, and
therefore Miranda warnings were not required. Wiltgen leapfrogs over this issue
in his initial appellate briefing and addresses it only in his reply brief. For the
following reasons, we conclude that Wiltgen was not in custody at the time the
officer questioned him prior to his arrest. Therefore, Miranda was not triggered,
and no unconstitutional interrogation of Wiltgen occurred.

B. Wiltgen Was Not in Custody

¶23 The first step in determining whether a person is in “custody” for the
purposes of Miranda is whether, under the totality of the circumstances, “a
reasonable person would not feel free to terminate the interview and leave the
scene.” Lonkoski, 346 Wis. 2d 523, ¶6 (citation omitted). Whether a person is in
custody is an objective determination and can be established when there has been
a “restraint on freedom of movement of the degree associated with a formal
arrest.” Id. (citation omitted). Relevant factors that we consider in a totality of the
circumstances analysis include “the degree of restraint; the purpose, place, and
length of the interrogation; and what has been communicated by the police
officers.” Bartelt, 379 Wis. 2d 588, ¶32. If we determine “that a reasonable
person would not feel free to leave, we must then consider whether ‘the relevant

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No. 2024AP989-CR

environment presents the same inherently coercive pressures as the type of station
house questioning at issue in Miranda.’” Id., ¶33 (citation omitted).

¶24 Here, the only evidence of the pertinent interaction between Benning
and Wiltgen considered by the circuit court in denying Wiltgen’s motion was the
body camera footage, and there is no dispute as to the accuracy of that footage
from the time Benning arrived at the accident scene through Wiltgen’s arrest. We
therefore augment the court’s written decision with the undisputed facts shown in
the recording.

¶25 In considering the degree of restraint used, 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.” Id., ¶32. The audiovisual evidence reveals that,
besides the presence of another officer and additional police cars that can be
viewed in the distance, there was no restraint used by Benning on Wiltgen prior to
his arrest. The purpose, place, and length of the questioning also does not support
a custody determination. The questioning happened not inside a police station or
police car, but on the side of the road near the location of the accident. The
purpose of the questioning was multi-faceted and was to determine the cause of
the accident, whether an OWI had occurred, and whether Wiltgen needed medical
attention. The entire duration of the interaction from the time that Benning opened
Wiltgen’s car door to the time of Wiltgen’s arrest was relatively short, lasting
approximately 27 minutes. In terms of what Benning told Wiltgen, Benning often
expressed concern for Wiltgen’s physical health and urged Wiltgen to undergo a
medical evaluation. There were no verbal threats made or intimidating conduct
displayed by either officer present.

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No. 2024AP989-CR

¶26 To the extent that Wiltgen asserts that he did not feel free to leave,
that was at least as likely due to the fact that his car was inoperable and Wiltgen’s
own knowledge of his impaired condition rather than a result of any action taken
by the officers. The objective custody test we employ is based on whether a
reasonable innocent person in the defendant’s position would have felt free to
leave, not the defendant’s subjective viewpoint. State v. Morgan, 2002 WI App
124, ¶¶22-23, 254 Wis. 2d 602, 648 N.W.2d 23. Further, “it is law enforcement’s
conduct that determines whether a suspect has been taken into custody.” Bartelt,
379 Wis. 2d 588, ¶51. Here, when considering the totality of the circumstances,
we conclude that the actions by Benning and the other officer would not have led a
reasonable innocent person to believe that the person was not free to leave. Any
restraint on Wiltgen’s freedom to leave was due to his own conduct, rather than
the conduct of the officers. Because this determination is dispositive to the issue
of custody, we do not consider whether the environment presented the same
coercive pressures as a station house interrogation. See Lamar Cent. Outdoor,
LLC v. DHA, 2019 WI 109, ¶41, 389 Wis. 2d 486, 936 N.W.2d 573 (“An
appellate court need not address every issue raised by the parties when one issue is
dispositive.” (citation omitted)).6

¶27 In sum, we conclude that Wiltgen was not subject to an
unconstitutional interrogation prior to his arrest because he was not in custody.

6
Implicit in Wiltgen’s argument that a constitutional violation occurred is the
unsupported proposition that when an officer develops probable cause to arrest an individual, that
arrest must be immediately effectuated and Miranda warnings administered. Besides State v.
Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, which we determine in the text is
inapposite, Wiltgen cites no persuasive legal authority for this proposition, and we do not
consider it. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we
may decline to address arguments that are undeveloped, including the lack of references to
supporting legal authority).

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No. 2024AP989-CR

CONCLUSION

¶28 For the reasons set forth above, the judgment of conviction is
affirmed.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

14