State v. Brian L. Halverson

2019 WI App 66

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2018AP858-CR

†Petition for Review filed
Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

BRIAN L. HALVERSON,

†DEFENDANT-RESPONDENT.

Opinion Filed: November 13, 2019
Submitted on Briefs: August 6, 2019
Oral Argument:

JUDGES: Stark, P.J., Hruz and Seidl, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the briefs
of Roy La Barton Gay, assistant district attorney, Chippewa Falls, and
Joshua L. Kaul, attorney general, and Sarah L. Burgundy, assistant
attorney general.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Megan Sanders-Drazen, assistant state public defender of
Madison.
2019 WI App 66

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.
November 13, 2019
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2018AP858-CR Cir. Ct. No. 2017CM83

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

BRIAN L. HALVERSON,

DEFENDANT-RESPONDENT.

APPEAL from orders of the circuit court for Chippewa County:
STEVEN R. CRAY, Judge. Reversed and cause remanded with directions.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 HRUZ, J. The State of Wisconsin appeals both an order granting
Brian Halverson’s motion to suppress evidence and an order denying its motion
for reconsideration. Halverson argues that his admission to a crime made during a
telephone call with a police officer while Halverson was incarcerated should be
No. 2018AP858-CR

suppressed because the officer’s failure to provide Miranda1 warnings violated his
constitutional rights. Halverson relies upon a case from our supreme court, State
v. Armstrong, 223 Wis. 2d 331, 588 N.W.2d 606 (1999), which held that an
incarcerated person is per se in custody for purposes of Miranda. The State,
however, contends that a subsequent United States Supreme Court case, Howes v.
Fields, 565 U.S. 499 (2012), effectively overruled Armstrong’s per se custody
rule.

¶2 We hold that Howes effectively overruled Armstrong. Armstrong
relied solely upon federal case law interpreting the Fifth Amendment to the United
States Constitution when it created the per se custody rule; it did not rely on any
unique rights or protections afforded under the Wisconsin Constitution. Howes
now teaches that the cases upon which Armstrong relied do not establish that a
person who is incarcerated is always in custody for purposes of Miranda when he
or she is isolated from the general prison population and questioned about conduct
that occurred outside of the prison. Instead, custody is determined by analyzing
the totality of the circumstances surrounding the interrogation in question.

¶3 We also reject Halverson’s invitation to interpret the Wisconsin
Constitution—specifically, article I, section 8—as “more fully protect[ing] the
right against compelled self-incrimination” than the rights afforded to individuals
under the Fifth Amendment, so as to retain Armstrong’s per se custody rule as a
matter of state constitutional law. Consequently, we conclude the circuit court

1
See Miranda v. Arizona, 384 U.S. 436 (1966).

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erred by applying Armstrong’s per se custody rule instead of the totality-of-the-
circumstances analysis outlined in Howes.

¶4 Assessing the totality of the circumstances surrounding Halverson’s
telephone interrogation, we conclude he was not in custody for Miranda purposes.
Accordingly, the officer’s failure to provide Halverson with Miranda warnings
did not violate Halverson’s constitutional rights. We therefore reverse the circuit
court’s orders granting Halverson’s motion to suppress and denying the State’s
motion for reconsideration, and we remand with directions to deny Halverson’s
suppression motion.

BACKGROUND

¶5 In July 2016, Stanley Police Department officer Matthew Danielson
read a letter from an inmate at the Stanley Correctional Institution in which the
inmate accused Halverson of stealing and destroying several of the inmate’s
valuable documents. During Danielson’s subsequent visit with the inmate at
Stanley Correctional, the inmate informed Danielson that he possessed two letters
in which Halverson admitted to the theft and destruction of the inmate’s property.

¶6 Danielson subsequently sought to speak with Halverson and
eventually discovered that Halverson was being held in the Vernon County Jail,
where he was on a probation hold. When Danielson called the jail, he spoke to an
individual who told Danielson that jail staff would contact Halverson and have
him return Danielson’s call. Halverson returned Danielson’s phone call less than
ten minutes later.

¶7 Danielson began the conversation by introducing himself, explaining
why he was calling, and asking Halverson if he knew the inmate at Stanley

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Correctional. Halverson replied that he did know the inmate. Upon Danielson
asking Halverson what he knew about the inmate’s missing documents, Halverson
first responded that he had helped the inmate clean his cell and the documents may
have “happened to go in the garbage.” Danielson then asked Halverson “what he
would say” if Danielson said he possessed two letters in which Halverson
acknowledged the theft and destruction of the documents. Halverson then
admitted that he had destroyed the documents. Halverson was subsequently
charged with criminal damage to property and misdemeanor theft, both as repeat
offenses.

¶8 Halverson moved to suppress all evidence obtained and derived from
his phone call with Danielson. Halverson asserted that his conversation with
Danielson was a custodial interrogation and that Danielson was required to inform
Halverson of his Miranda rights before Danielson questioned him. Halverson
contended that Danielson failed to do so.

¶9 Danielson was the sole witness to testify at the suppression hearing.
In addition to explaining why he sought to speak with Halverson, Danielson
described the circumstances surrounding the phone call. The return call occurred
at approximately 10:00 a.m. The call lasted only three to four minutes.
Danielson’s tone of voice throughout the call was “just as it was” during his
testimony at the suppression hearing; Danielson never raised his voice, threatened
or made any promises to Halverson. Danielson also never heard any individual
yell or threaten Halverson on the other end of the phone. Further, at no point did
Halverson ever refuse to talk with Danielson or request an attorney.

¶10 Danielson acknowledged that he did not provide Halverson with the
Miranda warnings. When asked why, Danielson responded, “I don’t know…. I

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didn’t think of him [as] being … in custody. He was speaking to me freely on the
phone. Yes, he was in custody somewhere else for something else, but he wasn’t
in custody with me.” Danielson further stated that he “was not in a position to
arrest” Halverson the day he spoke with Halverson, but he acknowledged that he
never informed Halverson that he could terminate their conversation.

¶11 On cross-examination, Danielson admitted that he did not have any
knowledge of where Halverson was located inside the Vernon County Jail when
they were speaking. Consequently, Danielson could not testify as to whether
Halverson was handcuffed or in a locked room during their phone call.

¶12 The circuit court granted Halverson’s suppression motion. The court
determined that Armstrong “created a very strong rule” in holding “that a person
who is incarcerated is per se in custody for purposes of Miranda.” See
Armstrong, 223 Wis. 2d at 355. Relying upon Armstrong, the circuit court
concluded Halverson was interrogated while in custody, and, therefore, Danielson
was required to Mirandize Halverson.

¶13 The State had argued that Halverson was not in custody for purposes
of Miranda when assessing Danielson and Halverson’s conversation under the
totality of the circumstances, relying upon the United States Supreme Court’s
decision in Howes. In the State’s view, the Supreme Court’s decision in Howes
effectively overruled Armstrong’s per se custody rule.

¶14 The circuit court disagreed with the State. The court opined that
Wisconsin’s per se custody rule under Armstrong survived the Howes decision, in
part because the circuit court concluded that Halverson’s interrogation and the
interrogation at issue in Howes were factually distinguishable. However, before
concluding the hearing, the court reserved the right for the State to move for

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reconsideration if it believed there was testimony from a jail officer that would
affect the court’s decision. The State subsequently filed a motion for
reconsideration, and the court held a hearing on that motion.

¶15 Matthew Hoff, a corporal with the Vernon County Sheriff’s
Department, testified for the State. Hoff had been employed by the sheriff’s
department and worked in the county’s jail for thirteen years. Hoff was on duty
the day Danielson spoke with Halverson by phone and was “familiar” with
Halverson, but Hoff testified that neither he nor his coworkers specifically recalled
Halverson receiving a phone call that day.

¶16 Hoff then testified regarding the jail’s standard operating procedures
for when an inmate receives a phone call. A call is first received by the officer
working in the mass control room. That officer then informs officers on the jail
floor that an inmate has received a call. If there are officers available, the inmate
is instructed to leave the jail pod2 and meet a floor officer after passing through a
set of doors.

¶17 The floor officer then informs the inmate that he or she has a phone
call. The inmate is told the caller’s identity, and he or she is given the choice to
take or reject the call. Hoff explained:

At any time the inmate can tell us he doesn’t want to talk to
whatever individual is on the other line because we’re not
going to force them to speak with somebody. I’m not
going to drag somebody out of the pod … to talk to
somebody they don’t want to talk to.

2
The Vernon County Jail is a “pod system.” As described by Hoff, “There’s essentially
a master control bubble, and there’s six general population pods where there are up to twenty
inmates in each pod.” The outside of each pod is lined with individual cells.

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If the inmate elects to take the call, the floor officer then escorts the inmate
seventy-five feet to the program room. The inmate is not handcuffed at any point
during this process.

¶18 The program room is a multipurpose room approximately fifteen feet
long and twenty-five feet wide, with its walls made of observation glass. It is
carpeted and contains tables, chairs and a phone with an unrecorded line. The
program room is equipped for remote court appearances and is used for the jail
library.

¶19 Once the floor officer and the inmate arrive at the program room, the
floor officer makes the outbound phone call, connects it, and then gives the phone
to the inmate. At that point, the floor officer leaves the program room, locking the
door. Outside of the program room, the floor officer continues to observe the
inmate through the observation glass to make sure the inmate is “still on the phone
[and] not touching any of the video equipment.” Hoff reiterated that although the
officer observes the inmate, no one listens to the inmate’s conversation. When the
floor officer sees the inmate hang up the phone, the officer opens the program
room’s door and escorts the inmate back to his or her pod.

¶20 The circuit court denied the State’s motion for reconsideration.
Although the court “certainly believe[d]” that Hoff knew “what he’s talking
about,” it stated it was not going to presume that the jail’s standard operating
procedure was followed in this instance. The court explained, “Habit is habit,
but … from there I’m not going to take the leap that [Hoff] can know exactly how
this conversation went down. He may not have even been the officer that escorted
[Halverson]. We don’t know.” The court concluded that there was “nothing
compelling” in this case that would convince it to overturn the Wisconsin Supreme

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Court’s decisions in Schimmel v. State, 84 Wis. 2d 287, 267 N.W.2d 271 (1978),3
and Armstrong. The court further stated it was “not convinced that our supreme
court is necessarily going to go along with … [Howes]. [The Wisconsin Supreme
Court] set up a bright line when the U.S. Supreme Court did not … and it’s been
almost a generation of well-settled law.” The State now appeals the court’s orders
granting Halverson’s suppression motion and denying its reconsideration motion.4

DISCUSSION

¶21 In Miranda v. Arizona, 384 U.S. 436 (1966), the United States
Supreme Court held that the Fifth Amendment to the United States Constitution
requires law enforcement officers to inform suspects in custody of their rights to
remain silent and to have an attorney present before they are interrogated. Id. at
458. Both parties appear to agree that Danielson interrogated Halverson, as
neither party argues to the contrary on appeal. Therefore, the issue presented is
whether Halverson was in custody for purposes of Miranda when Danielson
interrogated him.

¶22 Whether an individual is in custody for purposes of Miranda is a
question of constitutional fact that we review under a two-part standard. State v.
Bartelt, 2018 WI 16, ¶25, 379 Wis. 2d 588, 906 N.W.2d 684. We will uphold the

3
Schimmel v. State, 84 Wis. 2d 287, 267 N.W.2d 271 (1978), was later overruled on
grounds unrelated to this appeal by Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980).
4
This appeal was converted from a one-judge appeal to a three-judge appeal by the
February 4, 2019 order of the Chief Judge of the Court of Appeals. See WIS. STAT. § 752.31(3)
(2017-18); WIS. STAT. RULE 809.41(3) (2017-18).

All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP858-CR

circuit court’s findings of historical fact unless they are clearly erroneous. Id.
However, whether those findings support a determination of custody for purposes
of Miranda is a question of law that we independently review. Id.

¶23 The State renews its argument that Halverson was not in custody for
Miranda purposes merely because he was incarcerated at the time of Danielson’s
questioning, asserting that the Supreme Court in Howes overruled Wisconsin’s
per se custody rule announced in Armstrong. The State contends Howes held that
courts must undertake a totality-of-the-circumstances analysis to determine
whether an individual was in custody when interrogated by law enforcement, even
when that individual is presently incarcerated. In the State’s view, Halverson was
not in custody under the totality of the circumstances.

¶24 As explained more fully below, Wisconsin’s per se custody rule
announced in Armstrong was created by interpreting federal constitutional law.
As such, we must assess whether Armstrong’s interpretation of federal
constitutional law conflicts with the Supreme Court’s decision in Howes. We
conclude that such a conflict exists for purposes of interpreting the Fifth
Amendment. Accordingly, we must analyze whether Halverson was in custody
for purposes of Miranda in accordance with Howes’s totality-of-the-
circumstances test unless the Wisconsin Constitution grants him greater
protections than the Fifth Amendment provides.

¶25 To that end, Halverson invites us to interpret the Wisconsin
Constitution’s analog to the Fifth Amendment—article I, section 8—as providing
greater protection of the right against self-incrimination so as to retain
Armstrong’s per se custody rule as a matter of state constitutional law. For the
reasons stated below, we decline to do so.

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I. Armstrong, Howes, and Federal and State Constitutional Protections Against
Self-Incrimination

¶26 As a threshold matter, our analysis of whether Armstrong survives
Howes depends on whether the per se custody rule in Armstrong was derived
from the Fifth Amendment to the United States Constitution or the Fifth
Amendment’s analog in article I, section 8 of the Wisconsin Constitution.
Wisconsin courts normally interpret article I, section 8 of the Wisconsin
Constitution “consistent with the Supreme Court’s interpretation of the Fifth
Amendment.” Bartelt, 379 Wis. 2d 588, ¶30. Our supreme court, however, has
recognized rare exceptions to that rule, explaining that it “will not be bound by the
minimums which are imposed by the Supreme Court … if … the Constitution of
Wisconsin and the laws of this state require that greater protection of citizens’
liberties ought to be afforded.” State v. Knapp, 2005 WI 127, ¶59, 285 Wis. 2d
86, 700 N.W.2d 899 (hereinafter, Knapp II) (quoting State v. Doe, 78 Wis. 2d
161, 172, 254 N.W.2d 210 (1977)).

¶27 The State asserts that Armstrong’s per se custody rule was created
solely by interpreting the Fifth Amendment. Halverson does not dispute this
notion. Indeed, a review of Armstrong manifestly proves the State’s assertion.
Halverson instead argues that we should now interpret the Wisconsin Constitution
“to preserve the longstanding bright-line rule that incarceration alone amounts to
Miranda custody”—i.e., conclude that the Wisconsin Constitution affords our
citizens greater protections than the Fifth Amendment.

¶28 In Armstrong, which was decided in 1999, one issue before our
supreme court was the admissibility of oral statements that Tonnie Armstrong
made before receiving the Miranda warnings. Armstrong, 223 Wis. 2d at 336.
While Armstrong was incarcerated in a county jail, two police officers questioned

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him in person about a recent homicide in the area. Id. at 338. The officers had
information that Armstrong “may have witnessed something” that would have
assisted the officers’ investigation. Id. Neither officer read Armstrong his
Miranda warnings at the beginning of the interview, and one officer later testified
that the officers did not suspect Armstrong was involved in the crime when they
initially talked with him. Id. Armstrong eventually made oral statements
incriminating himself in the homicide. Id. at 335.

¶29 Our supreme court determined that Armstrong was in custody for
purposes of Miranda. Id. at 354-55. The court relied upon Mathis v. United
States, 391 U.S. 1 (1968), and “its Wisconsin counterpart,” Schimmel v. State, 84
Wis. 2d 287, 267 N.W.2d 271 (1978), overruled on other grounds by Steele v.
State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980). Armstrong, 223 Wis. 2d at 353.
Recognizing Schimmel’s reliance on Mathis, the court held:

[A] person who is incarcerated is per se in custody for
purposes of Miranda. Under Mathis and Schimmel, the
reason that a person was incarcerated is irrelevant to a
determination of whether he or she was in custody….
Indeed, we can think of no situation in which a defendant is
more clearly in custody, as envisioned by the Miranda
Court, than when the defendant is confined in a prison or
jail.

Id. at 355-56 (footnote and citation omitted).

¶30 In 2012, the Supreme Court in Howes reversed a Sixth Circuit
decision that had held that an inmate’s isolation from the general prison
population, combined with questioning about conduct occurring outside prison,
“makes any such interrogation custodial per se.” Howes, 565 U.S. at 504-05. The
Court observed that it was “abundantly clear” that its precedents did “not clearly
establish the categorical rule on which the Court of Appeals relied.” Id. at 505. In

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fact, the Court found that it had “repeatedly declined to adopt any categorical rule
with respect to whether the questioning of a prison inmate is custodial.” Id.

¶31 Similar to our Wisconsin cases of Armstrong and Schimmel, see
Armstrong, 223 Wis. 2d at 354-55; Schimmel, 84 Wis. 2d at 294-95, the Supreme
Court noted that the Sixth Circuit “placed great weight” on the Court’s decision in
Mathis, see Howes, 565 U.S. at 506. In Mathis, the Supreme Court rejected a
federal court of appeals’ holding that Miranda did not apply to an inmate’s
interview with an Internal Revenue Service agent at a prison. Id. at 506-07 (citing
Mathis, 391 U.S. at 4). The federal appeals court in Mathis had concluded that
Miranda did not apply to the prisoner “for two reasons: A criminal investigation
had not been commenced at the time of the interview, and the prisoner was
incarcerated for an ‘unconnected offense.’” Id. (citing Mathis v. United States,
376 F.2d 595, 597 (5th Cir. 1967)).

¶32 Howes observed that “the holding in Mathis is simply that a prisoner
who otherwise meets the requirements for Miranda custody is not taken outside
the scope of Miranda by either of the two factors on which the Court of Appeals
had relied.” Id. at 507. Critically, the Howes Court concluded: “Mathis did not
hold that imprisonment, in and of itself, is enough to constitute Miranda custody.”
Id. Instead, the test for whether a person is in custody is an objective, two-part
inquiry in which courts analyze the totality of the circumstances surrounding the
interrogation. See id. at 509; see also Bartelt, 379 Wis. 2d 588, ¶31.

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¶33 In light of Howes, we are compelled to disregard Armstrong’s per se
custody rule given its dependence solely on Fifth Amendment jurisprudence.5
Armstrong cited Mathis as support for its holding that incarceration is custody
per se for Miranda purposes. Armstrong, 223 Wis. 2d at 355-56. Howes,
however, unambiguously concluded that Mathis cannot be read to have held as
such. Howes, 565 U.S. at 507. We are cognizant that only our supreme court can
“overrule, modify, or withdraw language” from its prior cases. Cook v. Cook, 208
Wis. 2d 166, 189, 560 N.W.2d 246 (1997). Yet, under certain circumstances, we
are permitted to define and recognize developments in the law. See id. at 188.

¶34 This case presents one of those occasions, as we “must not follow” a
decision from our supreme court “on a matter of federal law if it conflicts with a
subsequent controlling decision of the United States Supreme Court.” State v.
Jennings, 2002 WI 44, ¶19, 252 Wis. 2d 228, 647 N.W.2d 142. Instead, we must
“necessarily adhere to [a] subsequent United States Supreme Court decision,
although it means deviating from the conflicting earlier decision of [the Wisconsin
Supreme Court].” Id. Because Armstrong relied solely upon federal law (Mathis
and the Fifth Amendment) to create its per se custody rule, which rule Howes later
recognized was incorrect, we conclude the circuit court erred by following
Armstrong instead of Howes to conclude that Halverson was in custody per se for
purposes of Miranda.

5
We observe that our supreme court in State v. Hanson, 2019 WI 63, 387 Wis. 2d 233,
928 N.W.2d 607, has recently recognized the holding in Howes v. Fields, 565 U.S. 499 (2012).
Hanson’s statement that Howes “recently clarified [that a] ‘service of a term of imprisonment,
without more, is not enough to constitute Miranda custody,’” Hanson, 387 Wis. 2d 233, ¶35,
lends further support to our conclusion that State v. Armstrong, 223 Wis. 2d 331, 588 N.W.2d
606 (1999), misinterpreted prior federal case law.

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¶35 Irrespective of Armstrong’s clear reliance on Fifth Amendment
jurisprudence, Halverson argues that we should now interpret the Wisconsin
Constitution to provide greater protection of the right against compelled
self-incrimination than what is afforded to individuals under the Fifth
Amendment. He first relies upon Knapp II for support, contending that case
“provides a useful example” as to when our supreme court has interpreted article I,
section 8 of the Wisconsin Constitution to afford greater protections than the Fifth
Amendment.

¶36 Our supreme court decided Knapp II on remand from the United
States Supreme Court. Knapp II, 285 Wis. 2d 86, ¶1. Matthew Knapp was a
person of interest in a homicide investigation of a woman who had been beaten to
death. See id., ¶¶3, 5. Detective Timothy Roets went to Knapp’s apartment to
arrest Knapp on a probation apprehension request. Id., ¶7. When Knapp saw
Roets at his door, Knapp attempted to call his attorney. Id. Knapp eventually
hung up the phone, let Roets into the apartment, and told Roets that he had been
attempting to contact his attorney. Id. Roets informed Knapp that he had to go to
the police station, but Roets never read Knapp Miranda warnings. Id. While
Knapp put on his shoes in his bedroom, Roets asked Knapp where his clothes were
that he had been wearing the prior evening (when Knapp was with the victim).
Id., ¶8. Knapp pointed to a pile of clothing on the floor, which Roets immediately
seized. Id.

¶37 Roets continued to question Knapp once they were at the police
station, but Roets still had not given Knapp the Miranda warnings. Id., ¶10. At
one point, Knapp stated that he did not want to write or sign any statements, as he
had been told previously by an attorney not to speak to police. Id. Knapp
eventually began to discuss what occurred on the night he was with the victim, but

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it eventually dawned on him that he was being questioned as a suspect to the
crime, rather than as a witness. Id. The questioning stopped after Knapp again
stated that he would not write or sign a statement without an attorney. Id.

¶38 Knapp was neither arrested nor charged at that time, and over twelve
years passed before he was eventually arrested and charged for the victim’s death.
Id., ¶¶11, 13. During that time, new witnesses implicated Knapp in the murder.
Id., ¶12. In addition, investigators retested Knapp’s clothing using more modern
DNA tests. Id. While an analysis of Knapp’s sweatshirt—which was part of the
clothing Roets collected—previously indicated the victim could not be excluded as
the source of blood present on his sweatshirt, the more recent DNA test
established that the blood on Knapp’s sweatshirt in fact belonged to the victim.
Id. Knapp subsequently moved to suppress, among other things, the sweatshirt
containing the victim’s blood because it was “the illegal fruit of a Miranda
violation.” Id., ¶13.

¶39 Roets testified at the suppression hearing, and his testimony made it
clear that he was aware of the Miranda requirement and purposefully chose not to
give the warnings so “he could keep the lines of communication open” with
Knapp. Id., ¶14. In other words, Roets “abandoned the notion of reading [Knapp]
his constitutional rights” because Roets knew Knapp wanted an attorney, but he
believed Knapp would have exercised his rights and might not have made a
statement if Roets Mirandized him. Id. Our supreme court held that the physical
evidence obtained as a direct result of a Miranda violation was inadmissible when
the violation was an intentional attempt to prevent the suspect from exercising
Fifth Amendment rights. State v. Knapp, 2003 WI 121, ¶79, 265 Wis. 2d 278, 666
N.W.2d 881 (hereinafter, Knapp I).

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¶40 Following Knapp I, the Supreme Court decided United States v.
Patane, 542 U.S. 630 (2004), in which a Court plurality concluded that law
enforcement’s failure to give a suspect Miranda warnings did not require
suppression of physical evidence obtained in connection with the suspect’s
unwarned but voluntary statements. See Patane, 542 U.S. at 636-37. In light of
Patane, the Supreme Court vacated Knapp I and remanded the case to our
supreme court to reconsider its decision in light of the principles articulated in
Patane. Knapp II, 285 Wis. 2d 86, ¶1.

¶41 Knapp II arrived at a similar conclusion to that of Knapp I, Patane
notwithstanding. This time, relying upon separate, adequate and independent state
law grounds—namely, article I, section 8 of the Wisconsin Constitution—our
supreme court concluded that our state constitution permitted the suppression of
physical evidence obtained “as the direct result of an intentional Miranda
violation.” Id., ¶2 & n.3. While reiterating that the exclusionary rule is not
absolute, the court found exclusion was proper in Knapp II because there was a
“strong need for deterrence” that overcame the societal costs of excluding
evidence. Id., ¶74. The court found the police conduct at issue was “intentional,”
“particularly repugnant,” and “the type of conduct that Miranda was designed to
prevent.” Id., ¶75. The court also determined that “judicial integrity” required
exclusion, explaining that the judicial process is “systemically corrupted” if there
are not protections in place to deter law enforcement from taking “unwarranted
investigatory shortcuts to obtain convictions.” Id., ¶¶79, 81.

¶42 Halverson argues “considerations of fairness and logic” dictate that,
like the court in Knapp II, we should conclude that our state constitution grants
greater protections than those afforded by the Fifth Amendment. As a result, he
argues the Armstrong per se custody rule survives Howes based on independent

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No. 2018AP858-CR

and adequate state grounds. Cf. id., ¶2 n.3 (recognizing that decisions interpreting
our state constitution can provide Wisconsin citizens stronger protections than
those afforded under the United States Constitution when relying upon separate,
adequate and independent state grounds). We disagree for a number of reasons.

¶43 First, Halverson’s argument in this regard is largely conclusory. The
supreme court in Knapp II underwent an extensive comparative analysis to
determine that it was permitted to impose greater protections under our state
constitution than those protections that the Supreme Court has imposed under the
United States Constitution. Halverson makes no attempt to do the same type of
comparative analysis here. Rather, he merely argues that because our constitution
has at least once been interpreted previously to grant greater protections than the
Fifth Amendment, we should follow suit here. His argument is unpersuasive
because Halverson never explains how the language of article I, section 8 of the
Wisconsin Constitution supports the per se custody rule, which is important given
that Armstrong relied upon federal case law interpreting the United States
Constitution to create that rule.

¶44 Second, Halverson’s reliance on Knapp II is misplaced because
Knapp II is neither legally nor factually analogous to Halverson’s case. Knapp II
relied upon, in part, prior Wisconsin cases interpreting the breadth of the
exclusionary rule under article I, section 8 of the Wisconsin Constitution. See
Knapp II, 285 Wis. 2d 86, ¶¶63-69. Neither Halverson nor Armstrong explains
how article I, section 8 specifically grants greater protections for inmates than
does the Fifth Amendment. Additionally, while Halverson recognizes the “strong
need for deterrence” of the intentional police misconduct at the heart of
Knapp II’s holding, he never suggests that Danielson’s conduct here was the type
of egregious, bad-faith police misconduct seen in Knapp II. Indeed, there is

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nothing in the record to suggest that Danielson’s failure to Mirandize Halverson
was a willful attempt to sidestep the Miranda requirements.

¶45 Third and finally, we disagree with Halverson’s assertions that
“[c]onsiderations of fairness and logic” provide support for preserving the per se
custody rule. Citing Miranda, Halverson suggests incarceration is the most
obvious form of custody due to its “inherently compelling pressures,” Miranda,
384 U.S. at 467, and he argues it would defy common sense to conclude an inmate
in a prison or jail is not in the kind of custody that warrants Miranda warnings.
As the State aptly recognizes in its reply, however, “Halverson presents no
explanation why … the totality-of-the-circumstances assessment … in [Howes]
inadequately protects his or any incarcerated defendant’s rights against
self-incrimination, such that preserving Armstrong’s bright-line … rule is
warranted.”

¶46 Moreover, Howes directly dismisses Halverson’s argument on this
point. There, the Court stated: “Miranda did not hold that such pressures are
always present when a prisoner is taken aside and questioned about events outside
the prison walls. Indeed, Miranda did not even establish that police questioning
of a suspect at the station house is always custodial.” Howes, 565 U.S. at 507-08
(citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). The Court, observing it
previously held in Maryland v. Shatzer, 559 U.S. 98, 110-15 (2010), “that a break
in custody may occur while a suspect is serving a term in prison,” concluded that it
then “must follow that imprisonment alone is not enough to create a custodial

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No. 2018AP858-CR

situation within the meaning of Miranda.”6 Howes, 565 U.S. at 510-11. Lacking
a compelling argument from Halverson to the contrary, we agree with this
analysis.

¶47 In sum, we decline Halverson’s invitation to interpret article I,
section 8 of the Wisconsin Constitution more broadly than the Fifth Amendment
in this context. Halverson fails to explain how our constitution could be construed
to adopt Armstrong’s per se custody rule, which is particularly problematic when
Armstrong relied upon cases interpreting the Fifth Amendment to create that rule.
Halverson’s reliance on Knapp II is not persuasive, given the different legal
doctrines and facts it analyzed. Finally, we disagree that “considerations of
fairness and logic” dictate a per se custody rule whenever an individual is
interrogated within a jail or prison, especially in light of the rationale in Howes.

II. Halverson Was Not in Custody for Miranda Purposes

¶48 Although we conclude that Halverson was not in custody at the time
of his telephone call with Danielson merely because of his incarceration, the
question remains as to whether Halverson was in custody for Miranda purposes
using the framework outlined by Howes. As Howes teaches, we must analyze the
totality of the circumstances surrounding Danielson’s interrogation of Halverson.
See Howes, 565 U.S. at 509; Bartelt, 379 Wis. 2d 588, ¶31.

6
The Court explained that there were “at least three strong grounds” to support its
conclusion on this point. Howes, 565 U.S. at 511. We explain these grounds later in our
analysis, see infra, ¶¶57-59, when we assess whether the environment surrounding Halverson’s
interrogation presented “the same inherently coercive pressures as the type of station house
questioning at issue in Miranda.” State v. Bartelt, 2018 WI 16, ¶33, 379 Wis. 2d 588, 906
N.W.2d 684 (quoting Howes, 565 U.S. at 509).

19
No. 2018AP858-CR

¶49 A custodial interrogation is “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his [or her] freedom of action in any significant way.” Bartelt, 379
Wis. 2d 588, ¶31 (quoting Miranda, 384 U.S. at 444). “[C]ustody is a term of art
that specifies circumstances that are thought generally to present a serious danger
of coercion.” Howes, 565 U.S. at 508-09. The test for determining custody is an
objective one. See id. at 509; Bartelt, 379 Wis. 2d 588, ¶31.

¶50 The first step is to determine whether, in light of the objective
circumstances of the interrogation, a reasonable person would have felt he or she
was not at liberty to terminate the interrogation and leave. Howes, 565 U.S. at
509; Bartelt, 379 Wis. 2d 588, ¶31. While we must examine all of the
circumstances surrounding the interrogation in their totality, specific relevant
factors include: the degree of restraint; the purpose, place and length of the
interrogation; and what has been communicated by law enforcement officers to the
defendant. Bartelt, 379 Wis. 2d 588, ¶32. When assessing the degree of restraint,
we consider whether the defendant was handcuffed, whether law enforcement
officers had their weapons drawn, and the number of officers involved, among
other factors not relevant to the present case. See id.

¶51 If we conclude that a defendant’s freedom of movement was
objectively curtailed, we must next determine whether “the relevant environment
presents the same inherently coercive pressures as the type of station house
questioning at issue in Miranda.” Id., ¶33 (quoting Howes, 565 U.S. at 509). “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. (quoting
Howes, 565 U.S. at 509).

20
No. 2018AP858-CR

¶52 Before we can assess the totality of the circumstances here, we first
must address a point of contention regarding our use of Hoff’s testimony.
Halverson asserts that, in the context of the analysis to follow, we should not rely
upon Hoff’s testimony regarding the jail’s standard procedures and practices to
determine the actual conditions during his telephone call with Danielson.
Halverson contends that Hoff’s testimony is speculative because the State could
not produce a witness who could remember the specific circumstances Halverson
experienced. Thus, in Halverson’s view, Hoff’s testimony amounted to only
“theorizing and conjecturing,” upon which the State could not rely to meet its
prima facie burden of proof. We disagree.

¶53 Hoff’s testimony was neither “theorizing” nor “conjecturing,” such
that his testimony would be unreliable as a matter of law. Evidence of a routine is
evidence. Hoff testified to having firsthand knowledge of the jail’s standard
operating procedures and of working on the day Halverson and Danielson’s
conversation took place. Evidence of a routine practice is relevant to prove that a
person or organization conformed to that practice. See WIS. STAT. § 904.06(1).
Furthermore, Halverson failed to rebut any of Hoff’s testimony. Generally
speaking, “[p]ositive uncontradicted testimony as to the existence of some fact, or
the happening of some event, cannot be disregarded by a court … in the absence
of something in the case which discredits the same or renders it against the
reasonable probabilities.” Thiel v. Damrau, 268 Wis. 76, 85, 66 N.W.2d 747
(1954). In addition, the circuit court found credible the testimony of Hoff (and
Danielson). The court is the ultimate arbiter of witness credibility in this instance.
See State v. Sloan, 2007 WI App 146, ¶21, 303 Wis. 2d 438, 736 N.W.2d 189.

21
No. 2018AP858-CR

Given these principles, it is proper for us to rely upon Hoff’s testimony when
determining whether Halverson was in custody for purposes of Miranda.7

¶54 Halverson claims that even though the circuit court found Hoff to be
credible, it nonetheless chose to disregard his testimony. Halverson points to the
court’s statement that it was “not going to take the leap that [Hoff] can know
exactly how this conversation went down. He may not have even been the officer
that escorted [Halverson]. We don’t know.” Consequently, Halverson argues that
we cannot rely upon Hoff’s testimony.

¶55 Halverson’s argument in this regard is undeveloped, as he does not
directly explain why we should disregard Hoff’s testimony when the circuit court
found Hoff credible, but it then declined to consider his testimony regarding the
jail’s standard operating procedures. Instead, he simply argues that we should
ignore the court’s credibility finding and Hoff’s testimony altogether. We could,
therefore, deem his argument forfeited. See M.C.I., Inc. v. Elbin, 146 Wis. 2d
239, 244-45, 430 N.W.2d 366 (Ct. App. 1988).

¶56 Nonetheless, Halverson has never challenged Hoff’s description of
the jail’s standard operating procedures, nor has he claimed that they were not
followed in this instance. Indeed, there is no evidence to the contrary. Under
these circumstances, the circuit court was required, as a matter of law, to accept

7
In this regard, it is important to remember that Hoff’s testimony only went to: (1) the
jail’s standard procedures for such phone calls; and (2) Hoff’s inability to recall any deviation
from those procedures or anything otherwise unusual happening on the day of the call between
Halverson and Danielson. This evidence—while certainly not dispositive of “exactly how this
conversation went down,” as the circuit court stated—is plainly material to our independent
decision of whether the available facts support a determination of custody for purposes of
Miranda.

22
No. 2018AP858-CR

Hoff’s testimony as to routine—including the only reasonable inferences to flow
from that testimony—especially in light of the court finding him a credible
witness. See Thiel, 268 Wis. at 85.8 While we acknowledge that no one else
testified as to what specifically happened that day (other than Danielson, who was
not physically present at the jail), the absence of such testimony in no way
prohibits a court’s reliance on credible testimony regarding routine practices.

¶57 Moving then to our analysis of the totality of the circumstances, we
first note that “[t]here are at least three strong grounds” for Howes’s conclusion
that “imprisonment alone is not enough to create a custodial situation within the
meaning of Miranda.” Howes, 565 U.S. at 511. First, the questioning of a person
who is already incarcerated “does not generally involve the shock that very often
accompanies arrest.” Id. An individual arrested in his or her home or on the street
and then taken to the police station for questioning, on the other hand, encounters
a much more coercive atmosphere due to the “sharp and ominous change,” the
shock of which may give rise to coercive pressures. Id.

¶58 Second, an inmate, “unlike a person who has not been sentenced to a
term of incarceration, is unlikely to be lured into speaking by a longing for a
prompt release.” Id. The inmate knows that when the questioning ceases, he or
she will remain under confinement. Id. In contrast, individuals who are arrested
and taken to the station house for questioning may feel pressured to speak because,
if they do, they may be allowed to leave and go home. Id.

8
In fairness to the circuit court, the record illustrates that the court likely disregarded
Hoff’s testimony because it thought his testimony was immaterial to determining custody under
the per se custody rule found in Armstrong.

23
No. 2018AP858-CR

¶59 Finally, an inmate, “unlike a person who has not been convicted and
sentenced, knows that the law enforcement officers who question him [or her]
probably lack the authority to affect the duration of [the inmate’s] sentence,” such
as by bringing about an early release if the possibility of parole exists. Id. at 512.
There is thus little “basis for the assumption that a suspect will feel compelled to
speak by the fear of reprisal for remaining silent or in the hope of a more lenient
treatment should he [or she] confess.” Id. (quoting Illinois v. Perkins, 496 U.S.
292, 296-97 (1990)). “In short, standard conditions of confinement and associated
restrictions on freedom will not necessarily implicate the same interests that the
Court sought to protect when it afforded special safeguards to persons subjected to
custodial interrogation.” Id. (emphasis added).

¶60 With the foregoing considerations in mind, we conclude that, under
the facts of this case, Halverson was not in custody for purposes of Miranda
because a reasonable person in his position would have felt free to terminate the
interrogation and end the phone call. The call’s duration was short, lasting only
three to four minutes. Danielson never raised his voice at or threatened Halverson,
and at no point did Halverson request an attorney or express that he wanted to end
the call. Although Halverson was isolated from the general jail population and
locked inside the program room, he was alone and unrestrained. Further, the
program room itself had no characteristics that would provide discomfort to
Halverson such that it would materially add to any unduly coercive atmosphere he
claims to have faced during the interrogation.

¶61 Importantly, Halverson was not forced to take the call with
Danielson or prevented from disconnecting it. Halverson was given the choice to
return Danielson’s call. He was capable of hanging up the phone at any point
during their conversation. In light of Halverson’s ability to make such choices and

24
No. 2018AP858-CR

the other objective circumstances surrounding the interrogation, we conclude that
a reasonable person in Halverson’s position would have felt free to terminate the
interrogation—i.e., end the phone call with Danielson and request to return to his
cell.

¶62 Halverson argues that even under the totality of the circumstances,
he was in custody for purposes of Miranda because Danielson never informed
Halverson that he was free to end the call. Halverson correctly notes that, in
Howes, the Court relied heavily on the fact that the inmate was told at the outset of
the interrogation that he could leave and go back to his cell whenever he wanted.
See Howes, 565 U.S. at 515. Significantly, however, the interrogation that
occurred in Howes was conducted in person. See id.

¶63 While we agree that law enforcement’s failure to inform an
individual that he or she may end an interrogation is a fact that weighs in favor of
an individual being in custody for purposes of Miranda, we view that fact as less
critical when the interrogation occurs by telephone. See State v. Mills, 2012 UT
App 367, ¶¶17-24, 293 P.3d 1129. As the State explains, many other courts have
observed the fact that an interrogation conducted by telephone tends to make the
interrogation less likely to be custodial. See, e.g., Pasdon v. City of Peabody, 417
F.3d 225, 227-28 (1st Cir. 2005); People v. J.D., 989 P.2d 762, 771-72 (Colo.
1999); Bradley v State, 449 S.E.2d 492, 494 (S.C. 1994); Commonwealth v.
Smallwood, 401 N.E.2d 802, 806 (Mass. 1980); State v. Denton, 792 P.2d 537,
540 (Wash. Ct. App. 1990); People v. Anthony, 230 Cal. Rptr. 268, 273 (Ct. App.
1986). While there may be circumstances in which an interrogation conducted by
telephone can be coercive enough for a person to be deemed in custody for
Miranda purposes, generally speaking, a law enforcement officer questioning
someone by telephone is a fact that makes an alleged interrogation less likely to be

25
No. 2018AP858-CR

custodial for purposes of Miranda. Therefore, we are not convinced that
Danielson’s failure to inform Halverson of his ability to end the call created a
custodial interrogation, especially in light of the other objective circumstances
weighing against a finding of custody.

¶64 Finally, we note that the environment in which Halverson’s
interrogation took place was not unduly coercive because he experienced the
“standard conditions of confinement and associated restrictions on freedom” felt
by all inmates. See Howes, 565 U.S. at 512. The day Halverson and Danielson
spoke was apparently unremarkable, as no witness appeared to specifically
remember Halverson’s phone call with Danielson. While Halverson attempts to
portray the jail’s standard operating procedures as “exactly the sort of
psychologically coercive atmosphere the Miranda Court sought to restrain,” his
argument falters because any coercive pressures he claims to have experienced
were no different from what inmates experience day-to-day in a jail or prison. As
we have already explained, inmates are subjected to an inherently coercive
atmosphere by virtue of their incarceration. See supra, ¶¶45-46, 57-59. Without
additional facts indicating that Halverson was subject to a serious risk of coercion,
standard conditions of confinement and their associated restrictions on freedom
are not enough to constitute Miranda custody in this instance. See Howes, 565
U.S. at 509, 512.

CONCLUSION

¶65 We hold that Armstrong’s per se custody rule for incarcerated
individuals is no longer binding precedent because it relies upon an incorrect
interpretation of federal cases applying the Fifth Amendment, as recognized by the

26
No. 2018AP858-CR

Supreme Court in Howes. We also decline to maintain Armstrong’s per se
custody rule under article I, section 8 of the Wisconsin Constitution.

¶66 Accordingly, analyzing the totality of the circumstances surrounding
Danielson’s telephone interrogation of Halverson, we conclude that Halverson was
not in custody for purposes of Miranda. Danielson was consequently not
constitutionally required to Mirandize Halverson, and the circuit court erred by
concluding otherwise. We therefore reverse the circuit court’s orders granting
Halverson’s motion to suppress and denying the State’s motion for
reconsideration, and we remand with directions to deny Halverson’s suppression
motion.

By the Court.—Orders reversed and cause remanded with directions.

27