State v. Nathan L. Leopold

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.
August 20, 2020
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. 2019AP2119-CR Cir. Ct. No. 2018CF72

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

NATHAN L. LEOPOLD,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Green County:
THOMAS J. VALE, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Graham, 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).
No. 2019AP2119-CR

¶1 PER CURIAM. Nathan Leopold appeals a judgment of conviction
following his no contest pleas to two offenses: homicide by operation of a motor
vehicle, with a detectable amount of restricted controlled substance in his blood;
and operating a motor vehicle with a detectable amount of restricted controlled
substance in his blood, causing injury. Leopold argues that the circuit court erred
when it denied his motion to suppress two sets of oral statements that Leopold
made to the same deputy sheriff after Leopold’s vehicle collided with another
vehicle, resulting in the death of one person and injuries to another.1 Leopold
claims that each of his two statements was taken in violation of his Fifth
Amendment rights. The State acknowledges that Leopold’s statements were made
in response to police interrogations. The State also acknowledges that, before
Leopold made either set of statements, the deputy did not read to Leopold the
warnings regarding constitutional rights that police are required to give before
custodial interrogations under Miranda v. Arizona, 384 U.S. 436 (1966). But the
parties dispute whether these were custodial interrogations. Thus, the dispositive
issue is whether Leopold was in custody within the meaning of Miranda during
the interrogations. After considering the totality of the circumstances under
governing case law, we conclude that neither of these were custodial
interrogations for Miranda purposes. Accordingly, we affirm the circuit court.2

1
As explained in the background section below, the second interrogation had two parts.
But both parts occurred in the same location (a hospital Emergency Department) and occurred
relatively close in time. Following the parties and for ease of reference, we generally refer to
there being two sets of interrogations, not three, and we address the two-part second set in one
analysis section.
2
Because we decide that Leopold’s Fifth Amendment rights were not violated during
either interrogation, we do not address arguments related to a blood draw to which Leopold
consented toward the end of the second interrogation. More specifically, we do not need to
address: (1) Leopold’s argument that the results of blood sample testing must be suppressed
based on the alleged Miranda violations; (2) the State’s argument that police had a sufficient
(continued)

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No. 2019AP2119-CR

BACKGROUND

¶2 On October 20, 2017, Leopold was driving a vehicle that collided
head-on with another vehicle. The other driver was killed and his passenger was
injured. At approximately 6:00 p.m., Deputy Joshua Mayer was among the law
enforcement officers dispatched to the crash scene.

¶3 The deputy interrogated Leopold briefly in an ambulance at the
crash scene, and Leopold made incriminating statements. Then, beginning
approximately 51 minutes later, the deputy interrogated Leopold in a room in the
Emergency Department of the hospital to which Leopold was transported by
medical personnel. Again, Leopold made incriminating statements, in large part
repeating what he had said to the deputy in the ambulance. Both in the ambulance
and at the hospital, Leopold was lying on his back wearing a cervical collar while
under the care of medical personnel. On both occasions, the deputy took
statements from Leopold without first reading him the Miranda warnings. We
provide factual detail regarding the two sets of interrogations below in the
respective subsections of the discussion section of this opinion.

¶4 Leopold moved to suppress his statements from both interrogations.
He argued in pertinent part that suppression of both sets of statements is required
because both were “made in a custodial context during which Deputy Mayer did

basis to request the blood draw absent incriminating statements by Leopold; or (3) Leopold’s
argument against a potential related argument by the State that the blood sample would inevitably
have been lawfully discovered by police.

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No. 2019AP2119-CR

not provide Leopold the Miranda warnings” and in either situation “a reasonable
person in Leopold’s position would not have considered himself free to leave.”3

¶5 The circuit court concluded that Leopold was not in custody for
purposes of Miranda during either interrogation. Leopold entered no contest pleas
to two of the charges against him, the court sentenced him, and he now appeals the
suppression decisions of the circuit court pursuant to WIS. STAT. § 971.31(10)
(2017-18),4 which permits appeal from denial of a suppression order despite entry
of a plea of guilty or no contest.

DISCUSSION

¶6 For the following reasons, we conclude that Leopold was not in
custody for purposes of Miranda during either interrogation.

Legal Standards

¶7 We review motions to suppress using a two-step process. State v.
Eason, 2001 WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625. “First, we review the
circuit court’s findings of historical fact, and will uphold them unless they are
clearly erroneous.” Id. “Second, we apply constitutional principles to those facts
de novo.” Id.

¶8 Both the United States and the Wisconsin Constitutions provide
protection against compelled self-incrimination. State v. Martin, 2012 WI 96, ¶30

3
Leopold does not challenge the voluntariness of his statements.
4
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2019AP2119-CR

& n.22, 343 Wis. 2d 278, 816 N.W.2d 270 (discussing the Fifth and Fourteenth
Amendments to the United States Constitution and Article 1, Section 8 of the
Wisconsin Constitution). In Miranda, the United States Supreme Court
interpreted the Fifth Amendment to hold that statements obtained by police during
custodial interrogations are not admissible unless, before the interrogation, police
inform the individual of his or her right against self-incrimination. Miranda, 384
U.S. at 444.

¶9 An individual is in custody for purposes of Miranda when he or she
“has been taken into custody or otherwise deprived of his [or her] freedom of
action in any significant way.” Id. Courts apply a two-step test. The first step is
to determine whether the functional equivalent of a formal arrest occurred:

A person is in “custody” if under the totality of the
circumstances “a reasonable person would not feel free to
terminate the interview and leave the scene.” “[A] court
must examine all of the circumstances surrounding the
interrogation, but the ultimate inquiry is simply whether
there was a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.”
Several factors have been considered relevant in the totality
of the circumstances such as “the defendant’s freedom to
leave; the purpose, place, and length of the interrogation;
and the degree of restraint.”

State v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523, 828 N.W.2d 552 (alteration
in original) (citations omitted).

¶10 Before describing the second step of the test, we pause to make an
observation about the first step in the context of this case. As referenced above,
Leopold was at all pertinent times lying on his back and in the care of medical
personnel while wearing a cervical collar. Indeed, as referenced below, at the
hospital he was, at least at times, hooked up to monitoring systems. Therefore,
unlike in the run of cases assessing custody status for Miranda purposes, he was

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No. 2019AP2119-CR

obviously not in a position to “terminate the interview and leave the scene,” as
referenced in such precedent as Lonkoski. In other words, Leopold could not
readily leave the scene based on his physical condition and circumstances not
created by the police. We discuss the significance of these facts further in our
analysis below.

¶11 Turning to the second step of the test, if we determine that police
objectively created the functional equivalent of formal arrest, then we determine
whether “‘the relevant environment presents 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 (quoted source
omitted), cert. denied, __ U.S. __, 139 S. Ct. 104 (2018). “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. (quoted source omitted). As
explained below, we resolve this appeal based on the first step of the test without
reaching the second. While many of the same facts would be relevant to the
analysis under both steps, we limit our conclusion to the first step.

¶12 The first step is an objective test, meaning that the particular
subjective views of neither police officers nor suspects are pertinent to the
analysis. State v. Quigley, 2016 WI App 53, ¶42, 370 Wis. 2d 702, 883 N.W.2d
139; see also State v. Kilgore, 2016 WI App 47, ¶22, 370 Wis. 2d 198, 882
N.W.2d 493 (officer’s subjective state of mind does not control or influence the
issue).

¶13 The first step takes into account the totality of the circumstances,
including but not limited to the location, duration, and purpose of the

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No. 2019AP2119-CR

interrogation, as well as the degree to which the person is or is not restrained. See
Martin, 343 Wis. 2d 278, ¶35. To evaluate the level of restraint, courts look to
whether the individual undergoing the interrogation was placed in handcuffs,
frisked, or transported to another location. State v. Torkelson, 2007 WI App 272,
¶17, 306 Wis. 2d 673, 743 N.W.2d 511. Other factors that may be useful in
assessing the level of restraint include the number of officers involved and
whether officers utilized a weapon. See id.

¶14 Applying these standards and additional case law, we now address
the two sets of interrogations in turn. In providing additional background facts
below, we rely on pertinent factual findings made by the circuit court at the
suppression hearing, supplemented as needed by undisputed facts. This includes
facts reflected on a series of video files (which we will refer to in the singular, as
“the video”) that were recorded by the body camera worn at all pertinent times by
the deputy. Leopold does not challenge any factual finding of the circuit court as
clearly erroneous. Portions of the video was played at the suppression hearing.
We have reviewed the video, which appears to have high quality images and
sound.

Interrogation In Ambulance

¶15 Leopold argues that he was in custody for Miranda purposes when
Deputy Mayer interrogated him in the ambulance. Leopold emphasizes that the
deputy had reason to suspect, at the time of the ambulance interrogation, that
Leopold had committed violations of law and that the deputy was seeking to
obtain admissions from him for prosecution purposes.

¶16 The State contends that the objective factors used to determine
whether an individual is in custody for Miranda purposes—such as the degree of

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No. 2019AP2119-CR

restraint used by police, the purpose, place, and length of the interrogation, and the
content of what the deputy conveyed to Leopold—weigh against that conclusion.

¶17 The following are additional pertinent facts. After first assisting
with traffic control related to the crash, Deputy Mayer was assigned to investigate.
He was told the following by another deputy on the scene: Leopold’s car had
crossed the centerline to cause the crash; law enforcement had found in Leopold’s
vehicle drug paraphernalia (a pipe containing what appeared to be burnt marijuana
residue) and a green, leafy, flaky substance suspected to be synthetic marijuana;
and Leopold’s vehicle had a strong odor of marijuana.

¶18 Still on the scene of the crash, Deputy Mayer approached an
ambulance in which Leopold was being attended to by emergency medical
personnel. Leopold was laying on his back on a gurney in the ambulance, wearing
a cervical collar. The deputy asked the medical personnel if he could talk to
Leopold. One responded yes, but said that the deputy needed to “keep it a
minute.” Without interfering with the medical attention Leopold was receiving,
the deputy climbed into the back of the ambulance and said to Leopold: “Hey,
Nate, we found your pipe and your weed in your vehicle. When’s the last time
you smoked?” The video shows that Leopold responded without hesitation that he
had some marijuana in his vehicle and that he had smoked marijuana at 2:00 that
afternoon (approximately 4 hours before the crash).

¶19 This interaction in the ambulance lasted 14 seconds. It occurred
entirely in the presence of the medical personnel. The video reflects both the
deputy and Leopold speaking in calm, conversational tones. The deputy did not
give Leopold Miranda warnings at any point in this interaction. The deputy also
did not tell Leopold that he was under arrest and did not suggest that the deputy

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No. 2019AP2119-CR

planned to ride along with Leopold and medical personnel in the ambulance to the
hospital.

¶20 Medical personnel transported Leopold in the ambulance to an area
hospital. Deputy Mayer drove separately to the hospital.

Analysis

¶21 We agree with the circuit court, which concluded the following
based on the totality of the circumstances. When the deputy, working as a solo
law enforcement officer, calmly interrogated Leopold for 14 seconds in the
ambulance, where the defendant had been taken and was being cared for by
medical personnel, a reasonable person in Leopold’s position would not have
understood himself to be under the functional equivalent of formal arrest under the
applicable Fifth Amendment case law.

¶22 As the State notes, this is similar to the situation in State v. Esser,
166 Wis. 2d 897, 480 N.W.2d 541 (Ct. App. 1992), in which we concluded that
brief questioning of the defendant at the scene of a fatal crash was not custodial, in
part because his limited mobility was “not the result of any police conduct.” Id. at
900-02. The court in Esser explained that this was an application of the following
rule from our supreme court: the circumstances that require Miranda warnings
must be those caused or created by the authorities. Esser, 166 Wis. 2d at 900-02
(citing State v. Clappes, 117 Wis. 2d 277, 284, 287, 344 N.W.2d 141 (1984)). In
addition, the brevity of the deputy’s inquiry weighs against a conclusion that this
was custodial interrogation. See State v. Dobbs, 2020 WI 64, ¶59, 392 Wis. 2d
505, 945 N.W.2d 609 (citing Berkemer v. McCarty, 468 U.S. 420, 437-40 (1984))
(“‘A brief detention, such as a traffic stop, typically does not rise to the level of
‘custody’ for purposes of Miranda.’”).

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No. 2019AP2119-CR

¶23 Leopold’s primary argument regarding the ambulance interrogation
misses the mark, because it focuses on the subjective intentions of the deputy,
which as we have explained are not pertinent to the analysis. 5 Leopold attempts to
suggest that Clappes did not articulate the rule we have just stated in the previous
paragraph, but the court was quite clear in the course of extended discussion,
including this unqualified statement: “We now hold that the conditions of custody
or otherwise deprivation of freedom requiring Miranda warnings to be those
caused or created by the authorities.” See Clappes, 117 Wis. 2d at 284-87.
Leopold also attempts to distinguish Esser based on the nature of the question
posed to the defendant in Esser, suggesting that the question here called for a
more potentially incriminating answer. But there is no significant difference
between the two cases. The question posed by police in Esser (to the effect,
“Were you driving your vehicle?”) also could have elicited potentially
incriminating information. See Esser, 166 Wis. 2d at 900).6

5
In particular, Leopold quotes from discussion captured on video among law
enforcement on the scene, including Deputy Mayer, regarding their investigative strategies and
theories, but none of this is relevant under the objective test.
6
Leopold makes arguments based on Scales v. State, 64 Wis. 2d 485, 219 N.W.2d 286
(1974), that are not viable, given the manner in which the court in State v. Clappes, 117 Wis. 2d
277, 344 N.W.2d 141 (1984), distinguishes Scales. See also State v. Prado, 2020 WI App 42,
¶59 n.20, __ Wis. 2d __, __ N.W.2d __ (citing Birchfield v. North Dakota, __ U.S. __, 136 S. Ct.
2160, 2185 (2016)) (noting that a decision of the United States Supreme Court now precludes
reasoning in Scales regarding blood draws that we need not address here). The court in Scales
stated that Miranda warnings had to be given to an injured defendant in the hospital, because
under the circumstances he “was as effectively bound to his bed as if he had been shackled to it.”
Scales, 64 Wis. 2d at 492. However, as we note in the text, the approach of the court in Clappes
is to focus on the degree to which such “binding” or “restraint” was “created by the [police]
authorities.” The Clappes court faults Scales for “not stress[ing] the entire language of the
United States Supreme Court stating ‘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.’” Clappes, 117 Wis. 2d at 285 (quoting Miranda, 384 U.S. at 478 and adding the
emphasis to the Miranda language).

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No. 2019AP2119-CR

¶24 Leopold argues that the State fails to take into account the relevance
of the deputy’s purpose in interrogating him, and that the video reveals a purpose
to collect evidence for use in a prosecution case against him. But Leopold rests
this argument in part on State v. Blatterman, 2015 WI 46, 362 Wis. 2d 138, 864
N.W.2d 26, which interprets the concept of custody in the Fourth Amendment
context, not in the Fifth Amendment context. As our supreme court recently had
occasion to note in the determination-of-custody context, “the Fourth Amendment
and Fifth Amendment protect different interests and involve different inquiries.”
Dobbs, 392 Wis. 2d 505, ¶57. The Fourth Amendment is a reasonableness inquiry
that balances “the government’s interest in crime prevention against an
individual’s right to be free from government intrusion.” Id. In contrast, the Fifth
Amendment protects “the right not to be compelled to incriminate oneself.” Id.,
¶58.

¶25 To clarify, one factual premise of Leopold’s argument is not
unreasonable. The deputy’s question in the ambulance, viewed objectively,
revealed an obvious purpose to collect evidence against Leopold. No doubt, it
sought to elicit an answer that could have been used as part of a basis to place him
under formal arrest. However, Leopold fails to develop an argument, based on
Fifth Amendment jurisprudence, that this fact is entitled to significant weight here
given other relevant facts, such as the brevity and low key nature of the
interrogation and the lack of any use or threats of restraint by the deputy. Without
delving more deeply into this topic, it is sufficient to explain that Leopold fails to
persuade us that our guidance here should be found in Blatterman, and not in
Clappes and Esser, and it is also sufficient that under similar circumstances in
Esser there was also an objectively obvious police purpose to collect potentially
incriminating evidence.

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No. 2019AP2119-CR

¶26 Leopold briefly suggests that it reasonable for him to “expect that he
would be taken into custody on a probation hold” because he was under probation
supervision at the time of the crash. However, the deputy and Leopold had no
discussion about his probationary status. Further, even if they had, Leopold fails
to develop an argument that, given all of the other circumstances here, the
probation topic would have carried any weight in the analysis.

Interrogation At Hospital

¶27 Leopold argues that he was in custody for Miranda purposes when
Deputy Mayer interrogated him at the hospital. He emphasizes that the deputy had
already obtained incriminating admissions from Leopold in the ambulance and had
also already prepared the citations to give him before interrogating him in the
hospital. The State again contends that the objective factors used to determine
whether an individual is in custody for Miranda purposes weigh against that
conclusion.

¶28 By the time the deputy was driving to the hospital, he planned to cite
Leopold for possession of drug paraphernalia, operating while intoxicated, and
operating left of the center lane. Toward that end, the deputy printed out citations
for those offenses in his squad car. He planned to obtain more information from
Leopold at the hospital before issuing the citations to Leopold, but he took the
citations with him when he went into the hospital. The deputy knew that Leopold
was on probation but did not contact his probation officer until after Leopold was
placed under arrest.

¶29 Inside the hospital, the deputy received permission from medical
personnel to walk back to the room where Leopold was within the Emergency
Department. The deputy pulled aside a curtain to enter a room with three walls, a

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No. 2019AP2119-CR

curtain, and a door, where Leopold was lying on his back on a hospital bed,
wearing a hospital gown and a cervical collar; he was also attached to some
monitoring equipment. There were several nurses also present, who gave the
deputy permission to be in the room.7

¶30 Approximately 51 minutes after the 14-second interaction between
the deputy and Leopold in the ambulance, the deputy identified himself to
Leopold. Leopold calmly acknowledged this identification without asking any
questions of the deputy. The deputy informed Leopold that, based on what law
enforcement had found in Leopold’s car, the deputy was seeking more
information.

¶31 The deputy said that he would “need to search [Leopold’s] clothing,”
which was sitting on a chair nearby. Leopold indicated his assent.8 The deputy
briefly looked through Leopold’s clothing, including noting that there was a wallet
in the pants. The deputy also asked Leopold again about his possession of

7
The body camera on Deputy Mayer’s chest, which naturally reveals only images in
front of the deputy, shows various medical personnel coming and going at various times during
the two-part hospital interrogation. This includes medical personnel wheeling Leopold out of the
room and to go elsewhere in the hospital for 46 minutes. It seems very likely that a theoretical
360-degree view around the deputy would have revealed more activity by medical personnel. For
purposes of our analysis, it is sufficient to note that the video establishes that Leopold was under
medical care throughout, that medical personnel were sometimes present, and that the deputy did
not appear to interfere with their work in any way.
8
In his principal brief, Leopold asserts that the search of the clothing was
“unauthorized,” and this forms a significant portion of his argument that the rule stated in
Clappes does not apply here. It was also the understanding of the circuit court that Leopold did
not consent to a clothing search. However, the State points out that a video reflects that Leopold
nodded and said, “Yeah, that’s fine,” in response to the request search is clothing. In his reply
brief, Leopold implicitly concedes the factual point, but characterizes Leopold’s conduct as
“acquiescence rather than voluntary consent.” This concession significantly weakens Leopold’s
original argument. Further, the deputy’s search of the clothing was brief and seemingly
uneventful.

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No. 2019AP2119-CR

marijuana and the last time he had smoked, and Leopold again admitted
possessing marijuana and repeated his earlier statement, this time saying that he
had taken “one hit” on the pipe at 2:00.

¶32 The deputy said, “Based on what we observed in the vehicle and
your admission that you were smoking weed today, I’m going to request that you
submit to field sobriety.” The video reflects that Leopold responded, “sure,”
without hesitation or asking any questions. The test began with discussion about
the nature of the test and then with initial testing, with which Leopold was
completely cooperative. Then medical personnel came to take Leopold away for
what they explained could be up to an hour of treatment elsewhere in the hospital.

¶33 Approximately 46 minutes later, medical personnel returned
Leopold to the room, where the deputy had been waiting. The deputy asked
Leopold if it would be okay to resume the sobriety testing and Leopold indicated
his agreement to cooperate. Before resuming the field sobriety testing, the deputy
engaged Leopold in additional questioning that resulted in Leopold saying that he
had consumed two beers at supper at five p.m. There was more discussion of
marijuana, with Leopold saying again that he had taken “one hit” on a “full” pipe
at 2 p.m.

¶34 The deputy asked if he could resume the field sobriety testing,
Leopold indicated his agreement by nodding his head, and the deputy performed
tests for approximately four minutes.

¶35 To this point in the hospital interrogation, the deputy had not read
the Miranda warnings to Leopold and had not told Leopold that he was free to
leave. On the other hand, Leopold did not object to the deputy being present or to
questioning him, and the deputy did not do anything that restrained Leopold’s

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No. 2019AP2119-CR

freedom of movement. For example, the deputy did not use handcuffs on Leopold
or otherwise constrain him. The deputy also had not told Leopold that he was
under arrest nor had he issued any citations to him, or even referred to the
citations.

¶36 About five minutes after medical personnel returned Leopold back to
the room where the deputy had been waiting, as Leopold again lay on a hospital
bed in the same room, the deputy explained that he was going to issue him a
citation for operating while intoxicated, which “will be amended in court to a fatal,
OWI causing fatal injury.”

¶37 Leopold expressed initial confusion about the reference to a fatality
and the deputy explained that the driver of the other vehicle was deceased.
Leopold said, “Oh, no.”

¶38 The deputy finished explaining the three citations and stressed that
Leopold had a mandatory court appearance at an identified time and place in
December. The deputy asked if Leopold had any questions about the citations and
Leopold indicated no. Leopold asked, “A person died?” and closed his eyes.

¶39 The deputy read to Leopold from the “informing the accused” form
and Leopold consented to a blood draw and blood was drawn. This process
included the deputy asking Leopold to initial and sign a form, which Leopold did
without question or complaint. The deputy then worked with a medical
professional who drew the blood and the two worked together to package up the
blood vials as evidence. As part of this process, the deputy asked Leopold for
permission to remove Leopold’s driver’s license from his wallet to note
information from it; Leopold gave his permission, and the deputy wrote down
information from the license and then returned it to the wallet.

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No. 2019AP2119-CR

¶40 After finishing the blood draw paperwork, the deputy asked Leopold
if he would answer questions for an “alcohol drug influence report.” For the first
time in their interactions that evening, Leopold did not promptly respond to a
question or agree to a request for cooperation by the deputy. Leopold said that he
would not answer these questions. The deputy said he would read the pre-
interrogation Miranda warning to Leopold, even though the deputy explained that
he knew Leopold would have said he did not want to answer further questions.
After that occurred, the deputy said, “that’s all I have for you,” summarized that
he had left the citations for Leopold and reminded Leopold again that he needed to
appear for his mandatory court date. The deputy ended the hospital encounter by
saying “thank you” to Leopold as he walked out.

¶41 The State contends that, throughout his interactions with Leopold at
the hospital, as during their ambulance interaction, the deputy was “cordial and
non-aggressive,” and Leopold does not dispute that contention.

Analysis

¶42 For the following reasons, we agree with the circuit court that, under
the totality of the circumstances, a reasonable person in Leopold’s situation would
not have understood himself to be in custody, under the applicable Fifth
Amendment case law.

¶43 The location, duration, and restraint factors all weigh in favor of the
State’s arguments. In terms of location, he was interrogated in the neutral setting
of a hospital to which he had been transported by medical personnel, with medical
personnel freely coming and going from the hospital room. Cf. Clappes, 117
Wis. 2d at 287 (“[p]olice station interrogation carries a strong presumption of
custody”). There is no suggestion that the deputy interfered with medical

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No. 2019AP2119-CR

personnel or attempted to enlist them to assist in any coercion of Leopold. In
terms of duration, excluding the 46-minute interruption for medical treatment, the
interrogation was relatively short and the deputy simply made use of time when
Leopold was not being treated. Turning to the restraint used, Leopold was not
handcuffed or otherwise restrained by the deputy. Also, the deputy was the only
member of law enforcement at the hospital, just as he had been the only law
enforcement officer to interrogate Leopold at the ambulance. The deputy acted in
a low key and courteous manner, as he had at the ambulance, and he did not draw
any weapon or otherwise make any threat or display of force. None of the
statements or actions of the deputy shown in the video appears to be commanding
or controlling. The deputy’s manner and questions would have conveyed to the
“reasonable person” whom we are to imagine under applicable Fifth Amendment
case law that Leopold had autonomy in this situation and that his preferences
would be respected. Leopold decided to terminate the interrogation when he did
based on his own subjective views in the moment; a reasonable person would have
known that he or she had been free to do so at any earlier point.

¶44 For two separate reasons, it does not matter that the deputy had
printed out the citations in advance and planned to issue them to Leopold after
concluding the hospital interrogation. First, as summarized above, the subjective
plan or intentions of law enforcement are irrelevant. Second, given the
circumstances, it is not clear that, even if Leopold had been aware that the deputy
was going to issue citations to him, this should have signaled to Leopold that he
was in custody.

¶45 It is true that Leopold had admitted to law violations to the deputy in
the ambulance interview: marijuana use in advance of driving and a vehicle crash,
and possession of paraphernalia. Leopold now argues that this made him “an

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No. 2019AP2119-CR

inevitable criminal defendant” and therefore a reasonable person would not feel
free to terminate the interrogation. However, “although an admission of guilt to a
serious crime is a factor to consider in a custody analysis,” such an admission is
not necessarily “enough to transform [the interrogated person’s] status to that of
‘in custody’ given the totality of the circumstances.” Bartelt, 379 Wis. 2d 588,
¶53. The facts in Bartelt were considerably more dramatic than the facts here and
the discussion in Bartelt suggests that this factor is entitled to some weight, but
not significant weight, in the instant context. See id., ¶¶9-15, 46-53 (determining
that defendant was not in custody, despite the fact that, while being interrogated at
a police station in an increasingly accusative fashion, he confessed to physically
assaulting a woman in a park).

¶46 The deputy appears not to have told Leopold that he could terminate
the interrogation at any time, which in itself weighs in favor of Leopold’s
arguments. At the same time, however, the deputy specifically inquired, on
several separate occasions, whether Leopold would agree to participate in field
sobriety testing and Leopold indicated yes each time, and the deputy also asked for
permission to search his clothing and to have medical personnel take a blood draw.
These were all indicia that Leopold could make independent choices in his
interactions with the deputy and that the deputy would respect those choices.
Considering the totality of the circumstances, applying the pertinent Fifth
Amendment case law, we conclude that a reasonable person would have felt free
to terminate the interrogation at the hospital.

¶47 In sum, under the totality of the circumstances both in the ambulance
and at the hospital, we conclude that Leopold was not in custody under applicable
constitutional standards. Therefore we do not need to reach the second step of the
test, whether “the relevant environment presents the same inherently coercive

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No. 2019AP2119-CR

pressures as the type of station house questioning at issue in Miranda.” See
Bartelt, 379 Wis. 2d 588, ¶33.

By the Court.—Judgment affirmed.

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

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