State v. Kale K. Keding

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 31, 2023
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 Nos.
2022AP1373-CR Cir. Ct. Nos. 2021CM318
2021CM617
2022AP1374-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KALE K. KEDING,

DEFENDANT-APPELLANT.

APPEAL from judgments of the circuit court for Wood County:
NICHOLAS J. BRAZEAU, JR., Judge. Judgment affirmed; judgment reversed and
cause remanded for further proceedings.

¶1 GRAHAM, J.1 Kale Keding appeals judgments of conviction that
were entered by the circuit court following Keding’s no-contest pleas in two

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version.
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misdemeanor cases that have been consolidated for purposes of appeal: a judgment
of conviction for possessing a controlled substance (Wood County case
No. 2021CM318, the “possession case”); and a judgment of conviction for bail
jumping (Wood County case No. 2021CM617, the “bail jumping case”). On appeal,
Keding challenges the order in the possession case that denied his motion to
suppress statements he made at the police station after his arrest for possessing a
controlled substance.

¶2 For reasons explained in greater detail below, I conclude that the
circuit court erred when it denied Keding’s motion to suppress the statements he
made at the police station. The State has not attempted to prove that the error was
harmless, and I accept the State’s silence on this point as a concession that it was
not. I therefore reverse the judgment in case No. 2021CM318.

¶3 Turning to the bail jumping case, Keding does not explain how his
challenge to an order in the possession case could result in reversal of his conviction
for bail jumping, nor does he make any other argument about the propriety of the
judgment in that case. I therefore affirm the judgment in case No. 2021CM617.

BACKGROUND

¶4 Following a traffic stop, Keding was arrested for possession of a
controlled substance. The State filed case No. 2021CM318, which charged him
with possession of cocaine contrary to WIS. STAT. § 961.41(3g)(c). Keding moved
to suppress the inculpatory statements he made at two different points during his
arrest and booking: certain statements he made to Officer Libby Abel at the scene
of the arrest; and other statements he made to Officer Mack Scheppler at the police
station as he was being booked. Abel and Scheppler both testified during the
hearing on the motion to suppress, and body camera footage capturing the

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interactions between Keding and the officers was introduced into evidence. The
following summary of undisputed facts is derived from the testimony and exhibits
presented at the hearing and is consistent with the circuit court’s findings of fact.

¶5 At approximately 4:00 a.m. on May 30, 2021, Abel initiated a traffic
stop of a vehicle with a nonfunctioning brake light. Keding was one of the vehicle’s
three occupants, and was sitting in the back seat.

¶6 For reasons that are not material to this appeal, Abel called for backup
and a K9 unit, and the police dog alerted to the presence of a controlled substance
in the vehicle. Officers asked the three occupants to step out of the vehicle and
patted them down for weapons. During a search of the vehicle, officers located a
small bag containing a substance that officers believed to be cocaine in the front
passenger-side door.2 All three of the vehicle’s occupants denied ownership of the
bag, and they likewise denied knowledge of its contents. Abel stated that she would
be charging all three occupants with possession of a controlled substance, and that
each was free to call for a ride.

¶7 Shortly thereafter, the driver told Abel that he had witnessed Keding
using what he believed to be cocaine earlier that night, and he speculated that the
bag found in the vehicle might belong to Keding. Following that statement, Abel
approached Keding as he waited for his ride and resumed questioning him. Keding
made a series of inculpatory statements, including that he had struggled with
substance abuse in the past, that he had “snorted an Adderall” earlier that evening,
and that his nose was runny as a result. Abel told Keding that she was placing him

2
Keding does not challenge the legality of the traffic stop, nor does he challenge the search
of the vehicle.

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under arrest, and she told the driver and the other passenger that they would not be
charged.

¶8 Abel then transported Keding to the police station. While Keding was
waiting in the booking area, Abel performed a preliminary test on the substance that
had been found in the vehicle, and the results indicated that the substance was
cocaine.

¶9 Abel returned to the booking area and initiated an exchange with
Keding. During the exchange, Abel stated that she wanted to ask him additional
questions and had to give him Miranda warnings;3 however, before Abel could give
those warnings, Keding indicated that he wanted an attorney:

Abel: So, I would like to ask you more questions okay, but
because you’re in custody, I’d have to read you your
Miranda rights, okay? Do you think you’d be willing to
answer questions or are you thinking no already?

Keding: Um, seeing as how I got arrested, I’m going to need
a lawyer. So.

Abel: Okay. Okay. So, you’re wishing to remain silent?

Keding: I don’t want to but I guess I’m going to have to.

¶10 Abel responded in the affirmative and ceased all questioning. As a
result of the above-described exchange, Keding was not given Miranda warnings
at any time during the booking procedure. Most pertinent here, he was not advised

3
See Miranda v. Arizona, 384 U.S. 436 (1966). The now-familiar “Miranda warnings”
inform the suspect that they have the right to remain silent; that anything they say can be used
against them in a court of law; that they have the right to the presence of an attorney; and that if
they cannot afford an attorney, one will be appointed prior to questioning if they so desire. Id. at
479.

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that he had the right to remain silent, and that anything he said could be used against
him in a court of law. See Miranda v. Arizona, 384 U.S. 436, 479 (1966).

¶11 Moments later, Scheppler observed Keding throw an item into a trash
can. Scheppler, who was aware that Keding had not been given Miranda warnings
and had invoked his right to counsel and his right to remain silent, initiated the
following exchange:

Scheppler: What did you toss in there?

Keding: A Kleenex. It might have some residue for you.

Scheppler: Alright. [chuckles]

¶12 Forty seconds passed. Based on the video footage, it appears that
Scheppler left the booking area for at least a portion of that 40-second period while
Keding mused about the crime lab’s procedures for testing controlled substances.
Scheppler then returned to the booking area and engaged Keding in the following
exchange:

Scheppler: So, you were saying some residue might be on
the Kleenex or what?

Keding: In the snot. There’s going to be a little cocaine in
there.

Scheppler: Some cocaine?

Keding: Yeah, I did some at the bar. I forgot about it
because I like had drinks and like drinking impairs your—so
that’s all I’m going to give you.

¶13 Scheppler was asked about these exchanges at the suppression
hearing, and he testified as follows. When he asked what Keding had discarded, his
question was not for the “purpose[] of gathering evidence,” and Scheppler did not
“believe [he] was asking anything related to the offense[.]” Scheppler did not expect
that Keding’s response would be about “residue,” and he was surprised by that

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response. Regarding the follow-up questions about the residue, Scheppler testified
that he “repeated some of the statements that [Keding] made,” and that he did so
because he was “curious” what Keding meant “when he said residue” and “what the
Kleenex might have tested for.” At that point, Scheppler was “just trying to have a
conversation” with Keding “about the cocaine.”

¶14 As noted, the State charged Keding with possession of cocaine (case
No. 2021CM318), and he was released on bail. Keding was later arrested for
violating the conditions of his bail, and the State issued a complaint (case
No. 2021CM617) that charged him with misdemeanor bail jumping.

¶15 Meanwhile, in the possession case, Keding filed a motion to suppress,
which challenged the admission of the inculpatory statements Keding made to Abel
at the scene of the arrest. The State conceded that the statements should be
suppressed, and the circuit court granted that portion of Keding’s motion. I
therefore discuss Keding’s statements to Abel no further.

¶16 Keding’s motion to suppress also challenged the admission of the
statements Keding made to Scheppler at the police station regarding the tissue
Keding had thrown away. Keding argued that Scheppler’s questioning constituted
interrogation, and that he was interrogated without receiving Miranda warnings and
after he unequivocally invoked his right to counsel. He argued that the statements
should be suppressed because their introduction at trial would violate the Fifth
Amendment to the United States Constitution.

¶17 The circuit court denied Keding’s motion with respect to those
statements. The court determined that Keding had not been given Miranda
warnings, that he had unequivocally invoked his right to counsel, and that all further
interrogation had to cease. However, the court concluded that Scheppler’s

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questioning did not constitute interrogation. It determined that the inquiry about
what Keding had thrown in the trash was “reasonable,” and that Keding’s statement
in response was “voluntary” and “not elicited by the questioning of the officer.” It
also determined that Scheppler’s follow-up inquiries merely confirmed Keding’s
“weird” response. Accordingly, the court declined to suppress the statements
Keding made to Scheppler at the police station.

¶18 Seven days later, Keding entered a plea agreement with the State.
Pursuant to the agreement, the State amended the charge of possession of cocaine
to possession of a controlled substance contrary to WIS. STAT. § 961.41(3g)(b), and
Keding pled no contest to the amended charge in the possession case and the charge
in the bail jumping case. Pursuant to a joint sentencing recommendation, the circuit
court withheld sentence and imposed one year of probation in both cases.

DISCUSSION

¶19 Keding appeals both judgments of conviction. In his appellate
briefing, Keding challenges the circuit court’s denial in the possession case of his
motion to suppress the inculpatory statements he made to Scheppler.4 However, he
does not explain how his challenge to that order could result in reversal of his
conviction for bail jumping, nor does he make any other argument related to the bail
jumping case.

¶20 Accordingly, in the discussion that follows, I confine my analysis to
the possession case. I first consider whether the introduction of Keding’s statements

4
“Ordinarily, a guilty plea waives all non-jurisdictional defects and defenses.” State v.
Conner, 2012 WI App 105, ¶15, 344 Wis. 2d 233, 821 N.W.2d 267 (quoting State v. Hampton,
2010 WI App 169, ¶23, 330 Wis. 2d 531, 793 N.W.2d 901). “However, ‘a narrowly crafted
exception to the rule exists,’ ‘which permits appellate review of an order denying a motion to
suppress evidence, notwithstanding a guilty plea.’” Id.; WIS. STAT. § 971.31(10).

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at trial would violate the Fifth Amendment. After concluding that it would, I address
the harmless error doctrine.

I.

¶21 I review the denial of a motion to suppress evidence under a two-part
standard of review. State v. Conner, 2012 WI App 105, ¶15, 344 Wis. 2d 233, 821
N.W.2d 627. I uphold a circuit court’s findings of fact unless they are clearly
erroneous, and I review do novo whether those facts warrant suppression. Id.

¶22 The Fifth Amendment to the United States Constitution and Article I,
§ 8 of the Wisconsin Constitution guarantee a privilege against compelled self-
incrimination.5 See U.S. CONST. amend V; WIS. CONST. art. I, § 8. This privilege
“protects individuals not only from legal compulsion to testify in the courtroom[,]
but also from informal compulsion exerted by law[ ]enforcement during in-custody
questioning.” State v. Harris, 2017 WI 31, ¶11, 374 Wis. 2d 271, 892 N.W.2d 663
(citation omitted). To secure the privilege against compelled self-incrimination, a
suspect has the right to remain silent while in police custody, and also the right to
have an attorney present during questioning. Miranda, 384 U.S. at 444, 467-69. In
addition, the State may not introduce at trial any statements by a suspect stemming
from a custodial interrogation unless law enforcement used procedural safeguards
sufficient to temper the inherently coercive elements of custodial interrogation. Id.
at 444. These safeguards include the requirement that, prior to questioning, law
enforcement give the suspect a set of prophylactic warnings regarding the right to

5
The United States Supreme Court has determined that the Fifth Amendment privilege
against self-incrimination must be observed in state court proceedings. State v. Cunningham, 144
Wis. 2d 272, 276, 423 N.W.2d 862 (1988) (citing Malloy v. Hogan, 378 U.S. 1 (1964)). And our
supreme court has interpreted the privilege against self-incrimination in the Wisconsin Constitution
to provide the same protections as the Fifth Amendment. See State v. Ward, 2009 WI 60, ¶55, 318
Wis. 2d 301, 767 N.W.2d 236.

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remain silent and to have an attorney present; and the requirement that the State
conduct itself accordingly depending on whether and how the suspect elects to
invoke or waive those rights. Id. at 444-45, 467-75; Harris, 374 Wis. 2d 271, ¶13.

¶23 Here, Keding argues that his statements to Scheppler were taken in
violation of these safeguards and must be suppressed on two different grounds.
First, Keding contends that he was interrogated by Scheppler while he was in
custody, and without having been given Miranda warnings. If true, the lack of
Miranda warnings provides one ground for precluding the State from introducing
his statements at trial. See Miranda, 384 U.S. at 444; see also State v. Martin, 2012
WI 96, ¶41, 343 Wis. 2d 278, 816 N.W.2d 270 (statements should be suppressed
based on the failure to give Miranda warnings if the suspect was in custody, was
subjected to interrogation, and was not given Miranda warnings). Second, Keding
contends that the custodial interrogation occurred after he invoked his right to
counsel, that he did not reinitiate contact with law enforcement after he invoked that
right, and that he did not waive his right to counsel prior to answering Scheppler’s
questions. If true, this is a second and independent ground for precluding the State
from introducing his statements at trial. See Conner, 344 Wis. 2d 233, ¶16
(suppression warranted based on the failure to honor invocation of right to counsel
if the suspect was in custody, unequivocally invoked the right to counsel, was
subjected to further interrogation by law enforcement, did not reinitiate those
subsequent discussions, and did not knowingly, intelligently, and voluntarily waive
the right to counsel).

¶24 Under either means of framing the issue on appeal, suppression is
warranted only if Scheppler’s questioning of Keding constitutes “interrogation,” as
that term has been defined for Fifth Amendment purposes. And here, to the extent
that Scheppler’s questioning constitutes “interrogation,” the first ground is

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dispositive, because it is undisputed that Keding was in custody and had not
received Miranda warnings at the time Scheppler questioned him. See Martin, 343
Wis. 2d 278, ¶41 (Miranda warnings required if suspect is subjected to custodial
interrogation). I therefore confine my analysis to the first ground, and I proceed to
assess whether Scheppler’s questioning constituted interrogation.

¶25 The term “interrogation” encompasses “express questioning” of a
suspect, as well as its “functional equivalent.”6 See State v. Cunningham, 144 Wis.
2d 272, 278-79 423 N.W.2d 862 (1988) (quoting Rhode Island v. Innis, 446 U.S.
291, 300-301 (1980)). My analysis focuses primarily on whether Scheppler’s
inquiries to Keding fall within the definition of express questioning.

¶26 Miranda broadly defined interrogation to mean any “questioning
initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.” Miranda, 384
U.S. at 467. However, our supreme court has stated that “express questioning” does
not actually encompass “every inquiry directed to [a] suspect” who is in custody.
Harris, 374 Wis. 2d. 271, ¶16 (internal citation omitted).

6
The functional equivalent of express questioning includes “any words or actions on the
part of the police, other than those normally attendant to arrest and custody,” that are reasonably
likely to elicit an incriminating response,” or, in other words, “that could reasonably have had the
force of a question upon the suspect.” The test can be stated as follows:

if an objective observer (with the same knowledge of the suspect as the police
officer) could, on the sole basis of hearing the officer’s remarks or observing the
officer’s conduct, conclude that the officer’s conduct or words would be likely to
elicit an incriminating response, that is, could reasonably have had the force of a
question on the suspect, then the conduct or words would constitute interrogation.

Cunningham, 144 Wis. 2d at 278-79 (summarizing the test from Rhode Island v. Innis, 446 U.S.
291, 300-301 (1980)).

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¶27 According to Harris, the determination turns on “the nature of the
information the question is trying to reach.” Id., ¶17 (citing Doe v. United States,
487 U.S. 201, 211 n.10 (1988)). A question constitutes “express questioning” and
is therefore “interrogation” if the question is “reasonably likely to elicit an
incriminating response.” State v. Bryant, 2001 WI App 41, ¶13, 241 Wis. 2d 554,
624 N.W.2d 865; Martin, 343 Wis. 2d 278, ¶36 (citing Pennsylvania v. Muniz, 496
U.S. 582, 589 (1990) (representing the opinion of the court)); State v. Armstrong,
223 Wis. 2d 331, 355-57, 588 N.W.2d 606 (1999), overruled on other grounds by
State v. Halverson, 2021 WI 7, ¶¶21, 28, 395 Wis. 2d 385, 953 N.W.2d 847.

¶28 Notably, the concept of an “incriminating response” is not limited to
those responses that are “inculpatory.” See Cunningham, 144 Wis. 2d at 279.
Instead, an incriminating response encompasses “any response—‘whether
inculpatory or exculpatory—that the prosecution may seek to introduce at trial.’”
Id. at 279 (quoting Innis, 446 U.S. at 301, n.5) (emphasis altered).7 It would appear
that virtually any question that calls for a testimonial response is reasonably likely
to elicit an incriminating response. See Harris, 364 Wis. 2d 271, ¶16 (appearing to
equate incriminating responses with those that are “testimonial,” and defining a
testimonial response as “a communication—written, oral or otherwise—upon which
reliance is to be placed as involving [the suspect’s] consciousness of the facts and
the operations of his mind in expressing it.” (citation omitted)). By contrast, if the

7
See also Miranda, 384 U.S. at 476-77 (stating that “[t]he privilege against self-
incrimination protects the individual from being compelled to incriminate himself in any manner,”
without “distinguish[ing] degrees of incrimination,” and observing that statements intended by a
defendant to be exculpatory are often used to impeach the defendant’s trial testimony and prove
guilt by implication); Pennsylvania v. Muniz, 496 U.S. 582, 594-95 (1990) (representing the
opinion of the court) (The privilege is implicated when a suspect is required “to disclose any
knowledge they might have” or speak their guilt; it is the “extortion of information from the accused;
the attempt to force [them] to disclose the contents of [their] own mind, that implicates the
[privilege].” (citation omitted) (emphasis added)).

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information sought by a question has “no potential to incriminate the suspect,” the
question does not amount to interrogation. Harris, 374 Wis. 2d 271, ¶¶6, 16-17 (the
detective’s question “would you like to give me a statement” was not express
questioning because it sought nothing more than a yes or no answer that would lack
any testimonial significance and could not be potentially incriminating); State v.
Kramar, 149 Wis. 2d 767, 778, 789-90, 440 N.W.2d 317 (1989) (an officer’s
conversation with a suspect about the suspect’s schoolwork and parents was “small
talk” and did not amount to interrogation); State v. Badker, 2001 WI App 27, ¶¶6,
16, 240 Wis. 2d 460, 623 N.W.2d 142 (asking whether an arrested suspect was
alright and whether he required medical assistance in response to his moans was not
reasonably likely to elicit an incriminating response).

¶29 Here, as stated above, Scheppler asked Keding three questions after
he observed Keding throw something into the trash: (1) “What did you toss in
there?”; (2) “So, you were saying some residue might be on the Kleenex or what?”;
and (3) “Some cocaine?” Of these questions, the most challenging to address—and
the closest call—is the first question.

¶30 It cannot be disputed that Scheppler’s first question was a direct
question that sought a factual response. Keding asserts that Scheppler’s question
was investigatory in nature and that the factual response elicited by the question was
likely to be incriminating. As I understand it, Keding appears to be arguing that
Scheppler’s question was investigatory because it sought information from Keding
about what he had just discarded, and in turn, what he had just possessed, and that
information has potential evidentiary value in a prosecution for possession of a
controlled substance. See Bryant, 241 Wis. 2d 554, ¶17 (“The relationship of the
question asked to the crime suspected is highly relevant.” (citation omitted)). The
question called for Keding to reveal his “consciousness of [] facts” about an item

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that had been in his possession, Harris, 374 Wis. 2d 271, ¶16, and it was reasonably
likely that the State might seek to introduce those facts at trial.

¶31 The State does not directly address this argument. It instead argues
that Scheppler’s question was not interrogation because “it was reasonable and
neutral,” the question was related to “the booking procedure,” and the question was
not likely to elicit the incriminating response that Keding gave—that the tissue he
threw out might have “residue” on it. I understand the State to be arguing that
Keding’s statement about residue should not be suppressed because it was in
response to a question that would be routinely asked during the booking process, or
perhaps because Keding’s statement was volunteered and nonresponsive to the
question Scheppler asked. I address each argument in turn.

¶32 The State’s first argument implicates the “routine booking question
exception.” That exception has its origin in language from Innis, 446 U.S. at 292,
301, which suggests that words and actions “normally attendant to arrest and
custody” do not constitute interrogation. The exception was endorsed by a plurality
of justices in Muniz, 496 U.S. at 601 (representing the opinion of a four-justice
plurality of the United States Supreme Court), and it was adopted by our supreme
court in State v. Stevens, 181 Wis. 2d 410, 433-34, 511 N.W.2d 591 (1994),
overruled on other grounds by Richards v. Wisconsin, 520 U.S. 385 (1997). Under
this exception, routine booking questions that are designed to secure “biographical
data necessary to complete booking or pretrial services,” and that are asked during
a true booking at the police station shortly after a suspect has been taken into
custody, do not require Miranda warnings, so long as the questions are not
reasonably likely to elicit an incriminating response. See Bryant, 241 Wis. 2d 554,
¶15 (creating the test for the routine booking question exception). Wisconsin courts
have limited the exception to questions that seek biographical data, such as a

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suspect’s name, address, height, weight, eye color, date of birth, and age. Id., ¶15;
Stevens, 181 Wis. 2d at 433. Here, Scheppler’s question about what Keding had
thrown away did not seek any information that was biographical, and therefore, it
does not fit within this exception.

¶33 The State argues that officers routinely ask questions about a suspect’s
possessions during the booking process, and that such questions are important for
promoting officer safety and inventorying the possessions of persons who have been
arrested. That may be the case, but the fact that officers routinely ask a certain type
of question during booking does not mean that such questions fall within the routine
booking question exception, as that exception has been defined by Wisconsin courts.
Nor does the State point to any case that recognizes an exception for questions that
promote officer safety or serve inventory-related purposes. Although the Bryant
court observed that “[q]uestions serving an administrative need may be considered
routine booking questions[,]” Bryant, 241 Wis. 2d 554, ¶15 (citing United States v.
Doe, 878 F.2d 1546, 1551 (1st Cir. 1998)), it did not purport to create a new
exception for questions that do not fall within the routine booking question
exception, nor did it purport to expand the routine booking question exception
beyond those questions that seek biographical data. Id., ¶¶14-15.8

8
Neither Miranda nor the privilege against self-incrimination prevent police from
searching a person who has been arrested during booking for purposes of inventorying their
property. The constitutionality of such searches is governed by the Fourth Amendment. See
Illinois v. Lafayette, 462 U.S. 640, 643 (1983) (“it is reasonable for police to search the personal
effects of a person under lawful arrest as part of the routine administrative procedure at a police
stationhouse incident to booking and jailing the suspect”).

Nor does the Fifth Amendment prohibit law enforcement from asking questions that
promote officer safety. Indeed, the privilege against self-incrimination does not prevent an officer
from asking any question at all—the privilege only prohibits the State from compelling a defendant
such as Keding to be a witness against himself by using his unwarned statements stemming from
custodial interrogation at trial.

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¶34 I now turn to the circuit court’s determination that Keding’s statement
was “voluntary.” Some cases recognize that “volunteered” statements need not be
suppressed based on law enforcement’s failure to give Miranda warnings, and other
cases have extended that concept to statements that are elicited by questioning, yet
are wholly nonresponsive to the question that was posed. See WAYNE R. LAFAVE,
2 CRIM. PROC. § 6.7(d) (4th ed.); see also United States v. Crisolis-Gonzalez, 742
F.3d 830, 836-38 (8th Cir. 2014) (a suspect’s statement concerning a gun was
“volunteered” because it was nonresponsive to the officer’s question about the
suspect’s immigration status); United States v. Jones, 600 F.3d 847, 854-55 (7th
Cir. 2010) (incriminating statements by a suspect to a detective, made after the
suspect repeatedly requested to speak to the detective, were volunteered and not the
product of interrogation); State v. Douglas, 2013 WI App 52, ¶17, 347 Wis. 2d 407,
830 N.W.2d 126 (declining to suppress an incriminating statement about a gun
because the suspect volunteered that statement after changing the subject and a long
pause); Kramar, 149 Wis. 2d at 790 (declining to suppress a custodial statement
that was “an unsolicited, wholly spontaneous, volunteered action on the defendant’s
part”).

¶35 The State does not meaningfully develop an argument that Keding’s
response was volunteered or nonresponsive, and I could reject it on that basis. See
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (appellate
courts need not address undeveloped arguments). However, to the extent that the
State is attempting to argue that Keding’s somewhat surprising (and clearly unwise)
response to Scheppler’s question was so nonresponsive that it should be
characterized as a volunteered statement not requiring Miranda warnings, I
disagree. Keding’s statement certainly constituted an overshare, but it was not
spontaneous or nonresponsive—the statement was elicited by Scheppler’s question

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and was directly responsive to it. Contrast Kramar, 149 Wis. 2d at 790. Our
supreme court has rejected the notion that an incriminating admission offered by a
suspect during the course of a custodial interrogation is admissible simply because
that particular admission appears to have been “volunteered” when viewed in
isolation. See Martin, 343 Wis. 2d 278, ¶39.

¶36 For all these reasons, I conclude that Scheppler’s first question
constituted express questioning, and that the circuit court should have suppressed
the statement Keding made in response. This is not to say that there was anything
untoward about Scheppler asking Keding what he had thrown in the trash—the
question was a reasonable and obvious one, and had I been in Scheppler’s position,
I would have likely asked the same question. Even so, the State is prohibited from
using Keding’s response—which was the product of a custodial interrogation that
occurred without Miranda warnings—against him at trial.

¶37 Having concluded that Scheppler’s first question constituted
interrogation, I turn to Scheppler’s second and third inquiries. To repeat, after
Keding suggested that there might be “residue” on the tissue that he had thrown
away, Scheppler prompted Keding to explain what he meant. Then, when Keding
stated that the residue was cocaine, Scheppler asked “Some cocaine?” In response,
Keding admitted that he had consumed cocaine at a bar earlier that night.

¶38 These are not close calls. I conclude that both questions amount to
interrogation—Scheppler’s inquiries were designed to elicit not merely
incriminating responses but inculpatory ones.

¶39 The State’s only argument to the contrary is its assertion that
Scheppler’s inquiries should not be categorized as “questions” because they were
merely restatements of what Keding had just said. This argument is not persuasive.

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Words, statements, and conduct that are the functional equivalent of express
questioning constitute interrogation. See State v. Hambly, 2008 WI 10, ¶46, 307
Wis. 2d 98, 745 N.W.2d 48 (lead op.) (interrogation can occur “without asking a
single question”); id., ¶105 (Roggensack, J., concurring); id., ¶123 (Butler, J.,
concurring). Even if Scheppler’s remarks were not inflected with a question mark,
an objective reasonable observer would conclude that Scheppler’s inquiries were
reasonably likely to elicit a response from Keding that the State might seek to
introduce at his trial. See Cunningham, 144 Wis. 2d at 278. Indeed, although an
officer’s subjective intent is not dispositive in this inquiry, Scheppler testified that
in “repeating” Keding’s responses back to him, he was attempting to have a
conversation with Keding about the cocaine. See id., 144 Wis. 2d at 280 (“[W]here
a police practice is designed to elicit an incriminating response from the accused, it
is unlikely that the practice will not also be one in which the police should have
known was reasonably likely to have that effect.” (quoting Innis, 446 U.S. at 302
n.7)).

¶40 For all these reasons, the circuit court erred by declining to suppress
the statements Keding made to Scheppler in the police station.

II.

¶41 Although the circuit court erred when it denied Keding’s motion to
suppress, that does not necessarily mean that the judgment of conviction in the
possession case should be reversed. Reversal is not warranted if the error was
harmless, and the error was harmless if there is not a reasonable probability that it
contributed to the conviction. State v. Semrau, 2000 WI App 54, ¶21, 233 Wis. 2d
508, 608 N.W.2d 375.

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¶42 “In a [no-contest] plea situation following the [erroneous] denial of a
motion to suppress,” “the relevant inquiry is whether there is a reasonable
probability that, but for the [court’s] failure to suppress the evidence, the defendant
would have refused to plead and would have instead insisted on going to trial.” Id.,
¶22. Several non-exhaustive factors are relevant to this inquiry, including, among
others, the relative strength and weakness of the State’s case and the defendant’s
case; the persuasiveness of the evidence in dispute and whether it is cumulative of
other evidence; the reasons, if any, expressed by the defendant for choosing to enter
the plea; the benefits obtained by the defendant in exchange for the plea; and the
thoroughness of the plea colloquy. Id.; see also Armstrong, 223 Wis. 2d at 370.

¶43 Here, the State is the party that benefited from the error, and it is
therefore the State’s burden to prove that the error was harmless. See Martin, 343
Wis. 2d 278, ¶45. However, the State does not make any argument about harmless
error in its appellate briefing. The State’s failure to develop an argument may not
be especially surprising—there were three passengers in the car when it was pulled
over; the bag of cocaine was found in the front passenger-side door; Keding was not
seated in the front of the car and was instead in the back seat; and it does not appear
from the record that any witness definitively linked the bag to Keding. The only
evidence I am aware of that might suggest a link is Keding’s admission, which
should have been suppressed, that he had used cocaine earlier that evening. I
therefore accept the State’s silence on the topic of harmless error as a concession,
and I conclude that the erroneous denial of Keding’s motion was not harmless.

CONCLUSION

¶44 For the foregoing reasons, the judgment of conviction in the bail
jumping case, No. 2021CM617, is affirmed, the judgment of conviction in the

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possession case, No. 2021CM318, is reversed, and the possession case is remanded
to the circuit court for further proceedings.

By the Court.—Judgment affirmed; judgment reversed and cause
remanded for further proceedings.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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