State v. Timothy C. McMahon

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.
February 19, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP2518-CR Cir. Ct. No. 2021CF1

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TIMOTHY C. MCMAHON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dodge County:
JOSEPH G. SCIASCIA, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Taylor, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP2518-CR

¶1 PER CURIAM. Timothy McMahon appeals a judgment of
conviction, following a no contest plea, for operating a motor vehicle with a
prohibited alcohol concentration as a fifth offense. On appeal, McMahon argues
that he was interrogated in violation of the Wisconsin Constitution when a police
officer asked him questions during a preliminary breath test without first giving
him Miranda warnings,1 and that the circuit court erred in denying his motion to
suppress certain statements and physical evidence. We conclude that McMahon
was not subject to an unconstitutional interrogation because he was not in custody
during the questioning; therefore, we affirm the judgment.

BACKGROUND

¶2 One evening in January 2021, a Dodge County sheriff’s deputy
stopped a vehicle driven by McMahon on suspicion of speeding. After McMahon
rolled down his window, the officer observed that he had bloodshot eyes and slow
speech and was emitting an odor of intoxicants. The officer also observed empty
beer cans in the backseat of the vehicle. The officer informed McMahon of the
reason for the stop and asked if he had consumed any alcohol. McMahon
responded that he had consumed three or four beers at a bar earlier that day. The
officer asked for McMahon’s driver’s license and returned to his squad car to
verify McMahon’s information.

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

2
No. 2024AP2518-CR

¶3 After running McMahon’s driver’s license, the officer learned that
McMahon had four prior OWI-related convictions.2 As a result, McMahon was
subject to a prohibited alcohol concentration of .02 grams per 100 milliliters of
blood.

¶4 The officer informed McMahon that he would be conducting field
sobriety testing to make sure that McMahon was “okay to be driving.” The officer
asked whether McMahon would prefer to do the testing at the police department
since it was cold outside, and McMahon responded, “That sounds fair to me.”
After patting him down, the officer placed McMahon in the back of the squad car
to be transported to the department. McMahon was not handcuffed and the officer
told him that he was “not under arrest” and was just “being detained for
investigation.”

¶5 The drive to the police department took less than two minutes. After
arriving, the officer escorted McMahon into the garage. A second officer was also
present and stood at the threshold of the garage door, which remained open and
unobstructed. McMahon demonstrated some “clues” of impairment during the
standard field sobriety testing, but he performed satisfactorily on other portions of
the tests.

2
We use the term “OWI-related offense” to refer to a violation of any of the offenses,
including WIS. STAT. §§ 346.63(1), (2), (2m), (6), 940.09, and 940.25, that are enumerated in
WIS. STAT. § 343.305(3)(a) and (9)(a)5.a. All references to the Wisconsin Statutes are to the
2023-24 version.

3
No. 2024AP2518-CR

¶6 The officer proceeded to administer a preliminary breath test
(“PBT”) to McMahon.3 While waiting for the results, the officer asked McMahon,
“So where do you think you’re at blood alcohol level wise?” McMahon
responded that his blood alcohol concentration was “probably .05 or .06.” After
learning that the PBT result was .095, the officer asked McMahon whether he
knew that he was subject to “a [.02] restriction.” McMahon responded, “Yeah I
believe I had that.” The officer did not give McMahon Miranda warnings before
asking these questions.

¶7 The officer placed McMahon under arrest and read him the
“Informing the Accused” form pursuant to Wisconsin’s implied consent law. See
WIS. STAT. § 343.305(4). McMahon consented to a chemical test of his blood,
which yielded a result above his legal limit. The State charged McMahon with
operating with a prohibited alcohol concentration as a fifth offense contrary to
WIS. STAT. § 346.63(1)(b).

¶8 During the circuit court proceedings, McMahon moved to suppress
the statements he made to the officer during the PBT testing and the results from
the chemical blood test. McMahon argued that the questioning was an unlawful
interrogation that violated Article I, Section 8 of the Wisconsin Constitution, and

3
McMahon does not dispute that there was probable cause to administer a PBT. See
WIS. STAT. § 343.303; County of Jefferson v. Renz, 231 Wis. 2d 293, 316, 603 N.W.2d 541
(1999) (providing that police must have probable cause to administer a PBT, but in this context,
probable cause “refers to a quantum of proof greater than the reasonable suspicion necessary to
justify an investigative stop, … but less than the level of proof required to establish probable
cause for arrest”).

4
No. 2024AP2518-CR

that any evidence derived from that interrogation must be suppressed as fruit of
the poisonous tree.4

¶9 More specifically, McMahon argued that the officer was required to
give him Miranda warnings before asking questions during the course of
administering the PBT. Although McMahon appeared to concede that he was not
in custody at that time, he argued that “formal custody is not always the sine qua
non of the Miranda rule” and that there are circumstances in which Miranda
warnings must be given “even in the absence of ‘formal custody.’” Relying on
our supreme court’s decision in State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700
N.W.2d 899, McMahon argued that one of those circumstances is when an officer
is subjectively aware that the officer “will ultimately be taking [a suspect] into
custody” and delays placing the suspect under arrest in an “effort to garner
admissions” and “circumvent Miranda.” Those circumstances were present here,
McMahon argued, because the officer “had already made his decision to arrest”
McMahon before administering the PBT. Under the circumstances, McMahon
argued, his constitutional right against self-incrimination was violated.

¶10 In its response, the State argued that Miranda warnings are not
required unless a defendant is subject to a “custodial interrogation.” Because
McMahon was not in custody when he was questioned, the State argued, his right
against self-incrimination was not violated.

4
McMahon also moved to suppress the results of the blood test on due process grounds.
Specifically, he argued that the “Informing the Accused” form did not put him on notice that
police might request his blood as part of an investigation into whether he was operating a vehicle
with a prohibited alcohol concentration. The circuit court rejected this argument and we do not
address it further because McMahon has not renewed it on appeal.

5
No. 2024AP2518-CR

¶11 Following a hearing at which the officer testified and portions of his
body camera footage were played, the circuit court denied McMahon’s motion.
The court found that the officer “had already made [the] decision” to arrest
McMahon before administering the PBT, but it explained that an officer’s
“subjective intent is not relevant” in determining whether Miranda warnings were
required. Here, the court explained, the dispositive issue is whether McMahon
was in custody when the officer questioned him. Because McMahon was not in
custody, Miranda warnings were not required.

¶12 McMahon ultimately pled no contest to operating a motor vehicle
with a prohibited alcohol concentration as a fifth offense, and the circuit court
adjudicated him guilty and entered a judgment of conviction. McMahon appeals.

DISCUSSION

¶13 The Fifth Amendment to the United States Constitution and
Article I, Section 8 of the Wisconsin Constitution both protect against compulsory
self-incrimination. State v. Bartelt, 2018 WI 16, ¶26, 379 Wis. 2d 588, 906
N.W.2d 684. To that end, law enforcement must give certain warnings prior to a
custodial interrogation. See Miranda v. Arizona, 384 U.S. 436 (1966). These
now-familiar Miranda warnings inform suspects 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 have an attorney present; and that an attorney will be appointed
prior to questioning if the suspects so desire and cannot afford an attorney. Id. at
444-45.

¶14 The reason that the Miranda warnings must be given when a suspect
is in custody and subject to interrogation is because the warnings are “aimed at
dispelling the compulsion inherent in custodial surroundings.” State v. Pheil, 152

6
No. 2024AP2518-CR

Wis. 2d 523, 530-31, 449 N.W.2d 858 (1989). This is the rule under the United
States Constitution and the Wisconsin Constitution alike. See id.; Bartelt, 379
Wis. 2d 588, ¶30 (“under both constitutions,” the Miranda rule applies “only to
custodial interrogations”).

¶15 Statements obtained in violation of Miranda are “inadmissible in the
prosecution’s case-in-chief.” See State v. Mendoza, 96 Wis. 2d 106, 118-19, 291
N.W.2d 478 (1980). Additionally, under the Wisconsin Constitution, any physical
evidence obtained “as a direct result” of an “intentional” Miranda violation is also
inadmissible. Knapp, 285 Wis. 2d 86, ¶1. In this regard, the Wisconsin
Constitution provides defendants with protections above and beyond the
protections provided by the United States Constitution. See United States v.
Patane, 542 U.S. 630, 634 (2004) (under the United States Constitution,
“suppression of the physical fruits of the suspect’s unwarned but voluntary
statements” is not required).

¶16 In this appeal, McMahon renews the argument that he made in the
circuit court. That is, he again appears to concede that he was not in custody for
purposes of Miranda at the time of the purported interrogation, but he argues that
Miranda warnings were required—even in the absence of custody—as a result of
the officer’s subjective intent to arrest him. According to McMahon, our supreme
court established this rule when it interpreted Article I, Section 8 of the Wisconsin
Constitution in Knapp.

¶17 In that case, there was an outstanding warrant for Knapp’s arrest,
and the arresting officer, who suspected Knapp of having committed a homicide
the night before, went to his apartment with the intention of taking him into
custody pursuant to the warrant. Knapp, 285 Wis. 2d 86, ¶¶1, 7-8. Knapp let the

7
No. 2024AP2518-CR

officer in, and the officer told Knapp that he was needed at the police station. Id.,
¶7. The officer then accompanied Knapp to his bedroom and asked Knapp about
the clothes he had been wearing the night before. Id., ¶8. Knapp pointed to a pile
of clothing, which the officer seized. Id. The homicide victim’s blood was later
found on a sweatshirt that was among the items that were seized. Id., ¶9. Knapp
was charged with the homicide, and he moved to suppress evidence including the
bloodstained sweatshirt. Id. ¶13.

¶18 During an evidentiary hearing on Knapp’s motion, the officer
testified that Knapp was in custody during the interaction at the apartment. Id.
The officer further testified that he intentionally refrained from reading the
Miranda rights to Knapp in order to “keep the lines of communication open” and
because the officer knew that Knapp might not respond to questioning if the
officer read him his rights. Id., ¶¶13-14.

¶19 By the time the case reached our supreme court, the parties agreed
that the State possessed the sweatshirt as a direct consequence of an intentional
Miranda violation, and that the sole remaining legal issue was whether the
physical evidence should be suppressed as a result of the violation. Id., ¶20. Our
supreme court determined that the evidence must be suppressed to remedy the
violation of Article I, Section 8 of the Wisconsin Constitution. Id., ¶83. The court
explained that suppression was required due to the intentional nature of the
Miranda violation and the need to deter such conduct in the future. Id., ¶¶74-75.

¶20 McMahon argues that the same result follows here. We disagree.
The factual and legal issues in Knapp were entirely different than the disputed
issues in this case—as discussed, it was undisputed that Knapp was in custody at
the time the officer interrogated him and that the custodial interrogation violated

8
No. 2024AP2518-CR

Miranda, and the sole issue was the appropriate remedy. Under the
circumstances, the court had no reason to address the threshold question of when
Miranda warnings are required.

¶21 McMahon nevertheless places great emphasis on the Knapp court’s
discussion of the officer’s subjective intent—he argues that subjective intent may
also be relevant in determining whether Miranda warnings are required. But
again, the problem with this argument is that the Knapp court’s discussion of
subjective intent was focused on how an officer’s intentional conduct in
attempting to circumvent Miranda might factor into the remedy for an established
Miranda violation.

¶22 To the extent that McMahon asks us to extend Knapp based on its
spirit if not its letter, there are at least two problems. First, the Knapp court
explicitly recognized that the Miranda rule is fashioned to address “the inherently
coercive character of custodial interrogation[s],” see id., ¶78 (citation omitted),
and, as we have explained, “[i]nformation, plans and opinions of which a suspect
is unaware cannot, by definition, exert pressure” or create a coercive environment,
see State v. Mosher, 221 Wis. 2d 203, 218, 584 N.W.2d 553 (Ct. App. 1998).
Second, tying Miranda obligations to an officer’s subjective intentions might lead
to the very circumvention of the law that Knapp forcefully condemns. That is,
McMahon’s suggested rule could create an incentive for an officer to disclaim that
the officer had the intent to arrest a suspect after the fact in order to avoid the
consequences that result from a Miranda violation. An objective analysis—
untethered from factors that are readily susceptible to manipulation such as an

9
No. 2024AP2518-CR

officer’s alleged subjective intent—more effectively addresses McMahon’s
concerns about attempts to circumvent Miranda.5

¶23 Accordingly, for all these reasons, Knapp does not support
McMahon’s argument that the officer was required to give him Miranda warnings
based on the officer’s subjective intent to arrest him. The officer was not required
to give McMahon warnings unless he was subject to custodial interrogation.

¶24 Having addressed McMahon’s reliance on Knapp, we now turn to
the subject of custodial interrogation. Here, the circuit court determined that the
officer interrogated McMahon when he asked McMahon questions during the
administration of the PBT, but the court determined that Miranda warnings were
not required because McMahon was not in custody.

5
McMahon makes an additional argument regarding Knapp, which we now briefly
address. This argument is based on the fact that our supreme court considered Knapp’s appeal on
two occasions: first in its original decision addressing the denial of his motion to suppress, see
State v. Knapp, 2003 WI 121, 265 Wis. 2d 278, 666 N.W.2d 881, vacated by Wisconsin v.
Knapp, 542 U.S. 952 (2004), and then on a second occasion after the United States Supreme
Court vacated that decision and remanded the case, which resulted in State v. Knapp, 2005 WI
127, 285 Wis. 2d 86, 700 N.W.2d 899, the decision that we discuss above. For purposes of this
footnote, we refer to these two decisions as Knapp I and Knapp II.

McMahon points out that the court’s only discussion of Knapp being in custody at the
time of his interrogation occurred in Knapp I. Specifically, with respect to custody, the Knapp I
decision stated: “The State concedes that at the time Knapp identified the physical evidence, i.e.,
his sweatshirt, he was in custody and being interrogated by police.” Knapp I, 265 Wis. 2d 278,
¶31. Then, after the case returned to our supreme court on remand in Knapp II, the court did not
repeat the State’s concession about custody from Knapp I or analyze whether Knapp was in
custody. McMahon argues that by not specifically including any analysis of custody in Knapp II,
the court “canceled” the threshold custody requirement as a “basis of [its] … decision.”

We disagree. Contrary to McMahon’s argument, Knapp II explicitly provides the
following: “[W]e reinstate all portions of our decision in [Knapp I that were] not implicated by
the Supreme Court’s order vacating our decision in light of United States v. Patane, 542 U.S. 630
(2004).” Knapp II, 285 Wis. 2d 86, ¶2 n.3. The State’s concession that Knapp was in custody
was not implicated by the United States Supreme Court’s analysis in Patane.

10
No. 2024AP2518-CR

¶25 McMahon does not develop an argument challenging the circuit
court’s determination about custody.6 Under the circumstances, we could take
McMahon’s silence on this topic as a concession. See Schlieper v. DNR, 188
Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (it is a tacit concession when an
appellant ignores a ground on which the circuit court ruled); State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not consider
arguments that are unsupported by adequate factual and legal citations or are
otherwise undeveloped).

¶26 Indeed, McMahon’s failure to develop an argument is unsurprising,
given that many cases have determined that individuals under similar
circumstances were not in custody. See, e.g., Berkemer v. McCarty, 468 U.S.
420, 435-42 (1984) (a motorist subject to a roadside traffic stop and field sobriety
testing was not in custody); State v. Lonkoski, 2013 WI 30, ¶¶42-44, 346 Wis. 2d
523, 828 N.W.2d 552 (an individual who was questioned at the police department
was not in custody when he came on his own volition, was told he was “not under
arrest,” and was “never restrained in any way”); State v. Swanson, 164 Wis. 2d

6
Whether a person is in custody for purposes of Miranda is an objective determination
that ultimately turns on whether “there was a formal restraint on freedom of movement of the
degree associated with a formal arrest.” See State v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523,
828 N.W.2d 552 (citation omitted). In making this determination, we consider among other
things, “the degree of restraint” employed by police officers; “the purpose, place, and length of
the interrogation”; and “what has been communicated [to the suspect] by the police officers.”
State v. Bartelt, 2018 WI 16, ¶32, 379 Wis. 2d 588, 906 N.W.2d 684.

Wisconsin courts also analyze whether a suspect is in custody for Fourth Amendment
purposes. See, e.g., State v. Quartana, 213 Wis. 2d 440, 448-50, 570 N.W. 2d 618 (Ct. App.
1997) (considering whether a seizure was reasonable under the Fourth Amendment and analyzing
“whether a reasonable person in the suspect’s position would not have considered himself or
herself to be in custody given the degree of restraint under the circumstances”); State v. Swanson,
164 Wis. 2d 437, 445-47, 475 N.W.2d 148 (1991) (same), abrogated on other grounds by State v.
Sykes, 2005 WI 48, ¶27, 279 Wis. 2d 742, 695 N.W.2d 277.

11
No. 2024AP2518-CR

437, 447-49, 475 N.W.2d 148 (1991), abrogated on other grounds by State v.
Sykes, 2005 WI 48, ¶27, 279 Wis. 2d 742, 695 N.W.2d 277 (concluding that a
motorist who was detained and subject to field sobriety testing was not effectively
“under arrest,” and that if detained motorists under these circumstances were “in
custody” for purposes of Miranda, it would produce “the absurd result that
motorists … could refuse to perform a field sobriety test”).

¶27 Here, McMahon was told that he was “not under arrest” and that he
was just “being detained for investigation.” Although the field sobriety tests and
the PBT occurred in the garage at the police station, it was only several minutes
from the site of the stop and McMahon went to the station voluntarily, largely
offsetting the pressure that questioning at a police station might otherwise impose.
The entire duration of the encounter was relatively brief, approximately twenty-six
minutes; McMahon was at no point in handcuffs or otherwise restrained; and
throughout the encounter, the garage door was left open and unobstructed.
Therefore, even beyond McMahon’s concession on the point, our independent
review of the record supports a conclusion that McMahon was not in custody
when he was questioned.

By the Court.—Judgment affirmed.

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

12