State v. Keith M. Abbott

2020 WI App 25

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP21-CR

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEITH M. ABBOTT,

DEFENDANT-APPELLANT.

Opinion Filed: April 16, 2020
Submitted on Briefs: October 4, 2019

JUDGES: Blanchard, Graham and Nashold, JJ.

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Frances Colbert, assistant state public defender.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Amy C. Miller, assistant attorney general, and Joshua L. Kaul,
attorney general.
2020 WI App 25

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.
April 16, 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. 2019AP21-CR Cir. Ct. No. 2011CF1324

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEITH M. ABBOTT,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Rock County:
MICHAEL A. HAAKENSON, Judge. Affirmed.

Before Blanchard, Graham, and Nashold, JJ.

¶1 GRAHAM, J. Keith Abbott appeals a judgment of conviction for
second-degree intentional homicide, which the circuit court entered after accepting
No. 2019AP21-CR

Abbott’s Alford plea.1 Abbott argues that the circuit court erred by denying his
motions to suppress two sweatshirts that police seized at his residence, a transparent
“patient belongings bag” containing other clothing that police seized at a hospital,
and statements that Abbott made to investigators during a custodial interrogation.
We conclude that the circuit court properly denied the motions to suppress Abbott’s
sweatshirts and statements. We also conclude that the State did not meet its burden
to prove that the seizure of the patient belongings bag falls within an exception to
the warrant requirement. Nevertheless, we conclude that the circuit court’s failure
to suppress this evidence was harmless. Accordingly, we affirm the circuit court.

BACKGROUND

¶2 In the early morning of January 3, 2011, Abbott returned to the home
he shared with his wife, Ermelinda Cruz. He told Cruz that he had been having an
affair with Kristin Miller and that he thought he had killed her. Cruz called the
police, and Officers Gary Kovacs and Robert Gelden arrived at the home at
approximately 6:30 a.m. At that time, Cruz did not inform the officers about the
incriminating statement that Abbott had made.

¶3 The officers found Abbott sitting on the living room floor, shaking
and unresponsive to questioning. Medical personnel arrived and, during their
examination of Abbott, they removed two sweatshirts that he was wearing and
placed them on the living room floor. Abbott was transported to a hospital, and both

1
“An Alford plea is a plea in which the defendant agrees to accept a conviction while
simultaneously maintaining his or her innocence,” and it is equivalent for most purposes to a guilty
plea. State v. Kelty, 2006 WI 101, ¶18 n.10, 294 Wis. 2d 62, 716 N.W.2d 886; see also North
Carolina v. Alford, 400 U.S. 25 (1970).

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No. 2019AP21-CR

officers left the home. Officer Kovacs escorted Abbott to the emergency room and
then left the hospital.

¶4 Later that morning, Officer Kovacs received a voicemail message
from a nurse indicating that Abbott had suspicious injuries and that she had observed
suspicious spots on his clothing. Officer Kovacs returned to the hospital at
approximately 9:30 a.m. Soon after, he called Officer Gelden and asked him to
return to Abbott’s home.

¶5 When Officer Gelden returned to Abbott’s home, he observed what
he believed to be blood on the tailgate of Abbott’s pickup truck. He spoke to Cruz,
who told him that Abbott had been missing for two days, that Abbott and Miller had
been having an affair, that Miller had allegedly been blackmailing Abbott, and that
Abbott said he may have killed Miller. Cruz also told Officer Gelden that she was
seeking a divorce and that Abbott was currently living in the basement. Officer
Gelden asked if he could take the sweatshirts that Abbott had been wearing, which
remained on the living room floor, and Cruz assented. Later testing confirmed that
Miller’s blood was on the sweatshirts, and also on Abbott’s pickup truck. Officer
Gelden’s seizure of the sweatshirts is the subject of Abbott’s first claim of error in
this appeal.

¶6 Meanwhile, Officer Kovacs remained at the hospital until
approximately 6:00 p.m. At some point after his arrival, a hospital employee gave
him a transparent plastic bag, which we refer to as a “patient belongings bag,” and
which contained articles of the clothing that hospital staff had removed in the course
of treatment. Later testing confirmed that Miller’s blood was on Abbott’s shoes and
socks contained in the patient belongings bag. Officer Kovacs’ seizure of the patient
belongings bag is the subject of Abbott’s second claim of error.

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No. 2019AP21-CR

¶7 At approximately 6:00 p.m. that day, Abbott was committed pursuant
to WIS. STAT. § 51.15 (2017-18),2 which permits law enforcement to involuntarily
detain individuals on an emergency basis due to mental health concerns. After
Abbott was released, he continued to receive outpatient mental health treatment and
exhibited physical ticks and shaking, apparent memory loss, and apparent emotional
distress.

¶8 Miller’s body was discovered on January 31, 2011. Police arrested
Abbott on February 1 and conducted an interrogation. The officers read Abbott his
Miranda rights and repeatedly asked whether he would answer questions without
an attorney present.3 They considered his responses to the questions about whether
he wanted an attorney to be ambiguous and did not cease the interrogation. The
officers’ failure to cease questioning is the subject of Abbott’s third claim of error,
and additional facts related to the custodial interrogation are set forth in the
discussion section below.

¶9 The State charged Abbott with first-degree intentional homicide and
related counts. The criminal proceedings were delayed for several years by
competency evaluations, but Abbott was eventually determined competent to stand
trial. Abbott then moved to suppress certain evidence. After the circuit court denied
some but not all of Abbott’s suppression motions, he entered an Alford plea to
second-degree intentional homicide and was sentenced. Abbot appealed pursuant

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted. Although Abbott was committed in 2011, we cite the most recent version of the statutes for
ease of reference, as the relevant portions of the statute have not changed.
3
See Miranda v. Arizona, 384 U.S. 436 (1966) (addressing Fifth Amendment rights of
persons subject to custodial interrogation).

4
No. 2019AP21-CR

to WIS. STAT. § 971.31(10) and argues on appeal that his conviction should be
reversed.

STANDARD OF REVIEW

¶10 An order granting or denying a suppression motion presents a
question of constitutional fact. State v. Howes, 2017 WI 18, ¶17, 373 Wis. 2d 468,
893 N.W.2d 812. “A question of constitutional fact is a mixed question of law and
fact to which we apply a two-step standard of review. We review any challenges to
the circuit court’s findings of historical fact under the clearly erroneous standard,
and we review independently the application of those facts to constitutional
principles.” State v. Tomaszewski, 2010 WI App 51, ¶5, 324 Wis. 2d 433, 782
N.W.2d 725.

DISCUSSION

¶11 Abbott argues that officers seized his sweatshirts and the patient
belongings bag in violation of the Fourth Amendment, and that officers violated the
Fifth Amendment during the custodial interrogation by continuing to question him
after he invoked his right to counsel. We address Abbott’s Fourth Amendment
challenges in Section I, and then in Section II, we turn to his Fifth Amendment
challenge. We conclude that the circuit court erred by denying Abbott’s motion to
suppress the patient belongings bag, and in Section III, we address the parties’
arguments regarding harmless error.

I. Fourth Amendment Arguments

¶12 The Fourth Amendment protects against “unreasonable searches and
seizures” by the government. U.S. CONST. amend. IV. Seizures conducted without
a warrant are unreasonable unless they fall within a recognized exception to the

5
No. 2019AP21-CR

warrant requirement. See State v. Brereton, 2013 WI 17, ¶24, 345 Wis. 2d 563, 826
N.W.2d 369. The State bears the burden to prove that one of the exceptions to the
warrant requirement applies. State v. Denk, 2008 WI 130, ¶36, 315 Wis. 2d 5, 758
N.W.2d 775.

A. The Sweatshirts

¶13 Abbott argues that evidence gathered from his sweatshirts must be
suppressed. As noted above, Cruz told Officer Gelden that he could take Abbott’s
sweatshirts, which were lying on the floor in the living room of the marital home.
Abbott acknowledges that Cruz consented to the seizure, but he argues that she did
not have authority to give consent.

¶14 Consent is an exception to the warrant requirement. Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). A third party may consent to a search of
someone else’s property when the third party shares “common authority” over that
property. United States v. Matlock, 415 U.S. 164, 171 (1974). The same “common
authority” standard that applies in the search context also determines whether a third
party can consent to a seizure. State v. Ramage, 2010 WI App 77, ¶¶11-12, 325
Wis. 2d 483, 784 N.W.2d 746; see also United States v. James, 571 F.3d 707, 714
(7th Cir. 2009). And even if actual common authority is lacking, there may be
apparent common authority when the information available to the police officers at
the time of the search or seizure would justify a reasonable belief that the party
consenting had the authority to do so. State v. Pickens, 2010 WI App 5, ¶39, 323
Wis. 2d 226, 779 N.W.2d 1.

¶15 Whether common authority exists depends on whether the third party
has “joint access [to] or control” over the individual’s property such that the
individual has “assumed the risk” of the intrusion. Matlock, 415 U.S. at 171 n.7.

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No. 2019AP21-CR

Common authority to consent depends on the “totality of the circumstances,” and
the State has the burden of proving consent by clear and convincing evidence. State
v. Tomlinson, 2002 WI 91, ¶¶21, 31, 254 Wis. 2d 502, 648 N.W.2d 367. “[W]idely
shared social expectations” are an important factor in determining common
authority. State v. Sobczak, 2013 WI 52, ¶15, 347 Wis. 2d 724, 833 N.W.2d 59
(quoting Georgia v. Randolph, 547 U.S. 103, 111 (2006)).

¶16 For the reasons we now explain, we conclude that Cruz had actual
authority to consent to the seizure. Abbott acknowledges the presumption noted by
one federal circuit court that a spouse “presumptively has authority to consent to a
search of all areas of the homestead.” United States v. Duran, 957 F.2d 499, 505
(7th Cir. 1992). However, he makes three arguments in an attempt to rebut this
conclusion in this case. Specifically, Abbott argues that common authority was
lacking because he and Cruz were “estranged,” his sweatshirts were “personal
effects,” and the sweatshirts had been “forcibly removed” from him by medical
personnel. We consider each of these arguments in turn.

¶17 We do not agree that what Abbott calls “estrangement” negated
Cruz’s common authority to consent to the seizure of the sweatshirts. Abbott notes
that he had an affair, that he was living in the basement, and that Cruz planned to
divorce him. However, despite their strained relationship, Abbott and Cruz were
still cohabitating, and Cruz testified that she still had access to the unlocked
basement where Abbott was living. Abbott cites no authority suggesting that marital
strain overcomes a spouse’s common authority over marital property, and this is a
particularly tenuous argument where, as here, the spouses continued to cohabitate
in the marital home and had joint access to one another’s living areas.

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No. 2019AP21-CR

¶18 Citing United States v. Rodriguez, 888 F.2d 519 (7th Cir. 1989) and
State v. Evans, 372 P.2d 365 (Haw. 1962), Abbott argues that spouses do not
necessarily have common authority over one another’s “personal effects.” We are
not persuaded. The item at issue in Rodriguez was a briefcase stored in a locked
room, 888 F.2d at 523, and the item at issue in Evans was jewelry hidden in a cuff
links case stored in the defendant’s closed bureau drawer, 372 P.2d at 368. Here,
by contrast, nothing suggests that Cruz’s access to Abbott’s sweatshirts was limited
in any way. The sweatshirts were not in a locked room or closed container, but were
instead on the living room floor in Cruz’s own living quarters. Further, it is beyond
dispute that in today’s society, spouses routinely move, clean, and even wear one
another’s clothing. Cf. Matlock, 415 U.S. at 171 n.7 (common authority rests on
“joint access or control”); Sobczak, 347 Wis. 2d 724, ¶15 (“widely shared social
expectations” are an important factor in determining common authority). Abbott
points to no facts in the record suggesting he took steps to keep his clothing private
from his wife, and he even concedes that Cruz might have worn his clothes.

¶19 Finally, Abbott argues that his sweatshirts were “forcibly removed
from him during a medical emergency,” but Abbott does not explain why this
matters. Common authority depends on “joint access or control,” Matlock, 415 U.S.
at 171 n.7, and Abbott cites no authority to show that any act of relinquishing control
to a third party is required.

¶20 For the above reasons, we conclude that the State has proven by clear
and convincing evidence that Cruz had actual authority to consent to the warrantless
seizure of Abbott’s sweatshirts and that the circuit court did not err when it denied
Abbott’s motion to suppress them. Having reached this conclusion, we do not
address the State’s alternative arguments that Cruz had apparent authority to consent
and that the sweatshirts were properly seized under the plain view doctrine.

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No. 2019AP21-CR

B. The Patient Belongings Bag

¶21 As noted above, at some time between approximately 9:30 a.m. and
6:00 p.m. on January 3, 2011, an unidentified hospital staff member gave Officer
Kovacs a transparent patient belongings bag containing clothing removed from
Abbott at the hospital. The State argues that Officer Kovacs was entitled to search
the patient belongings bag pursuant to United States v. Jacobsen, 466 U.S. 109
(1984), and that he properly seized the bag under the plain view warrant exception.4

¶22 We begin with the State’s argument under Jacobsen. According to
that case, when a private party searches a suspect’s property, law enforcement may
similarly search that property without offending the Fourth Amendment because the
private search has already frustrated the suspect’s privacy interests. Jacobsen, 466
U.S. at 121. However, the Supreme Court qualified this rule by explaining that any
additional interference with the suspect’s privacy interests beyond scope of the
private search “must be tested by the degree to which [it] exceeded the scope of the
private search.” Id. at 120.

¶23 Under Jacobsen, Officer Kovacs may well have had authority to
visually inspect Abbott’s clothing, since hospital staff had already done so and
discovered what they described as suspicious spots on Abbott’s socks. But Abbott

4
The circuit court concluded that the patient belongings bag was properly seized on a
ground that the State does not advance in this appeal. The court concluded that under State v.
Thompson, 222 Wis. 2d 179, 585 N.W.2d 905 (Ct. App. 1998), the Fourth Amendment did not
apply because Abbott had no reasonable expectation of privacy in any personal effects left in a
hospital treatment room. In his initial brief, Abbott argues that the circuit court’s conclusion was
based on an erroneous interpretation of Thompson, and the State does not respond to this argument.
See United Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d
578 (failure to respond to an argument may be taken as a concession). We do not further discuss
whether Thompson would provide a basis for affirming the circuit court.

9
No. 2019AP21-CR

does not challenge the inspection of his clothing—he challenges the seizure of the
patient belongings bag and the DNA evidence subsequently gathered from it, which
goes beyond the scope of the hospital’s private search. The State fails to make any
argument as to how Jacobsen permits these additional intrusions. Nor did it argue
that the Fourth Amendment is inapplicable because the bag was seized by a private
entity, rather than by law enforcement.5 Thus, the State fails to persuade us that
evidence gathered from the patient belongings bag is admissible under Jacobsen.

¶24 We turn next to the argument that the plain view exception permitted
the warrantless seizure of Abbott’s personal belongings bag.6 The plain view
exception applies when the following three conditions are met:

(1) the evidence must be in plain view; (2) the officer must
have a prior justification for being in the position from which
she discovers the evidence in plain view; and (3) the
evidence seized in itself or in itself with facts known to the
officer at the time of the seizure, [must provide] probable
cause to believe there is a connection between the evidence
and criminal activity.

State v. Guy, 172 Wis. 2d 86, 101-02, 492 N.W.2d 311 (1992) (internal quotations
omitted). Abbott contends that the State has not met its burden to show the first or
third conditions. We do not address Abbott’s argument that the bag was not in plain

5
See State v. Payano-Roman, 2006 WI 47, ¶18, 290 Wis. 2d 380, 714 N.W.2d 548
(holding that a “private search” may fall outside the Fourth Amendment if: (1) the police did not
initiate, encourage or participate in the private entity’s search; (2) the private entity engaged in the
activity to further its own ends or purpose; and (3) the private entity did not conduct the search for
the purpose of assisting governmental efforts).
6
Abbott argues that the State forfeited this argument by failing to raise it below. But a
respondent may generally “employ any theory or argument on appeal that will allow us to affirm
the trial court’s order, even if not raised previously,” Finch v. Southside Lincoln-Mercury, Inc.
2004 WI App 110, ¶42, 274 Wis. 2d 719, 685 N.W.2d 154, and Abbott has not presented us with a
good reason to consider the argument forfeited under the circumstances here.

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No. 2019AP21-CR

view, since we agree with Abbott that the State has failed to meet its burden to prove
that there was probable cause at the time of the seizure.

¶25 The State argues that Officer Kovacs had probable cause to seize the
patient belongings bag based upon three facts he gathered after returning to the
hospital: that Miller was “missing,” that a hospital staff member believed the spots
on Abbott’s socks were blood, and that Abbott’s brothers told Officer Kovacs that
Abbott “may have done something bad.” The problem with this argument is that
the State did not introduce any evidence that Officer Kovacs was aware of these
facts at the time of the seizure.7 The circuit court found that “it’s unclear when that
seizure [] occurred,” and the State does not challenge this finding as clearly
erroneous. It is supported by the record, which establishes only that Officer Kovacs
seized the bag at some point after he returned to the hospital that day. Evidence that
may have been gathered after the seizure cannot be used to show probable cause
existed at the time of the seizure.8

¶26 Accordingly, the only facts in the record that could establish probable
cause for the seizure are those that were undisputedly known to Officer Kovacs at
the time he arrived at the hospital: that Abbott was exhibiting signs of a mental
breakdown requiring medical attention, and that a nurse believed there were
suspicious injuries and suspicious spots on Abbott’s clothing. The State makes no

7
Officer Kovacs must have learned the first two facts (that Miller was missing and that a
hospital staff member suspected the spots on Abbott’s socks were blood) soon after returning to
the hospital because he relayed these facts when he called Officer Gelden from the hospital at
approximately 9:30 a.m. But the record does not rule out the possibility that the seizure occurred
during the short period after Officer Kovacs returned to the hospital and before he learned those
facts.
8
The State does not argue that either of two Fourth Amendment doctrines, collective
knowledge or inevitable discovery, resolves this gap in the evidentiary record. Therefore we do
not address these doctrines.

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No. 2019AP21-CR

argument that these facts, without more, suffice to give Officer Kovacs probable
cause to seize the patient belongings bag.

¶27 We conclude that the State has failed to meet its burden to show by
clear and convincing evidence that the plain view exception applies. Based on the
limited record made before the circuit court, the contents of the patient belongings
bag should have been suppressed. We address the proper remedy for the circuit
court’s failure to suppress this evidence in Section III below.

II. Fifth Amendment Challenge to Custodial Statements

¶28 We next consider Abbott’s argument that the statements he made
during the February 1 interview should be suppressed because he invoked his right
to counsel. Abbott acknowledges that he did not make any unequivocal statement
asking for an attorney, but he appears to argue that no such statement was needed
to invoke the right to counsel since officers should have understood that he “did not
have all his faculties” and was “not capable of asserting his right to an attorney.”

¶29 For purposes of understanding our resolution of this argument, it is
essential to distinguish between, on the one hand, a valid waiver of Miranda rights,
and, on the other hand, a later invocation of those rights. This distinction is
important because the circuit court concluded that Abbott voluntarily waived his
Miranda rights, and Abbott does not challenge that conclusion. Instead, Abbott
argues that officers should have understood that he invoked his right to an attorney
at some point during the custodial interrogation, and that after that point all
questioning should have ceased.

¶30 The Fifth Amendment guarantees certain rights to persons subject to
custodial interrogation. U.S. CONST. amend. V; Miranda v. Arizona, 384 U.S. 436,

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No. 2019AP21-CR

467-79 (1966); see also State v. Edler, 2013 WI 73, ¶23, 350 Wis. 2d 1, 833 N.W.2d
564. These include the right to refuse to answer questions and the right to have
counsel present during interrogation. Edwards v. Arizona, 451 U.S. 477, 481-82
(1981). A suspect must be informed of these rights before custodial interrogation.
Miranda, 384 U.S. at 478-79.

¶31 A suspect may choose to waive these rights, and if so, the waiver need
not be explicit. North Carolina v. Butler, 441 U.S. 369, 375-76 (1979). “The State
establishes an ‘implicit waiver’ when it demonstrates that ‘a Miranda warning was
given and that it was understood by the accused’ and that the accused then went on
to make an uncoerced statement.” State v. Hampton, 2010 WI App 169, ¶32, 330
Wis. 2d 531, 793 N.W.2d 901 (quoting Berguis v. Thompkins, 560 U.S. 370, 384
(2010)). However, the State must always show that the waiver was knowing and
voluntary. Butler, 441 U.S. at 373. The suspect’s mental condition is a “significant
factor” in this analysis. Colorado v. Connelly, 479 U.S. 157, 164, 169-70 (1986).

¶32 Separately, even after a suspect waives his Miranda rights, the
suspect may later decide to invoke the right to remain silent or the right to have
counsel present. Miranda, 384 U.S. at 473-74. To invoke either right, a suspect
must do so “unambiguously.” Thompkins, 560 U.S. at 384. To invoke the right to
counsel, a suspect must make an “unambiguous [and] unequivocal request for
counsel ….” Davis v. United States, 512 U.S. 452, 462 (1994). If “a reasonable
officer in light of the circumstances would have understood only that the suspect
might be invoking the right to counsel, our precedents do not require the cessation
of questioning.” Id. at 459. However, once a suspect unambiguously invokes the
right to counsel, all uncounseled questioning must cease. See State v. Stevens, 2012
WI 97, ¶48, 343 Wis. 2d 157, 822 N.W.2d 79.

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No. 2019AP21-CR

¶33 Having explained the applicable law, we now more fully describe
Abbott’s February 1 custodial interrogation. After Abbott’s arrest, officers read him
his Miranda rights, and Abbott indicated he understood them. The officers then
repeatedly asked Abbott if he would answer questions without an attorney present.
Abbott’s responses were generally ambiguous, and included statements such as “I
don’t want to get in trouble with [my attorney],” “Ask [my attorney] if it’s okay,”
and “[my attorney] said to have him here.” The officers did not cease uncounseled
questioning.

¶34 The circuit court concluded that Abbott understood his rights and that
he knowingly and voluntarily waived them, and as noted above Abbott does not
appeal that determination. The court also concluded that Abbot did not
unambiguously invoke his right to counsel until near the end of the interrogation,
when he said, “I want [my attorney] to be here,” and it suppressed statements made
after that point.

¶35 On appeal, Abbott argues that he actually invoked his right to counsel
at an earlier point, and therefore questioning should have ceased earlier. However,
Abbott does not specifically identify when he invoked his right to counsel, nor does
he point to any specific statement he made to the officers,9 much less the
unequivocal and unambiguous request required by Davis. Rather, Abbott appears
to argue that the requirement of an unequivocal and unambiguous request should be
relaxed since “[u]nder the circumstances, a reasonable officer interviewing [him]
would have recognized that [he] did not have all his faculties” and was “not capable
of asserting his right to an attorney.” In support of this argument, Abbott notes that

9
Although Abbott points out that he made ambiguous references to his attorney, see supra
¶33, he does not argue that any of these statements invoked his right to counsel.

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No. 2019AP21-CR

he exhibited “physical ticks and shaking” during the questioning, that his answers
to questions were “nonsensical” and “childish,” that the officers were aware he had
recently been hospitalized for mental health treatment, and that the circuit court
found that he was “certainly upset” and “had a difficult time processing things.”
Abbott’s argument appears to be that, due to his apparent mental condition, he did
not need to make any particular statement to invoke his right to counsel, and that his
disturbed condition was itself a sufficient invocation.

¶36 Abbott’s argument is not consistent with the law. As explained above,
a suspect’s personal characteristics can be relevant to whether they knowingly and
voluntarily waived their Miranda rights, but Abbott does not point us to any law
suggesting that a suspect’s apparent mental state can relax the requirement that the
right to counsel be invoked with an unambiguous and unequivocal statement.10
Abbott’s proposition is contrary to Davis, which explains that the right to counsel
must be invoked unambiguously even though this rule “might disadvantage some
suspects who—because of fear, intimidation, lack of linguistic skills, or a variety of
other reasons—will not clearly articulate their right to counsel although they
actually want to have a lawyer present.” 512 U.S. at 460. For these reasons, we
conclude that the circuit court did not err when it declined to suppress Abbott’s
earlier statements from the custodial interrogation.

III. Harmless Error

¶37 We have concluded that the circuit court properly denied the motions
to suppress Abbott’s sweatshirts and earlier statements from the custodial

10
The Ninth Circuit case that Abbott cites, Sample v. Eyman, 469 F.2d 819, 821 (9th Cir.
1972), addresses the requirements for a knowing and intelligent waiver under Miranda, not the
question of how a suspect may invoke that right. We find nothing in Sample to support the position
that Abbott was not required to unambiguously invoke his right to counsel.

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No. 2019AP21-CR

interrogation, but that the circuit court should have granted Abbott’s motion to
suppress the patient belongings bag. We now turn to the parties’ arguments about
the appropriate remedy.

¶38 For more than two decades, Wisconsin courts have consistently
applied the harmless error test in cases like this, where a defendant enters a guilty
plea11 and then successfully appeals the circuit court’s denial of a motion to suppress
evidence. See State v. Armstrong, 223 Wis. 2d 331, 368-71, 588 N.W.2d 606,
opinion modified on denial of reconsideration, 225 Wis. 2d 121, 591 N.W.2d 604
(1999); see also State v. Rockette, 2005 WI App 205, ¶¶26-27, 287 Wis. 2d 257,
704 N.W.2d 382; State v. Semrau, 2000 WI App 54, ¶22, 233 Wis. 2d 508, 608
N.W.2d 376. Even though the law on this issue has been settled for years, the State
urges us to “clarify” the law and adopt a different standard—the manifest injustice
standard—for cases like this. We first consider and reject the State’s argument that
manifest injustice should be the applicable standard, and then we apply the harmless
error test to the facts of this case.

¶39 To understand our reasons for rejecting the State’s argument that the
manifest injustice standard should apply, it is helpful to understand the relationship
between that standard and what we refer to as the “guilty plea waiver rule.” Pursuant
to the guilty plea waiver rule, a defendant who pleads guilty waives the right to raise
almost all claims of constitutional error on appeal. See State v. Riekkoff, 112
Wis. 2d 119, 123-25, 332 N.W.2d 744 (1983). Under most circumstances, a
defendant may not withdraw a guilty plea after sentencing unless the defendant
proves by clear and convincing evidence that plea withdraw is required to correct a

11
Though this case involves an Alford plea rather than a guilty plea, these pleas are
equivalent for the purposes of a WIS. STAT. § 971.31(10) appeal. See State v. Rockette, 2005 WI
App 205, ¶25, 287 Wis. 2d 257, 704 N.W.2d 382.

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No. 2019AP21-CR

“manifest injustice.” Hatcher v. State, 83 Wis. 2d 559, 564, 266 N.W.2d 320
(1978). The manifest injustice standard sets a high bar for overcoming waiver.

¶40 There is one statutory exception to the guilty plea waiver rule. Under
WIS. STAT. § 971.31(10), a defendant who pleads guilty does not waive the right to
appeal an order denying a motion to suppress evidence. See id. (“An order denying
a motion to suppress evidence or a motion challenging the admissibility of a
statement of a defendant may be reviewed upon appeal from a final judgment or
order notwithstanding the fact that the judgment or order was entered upon a plea
of guilty or no contest ….”).

¶41 Prior to 1999, a defendant who pleaded to charges and then prevailed
in a WIS. STAT. § 971.31(10) appeal was entitled to reversal, without regard to
whether the error prejudiced the defendant. See, e.g., State v. Monahan, 76 Wis. 2d
387, 251 N.W.2d 421 (1977). Then, in Armstrong, 223 Wis. 2d at 368-71, the
Wisconsin Supreme Court announced that § 971.31(10) appeals are subject to a
harmless error test. Armstrong explained that “the test for harmless error on appeal
is whether there is a reasonable possibility that the erroneous admission of the
disputed evidence contributed to the conviction.” Semrau, 233 Wis. 2d 508, ¶22.
Stated differently, a defendant prevailing in a § 971.31(10) appeal is entitled to
reversal unless the State proves that the defendant would have entered the plea even
if the evidence had been suppressed. See Armstrong, 223 Wis. 2d at 370-71.

¶42 The State asserts that there is “inconsistent” case law on whether the
manifest injustice or the harmless error test applies, and it urges us to follow the
Wisconsin Supreme Court’s “most recent pronouncement” on this subject. But the
State cites only one case in support of its assertion that the case law is inconsistent,
and that case is inapt. In State v. Taylor, 2013 WI 34, ¶¶43-47, 347 Wis. 2d 30, 829

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No. 2019AP21-CR

N.W.2d 482, the Wisconsin Supreme Court determined that the manifest injustice
standard applies when a defendant seeks to withdraw a guilty plea based on an error
in the plea colloquy. Taylor is inapt because plea colloquy error is not governed by
WIS. STAT. § 971.31(10). The fact that Wisconsin courts apply the harmless error
test in § 971.31(10) appeals and the manifest injustice test in other legally distinct
circumstances does not make case law inconsistent.

¶43 We could end our analysis here, since we are bound by Wisconsin
Supreme Court precedent to apply the harmless error test. See Cook v. Cook, 208
Wis. 2d 166, 190, 560 N.W.2d 246 (1997). We nevertheless address the State’s two
remaining arguments in favor of changing the standard and explain why neither is
persuasive.

¶44 First, the State argues that the language of WIS. STAT. § 971.31(10)
does not “clearly express” an intent to abrogate the common law manifest injustice
framework or to relieve defendants of the burden to show a manifest injustice
warranting plea withdrawal. However, if a common law rule would undermine a
statute’s “manifest purpose,” there is “no doubt of the legislature’s intent” to
abrogate that rule. MBS-Certified Pub. Accountants, LLC v. Wisconsin Bell, Inc.,
2012 WI 15, ¶71, 338 Wis. 2d 647, 809 N.W.2d 857; see also Moya v. Aurora
Healthcare, Inc., 2017 WI 45, ¶34, 375 Wis. 2d 38, 894 N.W.2d 405.

¶45 The purpose of § 971.31(10) is to promote judicial economy by
offering defendants an incentive to plead guilty in cases where a crucial issue is
“whether the order denying a motion to suppress was proper.” Riekkoff, 112

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No. 2019AP21-CR

Wis. 2d at 125.12 The statute serves this purpose because defendants are more likely
to plead guilty when they know that, if it is determined on appeal that the circuit
court erroneously failed to suppress evidence, their conviction will be reversed and
they are entitled to a trial unless the State proves that the error was harmless. But if
the manifest injustice standard applied, the burden would instead be shifted to
defendants. Defendants would have to prove the very same standard that applies in
plea withdrawal situations not governed by § 971.31(10)—that the erroneous failure
to suppress evidence caused a “manifest injustice.” And on direct appeal,
defendants would not even have an opportunity for an evidentiary hearing, where
they could introduce evidence necessary to satisfy their burden of proof.13

¶46 For these reasons, WIS. STAT. § 971.31(10) would provide defendants
little incentive to plead guilty if courts adopted the manifest injustice standard for
appeals under § 971.31(10). More cases would go to trial, needlessly taxing the
resources of circuit courts, public defenders, the appointed defense bar, and district
attorneys alike. “We must presume that the legislature intends for a statute to be
interpreted in a manner that advances the purposes of the statute,” Verdoljak v.
Mosinee Paper Corp., 200 Wis. 2d 624, 635, 547 N.W.2d 602 (1996), but the

12
Many other cases, including persuasive authority, have reached the same conclusion
regarding the purpose of WIS. STAT. § 971.31(10). See, e.g., Jones v. Wisconsin, 562 F.2d 440,
445-46 (7th Cir. 1977) (section 971.31(10) “encourages guilty pleas” by guaranteeing that a
defendant “will have a full trial in the event that after appeal the state’s evidence is weaker than it
appeared at the time of the trial court’s evidentiary rulings”); State v. Meier, 60 Wis. 2d 452, 461,
210 N.W.2d 685 (1973); State v. Pozo, 198 Wis. 2d 705, 715, 544 N.W.2d 228 (Ct. App. 1995).
The comments to the statute’s enactment also state its purpose. See § 971.31(10), Judicial Council
Committee comment to 1969 enactment (the statute “should reduce the number of contested trials
since in many situations, the motion to suppress evidence is really determinative of the result of the
trial”).
13
See Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972) (a defendant
proceeding on a motion to withdraw a guilty plea is entitled to an evidentiary hearing if they allege
facts that, if true, would entitle them to relief).

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No. 2019AP21-CR

State’s proposed manifest injustice test for § 971.31(10) appeals would significantly
undermine the statute’s purpose of incentivizing pleas.

¶47 Second, the State argues that we should adopt the manifest injustice
test because Wisconsin courts have not always consistently articulated the standard
for harmless error. Compare Armstrong, 223 Wis. 2d at 369 (articulating the
standard as asking “whether there is a reasonable possibility that the error
contributed to the conviction”) (emphasis added) with State v. Hale, 2005 WI 7,
¶60, 277 Wis. 2d 593, 691 N.W.2d 637 (articulating the standard as whether the
State has “prove[n] beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained”) (emphasis added, internal quotations omitted).
But even if these standards are inconsistent and should be clarified by our supreme
court,14 this is not a reason to reject the harmless error test in favor of a manifest
injustice test that has never before been applied in a WIS. STAT. § 971.31(10) appeal.

¶48 In summary, the State offers no compelling reason to depart from
precedent and require a defendant to show a manifest injustice to prevail in a WIS.
STAT. § 971.31(10) appeal.

¶49 We now turn to the harmless error test to determine whether Abbott’s
conviction should be reversed. In a harmless error analysis, a court may consider,
among other things, “whether the erroneously admitted evidence duplicates
untainted evidence.” Rockette, 287 Wis. 2d 257, ¶26 (quoting Hale, 277 Wis. 2d

14
At least one Wisconsin Supreme Court opinion appears to essentially equate the two
standards. In State v. Jackson, 2014 WI 4, 352 Wis. 2d 249, 841 N.W.2d 791, the court considered
whether improperly admitted character evidence warranted a new trial and concluded that any error
would have been harmless. Id., ¶88. Jackson articulated both the Hale standard for harmless error
(the court must conclude beyond a reasonable doubt that, but for the errors, the result would have
been the same), id., ¶86, and the Armstrong standard (the court must determine whether there is a
reasonable probability that the errors contributed to the result), id., ¶87.

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No. 2019AP21-CR

593, ¶61); see also Armstrong, 223 Wis. 2d at 370 (concluding that failure to
suppress evidence “identical to other admissible evidence” was harmless error).

¶50 The State argues that evidence gathered from the patient belongings
bag does little more than duplicate untainted evidence, and we agree. The patient
belongings bag contained Abbott’s shoes and socks, on which Miller’s blood was
found, but Miller’s blood was also found on untainted evidence—it was on Abbott’s
sweatshirts (as well as on his pickup truck.) Thus, even if the evidence gathered
from the patient belongings bag were suppressed, the State would still have been
able show that Miller’s blood was on Abbott’s clothing when he returned home on
January 3, 2011. Abbott does not rebut this conclusion with any persuasive
argument that suppression of the evidence from the patient belongings bag would
have changed his decision to enter the Alford plea. Accordingly, we conclude that
the State has met its burden to prove that the circuit court’s failure to suppress the
clothing from the bag was harmless.

CONCLUSION

¶51 For all of these reasons, we conclude that the circuit court did not err
by denying Abbott’s motions to suppress evidence gathered from his sweatshirts or
statements made during his February 1 interrogation. We also conclude that the
State did not meet its burden to prove that the seizure of the patient belongings bag
falls within an exception to the warrant requirement. Nevertheless we conclude that
the circuit court’s failure to suppress this evidence was harmless. Accordingly, we
affirm.

By the Court.—Judgment affirmed.

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