State v. Shannon M. Carlson

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.
October 12, 2022
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. 2020AP1666-CR Cir. Ct. No. 2018CF314

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SHANNON M. CARLSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Fond du Lac
County: ROBERT J. WIRTZ, Judge. Affirmed.

Before Gundrum, P.J., Neubauer and Grogan, 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. 2020AP1666-CR

¶1 PER CURIAM. Shannon M. Carlson appeals from a judgment
convicting him of first-degree reckless homicide by drug delivery. He contends
that the circuit court erred in denying his motions to suppress certain evidence and
statements. For the reasons that follow, we affirm.

¶2 Just before 11:30 p.m. on September 1, 2014, police and paramedics
were dispatched to an “ambulance call” for a female who had stopped breathing at
Carlson’s house in the city of Fond du Lac. The female was Carlson’s former
girlfriend, J.R.

¶3 James Brooks was the first police officer to arrive at the scene. He
was met by Carlson’s friend, John Marino, who directed him to the bedroom
where J.R. lay unconscious. There, Brooks saw another woman, later identified as
Marino’s stepdaughter, performing CPR. Paramedics came soon thereafter to take
over the CPR. Brooks asked Carlson, “if he knew anything that [J.R.] would have
taken that could help the [paramedics] to save her.” Carlson replied that J.R. had a
history of heroin use.

¶4 Philip Gourdine was the next police officer to arrive. He observed
Carlson sitting in the kitchen. Wanting to get as much information as he could for
the paramedics, Gourdine asked Carlson if J.R. “had taken something.” Carlson
replied that he did not know. J.R. was subsequently taken to the hospital by
ambulance. She later died from a multi-drug overdose.

¶5 After J.R. was taken away, Brooks asked Carlson whether he knew
what J.R. was doing that day and how she got to his house. Carlson explained that
J.R. was his former girlfriend and had come over to do laundry. When she was
finished, she asked to take a nap. Carlson agreed and left while J.R. took a nap in

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his bedroom. Upon returning that night with Marino, Carlson found J.R. in dire
condition with foam near her mouth.

¶6 Detective Matthew Bobo arrived shortly thereafter to investigate
what had happened. He first interviewed Marino outside the house. Marino told
Bobo that, upon finding J.R., Carlson expressed belief that she had suffered a
heroin overdose. Carlson then asked Marino to contact his stepdaughter, who was
a nurse, to bring some Narcan to administer. Marino told Bobo that Carlson was
“a daily user of heroin.”

¶7 Bobo next spoke to Carlson outside. Early in the interview, Bobo
asked if he could search the house and showed Carlson a consent form to sign.
Carlson refused at first because he “did not want to get [J.R.] in any trouble.” In
response, Bobo told Carlson that he would apply for a search warrant based on the
information he had. At that point, Carlson agreed to sign the consent form and did
so in the kitchen. The ensuing search yielded used needles, two burnt spoons, a
piece of foil, and a metal pipe used for smoking crack.

¶8 After consenting to the search, Carlson told Bobo that he was now
“clean” and had not taken heroin for a couple of days. Carlson also talked about
J.R.’s drug usage. Bobo described Carlson as sad, caring greatly for J.R., and
trying to do what was best for her. Bobo said that “towards the very, very end” of
the interview, Carlson started nodding off and had difficulty understanding
questions. Bobo believed these were signs of drug withdrawal.

¶9 At the time of the incident, Carlson was on probation. Police
contacted probation and parole, which put a probation hold on Carlson based upon
the gathered information. Carlson was taken into custody on that hold just after

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No. 2020AP1666-CR

2:30 a.m. Thus, police were at the scene with Carlson for approximately three
hours.

¶10 Three days later, on September 4, 2014, Bobo interviewed Marino
again. This time, Marino implicated Carlson as providing heroin to J.R. on the
day in question. Additionally, Marino said there was heroin inside the house that
police had missed during their search. Bobo subsequently obtained a search
warrant for Carlson’s house that police executed on September 8, 2014.

¶11 Also on September 8, 2014, Bobo and Detective William Ledger
interviewed Carlson in jail. After a brief discussion about Carlson’s probation
status not relevant here, Bobo read the Miranda1 warnings off of his police
department’s statement of rights and waiver form. Carlson indicated that he
understood and signed the form.

¶12 In the ensuing interview, Carlson initially denied any wrongdoing
other than possessing the crack pipe. Thirty-four minutes into the interview, after
he was confronted with Marino’s allegations, Carlson admitted to providing heroin
to J.R. on September 1, 2014. The State eventually charged Carlson with several
crimes, including first-degree reckless homicide by drug delivery.

¶13 Carlson filed multiple motions to suppress. Specifically, he sought
to suppress (1) the evidence obtained in the warrantless search of his house; (2) his
statements to police on September 1-2, 2014; and (3) his statements to police on
September 8, 2014. Following a hearing on the matter, the circuit court denied
Carlson’s motions.

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

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No. 2020AP1666-CR

¶14 Carlson ultimately entered an Alford2 plea to the charge of first-
degree reckless homicide by drug delivery. The circuit court sentenced him to six
years of initial confinement and six years of extended supervision. This appeal
follows.

¶15 On appeal, Carlson contends that the circuit court erred in denying
his motions to suppress. A circuit court’s ruling on a motion to suppress presents
a mixed question of fact and law. State v. Casarez, 2008 WI App 166, ¶9, 314
Wis. 2d 661, 762 N.W.2d 385. The court’s findings of fact will not be overturned
unless they are clearly erroneous. Id. However, the application of constitutional
principles to those findings of fact presents a matter for independent appellate
review. Id.

¶16 We begin our discussion with the evidence obtained in the
warrantless search of Carlson’s house. Carlson argues that the evidence should be
suppressed because his consent was not voluntarily given.

¶17 Consent is a well-established exception to the warrant requirement.
State v. Artic, 2010 WI 83, ¶29, 327 Wis. 2d 392, 786 N.W.2d 430. “For a search
pursuant to consent to be constitutionally permissible, the consent must be
voluntary under the totality of the circumstances and not the product of duress or
coercion, express or implied.” State v. Stankus, 220 Wis. 2d 232, 237, 582
N.W.2d 468 (Ct. App. 1998).

¶18 Courts may consider multiple factors to determine whether consent
to a search was voluntary, including:

2
See North Carolina v. Alford, 400 U.S. 25 (1970).

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No. 2020AP1666-CR

(1) whether the police used deception, trickery, or
misrepresentation in their dialogue with the defendant to
persuade him to consent; (2) whether the police threatened
or physically intimidated the defendant or “punished” him
by the deprivation of something like food or sleep;
(3) whether the conditions attending the request to search
were congenial, non-threatening, and cooperative, or the
opposite; (4) how the defendant responded to the request to
search; (5) what characteristics the defendant had as to age,
intelligence, education, physical and emotional condition,
and prior experience with the police; and (6) whether the
police informed the defendant that he could refuse consent.

Artic, 327 Wis. 2d 392, ¶33.

¶19 Examining these factors, we conclude that Carlson’s consent was
voluntarily given. Police did not deceive or trick Carlson. They did not threaten
him, physically intimidate him, or deprive him of food or sleep. While the
conditions attending the request to search were no doubt stressful and emotional,
that was due to J.R.’s overdose—not police conduct. Carlson’s personal
characteristics gave no indication that he was unable to refuse consent. Indeed, he
initially refused consent before changing his mind.

¶20 Carlson suggests that Bobo acted improperly when, in response to
Carlson’s initial refusal, he said he would apply for a search warrant. There was
nothing wrong about telling Carlson what would happen next. Furthermore,
“[t]hreatening to obtain a search warrant does not vitiate consent if ‘the expressed
intention to obtain a warrant is genuine … and not merely a pretext to induce
submission.’” Id., ¶41 (citation omitted). The circuit court found Bobo’s
statement reasonable under the circumstances.3 We agree.

3
The circuit court observed:

(continued)

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No. 2020AP1666-CR

¶21 We turn next to Carlson’s statements to police on September 1-2,
2014. Carlson maintains that suppression is warranted because he did not receive
Miranda warnings and was suffering from drug withdrawal, which rendered his
statements involuntary.

¶22 The warnings prescribed by Miranda are required only when a
suspect is in custody. See State v. Morgan, 2002 WI App 124, ¶10, 254 Wis. 2d
602, 648 N.W.2d 23. A suspect is in custody for Miranda purposes when his or
her “freedom of action is curtailed to a ‘degree associated with formal arrest.’”
Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (citation omitted).

¶23 The test for custody is an objective one, requiring us to look to the
totality of the circumstances. State v. Dobbs, 2020 WI 64, ¶54, 392 Wis. 2d 505,
945 N.W.2d 609. Relevant factors include (1) the freedom to leave; (2) the
purpose, place, and length of the interrogation; and (3) the degree of
restraint. Morgan, 254 Wis. 2d 602, ¶12.

I find at the time that the police had a reasonable basis to make
the statements they did. Officer Bobo had found out that there
was a person who was in dire physical straits because of,
perhaps, heroin ingestion. Narcan had been administered. A
woman was foaming from the mouth. Mr. Carlson said it’s
heroin-related. And whether it was Mr. Carlson, whether it was
somebody else at the house, whether it was the victim … the
idea that the police would be able to get information by a search
of the house, I think, is reasonable.

So, the fact that the police may have used that inducement of,
“Oh, we’ll apply for a search warrant,” I think, was a reasonable
statement and I don’t think it was some––some fictitious
information. I think there was enough there to make such a
request.

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No. 2020AP1666-CR

¶24 We also look to the totality of the circumstances in assessing
whether a statement was voluntary. State v. Vice, 2021 WI 63, ¶30, 397 Wis. 2d
682, 961 N.W.2d 1. However, we must first examine the threshold matter of
coercion. Id., ¶31. Without it, “there is no need for us to engage in the balancing
test between the suspect’s personal characteristics and those nonexistent
pressures.” Id. See also State v. Hoppe, 2003 WI 43, ¶37, 261 Wis. 2d 294, 661
N.W.2d 407 (“Coercive or improper police conduct is a necessary prerequisite for
a finding of involuntariness.”).

¶25 Here, we are not persuaded that Carlson was in custody when he
gave statements to police on September 1-2, 2014. As noted, police were at
Carlson’s house due to an “ambulance call” for a female who had stopped
breathing. When they spoke to Carlson, their questioning was neither continuous
nor long. It was intended to find out what had happened to the female and what
she might have taken that caused her to stop breathing. Carlson never indicated
that he wanted to leave, and police did not restrain him until probation and parole
placed a probation hold on him. On these facts, we cannot say that Miranda
warnings were required.

¶26 As for the issue of voluntariness, Carlson only exhibited signs of
drug withdrawal “towards the very, very end” of his interview with Bobo. He
showed no such signs earlier. At any rate, because there is no evidence of
coercive or improper police conduct, Carlson cannot prevail on this claim. See
Hoppe, 261 Wis. 2d 294, ¶37.

¶27 Finally, we turn to Carlson’s statements to police on September 8,
2014. Carlson submits that suppression is necessary because his Miranda

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No. 2020AP1666-CR

warnings were insufficient with respect to his right to counsel and his statements
were involuntarily made.

¶28 Again, we look to the totality of the circumstances when considering
the validity of a Miranda waiver and the voluntariness of a statement. See State v.
Hambly, 2008 WI 10, ¶91, 307 Wis. 2d 98, 745 N.W.2d 48; Vice, 397 Wis. 2d
682, ¶30. Again, those circumstances persuade us that Carlson’s statements
should not be suppressed.

¶29 The following is what Bobo told Carlson about his Miranda rights
before Carlson waived them in writing:

You have the right to remain silent. Anything you say can
be used against you in court. If you cannot afford a lawyer
one will be appointed for you before any questioning if you
wish. If you decide to answer questions now without a
lawyer present you will have the right to stop answering
questions at any time. You also have the right to—at any
time to talk with a lawyer.

¶30 Carlson does not convincingly explain what was so confusing about
these warnings with respect to his right to counsel.4 Collectively, they reasonably
conveyed his right to have counsel at his side before, during, and after the
interview, which is all that was required. See Florida v. Powell, 559 U.S. 50, 60
(2010) (in reviewing the form of Miranda warnings given, courts need not
examine the words “as if construing a will or defining the terms of an easement”;
rather, the inquiry is simply whether the words reasonably conveyed the required
rights) (citation omitted).

4
Carlson did not testify at the suppression hearing. However, the record shows that he
was high school educated and had experience in the criminal justice system. It does not appear
that he suffered from any cognitive or mental disabilities.

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No. 2020AP1666-CR

¶31 Carlson’s claim of involuntariness fares no better. He complains
that police misled him by telling him they were looking for “bigger fish” drug
dealers and that those drug dealers were more responsible for J.R.’s death than he
was. Such “commonly accept[ed]” tactics as minimizing do not without more
render his statements involuntary. State v. Moore, 2015 WI 54, ¶64, 363 Wis. 2d
376, 864 N.W.2d 827. Police made no promises to Carlson to elicit additional
information. On this record, we are satisfied that the circuit court properly denied
his motion.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5 (2019-20).

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