2018 WI 16

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP2506-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Daniel J. H. Bartelt,

 Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 375 Wis. 2d 148, 895 N.W.2d 86

PDC No: 2017 WI App 23 - Published

OPINION FILED: February 20, 2018

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: November 14, 2017

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Washington

JUDGE: Todd K. Martens

JUSTICES:

CONCURRED:

DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, 

J. (opinion filed).

NOT PARTICIPATING: 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

and an oral argument by Leon W. Todd, assistant state public 

defender.

For the plaintiff-respondent, there was a brief by Amy C. 

Miller, assistant solicitor general, Brad D. Schimel, attorney 

general, Misha Tseytlin, solicitor general, and Ryan J. Walsh, 

chief deputy solicitor general. There was an oral argument by 

Amy C. Miller.
2018 WI 16

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2015AP2506-CR

(L.C. No. 2013CF276)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Daniel J.H. Bartelt,

 Defendant-Appellant-Petitioner

FILED

Feb 20, 2018

Sheila T. Reiff

Clerk of Supreme Court

REVIEW of a published decision of the court of appeals. 

Affirmed. 

¶1 PATIENCE DRAKE ROGGENSACK, C.J. This review concerns 

the point in time at which a person is "in custody" for purposes 

of Miranda.

1 Daniel J.H. Bartelt asks us to overturn a decision 

of the court of appeals, affirming the circuit court's

2 judgment 

entered in favor of the State regarding Bartelt's motion to

suppress incriminating statements, and concluding that Bartelt 

was not in custody at the time the statements were made.

 

1 Miranda v. Arizona, 384 U.S. 436 (1966); cf. Edwards v. 

Arizona, 451 U.S. 477 (1981). 

2 The Honorable Todd K. Martens of Washington County, 

presided.
No. 2015AP2506-CR

2

¶2 Bartelt presents two issues: first, whether Bartelt's 

confession to a serious crime transformed his custody status 

from noncustodial to "in custody;" and second, whether Bartelt's 

request for counsel was unequivocal such that police officers 

violated his Fifth Amendment rights when they questioned him the 

following day without counsel present.

¶3 On the first issue we conclude that, under the 

totality of the circumstances attendant to his interview, 

Bartelt's confession did not transform his custody status. 

Rather, Bartelt was not in custody until Detectives Joel 

Clausing and Aaron Walsh of the Washington County Sheriff's 

Department took his cell phone, approximately ten minutes after 

his confession, and instructed him to remain in the interview 

room. Because we determine that Bartelt was not in custody 

until this point, which was after his alleged request for 

counsel, we need not and do not reach the issue of whether his 

alleged request for counsel was unequivocal.

¶4 Accordingly, we affirm the court of appeals.

I. BACKGROUND

¶5 This case arises from two crimes committed in July 

2013. On July 12, 2013, M.R. was assaulted by a male suspect 

with a knife while walking her dog in Richfield Historical Park 

in the Village of Richfield. M.R. was tackled to the ground and 

suffered several knife wounds before disarming the suspect, who 

fled the scene in a blue Dodge Caravan. Three days later, on 

July 15, 2013, Jessie Blodgett, a friend and former girlfriend 
No. 2015AP2506-CR

3

of Bartelt, was found dead in her home in the City of Hartford. 

According to preliminary autopsy findings, the cause of death 

was ligature strangulation.

¶6 As of July 16, 2013, Clausing and Detective Richard 

Thickens of the Hartford Police Department had identified 

Bartelt as a person of interest in the attack on M.R. Earlier 

that month, a deputy had noticed a blue Dodge Caravan at the 

same park and had run the license plate, which revealed that the 

vehicle was registered to Bartelt's parents. Police learned 

that the Bartelts had a son, and were then able to match 

Bartelt's photograph from the Wisconsin Department of 

Transportation with the composite sketch drawn at M.R.'s 

direction. Clausing contacted Bartelt around 5:00 p.m. on July 

16, and told him that the police were investigating an incident, 

and that they needed to speak with him. Bartelt was "very 

compliant," and agreed to meet with detectives at the Slinger 

Police Department. 

¶7 The Slinger Police Department is located inside a 

municipal building that it shares with various other offices and 

departments. There is one main entrance to the building. Once 

inside, a separate entrance leads to the police department. 

Neither the main door to the building nor the door to the police 

department is secured during normal business hours, and there 

are no metal detectors or other security screening devices. 

Inside the police department, another door leads to the 

"internal portion" of the department. This door is locked from 
No. 2015AP2506-CR

4

the outside, but one can freely exit. The interview room is 

located about twenty-five feet inside this secured area. The 

room is thirteen and one-half feet by ten and one-half feet, and 

contains a table, three chairs and a window. The room can be 

accessed by either of two doors, neither of which can be locked. 

¶8 Bartelt was dropped off by two friends at the Slinger 

Police Department around 5:12 p.m. His friends waited outside. 

Clausing testified that Bartelt was escorted to the interview 

room but was not searched. Bartelt chose the seat on the far 

side of the table, while Clausing sat at the end, and Walsh sat 

opposite Bartelt. Clausing and Walsh were wearing civilian 

clothes; however, they both had their badges displayed on their 

belts, as well as their service weapons. Clausing testified 

that one of the doors to the room was left open. Unbeknownst to 

Bartelt, the interview was recorded by both audio and visual 

means.

¶9 Clausing began the interview by telling Bartelt that 

he was not in trouble, he was not under arrest, and he could 

leave at any time. Clausing did not read Bartelt his Miranda

rights. Bartelt, who had just come from the Blodgett residence 

to pay his respects to the family, believed the police were 

meeting with him about Blodgett's murder. However, Clausing 

explained that law enforcement was investigating an attack that 

had occurred at Richfield Historic Park on the previous Friday. 

Bartelt was asked a number of preliminary questions and 

initially denied any involvement. Bartelt stated that he had 
No. 2015AP2506-CR

5

been with his girlfriend on the day in question, although he 

could not "remember any specifics." Clausing then explained 

that cell phones "are kind of like GPS's," and told Bartelt, "I 

don't want any lies." 

¶10 Clausing then observed some scrapes and a cut on 

Bartelt's hand and arm. Bartelt stated he did not remember how 

he scraped his arm, but that he had stabbed his hand "with a 

screw at work." The following exchange then occurred:

DET. CLAUSING: . . . So what do you think 

evidence is?

MR. BARTELT: Incriminating items, documents.

DET. CLAUSING: First -- but I'm more of a nutsand-bolts type of guy. Like, what would you consider 

to be evidence?

MR. BARTELT: Well --

DET. CLAUSING: Fingerprints?

MR. BARTELT: Yeah.

DET. CLAUSING: Okay. Fibers? Hairs?

MR. BARTELT: Yeah.

DET. CLAUSING: Any DNA? You know, footwear 

impressions?

MR. BARTELT: Yeah.

DET. CLAUSING: Witness statements, right? Video 

surveillance, stuff like that, right?

MR. BARTELT: Yeah.

DET. CLAUSING: Is there any evidence that we 

just talked about which would show that you would be 

in this park at the time of this incident that had 

occurred? Is there any evidence out there that would 

show that?
No. 2015AP2506-CR

6

MR. BARTELT: I don't think so . . . What is this 

about?

¶11 After reminding Bartelt that police were investigating 

an incident at Richfield Historical Park, Clausing said, "What 

if I were to tell you that there might be something that links 

you there." Clausing then proceeded to explain "Locard's 

exchange principle," which holds that the perpetrator of a crime 

will bring something into the crime scene——such as fingerprints, 

sweat, DNA, or clothing fibers——and leave it behind. The 

detectives added that they had found evidence "from the person 

that was out there," which needed to be analyzed by the state

crime laboratory. 

¶12 Clausing next told Bartelt that they had an 

eyewitness, stating, "I would hate to put down your picture in 

front of the eyewitness and have them say, that's the guy that 

was out there." Further, Clausing stated, "I can prove that you 

were out there. It's not just a tip. I can prove it. And all 

I'm getting at is that if you were out there, just talk to us 

about what happened or what you saw or what you observed or 

whatever." Walsh told Bartelt they knew that his vehicle had 

been spotted at the park on several occasions when Bartelt was 

supposed to be at work. Bartelt admitted that he had been laid 

off for several months, and that the injury was actually the 

result of a cooking accident.

¶13 At this time Clausing moved his chair closer to 

Bartelt. When Clausing's face was about two feet from 

Bartelt's, Clausing told him, "No more lies. It just makes 
No. 2015AP2506-CR

7

things worse. It is spiraling out of control right now . . . . 

Nobody in their right mind would lie about cutting themselves if 

it happened at home cooking . . . . What happened? Just be 

honest." Bartelt admitted that he had been to the park before 

and that he had seen the sketch on television, but that "it 

wasn't me." 

¶14 Walsh then urged Bartelt to help bring closure to M.R. 

"Daniel, the truth is going to help us bring some resolution to 

this for everybody involved . . . . We have one scared person 

out there right now . . . and the easiest way to put some 

resolution to this is [for] the [ ] person that did this to take 

responsibility." Walsh added that he could understand why 

someone would do this, "especially if the person that did it 

explains to us what they were thinking, where they were in their 

life." For example, Bartelt had lost his job and hid that from 

his parents, and he had dropped out of college after only one 

semester. Walsh stated that "when things are not going well for 

people, they do things that are very out of character." He 

added, "I think you are a good person . . . [g]ood people can 

explain things away and we can understand why they do things. 

So tell us about the park." 

¶15 Following a lengthy narrative from Clausing about the 

two types of people in this situation——those who take 

responsibility and those who say "prove it"——Bartelt admitted to 

being at the park and going "after that girl" because he "wanted 

to scare someone." Bartelt told the officers that he had been 
No. 2015AP2506-CR

8

reading when he saw M.R., and in the "spur of the moment," he 

decided to "run at her and knock her down and scare her." 

Bartelt admitted there was no real explanation or motive for the 

attack; he was "just numb" and scared because "life scares me." 

Bartelt targeted M.R. because "[t]here was no one else there." 

Following this admission, Clausing asked Bartelt if he would be 

willing to provide a written statement of confession. Walsh 

explained that the written statement would be Bartelt's chance 

to apologize. When Bartelt asked what would happen after he 

gave his statement, Clausing responded, "I can't say what 

happens then. We'll probably have more questions for you, quite 

honestly." Clausing later testified that, once Bartelt had 

confessed, he "was going to be under arrest, and he probably 

wasn't free to get up and leave." 

¶16 It was at this point that Bartelt asked, "Should I or 

can I speak to a lawyer or anything?" Clausing told him, "Sure, 

yes. That is your option." Bartelt responded, "I think I'd 

prefer that." At 5:45 p.m., roughly 33 minutes after Bartelt 

arrived at the station for questioning, Clausing and Walsh 

suspended the interview, took Bartelt's cell phone, and left the 

room. When the detectives returned seven or eight minutes 

later, Clausing told Bartelt he was under arrest, handcuffed 

him, and searched him. Bartelt was then transported to the 

Washington County Jail. 

¶17 Clausing testified that, during the course of the 

interview, both he and Walsh spoke in a conversational tone, 
No. 2015AP2506-CR

9

which did not change even after Bartelt's admission. Neither 

detective ever made reference to or unholstered their weapons. 

Bartelt never asked to use the restroom or take a break. At one 

point during the interview Clausing gave Bartelt permission to 

answer his cell phone, which Bartelt declined to do. 

¶18 The following day, on July 17, 2013, Bartelt was 

brought to the interview room at the Washington County Sheriff's 

Department to be questioned by Thickens and Detective James Wolf 

regarding his relationship with Blodgett. Before commencing 

with questioning, Thickens read Bartelt his Miranda rights, 

which Bartelt knowingly and voluntarily waived.

¶19 Bartelt was questioned for approximately 90 minutes 

about his relationship with Blodgett and his whereabouts on the 

day of Blodgett's death. Bartelt denied being at the Blodgett 

residence on July 15, 2013, or having any knowledge of 

Blodgett's death. Bartelt stated that on the morning of July 15 

he had left his house at 6:30 a.m. and drove "all over" before 

spending a few hours at Woodlawn Union Park. Bartelt then asked 

for an attorney, at which point the questioning stopped. 

¶20 Thickens later drove to Woodlawn Union Park to 

investigate, and in doing so he collected garbage from the 

park's receptacles. In one container he found a Frosted MiniWheats cereal box containing paper toweling, numerous types of 

rope and tape, and antiseptic wipes with red stains. One of the 

ropes later revealed DNA that belonged to both Bartelt and 

Blodgett, and which matched the ligature marks on Blodgett's 
No. 2015AP2506-CR

10

neck. Another rope matched the ligature marks on her wrists and 

ankles. Based on this evidence and the confession Bartelt made 

during his first interview, Bartelt was charged with attempted 

first-degree intentional homicide, first-degree reckless 

endangerment, and attempted false imprisonment for the attack on 

M.R., as well as first-degree intentional homicide for the 

murder of Blodgett. 

¶21 Bartelt moved to suppress his statements, and any

evidence derived from them, on the grounds that the officers had 

violated his Miranda rights when they questioned him. The 

circuit court denied Bartelt's motion, concluding that at the 

time of his July 16, 2013, interview, Bartelt had voluntarily 

agreed to speak with police. The circuit court concluded that 

Bartelt was not in custody until after he had requested an 

attorney, roughly ten minutes after his confession. Therefore, 

no Miranda warnings were necessary with respect to the July 16 

interview, and police were free to initiate questioning on July 

17 because "an assertion of Miranda . . . which a person makes 

while they are not in custody, does not prospectively prohibit 

law enforcement from attempting to interview an individual 

later." Further, with respect to the July 17 interview, the 

circuit court found that Bartelt was properly given his Miranda

warning, which he voluntarily waived.

¶22 Following the denial of Bartelt's suppression motion, 

the circuit court ordered that the Blodgett homicide charge be 

separated from the charges related to M.R. After a seven-day 
No. 2015AP2506-CR

11

jury trial, Bartelt was found guilty of Blodgett's murder. 

Consequently, he was sentenced to life imprisonment without the 

possibility of release to extended supervision. Shortly 

thereafter, the parties reached a plea agreement regarding the 

attempted murder, reckless endangerment, and false imprisonment 

charges. In exchange for Bartelt's guilty plea to first-degree 

reckless endangerment, the State agreed to dismiss and read-in 

the remaining counts, and Bartelt was sentenced to five years' 

imprisonment and five years' extended supervision consecutive to 

his life sentence.

¶23 Bartelt appealed his murder conviction on the grounds 

that the circuit court improperly denied his suppression motion. 

Specifically, Bartelt argued that once he confessed to attacking 

M.R., a reasonable person in his circumstances would have 

believed he was not free to leave the station, thereby 

transforming the non-custodial interview into a custodial 

interrogation. Bartelt therefore argued that all statements 

made after his admissions about M.R. were inadmissible under the 

principles of Miranda and Edwards. As a consequence, Bartelt 

alleges that detectives violated his Fifth Amendment rights when 

they approached him to question him about Blodgett's murder 

without counsel being present. Under the exclusionary rule,3

 

3 The exclusionary rule was first adopted by the United 

States Supreme Court in Weeks v. United States, 232 U.S. 383 

(1914), which held that evidence obtained in violation of the 

Fourth Amendment is inadmissible. This holding was expanded to 

include state court proceedings in Mapp v. Ohio, 367 U.S. 643 

(1961). However, Wisconsin courts have aligned themselves with 

(continued)
No. 2015AP2506-CR

12

Bartelt alleged that all derivative evidence discovered as a 

result of his statements should have been suppressed.4 

¶24 The court of appeals rejected Bartelt's arguments and 

affirmed the circuit court's judgment. Bartelt sought review, 

which we granted. For the reasons explained below, we affirm 

the court of appeals. 

II. DISCUSSION

A. Standard of Review

¶25 A determination of when custody begins presents a 

question of constitutional fact that we review under a two-part 

standard. State v. Jennings, 2002 WI 44, ¶20, 252 Wis. 2d 228, 

647 N.W.2d 142. The circuit court's findings of historical fact 

will be upheld unless they are clearly erroneous. State v. 

Henderson, 2001 WI 97, ¶16, 245 Wis. 2d 345, 629 N.W.2d 613. 

Whether those findings support a determination of custody for 

purposes of Miranda is a question of law that we independently 

review. Id.

B. Miranda and Custody

¶26 The Fifth Amendment of the United States Constitution 

states that "[no person] shall be compelled in any criminal case 

to be a witness against himself, nor be deprived of life, 

 

the federal rule since long before the Mapp holding. See Hoyer 

v. State, 180 Wis. 407, 417, 193 N.W. 89 (1923).

4 See State v. Knapp, 2005 WI 127, ¶2, 285 Wis. 2d 86, 700 

N.W.2d 899 ("Where physical evidence is obtained as the direct 

result of an intentional Miranda violation, we conclude that our 

constitution requires that the evidence must be suppressed.").
No. 2015AP2506-CR

13

liberty, or property, without due process of law . . . ." We 

have interpreted Article I, Section 8(1)5 of the Wisconsin 

Constitution consistent with the United States Supreme Court's 

interpretation of the Fifth Amendment. State v. Ward, 2009 WI 

60, ¶18 n.3, 318 Wis. 2d 301, 767 N.W.2d 236.

¶27 In 1966, the Supreme Court held that the Fifth 

Amendment requires law enforcement to inform suspects of their 

rights to remain silent and to have an attorney present during 

custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 458 

(1966).

6 These warnings are required because "[t]he 

circumstances surrounding in-custody interrogation can operate 

very quickly to overbear the will of [the suspect]." Id. at 

469; see also State v. Quigley, 2016 WI App 53, ¶31, 370 

Wis. 2d 702, 883 N.W.2d 139 ("[W]hen a suspect is in police 

custody, there is a heightened risk of obtaining statements that 

'are not the product of the suspect's free choice.'" (internal 

citation omitted)). 

 

5 Article I, Section 8(1) reads: "[n]o person may be held 

to answer for a criminal offense without due process of 

law . . . ."

6 "[The suspect] must be warned prior to any questioning 

that he has the right to remain silent, that anything he says 

can be used against him in a court of law, that he has the right 

to the presence of an attorney, and that if he cannot afford an 

attorney one will be appointed for him prior to any questioning 

if he so desires." Miranda, 384 U.S. at 479. If the accused 

indicates that he or she wishes to remain silent, questioning 

must stop. If he or she requests counsel, questioning must stop 

until an attorney is present. Id. at 474. 
No. 2015AP2506-CR

14

¶28 In Edwards, the Supreme Court added a second layer of 

protection to the Miranda right to counsel by fashioning a 

bright-line rule requiring law enforcement to immediately cease 

questioning once a suspect has asserted his or her right to 

counsel during a custodial interrogation. Further,

[W]e now hold that when an accused has invoked his 

right to have counsel present during custodial 

interrogation, a valid waiver of that right cannot be 

established by showing only that he responded to 

further police-initiated custodial interrogation even 

if he has been advised of his rights. 

Edwards v. Arizona, 451 U.S. 477, 484 (1981). Stated otherwise, 

once a suspect has invoked his Fifth Amendment right to counsel, 

the Miranda-Edwards rule prohibits police from engaging in 

subsequent, uncounseled interrogations regarding the same or 

separate investigations. Arizona v. Roberson, 486 U.S. 675, 

677-78 (1988).7 

¶29 Over the years, particular emphasis has been placed on 

when a suspect may effectively invoke his or her Fifth Amendment 

rights. Miranda stated that "[a]n individual need not make a 

pre-interrogation request for a lawyer. While such request 

affirmatively secures his right to have one, his failure to ask 

for a lawyer does not constitute a waiver." Miranda, 384 U.S. 

at 470. The Supreme Court later clarified this statement, 

noting that the Court has "never held that a person can invoke 

 

7 However, if it is the accused who initiates further 

communication with the police, courts typically will conclude 

that a valid waiver has been made. State v. Kramar, 149 

Wis. 2d 767, 785-86, 440 N.W.2d 317 (1989).
No. 2015AP2506-CR

15

his Miranda rights anticipatorily, in a context other than 

'custodial interrogation' . . . ." McNeil v. Wisconsin, 501 

U.S. 171, 182 n.3 (1991). The Court continued:

If the Miranda right to counsel can be invoked at a 

preliminary hearing, it could be argued, there is no 

logical reason why it could not be invoked by a letter 

prior to arrest, or indeed even prior to 

identification as a suspect. Most rights must be 

asserted when the government seeks to take the action 

they protect against. The fact that we have allowed 

the Miranda right to counsel, once asserted, to be 

effective with respect to future custodial 

interrogation does not necessarily mean that we will 

allow it to be asserted initially outside the context 

of custodial interrogation, with similar future 

effect.

Id.

¶30 These Supreme Court decisions explain that the right 

to counsel may not be invoked until a suspect is "in custody." 

Wisconsin courts interpret Article I, Section 8 of the Wisconsin 

Constitution consistent with the Supreme Court's interpretation 

of the Fifth Amendment. "Miranda and its progeny are aimed at 

dispelling the compulsion inherent in custodial surroundings. 

Thus, the Miranda safeguards apply only to custodial

interrogations" under both constitutions. State v. Pheil, 152 

Wis. 2d 523, 530-31, 449 N.W.2d 858 (Ct. App. 1989) (citation 

omitted).8 "[U]nless a defendant is in custody, he or she may 

not invoke the right to counsel under Miranda." State v. 

 

8 This exact language has been cited in numerous subsequent 

decisions. See, e.g., State v. Kramer, 2006 WI App 133, ¶9, 294 

Wis. 2d 780, 720 N.W.2d 459 (quoting State v. Hassel, 2005 WI 

App 80, ¶9, 280 Wis. 2d 637, 696 N.W.2d 270).
No. 2015AP2506-CR

16

Kramer, 2006 WI App 133, ¶9, 294 Wis. 2d 780, 720 N.W.2d 459. 

We therefore turn our attention to what "in custody" means such 

that an invocation of the right to counsel becomes immediately 

effective.

¶31 In Miranda, the Supreme Court defined custodial 

interrogation as "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 444. The test to determine whether a 

person is in custody under Miranda is an objective test. State 

v. Lonkoski, 2013 WI 30, ¶27, 346 Wis. 2d 523, 828 N.W.2d 552. 

The inquiry is "whether there is a formal arrest or restraint on 

freedom of movement of a degree associated with a formal 

arrest." Id. (quoting State v. Leprich, 160 Wis. 2d 472, 477, 

465 N.W.2d 844 (Ct. App. 1991)); see also California v. Beheler, 

463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon v. 

Mathiason, 429 U.S. 492, 495 (1977)). Looking at the totality 

of the circumstances, courts will consider whether "a reasonable 

person would not feel free to terminate the interview and leave 

the scene." State v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278, 

816 N.W.2d 270 (citing Thompson v. Keohane, 516 U.S. 99, 112 

(1995)).

¶32 We consider a variety of factors to determine whether 

under the totality of the circumstances a reasonable person 

would feel at liberty to terminate an interview and leave. Such 

factors include: the degree of restraint; the purpose, place, 
No. 2015AP2506-CR

17

and length of the interrogation; and what has been communicated 

by police officers. State v. Blatterman, 2015 WI 46, ¶¶30, 31, 

362 Wis. 2d 138, 864 N.W.2d 26. "When considering the degree of 

restraint, we consider: whether the suspect is handcuffed, 

whether a weapon is drawn, whether a frisk is performed, the 

manner in which the suspect is restrained, whether the suspect 

is moved to another location, whether questioning took place in 

a police vehicle, and the number of officers involved." State 

v. Morgan, 2002 WI App 124, ¶12, 254 Wis. 2d 602, 648 N.W.2d 23.

¶33 If we determine that a suspect's freedom of movement 

is curtailed such that a reasonable person would not feel free 

to leave, we must then consider whether "the relevant 

environment presents the same inherently coercive pressures as 

the type of station house questioning at issue in Miranda." 

Howes v. Fields, 565 U.S. 499, 509 (2012). In other words, we 

must consider whether the specific circumstances presented a 

serious danger of coercion, because the "freedom-of-movement 

test identifies only a necessary and not a sufficient condition 

for Miranda custody." Id. (citation omitted). Importantly, a 

noncustodial situation is not converted to one in which Miranda

applies simply because the environment in which the questioning 

took place was coercive. Mathiason, 429 U.S. at 495. "Any 

interview of one suspected of a crime by a police officer will 

have coercive aspects to it . . . [b]ut police officers are not 

required to administer Miranda warnings to everyone whom they 

question." Id. Therefore, "Miranda warnings are not required 
No. 2015AP2506-CR

18

'simply because the questioning takes place in the station 

house, or because the questioned person is one whom the police 

suspect.'" Beheler, 463 U.S. at 1125 (citing Mathiason, 429 

U.S. at 495).9 And finally, "the initial determination of 

custody depends on the objective circumstances of the 

interrogation, not on the subjective views harbored by either 

the interrogating officers or the person being questioned." 

Stansbury v. California, 511 U.S. 318, 323 (1994). 

C. Bartelt and Custody

¶34 We now turn to whether, under the totality of the 

circumstances of this case, Bartelt was in custody at any time 

prior to Clausing taking his cell phone and telling him to 

remain in the interrogation room. Although the parties agree 

that the interview was not initially custodial, Bartelt argues 

that his confession to the attack on M.R. transformed his 

custody status into one in which a reasonable person would not 

have felt free to leave. As a result, all further questioning 

should have ceased once Bartelt invoked his right to counsel.10 

 

9 The oft-used example of a situation in which one is 

physically detained but not in custody is that of a Terry stop 

or roadside traffic stop. See Terry v. Ohio, 392 U.S. 1 (1968); 

Berkemer v. McCarty, 468 U.S. 420 (1984). In Berkemer, the 

Supreme Court analogized traffic stops to Terry stops, 

concluding that the "noncoercive aspect of ordinary traffic 

stops prompts us to hold that persons temporarily detained 

pursuant to such stops are not 'in custody' for the purposes of 

Miranda." Berkemer, 468 U.S. at 440.

10 This argument assumes, although we do not decide, that 

Bartelt's request for counsel was unequivocal.
No. 2015AP2506-CR

19

Accordingly, Bartelt alleges his constitutional rights were 

violated when detectives from the City of Hartford approached 

him the following day about the murder of Blodgett without 

counsel present. Bartelt therefore argues that, under the 

exclusionary rule, all statements made during the July 17 

interview and the evidence that was derived from those 

statements must be suppressed. 

¶35 First, we consider the circumstances surrounding 

Clausing and Walsh's interrogation of Bartelt. Second, given 

those circumstances, we consider whether a reasonable person in 

Bartelt's position would have felt that he or she was at liberty 

to terminate the interview and leave. "Once the scene is set 

and the players' lines and actions are reconstructed, [we] must 

apply an objective test to resolve 'the ultimate inquiry': 

'[was] there a "formal arrest or restraint on freedom of 

movement" of the degree associated with a formal arrest[?]'" 

Keohane, 516 U.S. at 112 (quoting Beheler, 463 U.S. at 1125) 

(quoting Mathiason, 429 U.S. at 495); see also Lonkoski, 346 

Wis. 2d 523, ¶27.

¶36 As to Bartelt's custody status, the parties agree that 

Bartelt was not in custody at the beginning of the interview and 

up until the point that he confessed to attacking M.R. Bartelt 

came to the Slinger Police Department voluntarily. He was 

dropped off by two friends who waited for him in the parking 

lot, indicating that a reasonable person in Bartelt's position 
No. 2015AP2506-CR

20

would have believed he or she would be free to leave at the end 

of the interview. 

¶37 Once inside the building, Bartelt was taken through a 

secured door, locked from the outside only, to the internal 

portion of the police department. He was then led to an 

interview room that had two doors, neither of which could be 

locked, and one of which was left ajar during the interview 

itself. See Lonkoski, 346 Wis. 2d 523, ¶¶30-32 (holding that 

where defendant voluntarily came to police department, interview 

room was locked for entry purposes only, and door was repeatedly 

opened, defendant was not in custody). The detectives did not 

search Bartelt, and he was not restrained in any way. All of 

these circumstances imply he was not in custody. Id., ¶32 

(holding that lack of handcuffs and failure to search indicates 

lack of custody).

¶38 At the outset of the interview, Clausing told Bartelt 

that he was "not in trouble" and that he was "not under arrest." 

See Mathiason, 429 U.S. at 495 (considering that defendant came 

to police department voluntarily and was immediately informed 

that he was not under arrest were indicative of lack of 

custody). Bartelt showed that he understood that when he nodded 

and responded, "that's good." Clausing further advised Bartelt 

that he could "get up and walk out of here any time [he] 

want[ed]." See Quigley, 370 Wis. 2d 702, ¶¶40-41 (holding that

a police officer's advisements that an interviewee was not under 

arrest and was free to leave are "of substantial importance," 
No. 2015AP2506-CR

21

and further concluding that a suspect's acknowledgement and lack 

of objection are "highly significant"). Additionally, Clausing

testified that neither he nor Detective Walsh ever raised their 

voice or made a show of authority, such as referencing or 

removing their weapons.11 Lonkoski, 346 Wis. 2d 523, ¶32. When 

Bartelt's phone rang, he was given the opportunity to answer it. 

See United States v. LeBrun, 363 F.3d 715, 722 (8th Cir. 2004) 

("While the mere possession of a cellular phone without more 

will not transform a custodial interrogation into a noncustodial 

one, it is relevant to the question of whether the interview was 

coercive and whether a reasonable person in the same 

circumstances would feel restrained."). And finally, the 

interview lasted only thirty-five minutes. Lonkoski, 346 

Wis. 2d 523, ¶31 (holding that a "relatively short" interview of 

approximately thirty minutes indicated lack of custody). We 

agree that these factors support the conclusion that, prior to 

his confession, there was no restraint on Bartelt's freedom to 

the degree associated with an arrest.

¶39 Nonetheless, Bartelt argues that, as the interview 

progressed, he was increasingly treated as though he were the 

target of a serious felony investigation. At the outset of the 

interview, Clausing told Bartelt that he was investigating an 

 

11 At one point, having caught Bartelt in a lie about his 

employment and the nature of the cut on his hand, Clausing moved 

his chair closer to Bartelt, from approximately four or five 

feet away to within two feet. The ambiance of the interview 

remained otherwise unchanged. 
No. 2015AP2506-CR

22

"incident" that had occurred in Richfield Historical Park on the 

previous Friday. He did not specify the nature of the incident, 

nor did he accuse Bartelt of being involved. However, after 

Bartelt's initial denials and hesitations, the detectives began 

to insinuate that not only had Bartelt been at the park, but 

that they suspected——and indeed had evidence——that Bartelt was 

involved in an attack in the park. The detectives said they 

knew what happened and just wanted to understand why. Clausing 

testified that he and Walsh were attempting to minimize 

Bartelt's moral liability by offering justifications for his 

behavior. Bartelt argues that the inherently coercive nature of 

the interview, coupled with the fact that the detectives 

essentially told Bartelt they believed he was guilty, created an 

environment such that from the moment Bartelt confessed, no 

reasonable person would have felt free to leave. 

¶40 The court of appeals acknowledged that the detectives 

"applied some psychological pressures on Bartelt to persuade him 

to confess . . . ." State v. Bartelt, 2017 WI App 23, ¶35, 375 

Wis. 2d 148, 895 N.W.2d 86. We agree that this factor tends to 

favor custody. However, when combined with all of the other 

circumstances present here,12 neither the use of certain 

interrogation techniques nor that the interview took place at a 

police station is enough to conclude that Bartelt could not have 

terminated the interview and left, even after his confession.

 

12 See supra ¶¶35-36.
No. 2015AP2506-CR

23

¶41 In support of this conclusion, the court of appeals 

cited to an Eighth Circuit decision, United States v. LeBrun, 

which itself relied heavily on both Mathiason and Beheler. In 

LeBrun, the suspect in a felony murder voluntarily agreed to 

accompany police to a nearby patrol office. As they arrived, 

LeBrun was told that he was not under arrest, that he was free 

to terminate the interview at any time, and that he was free to 

leave at any time. LeBrun, 363 F.3d at 718. LeBrun was led to 

a windowless interview room, where the police used psychological 

ploys to facilitate a confession. For example, the agents told 

LeBrun that he was the prime suspect, and that they had 

significant evidence against him. However, at no point did the 

officers shout or use physical force, and LeBrun was not 

restrained in any way. 

¶42 After thirty-three minutes of questioning, LeBrun 

confessed to the crime. Id. In concluding that LeBrun was not 

in custody before, during, or after his confession, the Eighth 

Circuit reiterated that "[n]ot every confession obtained absent 

the Miranda warnings is inadmissible." Id. at 720 (citing 

Mathiason, 429 U.S. at 495). The critical inquiry, the court 

concluded, "is not whether the interview took place in a 

coercive or police dominated environment, but rather whether the 

defendant's 'freedom to depart was restricted in any way.'" Id.

(citing Mathiason, 429 U.S. at 495).13 "In answering this 

 

13 In Mathiason, a police officer contacted Mathiason after 

he had been identified as a potential suspect by a burglary 

victim. The officer asked Mathiason where it would be 

(continued)
No. 2015AP2506-CR

24

question, we look at the totality of the circumstances while 

keeping in mind that the determination is based 'on the 

objective circumstances of the interrogation, not on the 

subjective views harbored by either the interrogating officers 

or the person being questioned.'" Id. (citing Stansbury, 511 

U.S. at 322-23). The Eighth Circuit concluded that "the 

purportedly coercive aspects of [the] interview are largely 

irrelevant to the custody determination and that the district 

court erred in giving such great weight to certain 

facts . . . ." Id. at 720-21.

¶43 This issue was similarly discussed in Beheler, where 

the defendant, having been told he was not under arrest, 

 

convenient to meet, and they agreed to meet at the state patrol 

office. Once Mathiason arrived, the officer led Mathiason to an 

office, where he was told that he was not under arrest. During 

the course of the interview, the officer told Mathiason that he 

was a suspect and falsely indicated that police had discovered 

his fingerprints at the scene of the crime. The Supreme Court 

of Oregon overturned Mathiason's conviction, holding that the 

interrogation took place in a coercive environment such that 

Mathiason was in custody. The Supreme Court of the United 

States reversed:

[T]here is no indication that the questioning took 

place in a context where respondent's freedom to 

depart was restricted in any way. He came voluntarily 

to the police station, where he was immediately 

informed that he was not under arrest. At the close 

of a 1⁄2-hour interview respondent did in fact leave the 

police station without hindrance. It is clear from 

these facts that Mathiason was not in custody "or 

otherwise deprived of his freedom of action in any 

significant way."

Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
No. 2015AP2506-CR

25

accompanied police to the station for questioning. Beheler was 

not provided a Miranda warning, and he ultimately confessed 

during the course of the thirty-minute interview. The Supreme 

Court concluded that, given the totality of the circumstances, 

Beheler was neither taken into custody nor significantly 

deprived of his freedom of action. In so holding, the Court 

reiterated that a noncustodial situation is not converted to a 

custodial situation simply because the questioning took place in 

a coercive environment. Beheler, 463 U.S. at 1124 (citing 

Mathiason, 429 U.S. at 495). 

¶44 As the court in LeBrun aptly noted, "Mathiason and 

Beheler teach us that some degree of coercion is part and parcel 

of the interrogation process and that the coercive aspects of a 

police interview are largely irrelevant to the custody 

determination except where a reasonable person would perceive 

the coercion as restricting his or her freedom to depart." 

LeBrun, 363 F.3d at 721. Furthermore, presenting a suspect with 

incriminating suggestions does not automatically convert an 

interview into a custodial interrogation. United States v. 

Jones, 523 F.3d 1235, 1241 (10th Cir. 2008).

¶45 Given the totality of the circumstances presented 

herein, we conclude that Bartelt was not in custody at the time 

of his confession. 

¶46 We now turn to Bartelt's argument that from the moment 

of his confession no reasonable person in his position would 

have felt free to terminate the interview and leave. In 
No. 2015AP2506-CR

26

answering this inquiry, the court of appeals focused on whether, 

given the totality of the circumstances, the environment of the 

interview after Bartelt's confession "present[ed] the same 

inherently coercive pressures as the type of station house 

questioning at issue in Miranda." Howes, 565 U.S. at 509. The 

court of appeals concluded:

[A] defendant making an incriminating statement does 

not necessarily transform a noncustodial setting to a 

custodial one. Indeed, "no Supreme Court case 

supports [the] contention that admission to a crime 

transforms an interview by the police into a custodial 

interrogation."

Bartelt, 375 Wis. 2d 148, ¶40 (citing Locke v. Cattell, 476 F.3d 

46, 53 (1st Cir. 2007)).

¶47 As an issue of first impression in Wisconsin courts, 

the court of appeals relied on several out-of-state and federal 

court decisions, including LeBrun, supra. Ultimately, the court 

concluded that while a confession is undoubtedly one of the 

circumstances we must consider, Miranda is specifically 

"concerned 'with a type of interrogation environment created by 

the police' and it is this 'atmosphere created by the 

authorities for questioning' that necessitates Miranda

warnings." Bartelt, 375 Wis. 2d 148, ¶46 (citing State v. 

Clappes, 117 Wis. 2d 277, 283, 344 N.W.2d 141 (1984)). As the 

court of appeals noted, Miranda itself stated that Miranda

warnings are required "when an individual is taken into custody

or otherwise deprived of his freedom by the authorities in any 

significant way and is subjected to questioning." Bartelt, 375 

Wis. 2d, ¶47 (citing Miranda, 384 U.S. at 478). Therefore, the 
No. 2015AP2506-CR

27

court of appeals focused on whether the atmosphere of Bartelt's 

interview changed after his confession such that a reasonable 

person would not feel free to leave. Considering the totality 

of the circumstances, Bartelt's confession was not immediately 

associated with a restraint on freedom of movement of the degree 

associated with an arrest.

¶48 First, we note that both before and after Bartelt's 

confession, Clausing and Walsh spoke in a conversational tone. 

United States v. Chee, 514 F.3d 1106 (10th Cir. 2008) 

(concluding, in part, that tone of interview, unchanged even 

after confession to a serious crime, indicates lack of custody). 

Although Clausing moved his chair closer to Bartelt after 

catching Bartelt in a series of lies, the discussion otherwise 

was not aggressive or confrontational. Thomas v. State, 55 A.3d 

680, 696 (Md. 2012) (holding that a confession does not per se 

render a suspect in custody, especially where the atmosphere of 

the room never changed); Commonwealth v. Hilton, 823 N.E.2d 383, 

396 (Mass. 2005) ("[A]n interview does not automatically become 

custodial at the instant a defendant starts to confess."). 

Rather, following Bartelt's admission, the detectives simply 

continued to ask for details about the attack, which Bartelt 

continued to supply. United States v. Caiello, 420 F.2d 471, 

473 (2d Cir. 1969) (stating that it is the presence or absence 

of compelling pressures that renders an interview custodial); 

State v. Lapointe, 678 A.2d 942, 958 (Conn. 1966) ("While we 

agree that admissions of culpability may lead the police either 
No. 2015AP2506-CR

28

to arrest a suspect or to place restraints on his freedom 

approximating an arrest, the police in this case never altered 

the circumstances of their interviews of the defendant in such a 

way that his initial noncustodial status became custodial.").

¶49 Second, that Bartelt was arrested at the end of his 

interview does not necessarily mean that he was in custody at 

any point prior to his arrest. Thomas, 55 A.3d at 692 (noting 

that when a suspect is arrested at the end of an interview that 

does not demonstrate that he was in custody prior to the 

arrest); Chee, 514 F.3d at 1114 (concluding that until a suspect 

who has confessed to a crime is arrested, he is merely subject 

to arrest). Stated otherwise, although Clausing and Walsh 

clearly suspected Bartelt and had enough evidence to arrest him 

when he confessed, that in itself did not restrain Bartelt's 

freedom of movement. Indeed, the defendants in Chee, Beheler, 

and Mathiason were permitted to go home following their 

incriminating statements. See Stansbury, 511 U.S. at 325 ("Even 

a clear statement from an officer that the person under 

interrogation is a prime suspect is not, in itself, dispositive 

of the custody issue, for some suspects are free to come and go 

until the police decide to make an arrest.").

¶50 On review, Bartelt argues that the court of appeals 

ignored the "many more cases" from other jurisdictions that have 

gone the other way. Specifically, Bartelt points to several 

cases indicating that, after confession to a serious crime, a 

person should generally be considered to be in custody for 
No. 2015AP2506-CR

29

Miranda purposes, regardless of whether the confession altered 

the atmosphere of the interrogation. See State v. Pitts, 936 

So. 2d 1111 (Fla. Dist. Ct. App. 2006); Jackson v. State, 528 

S.E.2d 232 (Ga. 2000); People v. Ripic, 587 N.Y.S.2d 776 (N.Y. 

App. Div. 1992); People v. Carroll, 742 N.E.2d 1247 (Ill. Ct. 

App. 2001); Commonwealth v. Smith, 686 N.E.2d 983 (Mass. 1997); 

Kolb v. State, 930 P.2d 1238 (Wyo. 1996); Ackerman v. State, 774 

N.E.2d 970 (Ind. Ct. App. 2002).

¶51 Bartelt contends that the court of appeals erred in 

relegating its discussion of these cases to a footnote, in which 

it asserted that at least two of the cases are not persuasive 

because they treat a defendant's confession as dispositive. We 

disagree with Bartelt because the aforementioned cases are 

readily distinguishable. Furthermore, it is law enforcement's 

conduct that determines whether a suspect has been taken into 

custody. As we have explained above, whether a suspect is in 

custody is a fact-specific inquiry where the totality of the 

circumstances must be evaluated in full. The totality of the 

circumstances herein differ from those in the cases Bartelt 

cites.

¶52 Although the specific question we address today——

whether confession to a serious crime transforms a noncustodial 

interview into a custodial interrogation in these circumstances—

—is an issue of first impression in Wisconsin, Bartelt contends 

that our decision in State v. Koput, 142 Wis. 2d 370, 418 N.W.2d 

804 (1988), supports the conclusion that no reasonable person 
No. 2015AP2506-CR

30

would have felt free to leave following his confession to a 

serious, violent crime. In Koput, we considered whether a 

defendant, who had arrived for questioning at 9:30 a.m., was in 

custody by the time he gave an inculpatory statement at 4:15 

p.m. Based on the totality of the circumstances, we concluded 

that Koput was not in custody "until after his confession, 

sometime after 4:15 PM." Id. at 380.14 As the court of appeals 

correctly noted, Koput does not stand for the proposition that 

it was the confession itself which transformed Koput's custody 

status. Rather, it was the combination of circumstances after 

the confession that amounted to custody. 

¶53 We therefore conclude that although an admission of 

guilt to a serious crime is a factor to consider in a custody 

analysis, Bartelt's admission to attacking M.R. was not enough 

to transform his status to that of "in custody" given the 

totality of the circumstances. Because Bartelt was not in 

custody when he asked about counsel, his Fifth Amendment right 

to counsel did not attach.

 

14 Koput goes on to state, "It was only then that a 

reasonable person viewing the situation objectively would 

conclude that he was not free to leave but was in custody." 

State v. Koput, 142 Wis. 2d 370, 380, 418 N.W.2d 804 (1988). 

Bartelt argues that in omitting this language from its opinion, 

the court of appeals omitted Koput's indication that the 

defendant's custody status changed after (and because) of his 

confession. We disagree. Even with this language, Koput does 

not stand for the proposition that the confession, in and of 

itself, transformed his custody status.
No. 2015AP2506-CR

31

III. CONCLUSION

¶54 There were two issues on this appeal. First, we 

considered whether Bartelt was in custody for the purposes of 

Miranda once he confessed to attacking M.R. We concluded that, 

in light of the totality of the circumstances, Bartelt's 

confession did not transform his status to that of "in custody." 

Rather, Bartelt was not in custody until Detectives Clausing and 

Walsh took his cell phone, approximately ten minutes after his 

confession, and instructed him to remain in the interview room. 

Second, because we determine that Bartelt was not in custody 

until this point, which was after his alleged request for 

counsel, we need not and do not reach the issue of whether his 

alleged request for counsel was unequivocal.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2015AP2506-CR.awb

1

¶55 ANN WALSH BRADLEY, J. (dissenting). "I committed a 

serious, violent felony." If suspects uttered these words, 

would law enforcement let them walk out of the station? Would a 

reasonable person feel free to simply get up and leave? 

Engaging in a work of fantasy, the majority says yes. Mired to 

the grips of reality, I say no.

¶56 Legal decisions regarding what the "reasonable person" 

would do in a given situation do not always reflect the real 

world. In reality, any reasonable person would not feel free to 

leave a police interrogation room after confessing to a serious, 

violent felony. Yet, the majority again finds "a perceived 

freedom to depart in circumstances when only the most thickskinned of suspects would think such a choice was open to them." 

See Wayne R. LaFave, Pinguitudinous Police, Pachydermatous Prey: 

Whence Fourth Amendment "Seizures"?, 1991 U. Ill. L. Rev. 729, 

739-40.

1

¶57 To further the fantasy, the majority omits relevant 

facts from its analysis that would lead to the conclusion that 

Bartelt was in custody after confessing to the attack on M.R. 

As a result it does not reach a critical issue in this case——

whether the defendant clearly and unequivocally invoked his 

right to counsel. Unlike the majority, I would reach that 

issue.

 

1 See also Michelle R. Ghetti, Seizure Through the Looking 

Glass: Constitutional Analysis in Alice's Wonderland, 22 S.U. 

L. Rev. 231, 253 (1995); Thomas v. State, 55 A.3d 680, 702-03 

(Md. 2012) (Bell, C.J., dissenting).
No. 2015AP2506-CR.awb

2

¶58 I conclude that a reasonable person in Bartelt's 

position would not have felt free to leave the station house 

interrogation room, and that Bartelt clearly and unequivocally 

invoked his right to counsel. When considering the totality of 

the circumstances (namely all of the facts of record), I 

determine that Bartelt's Fifth Amendment rights were violated. 

Accordingly, I respectfully dissent.

I

¶59 The majority engages in fantasy by determining that a 

reasonable person would feel free to leave the police 

interrogation room under the circumstances presented here. 

Academic studies, the facts of this case, and common sense

support a conclusion contrary to that of the majority.

A

¶60 A suspect is in custody for Miranda purposes if, under 

the totality of the circumstances, a reasonable person would not 

feel free to terminate the interview and leave the scene. State 

v. Lonkoski, 2013 WI 30, ¶6, 346 Wis. 2d 523, 828 N.W.2d 552 

(citing State v. Martin, 2012 WI 96, ¶33, 343 Wis. 2d 278, 816 

N.W.2d 270).

¶61 Studies demonstrate that the "free to leave" standard 

that courts apply does not generally reflect what reasonable 

people actually think and how they act when interacting with law 

enforcement. Cty. of Grant v. Vogt, 2014 WI 76, ¶71, 356 

Wis. 2d 343, 850 N.W.2d 253 (Abrahamson, C.J., dissenting) 

(citing David K. Kessler, Free To Leave: An Empirical Look at 

the Fourth Amendment's Seizure Standard, 99 J. Crim. L. & 
No. 2015AP2506-CR.awb

3

Criminology 51 (2009); Edwin J. Butterfoss, Bright Line

Seizures: The Need for Clarity in Determining When Fourth 

Amendment Activity Begins, 79 J. Crim. L. & Criminology 437, 

439-42 (1988); Janice Nadler, No Need to Shout: Bus Sweeps and 

the Psychology of Coercion, 2002 Sup. Ct. Rev. 153 (2002)).2

¶62 Indeed, one study concluded that the average person 

does not feel free to leave even a simple interaction with law 

enforcement on a bus or sidewalk. See Kessler, supra, at 74-75. 

This result held true even among people who knew they had the 

right to leave such an encounter. Id. at 78.

¶63 Our jurisprudence should reflect reality. It should 

be based on true inclinations and thought processes rather than 

pushing the mythical "reasonable person" even further from the 

bounds of the real world. The majority in this case 

accomplishes the latter.

B

¶64 Although the majority correctly invokes analysis of 

the totality of the circumstances, it errs by ignoring relevant

facts that, in the aggregate, support a determination that 

Bartelt was in custody immediately after confessing to the 

attack on M.R. 

 

2 Although these studies address the "free to leave" 

standard with regard to a Fourth Amendment seizure, they are 

equally applicable to the same standard in relation to the Fifth 

Amendment. In both situations, a court must determine whether a 

reasonable person would feel free to leave. It defies logic to 

argue that a person being questioned in a police station under 

threat of custody would feel more free to leave than a person 

stopped pursuant to Terry v. Ohio, 392 U.S. 1 (1968).
No. 2015AP2506-CR.awb

4

¶65 First, the majority correctly sets the scene by 

observing that "Bartelt chose the seat on the far side of the 

table, while Clausing sat at the end, and Walsh sat opposite 

Bartelt." Majority op., ¶8. The majority fails to mention, 

however, that in order to leave the room (unless he went under 

the table), Bartelt would have had to walk around either 

detective. Thus, from the outset of the interview, he would 

have had to squeeze by a detective in his path if he tried to 

leave the room.

¶66 Second, the majority observes that at one point during 

the interrogation, Detective Clausing "moved his chair closer to 

Bartelt, from approximately four or five feet away to within two 

feet." Id., ¶38 n.11. Yet, according to the majority, "[t]he 

ambiance of the interview remained otherwise unchanged." Id.3 I 

disagree. Under the totality of the circumstances, cutting the 

distance by half and bringing the detective within arms reach of 

the suspect changed the atmosphere of the room considerably.

 

3 The majority focuses its analysis on law enforcement's 

conduct, not the suspect's. See majority op., ¶48 (observing 

that "both before and after Bartelt's confession, Clausing and 

Walsh spoke in a conversational tone"); see also id. ("Although 

Clausing moved his chair closer to Bartelt after catching 

Bartelt in a series of lies, the discussion otherwise was not 

aggressive or confrontational").

To the extent that this line of analysis evinces a 

departure from the totality of the circumstances test in favor 

of a narrow focus on law enforcement conduct, this suggestion

can be quickly dispatched. In the next sentence after stating 

that "it is law enforcement's conduct that determines whether a 

suspect has been taken into custody," the majority reaffirms 

that a custody determination is made with reference to the 

totality of the circumstances. See id., ¶51.
No. 2015AP2506-CR.awb

5

¶67 Detective Clausing's movement in effect shrunk the 

size of the room and further blocked Bartelt's exit.4 

Subsequently, in order to leave the room, Bartelt would have had 

not only to walk past either detective, but also if he chose to 

leave in Detective Clausing's direction, carefully maneuver 

around Detective Clausing, who now sat a mere two feet away from 

him.

¶68 Finally, the majority also fails to note an important 

shift in the tone of the conversation: Detective Clausing's 

language becomes coarser.

5 In fact, Detective Clausing does not 

utter a curse word over the course of the entire interview until 

after he pulls his chair closer to Bartelt. The change in 

language coupled with the close proximity of the detective to 

 

4 A suspect's purported belief at the beginning of the 

interview that he would be free to leave at the end of the 

interview is irrelevant. See majority op., ¶36. During the 

course of the interview, circumstances can change. Indeed they 

did here.

5 Detective Clausing lectured Bartelt:

There is [sic] two different types of people that are 

in your chair at this time. Okay? There is a person 

that says, no, f--- this. F--- you. Prove it. And, 

okay, we will. But there is a person, you know, I f--

-ed up, I made a mistake, I screwed up, but here is 

the reason why. Okay? Maybe I have a problem with A, 

maybe I have a problem with B. I was out of 

character. I'm making bad decisions, and I regret it, 

and I will do everything in my power to reverse what I 

did and make things right.
No. 2015AP2506-CR.awb

6

the suspect enhances coercive pressure.6 In other words, it puts 

more pressure on the suspect and weighs in favor of a custody 

determination, even if the officer's comments otherwise remain 

conversational.

¶69 To summarize: two detectives, one of them two feet 

away and now swearing at him, block Bartelt's exit path. Yet 

under the majority's analysis, Bartelt should have felt free to 

stand up in the interrogation room, squeeze by a hovering 

detective, and walk out of the police station.

¶70 Add to this atmosphere the fact that the suspect 

confessed to a serious, violent felony——the assault of M.R. 

Essentially, the majority determines that a suspect in Bartelt's 

situation could state to the police, "I committed a serious, 

violent felony. I'm leaving, see you later," and then march 

past detectives on the way out of the interrogation room and the 

police station. This stretches the bounds of credulity.

¶71 Additionally, Detective Clausing testified that he 

subjectively believed that after Bartelt confessed, Bartelt 

would not have been free to leave.7 Is Detective Clausing not a 

reasonable person?

 

6 Although neither the detective's word choice nor his 

positioning is by itself determinative of custody, each provides 

further weight in favor of a custody determination when 

analyzing the totality of the circumstances.

7 During an evidentiary hearing, Detective Clausing 

testified as follows:

COUNSEL FOR BARTELT: Okay. And when, from your 

perspective, did [Bartelt being able to walk out of 

the room] change during the course of this interview?

(continued)
No. 2015AP2506-CR.awb

7

¶72 I acknowledge that Detective Clausing's subjective 

view of when Bartelt was in custody is not dispositive. See

Lonkoski, 346 Wis. 2d 523, ¶35. However, his view certainly 

provides a window into the perspective of one reasonable person 

with a front seat view of the situation. It further 

demonstrates law enforcement's expected response if Bartelt had 

simply walked out as the majority contends he could have done.

¶73 If even the interrogating detective testified that a 

suspect was not free to leave, would a reasonable suspect in 

such a position really think he could just get up and walk out? 

Only in a fantasy world would a suspect act in this manner. 

Common sense tells us that a real world suspect would do no such 

thing.

¶74 In sum, I determine that the totality of the 

circumstances clearly indicates that Bartelt was not free to 

leave. Rather, he was in custody for Miranda purposes 

immediately after confessing to the attack on M.R.

II

¶75 Finally, because the majority concludes that Bartelt 

was not in custody until the detectives took his cell phone and 

 

DET. CLAUSING: When he admitted to attacking [M.R.].

COUNSEL FOR BARTELT: So at that point in time, he was 

in trouble, he was going to be under arrest, and he 

probably wasn't free to get up and leave, true?

DET. CLAUSING: In my mind?

COUNSEL FOR BARTELT: Yes.

DET. CLAUSING: Yes.
No. 2015AP2506-CR.awb

8

instructed him to remain in the interview room, approximately 

ten minutes after his confession, it does not reach the issue of 

whether Bartelt unequivocally invoked his right to counsel. See

majority op., ¶¶3, 54. As explained above, because I determine 

that Bartelt was in custody for Miranda purposes immediately 

after confessing to the attack on M.R., I would reach the issue, 

and determine that Bartelt's invocation of the right to counsel 

was clear and unequivocal.

¶76 To successfully invoke the right to counsel, a suspect 

must make a clear and unequivocal request. State v. Edler, 2013 

WI 73, ¶34, 350 Wis. 2d 1, 833 N.W.2d 564. "Although a suspect 

need not 'speak with the discrimination of an Oxford don,' he 

must articulate his desire to have counsel present sufficiently 

clearly that a reasonable police officer in the circumstances 

would understand the statement to be a request for an attorney." 

Id. (quoting Davis v. United States, 512 U.S. 452, 459 (1994)). 

Under this objective test, the court must examine the 

circumstances surrounding the request. Edler, 350 Wis. 2d 1, 

¶34.

¶77 The relevant circumstances here are as follows: 

Bartelt stated, "Should I or can I speak to a lawyer or 

anything?" Detective Clausing responded, "Sure, yes. That is 

your option." Bartelt then told him, "I think I'd prefer that." 

See majority op., ¶16.

¶78 "That" clearly refers to the option to speak to a 

lawyer. The circumstances surrounding the statement present a

question, an answer, and a subsequent follow-up. Given this 
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exchange, a reasonable officer would have understood that 

Bartelt was accepting the "option" the officer had just 

presented to him.

¶79 Bartelt's invocation of the right to counsel was 

informal, but that does not make it ineffective. See Edler, 350 

Wis. 2d 1, ¶36; State v. Dumas, 750 A.2d 420, 425 (R.I. 2000)

("A suspect asserting his or her right to counsel need not speak 

with perfect formality, but may use any manner of colloquial 

speech, so long as his or her statement would be reasonably 

understood as a request for an attorney"). The most reasonable 

interpretation is that Bartelt used the word "think" as 

colloquial filler, not as an indication of ambiguity.

¶80 Conversely, ambiguous or equivocal statements not 

invoking the protection, are those from which a reasonable 

officer "would have understood only that the suspect might be 

invoking the right to counsel." State v. Jennings, 2002 WI 44, 

¶36, 252 Wis. 2d 228, 647 N.W.2d 142 (quoting Davis, 512 U.S. at 

459).

¶81 In Jennings, the defendant stated, "I think maybe I 

need to talk to a lawyer." Jennings, 252 Wis. 2d 228, ¶36. The 

word "maybe" coupled with "think" in Jennings' statement adds 

ambiguity not present here. Instead, Bartelt's response was 

made in reply to the detective's statement that having counsel 

was his "option." Bartelt clearly chose that option.

¶82 An analogy presented in Bartelt's brief further 

illustrates that Bartelt's statement was an unambiguous 

invocation of the right to counsel: "if a customer went to a 
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restaurant and asked the waiter, 'What kind of light beers do 

you have on tap?,' and the waiter responded, 'Miller Lite and 

Bud Light.' If the customer then said, "Okay. I think I'd 

prefer a Miller Lite,' no reasonable person would think this was 

anything other than a clear request for a Miller Lite." Indeed, 

this analogy clarifies that neither the word "think" nor the 

word "prefer" necessarily demonstrates equivocation.

¶83 In sum, Bartelt was in custody for Miranda purposes 

immediately after confessing to the attack on M.R., and he 

invoked his right to counsel. Because a reasonable person in 

Bartelt's position would not have felt free to leave the station 

house interrogation room, and because Bartelt clearly and 

unequivocally invoked his right to counsel, I determine that 

Bartelt's Fifth Amendment rights were violated.

¶84 Accordingly, I respectfully dissent.

¶85 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON joins this dissent.
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