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

DATED AND FILED

April 16, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

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).
No. 2019AP21-CR

3

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.
No. 2019AP21-CR

4

¶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).
No. 2019AP21-CR

5

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 
No. 2019AP21-CR

6

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. 
No. 2019AP21-CR

7

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.
No. 2019AP21-CR

8

¶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.
No. 2019AP21-CR

9

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.
No. 2019AP21-CR

10

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.
No. 2019AP21-CR

11

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.
No. 2019AP21-CR

12

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, 
No. 2019AP21-CR

13

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.
No. 2019AP21-CR

14

¶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.
No. 2019AP21-CR

15

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.
No. 2019AP21-CR

16

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.
No. 2019AP21-CR

17

“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 
No. 2019AP21-CR

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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 
No. 2019AP21-CR

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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).
No. 2019AP21-CR

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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.
No. 2019AP21-CR

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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.