2017 WI 31

SUPREME COURT OF WISCONSIN

CASE NO.: 2014AP1767-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Brian I. Harris,

 Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

366 Wis. 2d 777, 874 N.W.2d 602

(Ct. App. 2016 – Published)

PDC No.: 2016 WI App 2

OPINION FILED: April 7, 2017

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: October 18, 2016

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Kenosha

JUDGE: Michael S. Wilk

JUSTICES:

CONCURRED: ZIEGLER, J. joined by GABLEMAN, J. concurs 

(opinion filed).

DISSENTED: ABRAHAMSON, J. dissents (opinion filed).

NOT PARTICIPATING: 

ATTORNEYS:

For the defendants-appellant-petitioners, there was a brief 

by Kathleen M. Quinn and Kathleen M Quinn Attorney at Law, 

Milwaukee, and oral argument by Kathleen M. Quinn.

For the plaintiff-respondent the cause was argued by David 

H. Perlman, assistant attorney general, with whom on the brief 

was Brad D. Schimel, attorney general.
2017 WI 31

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2014AP1767-CR

(L.C. No. 2011CF797)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Brian I. Harris,

 Defendant-Appellant-Petitioner.

FILED

APR 7, 2017

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 DANIEL KELLY, J. The question before the court is 

whether the State compelled Petitioner, Brian Harris, to be a 

witness against himself in violation of the Fifth Amendment to 

the United States Constitution and article I, section 8 of the 

Wisconsin Constitution.1

 

1 This is a review of a published decision of the court of 

appeals, State v. Harris, 2016 WI App 2, 366 Wis. 2d 777, 874 

N.W.2d 602, affirming the circuit court's judgment of 

conviction, Hon. S. Michael Wilk presiding.
No. 2014AP1767-CR 

2

I. BACKGROUND

¶2 In the early morning hours of August 13, 2011, a 

Kenosha resident awoke to loud, metallic-sounding noises coming 

from an adjacent residence. When the noises persisted for 

several minutes, a neighbor called the police.

¶3 Officer Justin Niebuhr of the Kenosha Police 

Department responded and met with the caller. Both could hear 

the sound of metal clanging coming from inside the neighboring 

residence. Officer Niebuhr approached the front door of the 

supposedly-vacant residence and found it locked, and upon 

looking through a window saw only darkness. In the process of 

examining the exterior of the residence, Officer Niebuhr noticed 

the screen was off the unlatched kitchen window. 

¶4 After backup arrived, Officers Niebuhr and Arturo 

Gonzalez entered the residence and traced the noises to the 

basement. Two additional officers responded to the scene and 

"cleared" the main and upstairs floors of the residence. 

Officers Niebuhr and Gonzalez went down to the basement where 

they found Mr. Harris secreted in a crawl space under the 

stairs. Strewn about him were copper piping, a flashlight with 

a red lens, and a duffle bag containing a saw and replacement 

blades, a bolt-cutter type instrument, and some crowbars. Mr. 

Harris' outfit included a pair of black work gloves. The 

officers took Mr. Harris into custody and eventually placed him 

in Officer Niebuhr's squad car.

¶5 While still in the squad car in front of the 

residence, Mr. Harris commenced an unprompted narrative of his 
No. 2014AP1767-CR 

3

criminal activities. Mr. Harris told Office Niebuhr he had been 

homeless for approximately seven years, he frequently went into 

vacant homes to sleep, and he often committed misdemeanor crimes 

to get items to sell. He said this was his plan for the copper 

piping. Neither Officer Niebuhr, nor any of the other officers 

present, were questioning Mr. Harris when he made these 

statements. Officer Niebuhr confirmed he neither said nor did 

anything of a threatening nature to prize out Mr. Harris'

statements, nor did he promise Mr. Harris anything in exchange 

for them. Officer Niebuhr did not give Mr. Harris a Miranda2

warning before he made these statements.

¶6 Later that morning, Detective Chad Buchanan of the 

Kenosha Police Department went to the Kenosha County Jail to

interview Mr. Harris. He met Mr. Harris at about 9:00 a.m. in 

the common area, just outside the interview rooms. What 

occurred next is not entirely clear, but Detective Buchanan 

asked a question to the effect of "Would you like to give me a 

 

2 Miranda v. Arizona, 384 U.S. 436 (1966).
No. 2014AP1767-CR 

4

statement?"3 Mr. Harris responded: "They caught me man, I got 

nothing else to say." Detective Buchanan did not inform Mr. 

Harris of his Miranda rights prior to speaking with him.

¶7 The State charged Mr. Harris with burglary, possession 

of burglarious tools, criminal damage to property, and criminal 

trespass, each as a repeater. Mr. Harris brought a suppression 

motion to prevent the State from using his "they caught me"

statement at trial.4 The circuit court found that "Detective 

Buchanan's intent was to ask the defendant to come to the 

interview rooms for an interview and . . . the question was, 

would you like to give a statement?" The circuit court said the 

expected response to this question would have been "yes, I'll 

give a statement or, no, I won't give a statement." 

Consequently, the circuit court found no violation of Mr. 

Harris's right to be free from self-incrimination, and so denied 

the suppression motion. The State used his statement at trial, 

 

3 At the suppression hearing, Detective Buchanan said he 

asked Mr. Harris "if he would like to come with me to the 

detective bureau to be interviewed." At trial, Detective 

Buchanan testified that he "asked the defendant if he would like 

to give me a statement . . . ." Although not entirely clear, it 

appears Mr. Harris bases his argument on Detective Buchanan’s 

trial testimony. This makes sense——between the two 

characterizations, the trial testimony describes a question 

closer to the Miranda line than the question described at the 

suppression hearing. Consequently, our analysis will focus on 

the formulation presented at trial. If that passes 

constitutional muster, then so will the other.

4 The suppression motion encompassed other statements as 

well, but the "they caught me" statement is the only one Mr. 

Harris presented for our review.
No. 2014AP1767-CR 

5

following which the jury found Mr. Harris guilty on all four 

counts.

¶8 Mr. Harris timely appealed his conviction. In a 

published decision, the court of appeals affirmed. It noted the 

confusion over the precise wording of the question that preceded 

Mr. Harris's "they caught me" statement, but found it 

unimportant to the outcome. The court of appeals concluded 

that, whatever the exact wording, it was "not reasonably likely 

to elicit an incriminating response; [and] thus, the 

communication did not constitute interrogation and Miranda

warnings were not required."

5

II. STANDARD OF REVIEW

¶9 We employ a two-step process in reviewing a circuit 

court's denial of a motion to suppress. State v. Eason, 2001 

WI 98, ¶9, 245 Wis. 2d 206, 629 N.W.2d 625. First, we review 

the circuit court's factual findings and uphold them unless they 

are clearly erroneous. Id.

6 Second, we apply constitutional 

principles to those facts de novo, without deference to the 

courts initially considering the question, but benefitting from 

their analyses. In re Commitment of Mark, 2006 WI 78, ¶12, 292 

Wis. 2d 1, 718 N.W.2d 90 ("We also review, de novo, the 

application of constitutional principles to established 

 

5 Harris, 366 Wis. 2d 777, ¶25.

6 Notwithstanding the uncertainty over the exact wording of 

Detective Buchanan’s question, neither party argues that any of 

the circuit court’s factual findings were clearly erroneous. 

Consequently, we do not address this step of the review process.
No. 2014AP1767-CR 

6

facts."); State v. Hansford, 219 Wis. 2d 226, 234, 580 

N.W.2d 171 (1998) ("Although we review questions of law de novo, 

we benefit from the analyses of the circuit court and the court 

of appeals.").

III. DISCUSSION

¶10 Mr. Harris presents a single question for our 

consideration: Whether the State compelled him to be a witness 

against himself by using his answer to Detective Buchanan's 

question at trial.7 A simple question like "Would you like to 

give me a statement?" may seem an unlikely candidate for a 

constitutional violation, but as our analysis here demonstrates, 

we are unstinting in our protection of criminal defendants'

rights.

¶11 There is history behind the protection against selfincrimination, history that reminds us of why that barrier is so 

important. It is born of experience, and responds to the 

dangers inherent in the inquisitorial method of questioning 

suspects:

The maxim 'Nemo tenetur seipsum accusare,'

[8] had its 

origin in a protest against the inquisitorial and 

manifestly unjust methods of interrogating accused 

 

7 The Fifth Amendment to the United States Constitution 

provides that no "person . . . [shall] be compelled in any 

criminal case to be a witness against himself." U.S. Const. 

amend. V. The Wisconsin Constitution article I, section 8 

contains an analogous provision, which says that "No 

person . . . may be compelled in any criminal case to be a 

witness against himself or herself."

8 "No one is bound to accuse himself."
No. 2014AP1767-CR 

7

persons, which [have] long obtained in the continental 

system, and, until the expulsion of the Stuarts from 

the British throne in 1688, and the erection of 

additional barriers for the protection of the people 

against the exercise of arbitrary power, [were] not 

uncommon even in England. While the admissions or 

confessions of the prisoner, when voluntarily and 

freely made, have always ranked high in the scale of 

incriminating evidence, if an accused person be asked 

to explain his apparent connection with a crime under 

investigation, the ease with which the questions put 

to him may assume an inquisitorial character, the 

temptation to press the witness unduly, to browbeat 

him if he be timid or reluctant, to push him into a 

corner, and to entrap him into fatal contradictions, 

which is so painfully evident in many of the earlier 

state trials, . . . made the system so odious as to 

give rise to a demand for its total abolition.

Brown v. Walker, 161 U.S. 591, 596—97 (1896).

9 The ease with 

which innocent questions can become inquisitorial requires that 

this protection apply to criminal suspects whether they are 

inside or outside of the courtroom: "[T]he privilege against 

self-incrimination protects individuals not only from legal 

compulsion to testify in a criminal courtroom but also from 

'informal compulsion exerted by law-enforcement officers during 

in-custody questioning.'" Pennsylvania v. Muniz, 496 U.S. 582, 

589 (1990) (quoting Miranda v. Arizona, 384 U.S. 436, 461 

(1966)). Thus, our constitutional protection against self-

 

9 Although this excerpt from Brown specifically addressed 

coerced confessions, instead of the broader right to remain 

silent (which we address here), its condemnation of the 

inquisitorial method served as part of the motivating rationale 

for the ubiquitous Miranda warnings. And its description of the 

inquisitorial method provides valuable insight as we consider 

what constitutes the "functional equivalent" of an 

interrogation.
No. 2014AP1767-CR 

8

incrimination is called to duty whenever the State interrogates 

a suspect in police custody. See Miranda, 384 U.S. 436; see 

also State v. Armstrong, 223 Wis. 2d 331, ¶29, 588 N.W.2d 606 

(1999). 

¶12 This freedom from compelled self-incrimination is one 

of the nation's "most cherished principles." Miranda, 384 U.S.

at 458. We are sufficiently solicitous of this protection that 

we guard it by patrolling a generous buffer zone around the 

central prohibition.

A. Procedural Requirements

¶13 The most important aspect of that buffer is the right 

to remain silent while in police custody. We actualize the 

right by requiring the State's agents, before conducting an incustody interrogation, to formally instruct the suspect of his 

constitutional rights and then conduct themselves according to 

how he elects to preserve or waive them. Thus, a 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.

¶14 This procedural safeguard arose out of an 

understanding that custodial interrogations present a uniquely 

intimidating atmosphere that can interfere with a suspect's 

exercise of his rights: "The concern of the Court in Miranda

was that the 'interrogation environment' created by the 

interplay of interrogation and custody would 'subjugate the 
No. 2014AP1767-CR 

9

individual to the will of his examiner' and thereby undermine 

the privilege against compulsory self-incrimination." Rhode 

Island v. Innis, 446 U.S. 291, 299 (1980) (quoting Miranda, 384 

U.S. at 457–58). Requiring this warning, and scrupulous 

adherence to the suspect's decisions thereafter, give us 

assurance that his decision to remain silent has not been 

overborne. The consequence of failing to honor this safeguard 

is loss of the evidence: "[U]nless and until such warnings and 

waiver are demonstrated by the prosecution at trial, no evidence 

obtained as a result of interrogation can be used against [a 

suspect]." Miranda, 384 U.S. at 479. 

¶15 There is no doubt Mr. Harris was in police custody 

when Detective Buchanan asked whether he would like to make a 

statement (he was in jail), so our inquiry focuses on whether 

that question qualifies as an interrogation. As we discuss 

below, custodial interrogation can take the form of either 

express questioning or its functional equivalent.10 We will 

analyze Detective Buchanan's question and Mr. Harris' response 

under each rubric. If either analysis reveals the question to 

be an interrogation, then we must suppress Mr. Harris' response 

because it was not preceded by a Miranda warning.

 

10 "[T]he term 'interrogation' under Miranda refers not only 

to express questioning, but also to any words or actions on the 

part of the police (other than those normally attendant to 

arrest and custody) that the police should know are reasonably 

likely to elicit an incriminating response from the suspect." 

Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
No. 2014AP1767-CR 

10

B. Express Questioning

¶16 "Express questioning" does not encompass every inquiry 

directed to the suspect. It covers only those questions 

"designed to elicit incriminatory admissions." Pennsylvania v. 

Muniz, 496 U.S. 582, 602 n.14 (1990). See also Doe v. U.S., 487 

U.S. 201, 211 (1988) ("Unless some attempt is made to secure a 

communication——written, oral or otherwise——upon which reliance 

is to be placed as involving [the accused's] consciousness of 

the facts and the operations of his mind in expressing it, the 

demand made upon him is not a testimonial one." (quoting J.H. 

Wigmore, 8 Wigmore on Evidence, § 2265 (4th ed. 1988))).

¶17 It is the nature of the information the question is 

trying to reach, therefore, that determines whether it is 

inquisitorial. If that information has no potential to 

incriminate the suspect, the question requires no Miranda

warnings. Id. at 211 n.10 ("In order to be privileged, it is 

not enough that the compelled communication is sought for its 

content. The content itself must have testimonial 

significance.").

¶18 Detective Buchanan's question did not constitute 

express questioning because it sought nothing that could be 

potentially incriminating. Although his question was certainly 

designed to obtain a response, the only information it sought 

was whether Mr. Harris would like to make a statement; it did 

not seek the statement itself. The response to such a question 

is either "yes" or "no," and neither would have any testimonial 

significance whatsoever. Thus, Detective Buchanan's question 
No. 2014AP1767-CR 

11

did not constitute "express questioning" because the 

constitutional privilege applies only to the search for 

incriminating evidence.

C. Functional Equivalence

¶19 There are more ways than one to obtain incriminating 

evidence from a suspect. Miranda addressed itself to the most 

obvious——express questioning. But there are techniques of 

persuasion that, in a custodial setting, can create the same 

potential for self-incrimination even in the absence of an 

express question. So the Innis Court expanded the prophylactic 

buffer by applying Miranda's procedural safeguards to the 

"functional equivalent" of an interrogation. Innis, 446 U.S. at 

300–01. Such an equivalent includes "any words or actions on 

the part of the police (other than those normally attendant to 

arrest and custody) that the police should know are reasonably 

likely to elicit an incriminating response from the suspect." 

Id. at 301.

¶20 The test for determining what words or behavior might 

constitute the functional equivalent of an interrogation is not 

as straightforward as it first appears. The test (as stated 

above) inquires into what the police officer should know, 

implying the test might be conducted from his perspective. 

However, Innis requires that we account for the suspect's 

perception of events for the specific purpose of broadening the 

buffer: "This focus reflects the fact that the Miranda

safeguards were designed to vest a suspect in custody with an 

added measure of protection against coercive police practices, 
No. 2014AP1767-CR 

12

without regard to objective proof of the underlying intent of 

the police." Id.

¶21 This means that, even where an officer's action had a 

purpose other than interrogation, the action "must be viewed 

from the suspect's perspective to determine whether such conduct 

was reasonably likely to elicit a response." State v. 

Cunningham, 144 Wis. 2d 272, 280, 423 N.W.2d 862 (1988). 

Further, Innis noted that the police may need to be mindful of 

the ease with which a given suspect might be persuaded to make 

an incriminating statement: "Any knowledge the police may have 

had concerning the unusual susceptibility of a defendant to a 

particular form of persuasion might be an important factor in 

determining whether the police should have known that their 

words or actions were reasonably likely to elicit an 

incriminating response from the suspect." Innis, 446 U.S. at 

302 n.8.

¶22 In Wisconsin, we implement the "functional 

equivalency" standard by positing a reasonable third-person 

observer and inquiring into how such a person would expect the 

suspect to react to the officer's words and actions:

[I]f an objective observer (with the same knowledge of 

the suspect as the police officer) could, on the sole 

basis of hearing the officer's remarks or observing 

the officer's conduct, conclude that the officer's 

conduct or words would be likely to elicit an 

incriminating response, that is, could reasonably have 

had the force of a question on the suspect, then the 

conduct or words would constitute interrogation.
No. 2014AP1767-CR 

13

Cunningham, 144 Wis. 2d at 278–79. This test is objective with 

respect to each of the participants in the interaction. That is 

to say, we do not consider what any of the participants actually 

intended or understood. We consider only what the objective 

third-party observer would conclude from the available 

information.

¶23 In determining whether Detective Buchanan's dialogue 

with Mr. Harris is the functional equivalent of an 

interrogation, we consider more than just the bare words with 

which he formed his question. We must reconstruct——as near to 

verisimilitude as possible——the entire context within which the 

dialogue took place. Then, as described above, we ask whether a 

reasonable observer would conclude that the suspect in the 

vignette would understand the officer's words and actions as 

reasonably likely to elicit an incriminating response.

¶24 Here is what we know about the circumstances in which 

Detective Buchanan had his brief conversation with Mr. Harris. 

In the very early hours of a morning in 2011, the police found 

Mr. Harris secreted away in the basement of a house in which he 

did not belong, with copper piping and burglarious tools arrayed 

about him. After taking him into custody, he was placed in the 

back seat of Officer Niebuhr's patrol car, whereupon he 

commenced divulging a great deal of information, much of it 

incriminating. For example, he said he had been homeless for 

seven years and frequently sleeps in vacant houses. He also 

said he often commits misdemeanor crimes to obtain things to 

sell "to get by," and that is what he intended to do with the 
No. 2014AP1767-CR 

14

copper piping.

¶25 Mr. Harris offered all of this information without 

prompting. Officer Niebuhr made no threats or promises to 

obtain the statements, and in fact asked no questions of Mr. 

Harris at all (while he was in the patrol car) before he 

provided this information. Officer Niebuhr said Mr. Harris did 

not appear to be intoxicated, overly tired, or otherwise not in 

control of his faculties. He also appeared to be clean and 

decently attired.

¶26 The police then transported Mr. Harris to the Kenosha 

County Jail. Later in the morning, at about 9:00 a.m., 

Detective Buchanan (who had not been present for Mr. Harris' 

arrest), went to the jail to interview him. A guard brought Mr. 

Harris (who was not handcuffed) to the main floor of the jail. 

Detective Buchanan met him in a common area just outside the 

interview rooms. He did not smell alcohol on Mr. Harris or 

observe any behavior that would indicate he was intoxicated. 

Detective Buchanan then asked Mr. Harris the question at issue 

in this case. 

¶27 As all such scenarios must be, this vignette is factbound, which does not make it especially amenable to fixed rules 

of interpretation. However, past cases help sketch the boundary 

between "functional equivalents of interrogation" and 

constitutionally-innocent questions and acts. We collected a 

sampling of such cases in State v. Hambly, 2008 WI 10, 307 Wis. 

2d 98, 745 N.W.2d 48, some of which we address below. 

¶28 Our evaluation of Detective Buchanan's question 
No. 2014AP1767-CR 

15

accounts for the following principles useful in identifying the 

"functional equivalent" of an interrogation. As we consider and 

apply those principles, we keep firmly in mind that the ultimate 

purpose of our analysis is to protect against coerced 

confessions by respecting a suspect’s decision to remain silent: 

"In deciding whether particular police conduct is interrogation, 

we must remember the purpose behind our decisions in Miranda and 

Edwards [v. Arizona, 451 U.S. 477 (1981)]: preventing government 

officials from using the coercive nature of confinement to 

extract confessions that would not be given in an unrestrained 

environment." Arizona v. Mauro, 481 U.S. 520, 529–30 (1987). 

Although the effect of that coercion may differ from suspect to 

suspect, a specific individual's special susceptibility enters 

the equation only if the State's agents should know of it. See, 

e.g., Innis, 446 U.S. at 303 n.10 (the "subtle compulsion" 

associated with an unknowing appeal to the suspect's conscience 

is not an interrogation).

¶29 From our cases addressing police statements made to a 

suspect, as opposed to questions asked of him, we confirm that 

our primary point of focus is on the reasonably likely effect of 

the officer's words on the suspect, not their grammatical 

format. Seemingly innocuous statements, when freighted with 

subtext or inquisitorial design, can become an interrogation. 

Thus, a dialogue with a suspect can constitute an interrogation 

even when law enforcement officers ask no questions. Hambly, 

307 Wis. 2d 98, ¶46 ("A law enforcement officer may thus be 

viewed as interrogating a suspect by a statement, without asking 
No. 2014AP1767-CR 

16

a single question, if the law enforcement officer's conduct or 

speech could have had the force of a question on the suspect."). 

¶30 However, to rise to the level of an interrogation, the 

officer's statements (or, in this case, question) must exert a 

compulsive force on the suspect: "Interrogation must reflect a 

measure of compulsion above and beyond that inherent in custody 

itself." Id. (quoting Innis, 446 U.S. at 300) (internal marks 

omitted). For example, an officer's cryptic comment about 

information only the perpetrator of the crime would recognize 

may be considered functionally equivalent to an interrogation 

because of the effect the comment causes. State v. Bond, 2000 

WI App 118, 237 Wis. 2d 633, 614 N.W.2d 552. Similarly, giving 

unresponsive answers to questions posed by a suspect with the 

intent of provoking an incriminating response, and using 

interrogation techniques during the conversation, can serve as 

the functional equivalent of an interrogation. Hambly, 307 

Wis. 2d 98, ¶¶63-65 (citing Hill v. United States, 858 A.2d 435 

(D.C. Ct. App. 2004) (finding that an officer telling a suspect 

that "he told us what happened" was unresponsive to the 

defendant’s question regarding another person in custody and, 

when coupled with other common interrogation techniques designed 

to elicit a response, met the functional equivalency test)). 

¶31 But police interactions with a suspect do not amount 

to interrogations so long as they are not reasonably likely to 

elicit an incriminating response. That is why law enforcement 

officials may make context-appropriate, and accurate, comments 

to a suspect without running afoul of Miranda and Innis. They 
No. 2014AP1767-CR 

17

can, for example, provide information responsive to questions 

posed by defendants. Hambly, 307 Wis. 2d 98, ¶¶65–66 (finding 

no functional equivalence where defendant made an incriminating 

statement after the police officer, prior to giving him the 

Miranda warnings, informed the defendant of why he was under 

arrest). Similarly, if a suspect volunteers incriminating 

information following an officer's non-leading, direct responses 

to the suspect's questions about possible charges against him, 

there has been no functional equivalent of an interrogation. 

State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656 N.W.2d 503 

(finding that "an objective observer would not, on the sole 

basis of hearing [defendant's] words and observing his conduct, 

conclude that [an officer's] answers to [defendant's] direct 

questions about the evidence against him would be likely to 

elicit an incriminating response . . . ."). Nor are noneditorialized statements of fact the functional equivalent of an 

interrogation. Easley v. Frey, 433 F.3d 969 (7th Cir. 2006) 

(finding no interrogation when suspect confessed after being 

accurately informed that someone had implicated him in a crime, 

and that he could be subject to the death-penalty if convicted).

¶32 Finally, we must also pay attention to the atmosphere 

in which the suspect incriminates himself. As Innis observed, 

the Miranda Court was concerned with the "interrogation 

environment" created by custodial questioning. Innis, 446 U.S. 

at 299. A police officer's quotidian question posed to a person 

strolling in a park may carry an objectively different import if 

growled at a manacled suspect held incommunicado for an extended 
No. 2014AP1767-CR 

18

period of time in a stark interview room.

¶33 With all of this in mind, we have no difficulty 

finding that Detective Buchanan's question was not the 

functional equivalent of an interrogation under the Cunningham

formulation. There is no indication Detective Buchanan intended 

his question to elicit an incriminating statement, nor is there 

anything to suggest that asking a suspect whether he would like 

to make a statement is a police practice designed to 

surreptitiously cause the suspect to divulge incriminating 

evidence.

¶34 Further, the context in which he asked the question 

conveyed a non-inquisitorial purpose. Mr. Harris and Detective 

Buchanan were standing in a common area outside the interview 

rooms. A reasonable observer would conclude that Detective 

Buchanan's question was diagnostic in nature: Should he conduct 

Mr. Harris into the interview room where he would then give his 

statement, or should he instead return Mr. Harris to his cell?11 

Incidentally, Mr. Harris' response strongly suggests this is how 

he understood it, too. He said: "They caught me man, I got 

nothing else to say." The latter part of his statement 

indicates he believed there was no point in proceeding to the 

interview room, and so he gave what amounted to a functional 

"no" to the Detective's invitation. The initial clause of his 

 

11 By "diagnostic" we mean a question that seeks information 

useful for a State agent’s functional (as opposed to 

inquisitorial) interaction with a suspect.
No. 2014AP1767-CR 

19

statement simply (and, perhaps, unwisely) explained why he was 

declining the invitation. But even if he subjectively 

understood it otherwise, a reasonable observer would not expect 

this question, presented in this setting, to convey to Mr. 

Harris that he was being asked to immediately provide 

incriminating information.12

¶35 This diagnostic question aligns well with situations 

in which we find no constitutional violation when police convey 

non-editorial statements of fact to suspects, or provide 

accurate responses to their questions. In neither of those 

circumstances is there an inquisitorial subtext to the 

communication. That is true here as well. Detective Buchanan's 

 

12 Mr. Harris urges us to follow the conclusion reached in 

State v. Hebert, 82 P.3d 470 (Kan. 2004). But Messrs. Harris 

and Hebert's situations are sufficiently dissimilar that the 

Kansas Supreme Court's resolution does not counsel a different 

result here. There, Special Agent Cordts, before giving the 

Miranda warnings, said:

Talk to you a little bit and get both sides of the 

story. I've only heard one side of the story and, 

obviously, there's always two sides of a story here 

and I'd like in your words, your input and tell me 

what happened and explain in your words and coming 

from you. Would you like the opportunity to tell me 

your side of the story?

Id. at 480. Mr. Hebert then started divulging incriminating 

information.

Agent Cordts' question is similar to that of Detective 

Buchanan. But unlike here, it did not exist in isolation. The 

preamble to Agent Cordts' question conveyed the idea that he 

wanted Mr. Hebert to start talking. Agent Cordts' statement and 

question, taken together, was tantamount to an instruction to 

give a statement. Thus, Hebert is substantively distinct from 

Detective Buchanan's isolated diagnostic question, and so can 

give Mr. Harris no support.
No. 2014AP1767-CR 

20

question was not an excerpt from an extended conversation, nor 

was there any indication Detective Buchanan was pressuring Mr. 

Harris or menacing him. There was no trickery, no good cop/bad 

cop routine, no attempt to make him contradict prior statements, 

and no evidence of any other discernible form of interrogation 

technique.13 Thus, there was no proscribed inquisitorial element 

to the question. Sometimes, an inquiry calling for a "yes" or 

"no" answer really does seek nothing more than that.

¶36 Finally, there is the question of what the police 

knew, or should have known, about Mr. Harris and any particular 

susceptibility he may have had to a particular form of 

persuasion. Innis, 446 U.S. at 302 n.8. This question need not 

detain us long because the record does not indicate that 

Detective Buchanan exercised any form of persuasion, either 

expressly or implicitly, when he asked if Mr. Harris wished to 

make a statement. We will, however, briefly address Mr. Harris' 

suggestion that his particular vulnerability to police 

questioning made Detective Buchanan's question an interrogation.

¶37 Mr. Harris says his "emotional state was one in which 

he was especially inclined to explain himself to law enforcement 

with statements that a prosecutor would want to introduce at 

trial." He says Detective Buchanan, having read the police 

 

13 We list these techniques only to identify ways in which 

police conduct may become inquisitorial, thereby serving as the 

functional equivalent of an interrogation. We are not 

suggesting there is anything amiss with these tactics when 

employed in the proper context.
No. 2014AP1767-CR 

21

reports before meeting him outside of the interview rooms, would 

have known this. He does not say what that emotional state was 

or how Detective Buchanan was supposed to infer from the 

report's recounting of events what his emotional state had been. 

Nor does he say what his emotional state at the time of arrest 

might tell Detective Buchanan about his emotional state when he 

met him outside the interview rooms. Because so many factors 

and inputs affect one's state of mind, emotional lability is to 

be expected. So a person's emotional condition from hours past 

is a poor predictor of what it might be presently.

¶38 Mr. Harris points out, correctly, that the police

reports reveal he provided several unprompted incriminating 

statements to Officer Niebuhr after he was arrested. He says 

this should have warned Detective Buchanan that his question 

would likely result in incriminating statements. Mr. Harris' 

conclusion, however, does not logically follow from his premise. 

One may deduce from the report that Mr. Harris may be 

loquacious, but little more. It says nothing about how he 

responds to questioning——his statements were, after all, 

unprompted. And neither Officer Niebuhr nor any other State 

agent had exercised any form of persuasion on Mr. Harris before 

he implicated himself. Thus, his interaction with Officer 

Niebuhr could not instruct Detective Buchanan on how particular 

forms of persuasion might affect him. Whatever reason Mr. 

Harris had for volunteering his statements to Officer Niebuhr, 

his behavior did not indicate he would be particularly prone to 

incriminating himself in response to Detective Buchanan's 
No. 2014AP1767-CR 

22

question.

¶39 Our analysis of this factor would be incomplete if we 

did not account for both sides of the "susceptibility" ledger. 

That is to say, we should consider not just what might make him 

more susceptible to police tactics, but also what would be 

likely to make him less susceptible. This was not Mr. Harris' 

first encounter with police questioning. Nor was it his first 

time being arrested or convicted. In fact, he was charged in 

this case as a repeat offender. Repeat, indeed——the record 

discloses that this conviction makes it an even dozen for Mr. 

Harris. His familiarity with the criminal justice system does 

not, of course, diminish the State's obligation to scrupulously 

follow constitutional mandates. But our project at this point 

of the analysis is to discern, as accurately as possible, 

whether Detective Buchanan's question would be reasonably likely 

to elicit an incriminating response from Mr. Harris. It is 

reasonable to believe that a person’s twelfth time through the 

criminal justice system will be less intimidating than the 

first. Inasmuch as Mr. Harris has not identified any 

characteristic making him particularly susceptible to law 

enforcement officers' persuasion tactics, we will not infer one 

for him just because he is loquacious.

¶40 We conclude that there was no functional equivalent of 

an interrogation because, considered in the context of all the 

circumstances described above, there was no reasonably causal 

relationship between the State's words or actions and Mr. 

Harris' incriminating statement. A question such as "Would you 
No. 2014AP1767-CR 

23

like to give me a statement?", when posed in the situation 

obtaining here, would not logically cause a suspect to say 

something incriminating. It is true that Mr. Harris' "they 

caught me" statement followed Detective Buchanan's inquiry, but 

only post hoc ergo propter hoc reasoning can make the question 

the cause of the answer’s incriminating substance. We will not 

entertain that logical error.

¶41 Mr. Harris brings to our attention a Hawai'i case with 

a prescription that would effectively eliminate the need for our 

"functional equivalency" analysis here. State v. Eli, 273 

P.3d 1196 (Haw. 2012). In that case, as here, a police officer 

asked the suspect if he would like to make a statement. Mr. Eli 

said he would, without saying anything incriminating. The 

officer then gave him the Miranda warnings, only after which Mr. 

Eli incriminated himself. Nevertheless, Hawai'i's Supreme Court 

said the officer's diagnostic question compelled Mr. Eli to 

serve as a witness against himself.

¶42 The Eli court concluded that a pre-Miranda agreement 

to give a statement has an effect so coercive that the Miranda

warnings cannot counteract it. So the court said the Miranda

warnings must precede any inquiry into whether the suspect would 

like to speak. The reasoning appears to be that, once a suspect 

agrees to give a statement, his will is so completely overthrown 

that immediately instructing him he need not speak still leaves 

him unable to remain silent. Why such an innocuous question 

would have such a catastrophic effect, and why a suspect would 

be affected more by the remote question than the immediate 
No. 2014AP1767-CR 

24

instruction, is unclear. We do not, as a rule, assume that a 

suspect is so fragile that a diagnostic question such as the one 

posed by Detective Buchanan can shatter his will so thoroughly 

that it leaves him beyond the rehabilitative ministrations of 

the Miranda warnings. In point of fact, our jurisprudence is to 

the contrary.14

¶43 Our conclusion mirrors a recent United States Court of 

Appeals opinion (more recent than Eli) treating an almost 

identical dialogue. United States v. Wallace, 753 F.3d 671 (7th 

Cir. 2014). There, agents of the Drug Enforcement Agency raided 

Mr. Wallace's house, wherein they found large amounts of illegal 

drugs. During the search, law enforcement officers had 

marshalled the house's occupants into the front room, including 

Mr. Wallace. The lead DEA agent approached Mr. Wallace and 

asked: "[W]ould you mind stepping out to talk about this?" Id.

 

14 See, e.g., Oregon v. Elstad, 470 U.S. 298, 309 (1985) 

("Though Miranda requires that the unwarned admission must be 

suppressed, the admissibility of any subsequent statement should 

turn in these circumstances solely on whether it is knowingly 

and voluntarily made."); State v. Armstrong, 223 Wis. 2d 331, 

588 N.W.2d 606 (1999) (finding oral statements made before a 

Miranda warning inadmissible, but written statements made after 

Miranda warning admissible); Briggs v. State, 76 Wis. 2d 313, 

251 N.W.2d 12 (1977) (finding that even where an initial 

statement made without Miranda warnings was inadmissible, 

subsequent statements given at a police station after Miranda

warnings were admissible as they were the result of routine 

investigative procedures); State v. Loeffler, 60 Wis. 2d 556, 

211 N.W.2d 1 (1973) (holding that statements given after Miranda

warnings are admissible, even when the arrest that preceded the 

statements was constitutionally deficient).
No. 2014AP1767-CR 

25

at 673. Mr. Wallace answered "I don't want to waste your time, 

everything in there's mine." Id.

¶44 Messrs. Harris and Wallace occupy identical 

constitutional ground. Both were in police custody. Both were 

asked by law enforcement officers whether they would like to 

discuss criminal activity. Both could have fully and accurately 

answered the question with either a "yes" or a "no." And both 

chose, instead, to respond with incriminating statements.

¶45 The Wallace court did not belabor the analysis. It 

observed that "[t]he agent was just asking the defendant whether 

he wanted to make a statement, to which the expected and proper 

answer would have been yes or no." Id. at 674. So the court 

found no constitutional violation: "That was not a statement 

elicited by an interrogation, or even responsive to the agent's 

question (which called for a yes or no answer, not a 

confession), and so there was no violation of the Miranda rule." 

Id. And although the court did not explicitly address the Innis

functional equivalency test, it relied on that case to support 

its conclusion.

¶46 The Fifth Amendment to the United States Constitution 

and article I, section 8 of the Wisconsin Constitution prevent 

the State’s agents from compelling a defendant to serve as a 

witness against himself. But their protection is against the 

State. They do not protect Mr. Harris from himself. Whether or 

not it was wise for him to make the statement he did, he was not 

coerced into forsaking his silence. Detective Buchanan’s 

question was not the "functional equivalent" of an 
No. 2014AP1767-CR 

26

interrogation, and so no Miranda warnings were necessary before 

he asked it.15

V. CONCLUSION

¶47 Detective Buchanan's inquiry into whether Mr. Harris 

would like to make a statement was diagnostic in nature, not 

inquisitorial, and the circumstances confirm that it was not the 

functional equivalent of an interrogation. Thus, Mr. Harris' 

statement that "They caught me man, I got nothing else to say"

followed a voluntary decision to speak with Detective Buchanan.

¶48 Because the State did not compel Mr. Harris to be a 

witness against himself, the judgment of the court of appeals is 

affirmed.

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

affirmed.

 

 

15 The dissent is concerned that the uncertainty over the 

exact wording of Detective Buchanan’s question weakens our 

analysis. Of all the potential ways in which the parties say he 

may have phrased his question, we opted to consider the one most 

favorable to Mr. Harris. Indeed, it is the phrasing he adopted 

in his own briefs. So if there is weakness-inducing uncertainty 

here, neither logic nor the dissent identifies what it might be.
No. 2014AP1767-CR.akz

1

¶49 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join 

the majority opinion so long as it is read to answer only the 

issue presented and does not alter, change, or affect existing 

case law concerning Miranda, 384 U.S. 436 (1966), or an issue 

not present here, Goodchild (voluntariness). See State ex rel. 

Goodchild v. Burke, 27 Wis. 2d 244, 262, 133 N.W.2d 753 (1965). 

The question in this case is exceedingly narrow. "Miranda

warnings need only be administered to individuals who are 

subjected to a custodial interrogation." State v. Armstrong, 

223 Wis. 2d 331, 344-45, 588 N.W.2d 606 (1999), modified, 225 

Wis. 2d 121, 591 N.W.2d 604 (1999) (per curiam). There is no 

dispute that Harris was in custody at the time that Detective 

Buchanan asked Harris whether he wanted to give a statement. 

Thus, the only issue this court need resolve in the present case 

is whether Detective Buchanan's question constitutes 

"interrogation." Supreme Court case law, in turn, instructs 

that "the term 'interrogation' under Miranda refers not only to 

express questioning, but also to any words or actions on the 

part of the police (other than those normally attendant to 

arrest and custody) that the police should know are reasonably 

likely to elicit an incriminating response from the suspect." 

Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (footnote 

omitted). I agree with the court's determination that Detective 

Buchanan's brief interaction with Harris does not fit this 

definition and that the absence of a Miranda warning prior to 

that interaction does not, therefore, mandate reversal.
No. 2014AP1767-CR.akz

2

¶50 I write separately to clarify that the court's 

additional writing beyond the narrow question to be answered 

should not be read to change the law relating to Goodchild

inquiries, which are not at issue in this case. A Goodchild

analysis is distinct from a Miranda analysis: "In Miranda the 

question is, was the confession or other statement obtained 

under such circumstances of custodial interrogation as to 

require the exclusion of the statement from evidence. In 

Goodchild the question is, was the statement involuntary and 

therefore should be excluded from evidence." Roney v. State, 44 

Wis. 2d 522, 533, 171 N.W.2d 400 (1969). 

¶51 When examining whether a declarant's statement was 

voluntary, the question is "whether [the statement] was obtained 

under such circumstances that it represents the uncoerced, free 

will of the declarant or whether the circumstances deprived him 

of the ability to make a rational choice." Id. at 532-33. 

This court applies a totality of the 

circumstances standard to determine whether a 

statement was made voluntarily. We must balance the 

personal characteristics of the defendant, such as 

age, education, intelligence, physical or emotional 

condition, and prior experience with law enforcement, 

with the possible pressures that law enforcement could 

impose. Possible pressures to consider include the 

length of questioning, general conditions or 

circumstances in which the statement was taken, 

whether any excessive physical or psychological 

pressure was used, and whether any inducements, 

threats, methods, or strategies were utilized in order 

to elicit a statement from the defendant. 

State v. Davis, 2008 WI 71, ¶37, 310 Wis. 2d 583, 751 N.W.2d 332 

(citations omitted).
No. 2014AP1767-CR.akz

3

¶52 To be clear, the question in this case is not whether 

Harris' statement was voluntary; instead, the court has simply 

been asked to determine whether Detective Buchanan interrogated 

Harris. At times, the majority opinion could be read to deviate 

from the relevant analysis and dabble with considerations 

relevant to voluntariness, conflating the analyses. I join this 

opinion only if it is read to answer the question of whether 

this was interrogation, leaving untouched the body of case law 

which otherwise addresses Miranda or Goodchild. Thus, I write 

to emphasize that this opinion should not be read to otherwise 

change the law.

¶53 For the foregoing reasons, I respectfully concur.

¶54 I am authorized to state that Justice MICHAEL J. 

GABLEMAN joins this opinion.
No. 2014AP1767-CR.ssa

1

¶55 SHIRLEY S. ABRAHAMSON, J. (dissenting). A homeless 

man, Brian Harris, was arrested late one night while he was 

sleeping off a day's drinking in the basement of an abandoned 

building.1 He was not given Miranda warnings.

2

¶56 It is easy to use soaring rhetoric promising a court's 

"unstinting" protection of a criminal defendant's constitutional 

right not to be compelled to be a witness against himself,3 "one 

of the nation's 'most cherished principles.'"4 It's harder to 

make the promise ring true, however, when a court stints in 

protecting the defendant's constitutional rights.

¶57 I begin by briefly setting the stage underlying 

Harris's assertion that he was compelled to be a witness against 

himself. 

¶58 Both in the abandoned building's basement where Harris 

was arrested and in his ride in the back of the squad car on his 

 

1 At trial, Harris testified that he was too intoxicated to 

have any memory of the night's events other than glimpses of

waking up in a mysterious basement with a police officer 

standing over him and arresting him.

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

3 Majority op., ¶¶10-14. 

The Fifth Amendment to the United States Constitution 

provides that no "person . . . shall be compelled in any 

criminal case to be a witness against himself . . . ." U.S. 

Const. amend. V. This provision is made applicable to the 

states through the Fourteenth Amendment. Malloy v. Hogan, 378 

U.S. 1 (1964). 

4 Majority op., ¶12. 
No. 2014AP1767-CR.ssa

2

way to jail, Harris was loquacious. The talkative Harris told 

the arresting officers that he had been homeless for 

approximately seven years; that he frequently went into vacant 

buildings to sleep; that he was going to take copper piping from 

the building in which he was arrested and sell it for money for 

food; that he often commits misdemeanor crimes to get items to 

sell for food to get by; and that he was alone. Harris's 

statements at his arrest that were admitted at trial are not at 

issue in this court.5 

¶59 In the morning, Harris was led by jail guards to an 

area in the jail outside of an interview room. He met up with 

Detective Buchanan. No one disputes that Harris was in custody. 

No one disputes that the Detective asked Harris one question and 

 

5 Citing State v. Wedgeworth, 100 Wis. 2d 514, 302 

N.W.2d 810 (1981), the circuit court ruled that the basement and 

squad car statements "were voluntary, and they appear to me to 

be the product of free and unconstrained will, reflecting 

deliberate choice, not coerce [sic] of improper police 

pressure." 

Harris appealed the circuit court's decision admitting 

these statements. 

The court of appeals ruled that Harris' statements made in 

the basement were the result of custodial interrogation and 

should be suppressed. The court of appeals ruled, however, that 

Harris's statements in the squad car were not the result of 

interrogation and were sufficiently attenuated from the improper 

questioning in the basement. State v. Harris, 2016 WI App 2, 

¶¶11-19, 366 Wis. 2d 777, 874 N.W.2d 602. Harris did not appeal 

this ruling and does not challenge before this court the 

admissibility of the statements in the basement or in the squad 

car.
No. 2014AP1767-CR.ssa

3

that Harris made an incriminating response before any Miranda

warnings were given.6 

¶60 The incriminating response to the Detective was not 

suppressed by the circuit court.7 It was introduced at trial 

during the State's case-in-chief. Harris testified at trial, 

and the jury found him guilty of all charges.8 Majority op., ¶7.

¶61 The admissibility of Harris's response at the jail is 

at issue in the instant case. The relatively straightforward 

legal issue presented is whether the Detective's question was 

interrogation under the Fifth Amendment. The State must prove 

by a preponderance of evidence that the Detective's question was 

not an express question or the functional equivalent of an 

express question for Fifth Amendment purposes.9 If the 

Detective's question was either, Harris's response should have 

been suppressed. 

 

6 "[T]he words 'incriminating response' mean any response——

whether 'inculpatory or exculpatory——that the prosecution may 

seek to introduce at trial.'" State v. Cunningham, 144 

Wis. 2d 272, 279, 423 N.W.2d 862 (1988) (quoting Rhode Island v. 

Innis, 446 U.S. 291, 301 n.5 (1980)). 

7 The court of appeals affirmed, holding that Harris was not 

subject to interrogation at the jail. Harris appealed the 

decision of the court of appeals.

8 Harris was charged (as a repeater) with burglary, 

possession of burglarious tools, criminal damage to property, 

and criminal trespass. The jury convicted him of all four 

counts. The circuit court withheld sentence on all counts and 

put Harris on probation for many months.

9 State v. Armstrong, 223 Wis. 2d 331, 345, 588 N.W.2d 606 

(1999); State v. Fischer, 2003 WI App 5, 259 Wis. 2d 799, 656 

N.W.2d 503.
No. 2014AP1767-CR.ssa

4

¶62 My dissent takes two approaches, each considering the 

case "upon its own facts," as the case law instructs.10

¶63 Under the first approach, I probe whether the majority 

opinion can or should reach a decision when the record does not 

reveal the precise words of the question the Detective posed to 

Harris that prompted Harris to respond with an incriminating 

statement. 

¶64 Under the second approach, I take the same tack as the 

majority opinion. I apply the rule of law set forth in State v. 

Cunningham, 144 Wis. 2d 272, 423 N.W.2d 862 (1988), to the 

facts. Majority op., ¶¶21-22. Although I use a Cunningham

analysis as does the majority opinion, I reach a different 

result. 

¶65 I avoid, however, addressing the majority opinion's 

belabored account of the applicable law on custodial 

interrogations. The legal principles set forth in the majority 

opinion would be easier to understand and apply if the opinion 

stayed with the Cunningham analysis. 

I

¶66 The first approach examines the record to reveal that 

the court does not know the Detective's precise word choice for 

his question to Harris. Exactly what did Detective Buchanan say 

to Harris that brought forth Harris's incriminating statement? 

We do not know. Indeed the case is awash with different 

narratives about the Detective's question to Harris.

 

10 Cunningham, 144 Wis. 2d at 274. 
No. 2014AP1767-CR.ssa

5

¶67 At the suppression hearing, the Detective testified as 

follows about his question to Harris and Harris's response:

I went there [to the jail] with the intention of 

asking Mr. Harris if he would like to come with me to 

the detective bureau to be interviewed. I asked him 

if he would, and he stated to me something to the 

effect that they caught me, what's the point.

¶68 At trial, the Detective altered his testimony somewhat 

from the motion hearing and testified as follows about his 

question to Harris and Harris's response:

I reviewed the reports and went to jail. . . . I asked 

the defendant if he would like to give me a statement, 

and he said, they caught me man, I got nothing else to 

say.

¶69 The question was not recorded or videotaped and the 

Detective's communication with Harris ended right then and 

there.

¶70 The State's brief explains that "the altered 

testimony" does not "materially alter the terrain" and for 

"purposes of clarity and consistency" it "will go with Detective 

Buchanan's testimony at trial as the operative fact."

11 

¶71 The majority opinion uses the words the circuit court 

used: "Would you like to give a statement?" Majority op., ¶6.

¶72 With regard to this wording and to add to the 

confusion about the words the Detective used to communicate with 

Harris, the court of appeals concluded that the words "would you 

like to give a statement" were "never used at trial." The court 

of appeals assures the reader, however, that the circuit court's 

 

11 Brief of Plaintiff-Respondent at 5 n.2.
No. 2014AP1767-CR.ssa

6

"mischaracterization" of the Detective's words did not affect 

the decision of the court of appeals. The court of appeals 

explained its position as follows:

The circuit court indicated in its ruling that 

Buchanan asked Harris "would you like to give a 

statement"——words Buchanan never used in his 

testimony, but which, in one sense reasonably could be 

considered a shorthand phrasing of Buchanan's 

testimony. Thus whether as a summary of Buchanan's 

actual testimony or as an erroneous recollection of 

it, the [circuit] court chose to use specific words 

Buchanan never actually spoke in his testimony.12

¶73 Regardless of the precise words the Detective used, 

the State argues, as might be expected, that the Detective's 

question can reasonably be interpreted as an inquiry into 

whether Harris wished to talk with the police, was answerable 

with a "yes" or "no," and was not the functional equivalent of 

an express question. In contrast, as might be expected, Harris 

views the Detective's question as an express question or the 

functional equivalent of an express question. 

¶74 Cunningham directs a court to view the law enforcement 

officer's communication from the suspect's perspective.13 It is 

therefore important for a Miranda analysis to know the officer's 

 

12 Harris, 366 Wis. 2d 777, ¶22. The court of appeals 

further explained that the circuit court's mischaracterization 

of the Detective's testimony was not drawn from "whole cloth" 

but was probably based on the prosecutor's and defense counsel's 

frequent restating of the Detective's communication in argument 

as "Would you like to give a statement?" Harris, 366 

Wis. 2d 777, ¶22 n.2. 

13 Cunningham, 144 Wis. 2d at 279 ("[T]he focus of the Innis

test is primarily upon the perceptions of the suspect.") 

(internal quotation marks and citations omitted). 
No. 2014AP1767-CR.ssa

7

exact language and the context in which the communication 

occurred. A law enforcement officer's choice of words might 

have material bearing on how a suspect will understand the 

officer's communication. Wording can be dispositive. 

¶75 Different words may evoke different responses from a 

suspect, and the same words or substantially the same words may 

evoke different responses from different justices and different 

courts.14 

¶76 Not knowing what the Detective said to Harris renders 

the court's analysis in the instant case weak. 

II

¶77 The second approach is the one the majority opinion 

takes: Apply the rule of law set forth in State v. Cunningham, 

144 Wis. 2d 272, 423 N.W.2d 862 (1988), to the record to 

determine whether the communication at issue is, for Fifth 

Amendment purposes, an express question or the functional 

equivalent that must be prefaced by Miranda warnings. I do not 

reach the same conclusion as the majority opinion.

¶78 Cunningham, 144 Wis. 2d at 278-79, sets forth the 

objective observer test to determine whether a law enforcement 

 

14 See, e.g., the discussions in the majority opinion and in 

the State's brief in State v. Hebert, 82 P.3d 470 (Kan. 2004), 

and State v. Eli, 273 P.3d 1196 (Hawai'i 2012). 
No. 2014AP1767-CR.ssa

8

officer's conduct or words constitutes interrogation of a 

suspect. Cunningham directs courts to consider the following:15

• The Miranda procedures are designed to protect a 

suspect in custodial situations where the compulsion 

to confess may be present. When a custodial suspect 

is interrogated by law enforcement officers without 

Miranda warnings, there is a presumption that any 

ensuing statements of the suspect resulting from the 

unwarned interrogation were compelled and must be 

suppressed.16

• The focus is primarily upon the perception of the 

suspect to determine whether the officer's words or 

conduct was reasonably likely to elicit a response.

• The test is not directed at the subjective intent of 

the officer.

• The officer's communication is judged from the 

standpoint of an objective observer who has the same 

knowledge of the suspect as the police officer.

• The objective observer would have the officer's 

knowledge of a suspect's unusual susceptibility to a 

particular form of persuasion.17

 

15 Cunningham's objective observer foreseeability test 

involves a review of many fact-intensive factors: the suspect's 

perspective, the officer's intent, the length of the discussion, 

the officer's knowledge of the suspect's susceptibility, the 

suspect's emotional state, and the purpose behind the Miranda

and Innis decisions. Cunningham, 144 Wis. 2d at 278-80.

16 Miranda, 384 U.S. at 471–72; Dickerson v. United States,

530 U.S. 428, 435 (2000); Oregon v. Elstad, 470 U.S. 298, 309, 

310, (1985) ("Miranda requires that the unwarned admission must 

be suppressed . . . ." This is true even though "[t]he failure 

of police to administer Miranda warnings does not mean that the 

statements received have actually been coerced, but only that 

courts will presume [that] the privilege against compulsory 

self-incrimination has not been intelligently exercised."). 

17 Confinement might increase a suspect's anxiety and make 

him more likely to seek discourse with others and more 

susceptible to talking. See 2 Wayne R. LaFave et al., Criminal 

Procedure § 6.7(c), at 877 (4th ed. 2015).
No. 2014AP1767-CR.ssa

9

• The objective observer would determine whether the 

officer's conduct or words play on the suspect's 

unusual susceptibility.

• The objective observer could, on the sole basis of 

hearing the officer's remarks or observing the 

officer's conduct, conclude that the officer's 

conduct or words would have had the force of a 

question on the suspect. 

• The objective observer could, on the sole basis of 

hearing the officer's remarks or observing the 

officer's conduct, conclude that the officer's 

conduct or words would be likely to elicit an 

incriminating response. 

• Officers cannot be held accountable for the 

unforeseeable results of their words or actions. 

¶79 The determination of whether the facts of a case 

satisfy the legal standard articulated in Cunningham is a 

question of law that this court determines independently of the 

circuit court.18 I therefore apply the objective observer test 

to the facts as a matter of law. 

¶80 Before meeting Harris in a jail hallway outside of an 

interrogation room, the Detective had read the reports on Harris 

and was familiar with Harris's conduct of the previous night. 

The Detective was well aware that Harris was a very garrulous 

repeat offender who had already made numerous admissions to the 

arresting officer. 

¶81 Thus, the objective observer was on alert that Harris 

was "unusually susceptible" to the coercive nature of police 

custody and questioning. The objective observer would have to 

 

18 Cunningham, 144 Wis. 2d at 282.
No. 2014AP1767-CR.ssa

10

determine whether the Detective's conduct or words played on the 

suspect's unusual susceptibility.

¶82 The objective observer could, on the sole basis of 

hearing the Detective's remarks or observing the Detective's

conduct, conclude that the Detective's conduct or words would 

have had the force of a question on the suspect or would be 

likely to elicit an incriminating response.19 The objective 

observer could have concluded that Harris would have perceived 

the Detective's communication as having the force of a Fifth 

Amendment interrogation.20 See majority op., ¶34 & n.12. 

¶83 Informing my conclusions is the principle that the 

Fifth Amendment's right against self-incrimination calls on 

courts to be "unstinting in our protection of criminal 

defendants' rights." Majority op., ¶10. 

¶84 Accordingly, I conclude in this close case that the 

Detective's words constituted interrogation that should have 

been (but was not) preceded by Miranda warnings and should have 

been suppressed. 

 

19 See Innis, 446 U.S. at 302 n.8 (recognizing that an 

officer's knowledge "concerning the unusual susceptibility of a 

defendant to a particular form of persuasion might be an 

important factor in determining whether the [officer] should 

have known that [his] words or actions were reasonably likely to 

elicit an incriminating response").

20 I would not introduce the idea of a "diagnostic" question 

into Miranda law. 
No. 2014AP1767-CR.ssa

11

¶85 Finally, I conclude that, had my view prevailed, 

Harris would be entitled to a remand for a Harrison/Anson

hearing to fully assess harmless error.21

¶86 For the reasons set forth, I dissent.

 

21 Harrison v. United States, 392 U.S. 219 (1968); State v. 

Anson, 2005 WI 96, 282 Wis. 2d 629, 698 N.W.2d 776.
No. 2014AP1767-CR.ssa

1