### COURT OF APPEALS DECISION DATED AND FILED July 17, 2019

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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2018AP734-CR Cir. Ct. No. 2017CF456 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT II

S TATE OF W ISCONSIN ,
P LAINTIFF -R ESPONDENT ,

V .
E MMA K. S EYMOUR ,
D EFENDANT -A PPELLANT .

APPEAL from an order of the circuit court for Winnebago County: THOMAS J. GRITTON, Judge. Affirmed

. Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in W IS . S TAT . R ULE 809.23(3).No. 2018AP734-CR

2 ¶1 PER CURIAM. Emma Seymour petitioned for leave to appeal a nonfinal order denying her motion for reconsideration of an order denying e arlier motions to suppress her un- Mirandized 1 confessional statements to police and
evidence seized in a search. 2 The circuit court concluded that Seymour was not in custody when she voluntarily gave her statements; that she lacked s tanding to challenge the search; and that police entered the searched apart ment with consent. We affirm because, whether Seymour had standing or not, we conclude that her
statement was noncustodial.
¶2 The State charged Seymour with armed robbery, robbery by us e of force, and substantial battery, all as a party to the crime , for her role in two July 2017 robberies in Oshkosh. Although some of the robbers wore bandanna s over their faces, one of the victims knew who robbed him and gave police their names.
¶3 Six or so police officers went to an apartment building on Paci fic Street in Appleton to speak to the suspects. An unrelated t enant let the officers into the common entryway that serviced three apartment doors. On a pproaching the door of the intended apartment, the woman answering it identifie d herself as Mabel Santos, and, according to the complaint, invited them inside. Am ong the others present were Santos’s daughter; the daughter’s boyfriend, D avid Vargas; Santos’s son, Jose Ferrer; and Seymour, Ferrer’s girlfriend. The officers told Santos they wanted to speak with Vargas, Ferrer and Seymour.

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

2 This court granted leave to appeal the order. See W IS

. S TAT

. R ULE 809.50(3) (2017-18). All references to the Wisconsin Statutes are to the 2 017-18 version unless otherwise stated.No. 2018AP734-CR

3 ¶4 Detective Jeremy Krueger briefly spoke with Seymour on the apartment balcony then took her to his department vehicle to c ontinue the interview, allowing her to first put on her shoes. An audio recordin g reveals that, before questioning her in his car, Krueger told Seymour that she was not in custody or under arrest, that she could leave at any time, and that, if she chose to leave, the car door was unlocked. She stayed. After Seymour admitt ed to being involved in the robberies, Krueger handwrote a statement for each of the two victims based on the information Seymour provided. Seymour reviewe d each statement, told Krueger they were correct, and wrote on the botto m: “I have read
over this statement and it is correct.” She then was arrested.
¶5 Seymour moved to suppress her statements, arguing that they were involuntary and obtained in violation of Miranda . In November 2017, the circuit court held a hearing at which Seymour’s motion was “discussed” but no witnesses testified. The hearing was adjourned. At a second hearing a month later, Krueger testified briefly and Seymour moved to suppress all evidence s eized as a result of law enforcement’s entry into the apartment. She argued that gai ning access to the building’s common area through another building tenant was an improp er civilianassisted search. 3 Seymour did not have a transcript of either hearing prepared.
¶6 At a third hearing, held on January 17, 2018, the State contested Seymour’s standing to challenge law enforcement’s entry into the Pa cific Street apartment. Seymour objected to standing being raised for the firs t time. The court concluded that Seymour did not have standing, rejecting as not credible her testimony that she was living in the apartment, as she had give n Krueger a

3 Seymour abandons that argument on appeal.No. 2018AP734-CR

4 Menasha address. The court also denied Seymour’s motion to suppress her statements, reasoning that they were not obtained in violation of Miranda , as she was not in custody when she gave them and gave them voluntarily. The c ourt denied her motions in an order dated January 25, 2018.
¶7 Seymour did not seek leave to appeal the January order. Instead, s he moved for reconsideration, asserting that the court erred by concluding that she lacked standing to challenge the entry into the apartment. She submi tted affidavits from her father and Santos that claimed she was living at the Pa cific Street apartment when police searched it. Seymour also contended that t he State’s failure to raise the standing issue before the third hearing was fatal to its position.
¶8 In addition, Seymour argued that the court improperly limited testimony about the circumstances of law enforcement’s arri val at the apartment
and interaction with others there. She claimed the information wa s relevant to whether she was in custody and whether her statement was voluntary.
¶9 By order dated April 5, 2018, the circuit court denied the motion as untimely under W IS

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. § 805.17(3) and State v. Brown , 2006 WI App 44, 289 Wis. 2d 691, 712 N.W.2d 899. This permissive appeal followed.
¶10 The circuit court’s denial of Seymour’s reconsideration motion as untimely was clearly erroneous. W ISCONSIN S TAT

. § 805.17(3) applies only to reconsideration motions after bench trials; Brown states that a court need not make detailed factual findings when denying a motion for reconsideration. Brown , 289 Wis. 2d 691, ¶18. A circuit court has the inherent authority to reconsid er a nonfinal order at any time before entry of a final order. See Teff v. Unity Health Plans Ins. Corp. , 2003 WI App 115, ¶58, 265 Wis. 2d 703, 666 N.W.2d 38.No. 2018AP734-CR

5 ¶11 We may affirm the court’s order on different grounds, however. See Vanstone v. Town of Delafield , 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995). To prevail on a motion for reconsideration, the moving party must present newly discovered evidence or show that the court made a manifest error of law or
fact. Koepsell’s Olde Popcorn Wagons, Inc. v. Koepsell’s Festiv al Popcorn Wagons, Ltd. , 2004 WI App 129, ¶44, 275 Wis. 2d 397, 685 N.W.2d 853.
¶12 We will assume without deciding that Seymour had standing to challenge law enforcement’s entry into the apartment. Consequently , the affidavits of her father and Santos, which Seymour implausibly contends constitute newly discovered evidence, are immaterial as they go only to standing. The sole issue here is whether her statements to police were custodial.
¶13 Seymour contends the court made a manifest error of law when i t denied her the right to present evidence about the circumstances of her statements to Krueger. She sought to elicit testimony about whether police conducted patdowns of others in the apartment, the ages of the others present , the number of officers and police cars at the scene, and how the officers gaine d entry to the apartment. Seymour contends the court’s rulings misapplied the l aw that whether a person is in custody for Miranda purposes and the voluntariness of his or her statement are determined by the totality of the circumstan ces. See State v. Martin , 2012 WI 96, ¶35, 343 Wis. 2d 278, 816 N.W.2d 270 (custody); State v. Hoppe , 2003 WI 43, ¶38, 261 Wis. 2d 294, 661 N.W.2d 407 (statement).
¶14 Krueger testified at the suppression hearing that, on enter ing the apartment, he did not recall “ordering all of the minor children to p ut their handsNo. 2018AP734-CR

6 up and do[ing] a pat-down.” 4 The State objected when defense counsel then changed up the question, asking if Krueger recalled any officer instructing those present to put their hands up and patting them down. The court s ustained the objection as having “nothing to do with” Seymour’s motion regarding her statements. When counsel argued that at issue was whether Seymo ur was in custody, the court responded, “She is not a minor child. That was yo ur question.” 5 It thus is not clear that the relevancy ruling went to the iss ue of pat-downs or to counsel’s characterization of Seymour as a minor.
¶15 Seymour complains that the court committed another error of law by excluding evidence of the ages of the other people questioned and the circumstances surrounding law enforcement’s entry into the apartm ent. True, a child’s age—if known to the officer or objectively is apparent to a reasonable officer—factors into the custody analysis. See J.D.B. v. North Carolina , 564 U.S. 261, 275-77 (2011). Seventeen-year-old Seymour was not a minor for purposes of a criminal investigation, however. See W IS

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. § 938.02(1). She also makes no case for the relevance of the ages of the others in the apar tment to whether she was in custody when she later gave her statements.
¶16 In any event, the court recognized Seymour’s age when admitti ng her statement, saying, “That’s a factor.” It noted that there w as no evidence, however, that Seymour was “compromised in any way as a 17-ye ar old,” she

4 The “minor children”—Vargas, Seymour, and Santos’s daughter—were si xteen and seventeen years old. Ferrer was nineteen.

5 Seventeen-year-old Seymour was not a minor for purposes of a cri minal investigation. See W IS

. S TAT . § 938.02(1).No. 2018AP734-CR

7 never said she felt coerced, and “17 doesn’t necessarily mean you don’t know what is happening.”
¶17 The court also did not improperly prohibit testimony about t he number of police cars and officers at the scene or the circum stances of law enforcement entering the apartment. Krueger testified without ob jection that approximately six officers went into the apartment and that he tho ught multiple police cars were there. Although the court sustained objections to q uestions about how police gained entry into the apartment, there is no evidence Seymour was aware when she gave her statements about the officers’ manner of entry into the building or their verbal exchange with Santos before entering her apar tment. She does not persuasively argue that that information was relevant to wh ether she was in custody or her statement was voluntary.
¶18 Seymour also contends the court’s finding, based on its viewing of an officer’s body camera video, that it saw no pat-down was a m anifest error of fact. She attached to her suppression motion still photos from t he video that she asserted show an officer patting down a person and also provided a police r eport in which an officer indicated that he patted down Vargas.
¶19 If the court was mistaken that police did not pat anyone down, it was just one factor that played into its analysis as to whether Se ymour was in custody
for Miranda purposes. “A person is in ‘custody’ if[,] under the totality of the circumstances[,] ‘a reasonable person would not feel free to terminate the
interview and leave the scene.’” State v. Lonkoski , 2013 WI 30, ¶6, 346 Wis. 2d 523, 828 N.W.2d 552 (citation omitted). “‘[T]he ultimate inquiry is s imply whether there [was] a “formal arrest or restraint on freedo m of movement” of the degree associated with a formal arrest.’” Stansbury v. California , 511 U.S. 318,No. 2018AP734-CR

8 322 (1994) (citation omitted). This is an objective standard that does not depend on the subjective views of the person being interrogated or the off icer conducting the interrogation. Id. at 323. Relevant factors include the person’s freedom to leave; the purpose, place, and length of the interrogation; and the degree of
restraint. Lonkoski , 346 Wis. 2d 523, ¶6. Degree-of-restraint factors include whether the person is handcuffed; whether a weapon is drawn, whether a frisk is performed; the manner in which the person is restrained; whether the person is moved to another location; whether questioning takes place in a polic e vehicle;
and the number of officers involved. State v. Gruen , 218 Wis. 2d 581, 594-96, 582 N.W.2d 728 (Ct. App. 1998).
¶20 Krueger told Seymour she was not under arrest and was free to leave; she was not restrained or handcuffed; no weapons were draw n; she was not frisked; she apparently willingly accompanied Krueger to his depa rtment vehicle to continue the interview and sat in the front passenger seat; and K rueger was the only officer involved in her interview. Assuming for argument’s sake that the court was wrong about whether someone else was patted down, we ca nnot say the error necessarily would have affected its legal conclusion that Seymour was not in custody for Miranda purposes.
¶21 Seymour’s motion for reconsideration failed to present newly discovered evidence relevant to the issue of custody or to show that the circuit court made a manifest error of law or fact. Her motion was properly de nied.
By the Court. —Order affirmed.
This opinion will not be published. See W IS

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. R ULE 809.23(1)(b)5.No. 2018AP734-CR

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