2021 WI 7

SUPREME COURT OF WISCONSIN

CASE NO.: 2018AP858-CR

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Appellant,

 v.

Brian L. Halverson,

 Defendant-Respondent-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS

Reported at 389 Wis. 2d 554,937 N.W.2d 74

PDC No:2019 WI App 66 - Published

OPINION FILED: January 29, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: September 14, 2020 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Chippewa 

JUDGE: Steven R. Cray 

JUSTICES:

HAGEDORN, J., delivered the majority opinion for a unanimous 

Court. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, 

in which ZIEGLER, J., joined. DALLET, J., filed a concurring 

opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs 

filed by Megan Sanders-Drazen, assistant state public defender. 

There was an oral argument by Megan Sanders-Drazen.

For the plaintiff-appellant, there was a brief filed by 

Sarah L. Burgundy, assistant attorney general; with whom on the 

brief was Joshua L. Kaul, attorney general. There was an oral 

argument by Sarah L. Burgundy.
2021 WI 7

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2018AP858-CR

(L.C. No. 2017CM83)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Appellant,

 v.

Brian L. Halverson,

 Defendant-Respondent-Petitioner.

FILED

JAN 29, 2021

Sheila T. Reiff

Clerk of Supreme Court

HAGEDORN, J., delivered the majority opinion for a unanimous 

Court. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, 

in which ZIEGLER, J., joined. DALLET, J., filed a concurring 

opinion, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. 

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

cause remanded to the circuit court with directions. 

¶1 BRIAN HAGEDORN, J. You have "a right to remain 

silent." Miranda v. Arizona, 384 U.S. 436, 444 (1966). So 

begins the ubiquitous Miranda warnings, procedural safeguards 

the United States Supreme Court has mandated must be 

administered to suspects prior to any "custodial interrogation." 

Id. If the warnings are not given, any statements made are 

inadmissible in court. Id.
No. 2018AP858-CR

2

¶2 The question in this case concerns the scope of 

"custody" for purposes of Miranda. The defendant, Brian L. 

Halverson, was an inmate in jail when he returned a call from an 

officer regarding an incident at Halverson's prior correctional 

institution. During the short call, the officer asked Halverson 

about an inmate's missing property, and Halverson admitted that 

he took and destroyed the property. No Miranda warnings were 

given. Halverson argues that his statements must be suppressed 

because he was in custody as an inmate in jail, and therefore he 

also was most assuredly "in custody" for purposes of Miranda.

¶3 In a 1999 case, this court agreed. State v. 

Armstrong, 223 Wis. 2d 331, 588 N.W.2d 606 (1999). Relying on 

United States Supreme Court precedent, we held "that a person 

who is incarcerated is per se in custody for purposes of 

Miranda." Id. at 355. In 2012, however, the United States 

Supreme Court clarified this is not what federal law requires. 

In Howes v. Fields, the Court concluded that the Constitution 

contains no such per se rule. 565 U.S. 499, 508 (2012). The 

Court emphasized that "custody" for purposes of Miranda is a 

term of art; it is not consonant with the inability to leave or 

with incarceration generally. Id. at 508-09. Whether a suspect 

was "in custody" depends on an inquiry of the totality of the 

circumstances, looking to the degree of restraint and coercive 

nature of the interrogation. Id. at 509.

¶4 Recognizing that the federal constitutional landscape 

does not support his argument, Halverson asks this court to 

readopt the per se rule, this time relying on the Wisconsin 
No. 2018AP858-CR

3

Constitution. We decline Halverson's request. While this court 

need not always follow federal constitutional interpretation in 

lockstep, we conclude that neither the Wisconsin Constitution 

nor the purposes underlying the Miranda warnings support a 

judicially-created rule treating all incarcerated individuals as 

"in custody." In the alternative, Halverson contends that his 

incriminating statements should be suppressed because he was "in 

custody" under the traditional Miranda custody test. We 

disagree and conclude that Halverson was not in custody for 

purposes of Miranda.

I. BACKGROUND

¶5 Brian L. Halverson was an inmate in the Vernon County 

Jail when Officer Matthew Danielson called and requested to 

speak with him. Officer Danielson was investigating a claim of 

theft and destruction of property at Stanley Correctional 

Institution that occurred when Halverson was incarcerated there. 

Halverson returned the call and admitted to the crimes. The 

State charged Halverson with one count of criminal damage to 

property and one count of misdemeanor theft, both as a repeater. 

Halverson filed a motion to suppress his statements in part on 

the grounds that he was not read his Miranda warnings. 

¶6 During the suppression hearing, Officer Danielson 

testified that he called the Vernon County Jail the morning of 

September 27, 2016, and requested to speak to Halverson. He 

received a call back within ten minutes from a deputy at the 

jail who put Halverson on the phone. Officer Danielson began 
No. 2018AP858-CR

4

the call by introducing himself, explaining the purpose of the 

call, and asking if Halverson knew the individuals who were 

involved in the incident at Stanley Correctional Institution. 

When questioned initially, Halverson stated that he believed the 

items were inadvertently placed in the garbage. But when asked

about two letters admitting his guilt that Halverson wrote to 

the victim and another inmate, Halverson's tone shifted. While 

calm at the outset, Halverson began yelling. He ultimately 

admitted to Officer Danielson that he took and destroyed the 

property. The entire phone call lasted no more than five

minutes. Officer Danielson testified that, for his part, his 

tone was calm and normal throughout the call. Halverson was not 

read his Miranda warnings, Officer Danielson explained, because

while "he was in custody somewhere else for something else,"

Halverson was not "in custody with me." 

¶7 The circuit court relied on Officer Danielson's 

uncontested testimony as factual background, but it granted 

Halverson's motion to suppress.1 The circuit court concluded it 

was bound to apply Armstrong's per se rule that incarcerated 

individuals are in custody for Miranda purposes. The State 

moved for reconsideration.

 

1 The Honorable Steven R. Cray, Chippewa County Circuit 

Court, presiding.
No. 2018AP858-CR

5

¶8 At the reconsideration hearing, Vernon County 

Sheriff's Deputy Matthew Hoff testified.2 Deputy Hoff did not 

specifically remember the call. Instead, he testified regarding 

the standard operating procedures at the Vernon County Jail, 

testimony the circuit court accepted as credible. 

¶9 When an inmate at the jail receives a phone call, the 

inmate can choose whether to take or return the call. If an 

inmate wishes to do so, a deputy escorts the inmate from his pod 

to the jail's community room. The community room is 

approximately 15-by-25-feet in size and doubles as the jail 

library. The deputies visually monitor the inmate through 

observation glass, but they cannot hear what occurs in the 

community room and the calls are not recorded. Once the call is 

complete, the inmate is escorted back to his pod. The inmate is

not handcuffed at any point during this process.

¶10 Following the hearing, the circuit court denied the 

State's motion for reconsideration, once again concluding it was 

bound to follow the per se rule in Armstrong and suppress 

Halverson's statements. 

¶11 The State appealed and the court of appeals reversed. 

The court of appeals held that the per se rule adopted by this 

court in Armstrong was effectively overruled by the United 

States Supreme Court in Howes, and it declined to readopt the 

 

2 Deputy Hoff was subpoenaed to appear at the initial 

suppression hearing, but he did not appear. The circuit court 

reserved the right for the parties to provide Deputy Hoff's 

testimony at a reconsideration hearing.
No. 2018AP858-CR

6

per se rule under the Wisconsin Constitution. State v. 

Halverson, 2019 WI App 66, ¶65, 389 Wis. 2d 554, 937 N.W.2d 74. 

It further concluded that Halverson was not in custody for 

purposes of Miranda under the totality of the circumstances. 

Id., ¶66. We granted Halverson's petition for review and agree 

with the court of appeals.

II. DISCUSSION

¶12 The issues in this case center on the nature of 

"custody" for purposes of determining whether Miranda warnings 

must be administered. Halverson contends he was in custody for 

two independent reasons. First, Halverson argues all 

incarcerated individuals should be deemed "in custody" for 

purposes of Miranda solely due to their incarceration. Although 

the United States Supreme Court rejected a per se rule to this 

effect, he asks us to adopt this approach under the Wisconsin 

Constitution. Second, if we decline that request (as we do), 

Halverson asserts the totality of the circumstances nonetheless 

demonstrates he was in custody for purposes of Miranda. We 

begin with the constitutional backdrop underlying these claims, 

and then address the merits of each in turn.

A. The Law of Miranda

¶13 The Fifth Amendment of the United States Constitution 

provides in relevant part: "No person . . . shall be compelled 

in any criminal case to be a witness against himself . . . ." 

U.S. Const. amend. V. In Miranda, the Supreme Court created a 
No. 2018AP858-CR

7

set of procedural safeguards, enforced by the remedy of 

exclusion, aimed at "protecting a defendant's Fifth Amendment 

privilege against self-incrimination." Withrow v. Williams, 507 

U.S. 680, 691 (1993). These safeguards were proposed in 

response to four cases consolidated before the Court. Miranda, 

384 U.S. at 491-99. All four concerned the questioning of a 

defendant by a law enforcement officer, detective, or district 

attorney in a police station where the defendant was isolated 

from the outside world and eventually orally admitted to the 

underlying crime after at least two hours of questioning. 

Id. at 491-98. 

¶14 The Court has explained that these warnings, and the 

evidentiary penalty for failing to administer them, constitute a 

prophylactic rule that extends beyond the requirements of the 

constitutional text itself. See Oregon v. Elstad, 470 U.S. 298, 

306 (1985) ("The Miranda exclusionary rule, however, serves the 

Fifth Amendment and sweeps more broadly than the Fifth Amendment 

itself. It may be triggered even in the absence of a Fifth 

Amendment violation."). Instead, Miranda is a judicially 

instituted effort to protect against self-incrimination by 

creating an unrebuttable legal presumption of coercion whenever 

the warnings are not administered. Id. at 306 n.1 ("A Miranda

violation does not constitute coercion but rather affords a 

bright-line, legal presumption of coercion, requiring 

suppression of all unwarned statements.").

¶15 This anti-coercion objective is central to 

understanding the reach and limits of the Miranda requirements. 
No. 2018AP858-CR

8

This goal explains why the Court established what it called 

"custodial interrogation" as the trigger for administration of 

these warnings. Miranda, 384 U.S. at 444 ("[T]he prosecution 

may not use statements, whether exculpatory or inculpatory, 

stemming from custodial interrogation of the defendant unless it 

demonstrates the use of procedural safeguards effective to 

secure the privilege against self-incrimination."). The issues 

before us center on what makes an interrogation "custodial."

¶16 The United States Supreme Court has made clear that 

"custody" for purposes of Miranda is not equivalent to a

dictionary definition of the term.3 Rather, "custody" in the 

context of Miranda "is a term of art that specifies 

circumstances that are thought generally to present a serious 

danger of coercion." Howes, 565 U.S. at 508-09. 

¶17 The Miranda custody analysis proceeds in two steps. 

First, courts "ascertain whether, in light of 'the objective 

circumstances of the interrogation,' a 'reasonable person 

[would] have felt he or she was not at liberty to terminate the 

interrogation and leave.'" Id. at 509 (alteration in original)

(quoted sources omitted). This requires examining the totality 

of the circumstances, including relevant factors such as "the 

location of the questioning, its duration, statements made 

during the interview, the presence or absence of physical 

restraints during the questioning, and the release of the 

 

3 Colloquially, "custody" is defined as "[t]he state of 

being detained or held under guard, especially by the police." 

Heritage Dictionary of the English Language 462 (3d ed. 1992).
No. 2018AP858-CR

9

interviewee at the end of the questioning." Id. (citations 

omitted). The inability to leave and terminate the 

conversation, however, is not enough on its own to trigger the 

need for Miranda warnings. Id. This inquiry "is simply the 

first step in the analysis, not the last." Id. "[T]he freedomof-movement test identifies only a necessary and not a 

sufficient condition for Miranda custody." Maryland v. Shatzer, 

559 U.S. 98, 112 (2010). Instead, courts proceed to the second 

step in the custody analysis where they ask "whether the 

relevant environment presents the same inherently coercive 

pressures as the type of station house questioning at issue in 

Miranda." Howes, 565 U.S. at 509.

 

B. Incarceration and "Custody" Under Federal Law

¶18 Application of these principles in the context of 

incarceration has not always been clear. In 1999, this court 

addressed whether an inmate should have received Miranda

warnings when questioned for an offense unrelated to his 

incarceration. Armstrong, 223 Wis. 2d 331. We examined federal 

cases and our cases interpreting federal precedent and held 

"that a person who is incarcerated is per se in custody for 

purposes of Miranda." Armstrong, 223 Wis. 2d at 355. 

¶19 In 2012, however, the United States Supreme Court 

reached the opposite conclusion. Howes, 565 U.S. at 508. In 

that case, the defendant was in jail when escorted to a 

conference room where two armed sheriff's deputies questioned 

him for between five and seven hours about allegations pre-
No. 2018AP858-CR

10

dating his time in prison. Id. at 503. Fields was uncuffed and

told several times that he could leave and return to his cell. 

Id. The door to the conference room was open and shut at 

different times during the questioning. Id. Fields ultimately 

confessed. Id. At no point during the questioning, however, 

was he read his Miranda warnings. Id. at 504. 

¶20 On these facts, the Court expressly rejected a 

categorical rule that questioning an inmate is custodial. 

Id. at 505. Instead it reviewed and re-emphasized the two-step, 

totality-of-the-circumstances custody inquiry established in 

prior cases. Id. at 509. Using that analysis, it reasoned that 

incarcerated individuals are not automatically in custody for 

purposes of Miranda. Id. The Court offered three reasons to 

support its conclusion——all centering on whether the environment 

necessarily contains the same coercive pressures that animated 

the Court's holding in Miranda. Id. at 511-12. First, 

questioning an incarcerated person does not involve the same 

kind of shock accompanying someone arrested in the first 

instance, and therefore the coercive pressures are substantially 

diminished. Id. at 511. Second, incarcerated individuals have 

far less pressure to speak with the hope of securing release. 

Id. They know that when the questioning is finished, they will 

remain incarcerated. Id. Finally, incarcerated individuals 

know that their questioners "probably lack authority to affect 

the duration of [their] sentence." Id. at 512. Therefore, the 

Court held that incarceration alone does not necessarily 
No. 2018AP858-CR

11

implicate the same anti-coercion interests that motivated the 

Court's prophylactic efforts in Miranda. Id.4

¶21 In this case, the court of appeals correctly deduced 

that it was bound to follow the United States Supreme Court's 

decision in Howes rather than our earlier decision in Armstrong. 

Halverson, 389 Wis. 2d 554, ¶34. As we explained in State v. 

Jennings, "The court of appeals must not follow a decision of 

this court on a matter of federal law if it conflicts with a 

subsequent controlling decision of the United States Supreme 

Court." 2002 WI 44, ¶19, 252 Wis. 2d 228, 647 N.W.2d 142. 

Accordingly, we recognize that the Court's decision in Howes

functionally overruled Armstrong's per se rule.

C. Incarceration and "Custody" Under the Wisconsin Constitution

¶22 Bereft of a per se determination that incarceration 

produces Miranda custody under federal law, Halverson asks us to 

adopt a per se rule in reliance on the Wisconsin Constitution. 

Constitutional interpretation is a question of law we review 

independently. Serv. Emp. Int'l Union, Loc. 1 v. Vos, 2020 

WI 67, ¶28, 393 Wis. 2d 38, 946 N.W.2d 35. In interpreting the 

 

4 Three justices dissented in part. The partial dissent did 

not object to the majority's analysis rejecting a per se rule. 

Howes v. Fields, 565 U.S. 499, 517 (2012) (Ginsburg, J., 

concurring in part and dissenting in part). Rather, it asserted 

that Miranda warnings should have been given to this particular 

suspect because he was "subjected to 'incommunicado 

interrogation . . . in a police-dominated atmosphere.'" Id. at 

518. Thus, even the partial dissent aimed its analysis at 

honoring "the Fifth Amendment privilege Miranda was designed to 

safeguard." Id. at 519.
No. 2018AP858-CR

12

Wisconsin Constitution, we focus on the language of the adopted 

text and historical evidence including "the practices at the 

time the constitution was adopted, debates over adoption of a 

given provision, and early legislative interpretation as 

evidenced by the first laws passed following the adoption." 

Id., ¶28 n.10. 

¶23 While we must follow the United States Supreme Court 

on matters of federal law, we have an independent responsibility 

to interpret and apply the Wisconsin Constitution. Jennings, 

252 Wis. 2d 228, ¶¶18, 38. Fulfilling our duty to uphold the 

Wisconsin Constitution as written could yield conclusions 

affording greater protections than those provided by the federal 

Constitution. State v. Doe, 78 Wis. 2d 161, 171, 254 N.W.2d 210 

(1977). 

¶24 That said, this court has underscored that any 

argument based on the Wisconsin Constitution must actually be 

grounded in the Wisconsin Constitution. State v. Roberson, 2019 

WI 102, ¶56, 389 Wis. 2d 190, 935 N.W.2d 813 ("[T]he question 

for a state court is whether its state constitution actually 

affords greater protection."); Jennings, 252 Wis. 2d 228, ¶¶38-

39 (explaining that any upward departure from the standards 

based on the federal Constitution announced by the Supreme Court 

"must itself be grounded in requirements found in the state 

constitution or laws"). "A state court does not have the power 

to write into its state constitution additional protection that 

is not supported by its text or historical meaning." Roberson, 

389 Wis. 2d 190, ¶56.
No. 2018AP858-CR

13

¶25 Halverson recognizes that Miranda warnings are a 

prophylactic tool fashioned to protect the privilege against 

self-incrimination, a right independently protected in both 

constitutions. Halverson therefore asks this court to create an 

expanded prophylactic to protect a person's rights under the 

Wisconsin Constitution.5 

¶26 The self-incrimination clause of Article I, Section 

8(1), adopted before incorporation of federal protections 

against the states via the Fourteenth Amendment, is 

substantively identical to the Fifth Amendment. It provides in 

relevant part: "No person . . . may be compelled in any 

criminal case to be a witness against himself or herself." Wis. 

Const. art. I, § 8(1).6 We have generally interpreted Article I, 

Section 8 consistent with the protections afforded by the Fifth 

Amendment. State v. Bartelt, 2018 WI 16, ¶30, 379 Wis. 2d 588, 

906 N.W.2d 684.7 Halverson provides no textual or historical 

 

5 In support of this request to create an expanded 

prophylactic, Halverson points to our decision in State v. Knapp

where we expanded the scope of the exclusionary rule beyond its 

federal corollary. 2005 WI 127, ¶2, 285 Wis. 2d 86, 700 

N.W.2d 899. However, Knapp does not suggest anything about 

whether this court should adopt Halverson's proposed rule in 

this case. 

6 Article I, Section 8, originally provided in relevant 

part: "No person . . . shall be compelled in any criminal case 

to be a witness against himself . . . ." Wis. Const. art. I, 

§ 8 (1848). It was later amended to add "or herself." 

7 See also State v. Edler, 2013 WI 73, ¶¶29-30, 350 

Wis. 2d 1, 833 N.W.2d 564 (acknowledging an exception to this 

general rule yet nevertheless "declin[ing] to extend the meaning 

of Wisconsin Constitution Article I, Section 8 in this situation 

so as to provide different protection than the Fifth Amendment 
No. 2018AP858-CR

14

basis to suggest any meaningful difference between the two 

provisions meriting an expanded judicially-created prophylactic 

rule. Nor do we see any basis in the Wisconsin Constitution for 

Halverson's request.8

¶27 Instead, Halverson focuses chiefly on the argument 

that incarceration inherently creates the kind of custodial 

circumstances meriting Miranda warnings. We agree, however, 

with the Supreme Court's determination in Howes that a per se 

rule does not serve the anti-coercion purposes of Miranda. 

Interrogation of incarcerated individuals does not always 

present the "same inherently coercive pressures as the type of 

station house questioning at issue in Miranda," nor would an 

inmate always be unable to terminate questioning. Howes, 565 

 

to the United States Constitution"); State v. Ward, 2009 WI 60, 

¶55, 318 Wis. 2d 301, 767 N.W.2d 236 ("Article I, Section 8 of 

the Wisconsin Constitution provides the same protections prior 

to charging a suspect as does the Fifth Amendment to the United 

States Constitution."); Hoyer v. State, 180 Wis. 407, 411, 193 

N.W. 89 (1923) ("Sec. 8 corresponds in substance with art. V and 

sec. 11 is identical with art. IV, respectively, of the 

amendments to the United States constitution."); Thornton v. 

State, 117 Wis. 338, 340, 93 N.W. 1107 (1903) ("This rule and 

practice of the common law was crystallized and expressed in the 

fifth amendment to the constitution of the United States in 

words identical with those above quoted from sec. 8, art. I of 

our own constitution.").

8 Certainly nothing in the text of the Wisconsin 

Constitution supports Halverson's request. To the extent any 

historical evidence may assist Halverson's case, he has not 

presented those arguments here, nor will we develop them for 

him. See Serv. Emp. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, 

¶24, 393 Wis. 2d 38, 946 N.W.2d 35 ("We do not step out of our 

neutral role to develop or construct arguments for parties; it 

is up to them to make their case.").
No. 2018AP858-CR

15

U.S. at 509. As we conclude below, Halverson's circumstances do 

not even satisfy the standard requirements for custody under 

Miranda's framework. Further, no facts in Halverson's case 

indicate coercion or anything close to it. And that is the 

whole point of requiring Miranda warnings in the first place. 

In other words, Halverson's case exemplifies the problem with 

his proposed rule. Officer Danielson's questioning of Halverson 

simply does not raise the specter of coerced admissions. More 

to the point, Halverson's relatively benign and distanced 

interaction demonstrates that incarceration alone lacks the 

inherent dangers of the station-house interrogation. This was 

why the United States Supreme Court rejected the per se rule in 

Howes, and Halverson offers no strong reasons to diverge from 

this rationale. 

¶28 In short, nothing in Article I, Section 8(1) of the 

Wisconsin Constitution suggests this court should deem all 

incarcerated individuals "in custody" for purposes of Miranda. 

Neither the purposes of Miranda warnings nor the text and 

history of the Wisconsin Constitution support Halverson's 

invitation to adopt his proposed per se rule.

D. Miranda "Custody" Applied to Halverson

¶29 Halverson has an alternative argument——namely, that he 

was "in custody" for purposes of Miranda under the prevailing 

two-step inquiry examining the totality of the circumstances. 

In conducting this analysis, we accept the circuit court's 

factual findings unless they are clearly erroneous. State v. 
No. 2018AP858-CR

16

Dobbs, 2020 WI 64, ¶28, 392 Wis. 2d 505, 945 N.W.2d 609. 

Whether those facts support a determination of custody for 

purposes of Miranda is a question of law we review de novo. Id. 

¶30 As previously explained, custody for purposes of 

Miranda first requires an objective determination of whether the 

suspect was free to move and terminate the interview. Howes, 

565 U.S. at 509; Bartelt, 379 Wis. 2d 588, ¶31. Relevant 

factors include "the location of the questioning, its duration, 

statements made during the interview, the presence or absence of 

physical restraints during questioning, and the release of the 

interviewee at the end of the questioning." Howes, 565 U.S. at 

509 (citations omitted); see also Bartelt, 379 Wis. 2d 588, ¶32 

("Such factors include: the degree of restraint; the purpose, 

place, and length of the interrogation; and what has been 

communicated by police officers."). Regarding the degree of 

restraint, "we consider: whether the suspect is handcuffed, 

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

manner in which the suspect is restrained, whether the suspect 

is moved to another location, whether questioning took place in 

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

Bartelt, 379 Wis. 2d 588, ¶32. 

¶31 Unlike Miranda challenges in most cases, Halverson's 

interview occurred over the phone. The State argues, and we 

agree, that interrogation by phone call is unlikely to rise to 

the level of Miranda custody. This is so because a phone call 

will rarely present objective circumstances where a reasonable 

person would believe he is not free to terminate the 
No. 2018AP858-CR

17

interrogation. A suspect can end questioning at any time simply 

by hanging up. To our knowledge, no court has concluded that a 

telephonic interrogation triggered Miranda custody.9 The fact 

that Officer Danielson's interview occurred by phone strongly 

weighs against a determination of Miranda custody.

¶32 The length of the interview reinforces the same 

conclusion. Officer Danielson testified that his conversation 

with Halverson lasted "a few minutes, maybe three, four." This 

is far afield from the five- to seven-hour questioning in Howes, 

which the Supreme Court found did not trigger a determination of 

custody for purposes of Miranda. Howes, 565 U.S. at 503. 

Similarly, in State v. Lonkoski, we observed that a 30-minute 

timeframe weighed against determining the defendant was in 

Miranda custody. 2013 WI 30, ¶31, 346 Wis. 2d 523, 828 

N.W.2d 552. The less-than-five-minute interview here similarly 

supports the State's argument.

¶33 Halverson responds that unlike the defendant in Howes, 

he was not informed that he could terminate the interview at any 

time. This failure, he contends, is fatal to the State's 

 

9 See Pasdon v. City of Peabody, 417 F.3d 225, 227 (1st Cir. 

2005) (holding the defendant was not "in custody" when he was 

asked questions over the phone); State v. Mills, 293 P.3d 1129, 

1136 (Utah Ct. App. 2012) (concluding "[t]he overall length, 

form, and circumstances of the voluntary, transcontinental 

telephone interview simply do not rise to the level of being so 

long, so draining, or so fierce as to be problematic under 

Miranda"); State v. Denton, 792 P.2d 537, 540 (Wash. Ct. App. 

1990) (determining the defendant who was in jail at the time of 

the phone call was not in custody for Miranda purposes because

he was free to terminate the phone call at any time). 
No. 2018AP858-CR

18

argument. Such a disclosure is certainly relevant to the 

inquiry, but it is not mandatory. The question remains whether 

a reasonable person in Halverson's situation would feel free to 

terminate the interview. According to the unchallenged 

testimony of Deputy Hoff, Halverson had the choice whether to 

return Officer Danielson's call in the first place. Halverson 

did so. Officer Danielson began the call by explaining why he 

was calling, and Halverson chose to continue the conversation. 

Officer Danielson testified that he kept his tone calm and 

neutral during the interview, even after Halverson became more 

animated. We observe nothing in the record suggesting the brief 

phone interview was no longer optional after it began. Under 

these circumstances, a reasonable person would have felt free to 

terminate the interview by hanging up the phone at any time.

¶34 Halverson's physical environment also shows he was 

free to terminate the call. When Halverson elected to return 

Officer Danielson's call, the record suggests a deputy escorted 

Halverson from his pod to the jail's community room, which 

doubled as a library. Then, although visually observed during 

the interview, Halverson spoke to Officer Danielson alone and 

without physical restraints. The record does not reveal any 

restraint upon Halverson any more than in his daily life as an 

inmate. 

¶35 For many of the same reasons, proceeding to the second 

step of the custody analysis, we conclude Halverson's 

environment did not "present[] the same inherently coercive 

pressures as the type of station house questioning at issue in 
No. 2018AP858-CR

19

Miranda." Howes, 565 U.S. at 509; see also Bartelt, 379 

Wis. 2d 588, ¶33. He spoke to Officer Danielson over the phone 

in the jail's community room where he was alone, without 

physical restraints, and could sit or stand at will. The 

interview lasted less than five minutes, and during that time 

Officer Danielson kept his tone calm. These circumstances are 

nowhere close to the kind of coercive pressures of station-house 

questioning that sparked the Supreme Court's holding in Miranda.

¶36 In light of all of these factors, especially the fact 

that this interview occurred over the phone, we conclude that

Halverson was not "in custody" for purposes of Miranda. 

III. CONCLUSION

¶37 We decline Halverson's invitation to adopt a per se 

rule that incarcerated individuals are necessarily "in custody" 

for purposes of Miranda. Applying the standard two-part test, 

we conclude Halverson was not "in custody" when Officer 

Danielson interviewed him by phone regarding the missing 

property. Halverson's motion to suppress should have been 

denied, and we remand with directions to the circuit court to do 

so.

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

affirmed, and the cause is remanded to the circuit court with 

directions.
No. 2018AP858-CR.rgb

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¶38 REBECCA GRASSL BRADLEY, J. (concurring). I join the 

majority opinion in full. I write separately to address the 

petitioner's reliance on State v. Knapp, 2005 WI 127, 285 

Wis. 2d 86, 700 N.W.2d 899. Because the Knapp court's 

interpretation of Article I, Section 8 of the Wisconsin 

Constitution lacks any mooring in text or history, this court

should restore the original meaning of this constitutional 

provision.

¶39 The procedural posture of the Knapp case is somewhat 

unusual, with this court having had two separate opportunities 

to decide it. The defendant, Matthew Knapp, was suspected of 

killing a woman with a baseball bat. Knapp, 285 Wis. 2d 86, 

¶¶3-5. Following the incident, an officer visited Knapp at his 

apartment to arrest him, and requested the clothes he was 

wearing the night of the murder. Id., ¶8. Knapp pointed to a 

sweatshirt containing human blood, which the officer seized. 

Id., ¶9. During this exchange, the officer intentionally 

withheld Miranda warnings in an effort to procure the physical 

evidence. Id., ¶¶14-15. The State charged Knapp with firstdegree intentional homicide, after which he filed a motion 

seeking to suppress the physical evidence obtained at the scene 

of the arrest. The circuit court denied the motion. On appeal, 

this court reversed the circuit court's suppression ruling, 

holding that physical evidence must be suppressed if it was 

procured while intentionally violating Miranda. State v. Knapp, 

2003 WI 121, ¶1, 265 Wis. 2d 278, 666 N.W.2d 881 (Knapp I).
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¶40 The State appealed the Knapp I decision to the United 

States Supreme Court. The Court vacated the judgment and 

remanded the case back to the Wisconsin Supreme Court in light 

of the United States Supreme Court's decision in United States 

v. Patane, 542 U.S. 630 (2004) (plurality opinion). Wisconsin 

v. Knapp, 542 U.S. 952 (2004). In Patane, the Court held that 

the failure to give Miranda warnings does not "require[] 

suppression of the physical fruits of the suspect's unwarned but 

voluntary statements." Patane, 542 U.S. at 633-34. The Court 

explained that, within this context, "[t]here is simply no need 

to extend (and therefore no justification for extending) the 

prophylactic rule of Miranda." Id. at 643.

¶41 On remand, despite the United States Supreme Court 

declining to create an expanded prophylactic under the Fifth 

Amendment's privilege against self-incrimination, the Wisconsin 

Supreme Court held that the Wisconsin Constitution's analog to 

the Fifth Amendment——Article I, Section 8——affords greater 

protections than the United States Constitution. In particular, 

using different reasoning than its first decision but arriving 

at substantially the same conclusion, the second Knapp court 

held that, "[w]here physical evidence is obtained as the direct 

result of an intentional Miranda violation, . . . [Article I, 

Section 8 of the Wisconsin Constitution] requires that the 

evidence must be suppressed." Knapp, 285 Wis. 2d 86, ¶2 (Knapp 

II). The Knapp II court articulated that, "[i]t is the 

prerogative of the State of Wisconsin to afford greater 

protection to the liberties of persons within its boundaries 
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under the Wisconsin Constitution than is mandated by the United 

States Supreme Court." Id., ¶59 (quoting State v. Doe, 78 

Wis. 2d 161, 171, 254 N.W.2d 210 (1977)). According to the 

Knapp II court, although the text of Article I, Section 8 and 

the Fifth Amendment are "virtually identical," other factors 

weighed in favor of expanding state constitutional protections 

beyond those afforded under the Fifth Amendment. Id., ¶62. 

More specifically, the Knapp II court invented the sanction of 

suppressing evidence because the officer's "conduct at issue was 

particularly repugnant and require[d] deterrence." Id., ¶75. 

The Knapp II court also invoked the "preservation of judicial 

integrity" as a basis for contriving a different meaning for 

Article I, Section 8 than the United States Supreme Court gives 

the nearly identical Fifth Amendment. Id., ¶¶75-83.

¶42 Knapp II represents an unprecedented departure from 

the traditional tools employed by this court in interpreting the 

Wisconsin Constitution.1 Halverson's reliance on that case to 

request an expanded prophylactic to protect the privilege 

against self-incrimination indicates it is time for this court 

 

1 "Before Knapp, the Wisconsin Supreme Court had repeatedly 

held that in the absence of a meaningful difference in language, 

intent, or history, the state constitution's Declaration of 

Rights should be interpreted in conformity with the United 

States Supreme Court's interpretation of parallel provisions in 

the Bill of Rights. The language of the state constitutional 

right against compulsory self-incrimination is virtually 

identical to the Self-Incrimination Clause of the Fifth 

Amendment; the court had declined many previous invitations to 

interpret the state right more expansively than its federal 

counterpart." The Honorable Diane S. Sykes, Reflections on the 

Wisconsin Supreme Court, Marq. Law., March 2006, at 59-60.
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to revisit Knapp II's holding. As we noted in Roberson, "states 

have the power to afford greater protection to citizens under 

their constitutions than the federal constitution does." State 

v. Roberson, 2019 WI 102, ¶56, 389 Wis. 2d 190, 935 N.W.2d 813. 

Critically, however, "[a] state court does not have the power to 

write into its state constitution additional protection that is 

not supported by its text or historical meaning." Id. 

Restoring the proper method of interpreting Article I, Section 8 

is imperative if this court takes seriously its oath to uphold 

the Wisconsin Constitution. The question for this court is not 

whether the Wisconsin Constitution should afford greater 

protections, but whether it "actually affords greater 

protection[s]." Id. (emphasis added). Rather than applying the 

actual constitutional meaning of Article I, Section 8, the Knapp 

II court instead breathed its policy preferences into this 

provision. It was quite transparent about doing so. "[T]he 

court accepted the defendant's invitation to——as the court put 

it——'utilize . . . the Wisconsin Constitution to arrive at the 

same conclusion as in Knapp I.' This language is revealing for 

its pure, unvarnished result-orientation." The Honorable Diane 

S. Sykes, Reflections on the Wisconsin Supreme Court, Marq. 

Law., March 2006, at 60.

¶43 Despite acknowledging that the text of Article I, 

Section 8 and the Fifth Amendment are "virtually identical," the 

Knapp II court nevertheless engaged in judicial gymnastics to 

justify its disregard for these textual similarities. Knapp, 

285 Wis. 2d 86, ¶¶58-62. The only permissible avenue for 
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deviating from the United States Supreme Court's interpretation 

of the Fifth Amendment would be uncovering a historical meaning 

of Article I, Section 8 different from the original public 

meaning of its federal counterpart. The Knapp II court failed 

to do so.2 To be sure, the Knapp II court did note that, 

"shortly after Wisconsin earned statehood," this court declared 

that "no person is compelled to give evidence against himself, 

or to testify to any matter tending to criminate himself." Id., 

¶63 (citing Schoeffler v. State, 3 Wis. 823, 733 (1854)). This 

case, however, says nothing to suggest the historical meaning of 

Article I, Section 8 is any different than its federal analog, 

 

2 Justice Rebecca Dallet's concurrence suffers from the same 

shortfalls as the court's decision in State v. Knapp, 2005 WI 

127, 285 Wis. 2d 86, 700 N.W.2d 899 (Knapp II). Exposing the 

policy-making of the Knapp II court, Justice Dallet notes that 

the court "reached [the] conclusion [in Knapp II] for two 

important reasons: to deter bad police behavior and to preserve 

the integrity of the judiciary." Concurring op., ¶54. 

Overstepping the constitutional boundaries of the judicial role, 

Justice Dallet then charges that "[t]o abandon Knapp II is to 

abandon this court's long history of upholding the Wisconsin 

Constitution's protection against overbearing law-enforcement 

practices." Id., ¶57. While it is the court's responsibility 

to faithfully apply the protections constitutionally preserved 

for Wisconsin citizens, this court is confined to interpreting 

what the Wisconsin Constitution actually says rather than 

imposing particular justices' policy preferences. Whether or 

not this court thinks it is a good idea to "deter police 

behavior" or sanction "overbearing" police practices is simply 

irrelevant in ascertaining whether the Wisconsin Constitution 

actually affords heightened protections as compared to the 

United States Constitution. Only the text of the constitutional 

provision and its original meaning may resolve this question. 

State v. Roberson, 2019 WI 102, ¶56, 389 Wis. 2d 190, 935 

N.W.2d 813. Imposing judicial policy preferences in the name of 

a constitutional provision that does not reflect them 

constitutes an exercise of judicial will and encroaches on a 

purely legislative prerogative.
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nor does the Knapp II court even attempt a historical analysis 

to support such a theory. Instead, Knapp II pivots to declaring 

that rights under Article I, Section 8 are "sacred" and 

construed in favor of private citizens. Id. This analysis 

falls far short of substantiating the Knapp II court's 

conclusion that Article I, Section 8 embodies heightened 

protections, especially for a provision that repeats the federal 

text nearly verbatim.

¶44 Instead of exploring the meaning of the Wisconsin 

Constitution's text, as Roberson instructs, Knapp II relied 

heavily upon the view that the officer's conduct was "repugnant" 

and "require[d] deterrence," and that this court needed to 

"preserv[e] . . . judicial integrity." Knapp, 285 Wis. 2d 86, 

¶¶75, 79. Judicial policy goals, however estimable, cannot 

alter the meaning of the state constitution. "It is simply not 

compatible with democratic theory that laws mean whatever they 

ought to mean, and that unelected judges decide what that is." 

Antonin Scalia, Common-Law Courts in a Civil-Law System: The 

Role of United States Federal Courts in Interpreting the 

Constitution and Laws, in A Matter of Interpretation: Federal 

Courts and the Law 22 (Amy Gutmann ed., 1997). The judiciary 

must exercise its judgment, not its will. These principles do 

not reflect a novel approach to constitutional interpretation 

but form the core of the Founders' conception for the judicial 

role. See The Federalist No. 78 (Alexander Hamilton) ("The 

judiciary . . . can take no active resolution whatever. It may 

truly be said to have neither force nor will, but merely 
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judgment."). "It is, in other words, the judge's job to employ 

not his own will but the traditional tools of legal analysis[.]" 

Neil Gorsuch, A Republic, If You Can Keep It 195 (1st ed., 

2019).

¶45 The Knapp II court discarded these venerable 

principles, impermissibly factoring into its analysis what a 

majority of justices believed was "not tolera[ble]" and 

importing a non-textual, ahistorical consequence in reaction to 

"the police deliberately ignoring Miranda's rules as a means of 

obtaining inculpatory physical evidence." Knapp, 285 

Wis. 2d 86, ¶72. Neither "repugnant" facts nor intolerable 

actions have anything to say about the meaning of the privilege 

against self-incrimination set forth in the Wisconsin 

Constitution or the remedies for its violation; they are solely 

justifications for the exercise of judicial will.

¶46 In this case, the court correctly determines that 

Halverson fails to provide a "textual or historical basis to 

suggest any meaningful difference between the two provisions 

meriting an expanded judicially-created prophylactic rule." 

Majority op., ¶26. The same was true in Knapp II. Article I, 

Section 8 states, in part, that "[n]o person may be held to 

answer for a criminal offense without due process of law, and no 

person for the same offense may be put twice in jeopardy of 

punishment, nor may be compelled in any criminal witness against 

himself or herself." Wis. Const. art. I, § 8. Wisconsin's 

clause mirrors the Fifth Amendment: "[no person] shall . . . be 

subject for the same offence to be twice put in jeopardy of life 
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or limb; nor shall be compelled in any criminal case to be a 

witness against himself, nor be deprived of life, liberty, or 

property, without due process of law." U.S. Const. amend. V. 

During Wisconsin's constitutional ratification, the people 

adopted many provisions that closely parallel their federal 

counterparts, including——as relevant for Miranda——the right 

against compulsory self-incrimination. See Ray A. Brown, The 

Making of the Wisconsin Constitution: Part II, 1952 Wis. L. Rev. 

23, 58 (1952).

¶47 With this understanding, Wisconsin courts have 

repeatedly held that the clauses embodying the privilege against 

self-incrimination in the state and federal constitutions are 

interpreted in lock-step. In State v. Ward, for example, this 

court held that, in regard to the waiver of Miranda rights prior 

to criminal charging, "Article I, Section 8 of the Wisconsin 

Constitution provides the same protections . . . as does the 

Fifth Amendment to the United States Constitution." 2009 WI 60, 

¶55, 318 Wis. 2d 301, 767 N.W.2d 236. See also State v. Edler, 

2013 WI 73, ¶30, 350 Wis. 2d 1, 833 N.W.2d 564 ("We decline to 

extend the meaning of Wisconsin Constitution Article I, Section 

8 in this situation so as to provide different protection than 

the Fifth Amendment to the United States Constitution."). Knapp 

II is the only case to depart from Wisconsin's longstanding 

approach to interpreting Article I, Section 8 and the Fifth 
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Amendment in consonance.3 But Knapp II offered no foundation for 

abandoning the court's well-established understanding of the 

privilege against self-incrimination and the remedy for its 

breach.

¶48 Knapp II's holding lacks any foundation in the text or 

historical meaning of the constitutional language it construed. 

It rests solely on judicial policy preferences rather than the 

law and was rendered without any textual analysis or historical 

examination of the controlling language of the constitution. 

While state constitutional provisions may afford greater 

protections than the United States Constitution, the 

constitution itself must actually provide them. Although a 

majority of this court may prefer certain constitutional 

protections for criminal suspects, it remains the prerogative of 

the people of Wisconsin to bestow them. Because Article I, 

Section 8 does not require suppression of evidence obtained as 

the result of voluntary statements made by a criminal suspect 

from whom the reading of Miranda rights was withheld, only a 

constitutional amendment could create this remedy. The court in 

 

3 In her concurrence, Justice Dallet maintains that to 

interpret Article I, Section 8 in consonance with the Fifth 

Amendment is "to ignor[e] [this court's] robust tradition of 

independently interpreting the Wisconsin Constitution." 

Concurring op., ¶57. Not so. Of course "states have the power 

to afford greater protections to citizens under their 

constitutions than the federal constitution does." Roberson, 

389 Wis. 2d 190, ¶56. But the constitution must actually do so—

—not because a justice desires such protections, but because the 

people do. Neither the Knapp II court nor Justice Dallet 

performed an analysis of the text or original understanding of 

Article I, Section 8 necessary to support their proffered 

interpretation of that constitutional provision.
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Knapp II acted beyond its authority in devising it. Its holding 

should be overturned. I respectfully concur.

¶49 I am authorized to state that Justice ANNETTE 

KINGSLAND ZIEGLER joins this concurrence.
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¶50 REBECCA FRANK DALLET, J. (concurring). As the 

majority aptly recognizes, neither the United States nor the 

Wisconsin Constitution supports a judicially created, per se 

rule by which all incarcerated persons are in custody for 

purposes of Miranda.1 I write separately to emphasize that the 

Wisconsin Constitution was never intended to be interpreted in 

lockstep with the United States Constitution. Indeed, when it 

comes to certain individual liberties, particularly the right 

against self-incrimination, this court has long held that the 

Wisconsin Constitution provides greater protection than its 

federal counterpart.

I

¶51 As long ago as 1855, we recognized that "[t]he people 

of this state shaped our constitution, and it is our solemn 

responsibility to interpret it." See Attorney Gen. ex rel. 

Bashford v. Barstow, 4 Wis. 567 (*567), 786 (*757) (1855). In 

order to protect individual liberties, this court "will not be 

bound by the minimums . . . imposed by the [United States] 

Supreme Court." State v. Doe, 78 Wis. 2d 161, 172, 254 

N.W.2d 210 (1977); see also State v. Roberson, 2019 WI 102, 

¶¶99-101, 389 Wis. 2d 190, 935 N.W.2d 813 (Dallet, J., 

dissenting) (noting this court's 160-year history of 

interpreting the Wisconsin Constitution as granting protections 

over and above those recognized in the United States 

Constitution). The individual liberties protected by the 

Wisconsin Constitution, especially the right against self-

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
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incrimination, are fundamental to our liberty and must be 

staunchly guarded by this court:

The rights intended to be protected by [Article I, 

Section 8 of the Wisconsin Constitution] are so 

sacred, and the pressure so great towards their 

relaxation in case where suspicion of guilt is strong 

and evidence obscure, that it is the duty of the 

courts to liberally construe the prohibition in favor 

of private rights, and to refuse to permit those first 

and doubtful steps which may invade it in any respect.

Thornton v. State, 117 Wis. 338, 341, 93 N.W. 1107 (1903) 

(emphasis added). Even before the exclusionary rule became 

obligatory upon the states pursuant to Mapp v. Ohio, 367 

U.S. 643 (1961), we held that evidence seized in violation of 

the right against self-incrimination must be excluded from 

trial, thus elevating the right to one of substance rather than 

a mere "form of words."2 See Hoyer v. State, 180 

Wis. 407, 415-16, 193 N.W. 89 (1923). We explained that there 

was "no reason in logic, justice, or in that innate sense of 

fair play," that evidence obtained in violation of one's right 

against self-incrimination should be treated any differently 

than that obtained in violation of one's right to be free from 

unreasonable searches and seizures. Id. at 417 (reasoning that 

both constitutional guarantees were of "equal standing and 

value").

¶52 It was therefore no surprise when, nearly a century 

after Hoyer, we held in State v. Knapp (Knapp II), 2005 

WI 127, 285 Wis. 2d 86, 700 N.W.2d 899, that the Wisconsin 

 

2 Silverthorne Lumber Co. v. United States, 251 

U.S. 385, 392 (1920).
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Constitution requires the suppression of physical evidence 

obtained via an intentional Miranda violation. Id., ¶2. The 

facts of Knapp II are particularly egregious. Detective Timothy 

Roets arrived at Matthew Knapp's apartment ostensibly to arrest 

him for consuming alcohol, a parole violation. But in reality, 

the arrest was the start of Roets's investigation into Knapp for 

a woman's murder the night before. When Knapp saw Roets, he 

picked up the phone to call his attorney. Knapp eventually hung 

up the phone and let Roets in; Knapp informed Roets that he had 

been attempting to call his attorney. Without reading Knapp his 

Miranda warnings, Roets asked Knapp about the clothes he had 

been wearing the night before. Knapp pointed to a pile of 

clothes on the floor, which contained a bloody sweatshirt. 

Roets collected those clothes and formally placed Knapp under 

arrest. During continued questioning by Roets, Knapp twice said 

that an attorney told him not to talk to the police and that he 

would not write or sign a statement without an attorney. Roets 

never read Knapp the Miranda warnings. Id., ¶¶7-10.

¶53 At a Miranda-Goodchild hearing,3 Roets admitted that he 

deliberately did not inform Knapp of his Miranda rights. Roets 

testified he was concerned that Knapp, who had requested an 

attorney, would refuse to make a statement once he learned of 

his rights. So, "to keep the lines of communication open," 

 

3 At a Miranda-Goodchild hearing, the court adjudicates the 

admissibility of evidence obtained contrary to the right against 

self-incrimination. See State v. Jiles, 2003 WI 66, ¶25, 262 

Wis. 2d 457, 663 N.W.2d 798; State ex rel. Goodchild v. Burke, 

27 Wis. 2d 244, 133 N.W.2d 753 (1965).
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Roets purposefully withheld the Miranda warnings prior to 

questioning Knapp about his clothing. Id., ¶¶13-14.

¶54 This court held that, under Article I, Section 8 of 

the Wisconsin Constitution, the exclusionary rule bars the 

prosecution from introducing at trial the "physical fruits"——in 

Knapp II, the bloody sweatshirt——of a deliberate Miranda

violation. We reached this conclusion for two important 

reasons: to deter bad police behavior and to preserve the 

integrity of the judiciary. First, we reasoned that the 

Constitution could not abide such repugnant police conduct. 

Id., ¶75. We recognized that holding otherwise would send law 

enforcement the wrong message; that it was "better to 

interrogate a suspect without the Miranda warnings than to use 

legitimate means to investigate crime." Id., ¶77 (quoted source 

omitted). The Constitution, however, does not permit law 

enforcement to intentionally disregard its personal-liberty 

guarantees in order to obtain evidence.

¶55 Second, we noted that the judicial system maintains 

its reputation as a fair and neutral arbiter only if it holds 

all parties to the same constitutional standards. Id., ¶79. 

Safeguarding Wisconsinites' constitutional rights means ensuring 

that those rights are protected throughout the entire 

prosecutorial process. But that process would be 

"systematically corrupted" if we were to allow into the 

courtroom evidence obtained by unconstitutional "investigatory 

shortcuts." Id., ¶81. Indeed, just as "[i]t is not too much to 

expect law enforcement to respect the law," it is not too much 
No. 2018AP858-CR.rfd

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to expect the same of this court. See id. ("[F]air play 

requires the players to play by the rules, especially those 

players who enforce the rules.").

II

¶56 Neither party has asked us to overturn Knapp II. In 

fact, at oral argument, the State expressly told the court that 

it was "not asking for Knapp II to be overturned."4 And, as the 

majority rightly points out, "Knapp [II] does not suggest 

anything" about how the court should resolve Halverson's case. 

Majority op., ¶25 n.5.

¶57 Yet Justice Rebecca Grassl Bradley's concurrence calls 

on the court to overturn Knapp II anyway, ignoring our robust 

tradition of independently interpreting the Wisconsin 

Constitution.5 But to do so would not only erode Wisconsinites' 

 

4 https://wiseye.org/2020/09/14/wisconsin-supreme-courtoral-argument-state-v-brian-l-halverson/, at 33:22.

5 Justice Rebecca Grassl Bradley's concurrence charges that 

Knapp II is out of step with the United States Supreme Court's 

interpretation of the Fifth Amendment in United States v. 

Patane, 542 U.S. 630 (2004) (plurality op.). This assertion 

rests on a thin reed. See generally Yale Kamisar, 

Postscript: Another Look at Patane and Seibert, The 2004 

Miranda "Poisoned Fruit" Cases, 2 Ohio St. J. Crim. 

L. 97, 97-107 (2004).
No. 2018AP858-CR.rfd

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constitutional protections by sanctioning flagrant and 

deliberate due-process violations, it would also take a step 

toward making our own Constitution redundant with the federal 

one. See Lynn Adelman & Shelley Fite, Exercising Judicial 

Power: A Response to the Wisconsin Supreme Court's Critics, 91 

 

Patane is a plurality opinion with only three Justices 

concluding that, in the Fifth Amendment context, the 

exclusionary rule could never reach non-testimonial "fruits" 

obtained as the result of a Miranda violation. Patane, 542 U.S. 

at 633-34. That rationale was explicitly disavowed by the two 

concurring Justices. Id. at 645 (Kennedy, J., concurring). 

Instead, the concurrence applied a balancing test much like the 

one used in the Fourth Amendment context, counterbalancing "the 

concerns underlying" the Miranda rule against the "other 

objectives of the criminal justice system." Id. at 644. A 

majority of the Justices in Patane thus agreed that a balancing 

test, and not the plurality's absolute rule, was the proper 

approach. See 1 Robert P. Mosteller et al., McCormick on 

Evidence § 176 (8th ed. 2020) (noting that a majority of the 

Patane Court "agreed that whether the Miranda federal 

constitutional exclusionary requirement should and would extend 

to fruit of the poisonous tree depended on balancing the value 

of excluding fruit as a means of deterring conduct violating the 

constitutional provision against the costs of doing so").

As the Court did in Patane, we engaged in a balancing 

analysis in Knapp II; we just reached a different conclusion. 

See State v. Knapp (Knapp II), 2005 WI 127, ¶¶33-43, 72-81, 285 

Wis. 2d 86, 700 N.W.2d 899. That result is justified by the 

stark contrast between the egregious violation in Knapp II and 

the excusable Miranda error in Patane. Compare Knapp II, 285 

Wis. 2d 86, ¶¶7-10, with Patane, 542 U.S. at 635 (plurality op.) 

("Detective Benner attempted to advise respondent of his Miranda

rights but got no further than the right to remain silent. At 

that point, respondent interrupted, asserting that he knew his 

rights, and neither officer attempted to complete the 

warning."). Other states have also examined Patane but afforded 

broader protections under their state constitutions. See, e.g., 

State v. Vondehn, 236 P.3d 691 (Or. 2010) (en banc); State v. 

Peterson, 923 A.2d 585 (Vt. 2007); State v. Farris, 849 

N.E.2d 985 (Ohio 2006); Commonwealth v. Martin, 827 N.E.2d 198 

(Mass. 2005).
No. 2018AP858-CR.rfd

7

Marq. L. Rev. 425, 443-44 (2007) (observing that the state 

legislature has "historically failed to regulate the conduct of 

law enforcement," leaving it to the courts to prevent 

constitutional abuses); see also Jeffrey Sutton, 51 Imperfect 

Solutions 47-83 (2018) (cautioning states to avoid 

"lockstepping," particularly in the criminal-procedure context). 

To abandon Knapp II is to abandon this court's long history of 

upholding the Wisconsin Constitution's protection against 

overbearing law-enforcement practices, even if those practices 

meet the federally mandated minimum requirements. See Doe, 78 

Wis. 2d 161, 171-72; Hoyer, 180 Wis. 407; see also Sutton, supra

at 47-83.

¶58 Federal courts interpret the federal constitution. We 

have the final say on ours. Bashford, 4 Wis. at 786 (*757). 

And for nearly a century, we have held that, in comparison to 

those protected by the federal constitution, the individual 

liberties enshrined in the Wisconsin Constitution are rights "of 

substance rather than mere tinsel." See Hoyer, 180 Wis. at 415. 

We should keep it that way.

¶59 For the foregoing reasons, I respectfully concur.

¶60 I am authorized to state that Justices ANN WALSH 

BRADLEY and JILL J. KAROFSKY join this concurrence.
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