The upshot

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, (Brian L) 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. 

Background

​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.

In a 1999 case, this court agreed. Relying on United States Supreme Court precedent, we held "that a person who is incarcerated is per se in custody for purposes of Miranda." 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. 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. 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....

The circuit court relied on (an officer's) uncontested testimony as factual background, but it granted Halverson's motion to suppress. 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 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 per se rule under the Wisconsin Constitution. It further concluded that Halverson was not in custody for purposes of Miranda under the totality of the circumstances. We granted Halverson's petition for review and agree with the court of appeals. 

The guts

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....

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.... 

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.'" 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 interviewee at the end of the questioning."  The inability to leave and terminate the conversation, however, is not enough on its own to trigger the need for Miranda warnings....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."

(In Howe) the (U.S. Supreme) Court expressly rejected a categorical rule that questioning an inmate is custodial. Instead it reviewed and re-emphasized the two-step, totality-of-the-circumstances custody inquiry established in prior cases. Using that analysis, it reasoned that incarcerated individuals are not automatically in custody for purposes of Miranda. 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.  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. Second, incarcerated individuals have far less pressure to speak with the hope of securing release. They know that when the questioning is finished, they will remain incarcerated. Finally, incarcerated individuals know that their questioners "probably lack authority to affect the duration of [their] sentence." Therefore, the Court held that incarceration alone does not necessarily implicate the same anti-coercion interests that motivated the Court's prophylactic efforts in Miranda. 

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 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....

We have generally interpreted Article I, Section 8 (of the Wisconsin Constitution) consistent with the protections afforded by the Fifth Amendment. Halverson provides no textual or historical 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.

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....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.... 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.  

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....

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 Miranda." He spoke to Officer (Matthew) 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. 

Concurrence

I join the majority opinion in full. I write separately to address the petitioner's reliance on State v. Knapp. 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....

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...(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...." The Knapp II court invented the sanction of suppressing evidence because the officer's "conduct at issue was particularly repugnant and require[d] deterrence." 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....

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 to revisit Knapp's holding....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]...." 

Note: We are trying something new here, crunching Supreme Court of Wisconsin decisions down to size. (Left to themselves, some of our justices do go on so.) The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.  In this case, we've omitted a concurrence by Justice Rebecca Dallet, joined by Justices Ann Walsh Bradley and Jill Karofsky, because it addresses a secondary issue.
​
Majority: Ann Walsh Bradley, joined by Patience Roggensack, Annette Ziegler, Rebecca Dallet, and Jill Karofsky. (20 pages)

​The upshot

The petitioner, Leevan Roundtree, seeks review of an unpublished per curiam decision of the court of appeals affirming his judgment of conviction and the denial of his motion for postconviction relief. He asserts that the felon-in-possession statute under which he was convicted is unconstitutional as applied to him.

Specifically, Roundtree contends that Wisconsin's lifetime firearm ban for all felons is unconstitutional as applied to him because his conviction over ten years ago for failure to pay child support does not justify such a ban. He maintains that the conviction was for a nonviolent felony and that no public safety objective is served by preventing him from owning a firearm....
 
We determine that Roundtree's challenge to the felon-in-possession statute requires the application of an intermediate level of scrutiny.
 
Under such an intermediate scrutiny analysis, we conclude that his challenge fails. The statute is constitutional as applied to Roundtree because it is substantially related to important governmental objectives, namely public safety and the prevention of gun violence.....

The Background

In 2003, Roundtree was convicted of multiple felony counts of failure to support a child for more than 120 days. As a consequence of these felony convictions, Roundtree was, and continues to be, permanently prohibited from possessing a firearm.

Milwaukee police executed a search warrant at Roundtree's home on October 30, 2015. Under his mattress, officers located a revolver and ammunition. A record check of the recovered gun revealed that it had been stolen in Texas. Roundtree claimed that "he purchased the firearm from a kid on the street about a year ago, but that he did not know it was stolen." 

​The State charged Roundtree with a single count of possession of a firearm by a felon contrary to Wis. Stat. § 941.29(2). He pleaded guilty and was subsequently sentenced to 18 months of initial confinement and 18 months of extended supervision. 

The guts​

Roundtree's as-applied challenge is based on the contention that his conviction for failure to pay child support is a nonviolent felony and thus is insufficient to curtail his constitutional right to bear arms. He argues        that "[d]isarming [him] does not in any way advance public safety, but deprives him of his right to keep and bear arms for self-defense." As this is an as-applied challenge, he must demonstrate that his constitutional rights specifically were violated, not that the statute is unconstitutional in all applications....

The United States Supreme Court has made clear that "[l]ike most rights, the right secured by the Second Amendment is not unlimited."  The same is true of the right provided by our State Constitution. Indeed, the Second Amendment secures "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." 

In Heller, the Court struck down a regulation barring residential handgun possession as contrary to the Second Amendment. Id. In doing so, the Court observed "that the Second Amendment conferred an individual right to keep and bear arms." It was careful, however, to delineate the reach of its analysis:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive ​places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. 

Roundtree was convicted of failure to support a child for over 120 days. In his view, this is different in kind from the crime at issue in Pocian, where the defendant was convicted of uttering a forgery as the underlying felony. Put frankly, he suggests that failing to pay child support is not as bad as "physically taking a victim's property."

But failure to pay child support is every bit as serious as uttering a forgery if not more so. Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities. Roundtree chose to keep money for himself that rightly belonged to his children. And, to further add to the egregiousness of his offense, he committed this crime repeatedly by failing to support for at least 120 days. By all accounts this is a serious offense.

Simply because his crime was not physically violent in nature, it does not follow that the felon-in-possession statute cannot be constitutionally applied to Roundtree. The Seventh Circuit determined as much in Kanter when it concluded that "the government has shown that prohibiting even nonviolent felons like Kanter from possessing firearms is substantially related to its interest in preventing gun violence."  The legislature did not... create a hierarchy of felonies, and neither will this court. 

Even in the case of those convicted of nonviolent felonies, "someone with a felony conviction on his record is more likely than a non-felon to engage in illegal and violent gun use." Thus, even if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to not only break the law, but to commit a crime serious enough that the legislature has denominated it a felony, as Roundtree has here. 

Such assertions are echoed by data from the Wisconsin Department of Corrections (DOC). For example, DOC data indicate that among recidivists who committed public order offenses, such as failure to pay child support, and were released from prison in 2011, 21.4 percent recidivated with a violent offense. As the State strikingly observes in its brief, "the 21.4 percent rate of public order offenders recidivating with a violent crime was higher than that of property offenders (16 percent) and drug offenders (17.9 percent). And it was just seven percentage points lower than the rate of violent offenders (28.3 percent)." This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence."

Further, the fact that Roundtree's conviction occurred over ten years ago does not affect the result. Roundtree asserts that he poses no danger to public safety and should be able to possess a firearm as a result. However, the record indicates that the gun Roundtree possessed was stolen and purchased off the street. Supporting street level gun commerce is hardly the benign action Roundtree would have us believe it is.