By Gretchen Schuldt
An appeals court threw out the drug conviction of a man who incriminated himself when he was questioned by police after saying he wanted a lawyer and before he was given his Miranda warnings.
His conviction for violating the terms of his bail in the invalidated drug case, however, stands.
Defendant Kale K. Keding did not "explain how his challenge to an order in the possession case could result in reversal of his conviction for bail jumping, nor does he make any other argument about the propriety of the judgment in that case," District IV Court of Appeals Judge Rachel A. Graham wrote in her one-judge decision.
Keding was one of two passengers in a car stopped by police for having a nonfunctioning brake light. Marshfield Police Officer Libby Abel eventually called for a K9 unit, and a police dog alerted to drugs in the vehicle. Police searched the car and found a small amount of cocaine in the front passenger-side door.
Keding was arrested after admitting to having substance abuse issues in the past and to snorting Adderall earlier that evening. At the station, Abel started to read Keding his Miranda rights, but Keding said he needed a lawyer and said he would remain silent. Abel testified later she never finished reading him his rights.
A short time later, Keding threw something in the garbage and Officer Mark Scheppler asked him what it was. Keding responded that it was a Kleenex and might have residue on it. Scheppler asked again about it and Keding said, "There's going to be a little cocaine in there."
"Some cocaine?" Schlepper asked.
"Yeah, I did some at the bar," Keding said. "I forgot about it because I like had drinks and like drinking impairs your — so that’s all I’m going to give you."
Keding was eventually charged with misdemeanor cocaine possession and was released on a $2,500 signature bond, according to online court records. One of the conditions of bond was that he maintain absolute sobriety.
He was later arrested in a bar after apparently having some drinks and was charged with misdemeanor bail jumping.
In the cocaine case, Keding sought to suppress the statements he made at the time of arrest and at the station, but Circuit Judge Nicholas J. Brazeau Jr. said but the ones he made at the station could be admitted.
As part of a plea agreement, Keding pleaded no contest to possession of a controlled substance and misdemeanor bail jumping. Brazeau sentenced him to a year of probation.
Keding appealed both convictions, arguing that the stationhouse statements should have been suppressed.
Schlepper's question about what Keding threw in the garbage was "a reasonable and obvious one, and had I been in Scheppler’s position, I would have likely asked the same question," Graham wrote. "Even so, the State is prohibited from using Keding’s response — which was the product of a custodial interrogation that occurred without Miranda warnings — against him at trial."
Schlepper's follow-up questions about what Keding meant by "residue" and responding “Some cocaine?” also were problematic, Graham said.
"Even if Scheppler’s remarks were not inflected with a question mark, an objective reasonable observer would conclude that Scheppler’s inquiries were reasonably likely to elicit a response from Keding that the state might seek to introduce at his trial," she said. "Indeed, although an officer’s subjective intent is not dispositive in this inquiry, Scheppler testified that in 'repeating' Keding’s responses back to him, he was attempting to have a conversation with Keding about the cocaine."
"The State has not attempted to prove that the error was harmless, and I accept the State’s silence on this point as a concession that it was not," she said.
"The circuit court erred by declining to suppress the statements Keding made to Scheppler in the police station," she wrote, remanding the case back to circuit court.
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