Illegal questioning taint disappears in minutes, court says

An appeals court panel said Wednesday that illegal police questioning of a burglary suspect was not enough to taint self-incriminating statements the suspect made a few minutes later.

In addition, the court, in a decision written by Appeals Court Judge Mark Gundrum, said it was fine for police to ask a suspect if he wanted to make a statement before informing the suspect of his Miranda rights. Gundrum, appointed to his seat in 2011 by Gov. Scott Walker, was joined in the decision by Appeals Court Judges Lisa S. Neubauer and Paul F. Reilly.

The District 2 Court of Appeals case stems from an incident in which a Kenosha police officer questioned Brian Harris after finding him hiding in a townhouse basement. Officer Justin Niebuhr also found cut copper piping and cutting tools. Niebuhr -- without advising Harris of his Miranda rights -- began questioning him about who he was and what he was doing in the basement. Police took Harris outside and put him in Niebuhr's squad car. The officer tried to get in touch with the townhouse owner and was completing paperwork when Harris said "that he’s been homeless for approximately seven years; that he frequently goes into vacant houses to sleep; that he was going to take the copper piping and sell it for money for food, and that he often commits misdemeanor crimes to get items to sell for food … to get by."

Later, in the Kenosha County Jail, Detective Chad Buchanan spoke with Harris, who still had not been informed of his rights.  Buchanan testified that "I went there with the intention of asking Mr. Harris if he would like to come with me to the detective bureau to be interviewed. I asked him if he would, and he stated to me something to the effect that they caught me, what’s the point." 

Harris eventually was found guilty of burglary, possession of burglary tools, criminal damage to property, and criminal trespass, all as a repeater. He appealed, contending his Fifth Amendment right against self-incrimination was violated because the trial judge, Circuit Judge S. Michael Wilk, allowed into evidence the statements he made before being told his rights.

The state conceded that Niebuhr's basement interrogation was illegal, "but asserts that 'the illegal activity … had ended and any semblance of an interrogation had been concluded by the time Harris was placed in the police squad,'” Gundrum wrote.

The appeals court agreed. The statements Harris made in the squad car were not made under questioning and the illegal questioning that occurred just a few minutes earlier did not have a significant impact the situation.

In those few minutes, Gundrum wrote, Harris was taken upstairs and placed in the squad. Niebuhr found a mugshot of Harris and tried to contact the townhouse owner and finish some paperwork. 

"The events between Niebuhr’s questioning in the basement and Harris’s comments in the squad car did not act in any way to foster a sense of continuation of the questioning, and they provided a meaningful break—a discontinuity—between the questioning and Harris’s inculpatory comments," Gundrum wrote. 

As for the jailhouse discussion with Detective Buchanan, Buchanan simply asked a question that could be answered with a "yes" or "no," Gundrum said. 

"While one could argue, from a practical standpoint, Buchanan should have just 'played it safe' and provided Harris the Miranda warnings prior to saying a single word to him, Buchanan’s actual approach is understandable," Gundrum wrote. "If Harris rejected Buchanan’s overture to cooperate and provide a formal statement—as Harris essentially did when he responded to the effect of “I got caught, man, that is there’s nothing else to say”—there would be no subsequent interrogation requiring the Miranda warnings. Of his own volition, Harris chose to communicate “no” to Buchanan in a foolish manner—leading “there’s nothing else to say” with “I got caught”—that provided the State with additional evidence to use against him at trial."

---