State Court Docket Watch: State of Wisconsin v. Halverson

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at [email protected].

Under the Wisconsin Constitution, a prisoner is not necessarily “in custody” for purposes of triggering Miranda[1] warnings. That was the Wisconsin Supreme Court’s unanimous holding in State v. Halverson, decided January 2021.[2] But although unanimous, Halverson revealed significant disagreement over the Court’s role in interpreting the state constitution. The decision portends future clashes on this important institutional question and corresponding opportunities for litigants seeking to press or oppose state constitutional claims.

In Halverson, the Wisconsin Supreme Court had the opportunity to clean up its Miranda jurisprudence, which an intervening decision of the United States Supreme Court had complicated.

Miranda famously held that, in order to protect the Fifth Amendment’s privilege against self-incrimination, statements given by a defendant during a “custodial interrogation” by the state are inadmissible in criminal proceedings unless they were preceded by a series of warnings apprising the defendant of his rights.[3] This rule makes the question of whether a “custodial interrogation” has occurred a decisive one, and courts have labored to establish a workable test to answer that question in a multitude of contexts.

Thus, in the 1999 case of State v. Armstrong,[4] the Wisconsin Supreme Court was asked to clarify what qualified as “custody” in the jailhouse setting—by definition a place in which individuals are detained by the state for long periods. Reasoning in part that “[i]n general, a person is ‘in custody’ for purposes of Miranda when he or she is “deprived of his [or her] freedom of action in any significant way,”[5] the Armstrong Court unanimously issued the sweeping rule that “a person who is incarcerated is per se in custody for purposes of Miranda.”[6]

But Armstrong’s bright line did not survive the United States Supreme Court’s 2012 decision in Howes v. Fields,[7] where the Court made clear that Miranda did not require a per se rule for prisoners. “Custody” within the meaning of Miranda, the Court explained, “is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.”[8] And while “[d]etermining whether an individual’s freedom of movement was curtailed” is “the first step in the analysis,” it “identifies only a necessary and not a sufficient condition for Miranda custody.”[9] Courts should “ask[] the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.”

The Howes Court went on to conclude that “imprisonment alone is not enough to create a custodial situation within the meaning of Miranda” for “at least” three reasons: (1) “questioning a person who is already serving a prison term does not generally involve the shock that very often accompanies arrest”; (2) “a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release”; and (3) “a prisoner, unlike a person who has not been convicted and sentenced, knows that the law enforcement officers who question him probably lack the authority to affect the duration of his sentence.”[10] 

The essential rule of Howes is that “[w]hen a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation.”[11] But while this answered the federal question in a way that effectively overruled Armstrong’s per se rule, left unresolved was whether the Wisconsin Constitution’s nearly identically-worded analogue to the Fifth Amendment’s self-incrimination privilege, Article I, § 8(1), provides independent support for such a rule.

Enter State v. Halverson, decided on January 29, 2021. The case arose when an inmate in a county jail, Brian Halverson, took a phone call from a law enforcement officer and made incriminating statements during the ensuing conversation (or interrogation).[12] In seeking to exclude the statements, Halverson could no longer rely on Armstrong and so instead argued the Wisconsin Supreme Court should “readopt the per se rule” under the Wisconsin Constitution.[13]

The Wisconsin Supreme Court unanimously declined to do so. Writing for the Court, Justice Brian Hagedorn acknowledged that “[f]ulfilling our duty to uphold the Wisconsin Constitution as written could yield conclusions affording greater protections than those provided by the federal Constitution,” but he immediately added that “any argument based on the Wisconsin Constitution must actually be grounded in the Wisconsin Constitution,” meaning “supported by its text or historical meaning.”[14]

Halverson came to the Court armed with neither type of argument, instead simply relitigating the question Howes had resolved of whether incarceration was inherently custodial.[15] But the Court agreed with the reasoning in Howes that a blanket rule was inconsistent with what Justice Hagedorn dubbed the “anti-coercion purposes of Miranda” and observed that Halverson “offer[ed] no strong reasons to diverge from [the United States Supreme Court’s] rationale.”[16]

All that was left was to determine whether Halverson was in custody under the two-step test described in Howes. The Court had little trouble concluding that he was not.[17] Practitioners will want to note the Court’s conclusion that “interrogation by phone call is unlikely to rise to the level of Miranda custody” given the suspect’s ability to hang up.[18] And other factors like the short length of the interview, the fact that Halverson “spoke . . . alone and without physical restraints,” and the interviewing officer’s “calm” “tone” counseled against a finding of custody.[19] Finally, the Court explained that a warning to the suspect that he or she may leave the interview at any time (which in Halverson’s case did not occur) is merely “relevant . . . not mandatory.”[20]

The Court’s opinion gave way to a relatively vigorous discussion between two battling concurrences—cumulatively joined by five of the Court’s seven justices—regarding the proper approach to state constitutional interpretation.

The catalyst for the debate was a controversial 2005 opinion of the Court, State v. Knapp,[21] in which the Court had interpreted Article I, § 8(1) (in an unrelated context) to provide broader protections than the Fifth Amendment—precisely what Halverson sought—and had justified its reading on the need to “deter[]” what it called “particularly repugnant” “conduct” and to “preserv[e] . . . judicial integrity.”[22] 

Although Halverson had cited Knapp as an example of a case in which the Court had “expanded the scope of the exclusionary rule beyond its federal corollary,” the Halverson Court summarily concluded in a footnote that “Knapp does not suggest anything about whether this court should adopt Halverson’s proposed rule in this case.”[23]

But Justice Rebecca Bradley, joined by Justice Annette Ziegler, went further and called for the Court to overrule what she characterized as an “unprecedented departure from the traditional tools employed by this court in interpreting the Wisconsin Constitution,” a case in which the Court “breathed its policy preferences into [the state constitutional] provision.”[24]

In response, Justice Rebecca Dallet, joined by justices Ann Walsh Bradley and Jill Karofsky, wrote in defense of Knapp, arguing that Justice Rebecca Bradley’s concurrence “ignor[ed] [the Court’s] robust tradition of independently interpreting the Wisconsin Constitution” and “abandon[ed] [the] court’s long history of upholding the Wisconsin Constitution’s protection against overbearing law-enforcement practices.”[25]

Although framed in terms of Knapp’s defensibility, the exchange between justices Rebecca Bradley and Rebecca Dallet is not solely about that case. Knapp is emblematic of a past era of the Court in which it was, in the words of Judge Diane Sykes, “quite willing to aggressively assert itself to implement the statewide public policies it deems to be most desirable” in a way “not susceptible of political correction as the legislature’s would be.”[26] That era ended when Justice Louis Butler, the author of Knapp and a key champion for a Knapp-style institutional approach, lost his seat to the much more jurisprudentially-conservative Justice Michael Gableman in 2008.[27] 

But as the Halverson concurrences demonstrate, compositional changes have now made a resurgence of the mid-2000s Wisconsin Supreme Court realistic. Wisconsin will have to wait to see whether the Bradley or the Dallet methodology ultimately wins out.