2011 WI 25
Supreme Court of Wisconsin
Brad E. Forbush,
REVIEW OF A DECISION OF THE COURT OF APPEALS
2010 WI App 11
Reported at: 323
(Ct. App. 2010-Published)
April 29, 2011
Submitted on Briefs:
September 14, 2010
Source of Appeal:
Terence T. Bourke
ABRAHAMSON, C.J., and BRADLEY, J., concur (Opinion filed).
PROSSER, J., concurs (Opinion filed).
CROOKS, ZIEGLER, and GABLEMAN, JJ., dissent (Opinion filed).
ZIEGLER and GABLEMAN, JJ., dissent (Opinion filed).
defendant-respondent-petitioner, there were briefs filed by Craig Mastantuono, Rebecca M. Coffee,
and Mastantuono Law Office, S.C.,
For the plaintiff-appellant, there was a cause argued by Aaron R. O’Neil, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
An amicus curiae brief was filed by Nicholas L. Chiarkas, state public defender and Colleen D. Ball, assistant state public defender.
2011 WI 25
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
IN SUPREME COURT
Brad E. Forbush,
APR 29, 2011
A. John Voelker
Acting Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Reversed and remanded to the circuit court.
¶1 PATIENCE DRAKE ROGGENSACK, J. We review a
published decision of the court of appeals
reversing the circuit court's
order granting Brad Forbush's (Forbush) motion to suppress statements he made
during a police interrogation. The
central issue presented is whether the United States Supreme Court's decision in Montejo
¶2 Forbush contends that his right to counsel under the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution was violated by police interrogation because he had affirmatively invoked his right to counsel and counsel was not present when he was asked to waive the right he previously invoked. I agree. For the reasons discussed below, I conclude that in the factual context herein presented, Montejo does not sanction the interrogation that occurred. We so conclude because Forbush's right to counsel under the federal or state constitution had attached and was invoked affirmatively by Forbush before the investigator's questioning was initiated. I also conclude that the circuit court's finding that the investigator knew Forbush had secured legal counsel for the pending charges is not clearly erroneous. Furthermore, Forbush was not required to "re-invoke" his right to counsel when the investigator initiated interrogation. Accordingly, Forbush's statements must be suppressed, and we reverse the decision of the court of appeals.
May 8, 2008, the State of
¶4 On the morning of May 16, Forbush was questioned by Norlander, also of the Sheboygan County Sheriff's Department. Norlander had reviewed Detective Weber's reports prior to his interrogation of Forbush. The interrogation was videotaped. Norlander read Forbush the Miranda warnings. After 28 minutes of inquiry regarding whether Forbush was willing to waive his right to have counsel present, Norlander repeatedly told Forbush that he would like to hear his side of the story; that it was usually better if law enforcement knew both sides of the story; that Norlander knew only one side of the story, but that he could not hear Forbush's side unless Forbush signed the waiver of rights form. Forbush subsequently gave a verbal waiver and completed a waiver of rights form. Throughout the reminder of the interrogation, Forbush made potentially incriminating statements.
¶5 Immediately following the interrogation, Forbush was taken to his initial appearance. Attorney Rebecca Coffee, an attorney with the Mastantuono Law Office, who together with Attorney Forbush has represented Forbush on these charges throughout this case, was present at the initial hearing.
¶6 Before trial, Forbush moved to suppress his statements to
Norlander on the grounds that his right to counsel was violated
because he was represented by counsel on these charges at the time of the
interrogation. Specifically, Forbush
asserted that he was represented both by Attorney Forbush, a
¶7 The circuit court found that law enforcement knew Forbush was represented by counsel on the pending charges and concluded that the State had violated Forbush's Sixth Amendment right to counsel. The circuit court granted Forbush's motion, barring the State from introducing Forbush's statements to Norlander.
¶8 The State appealed and the court of appeals reversed the
suppression order. State v. Forbush,
2010 WI App 11, ¶2, 323
¶9 We granted review and now reverse the court of appeals.
A. Standard of Review
issue is whether the United States Supreme Court's decision in Montejo
requires us to overrule
B. Right to Counsel
¶11 On appeal, Forbush argues that the interrogation by Norlander violated his right to counsel. Forbush contends that he invoked his right to counsel under the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution when he affirmatively requested and received representation of counsel, Attorney Forbush and the Mastantuono Law Office, for these charges. Accordingly, Forbush argues that he was represented by counsel when Norlander questioned him and that the State was aware of this representation. The State contends that Montejo has removed the restrictions on questioning a represented defendant unless he requests counsel at the time of questioning.
¶12 I begin my discussion with the framework for the right to counsel
that has been employed during interpretations of the United States and
Wisconsin Constitutions, in order to show the contours of the right when
Forbush was interrogated. I then examine
the rule of law established by the Supreme Court's decision in Montejo. Finally, I discuss the current viability of
the pre-Montejo standards in
a. General framework
¶13 The Sixth Amendment guarantees that "the accused shall enjoy
. . . the Assistance of Counsel for his defence." Similarly, Article I, Section 7 of the Wisconsin Constitution guarantees
that "[i]n all criminal prosecutions the accused shall enjoy the right to
be heard by himself and counsel." The right to counsel is a fundamental right
guaranteed to criminal defendants in this country. Johnson v. Zerbst, 304
is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. . . . It embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.
is important to note that "[o]nce the right to counsel has attached and
been asserted, the State must of course honor it."
the right to counsel under the Sixth Amendment and Article I, Section 7 "'attaches
only at or after the time that adversary judicial proceedings have been
initiated against [a defendant].'"
United States v. Gouveia, 467
U.S. 180, 187 (1984) (quoting Kirby v. Illinois, 406
Sixth Amendment right to counsel extends to all "critical stages" of
the criminal proceedings, including the period prior to trial.
to charging, the right to counsel during in-custody police questioning is
afforded under the Fifth Amendment and Article I, Section 8 of the Wisconsin
Constitution. Both the Supreme Court and
this court have held that under the Fifth Amendment, a suspect must
unequivocally and unambiguously request counsel before police are required to
cease questioning. See Davis
v. United States, 512
with the Fifth Amendment right to counsel, the Sixth Amendment right to counsel
that has attached with the filing of a criminal complaint or the issuance of an
arrest warrant is not automatically invoked when such a defendant is questioned
by the police. Consequently, police
questioning of a charged defendant is not automatically prohibited. Rather, to have a valid claim that one's
constitutional rights have been violated, a charged defendant must show that he
invoked his right to counsel. McNeil
described some circumstances under which a charged defendant may invoke his
right to counsel. In Dagnall, the Dane County District
Attorney's office issued a criminal complaint charging Dagnall with
homicide. Dagnall, 236
the same day that Dagnall was arrested, Attorney James H. Conners delivered a
letter to the
part of our discussion in Dagnall, we reviewed the modes by which an
accused may invoke his right to counsel, thereby mandating the cessation of
questioning by the police. After
thorough consideration of Supreme Court precedent, we concluded "that a
charged defendant in custody who does not have counsel must invoke, assert, or
exercise the right to counsel to prevent interrogation."
The Sixth Amendment right to counsel does not attach until the initiation of criminal charges. It then attaches for those specific charges. The right must be "invoked" by the accused to terminate police questioning before an attorney has been retained . . . .
After an attorney represents the defendant on particular charges, the accused may not be questioned about the crimes charged in the absence of an attorney. The authorities must assume that the accused does not intend to waive the constitutionally guaranteed right to the assistance of counsel.
clarified that the right to counsel was not violated when a represented
defendant makes an "unguarded outburst" or himself initiates the
contact with the police.
question of whether an accused defendant actually invoked his right to counsel
was addressed in Smith v. Illinois, 469 U.S. 91 (1984). There, the Supreme Court concluded that the
defendant's statement "I'd like to do that[,]" upon being told that
he had the right have an attorney present, was sufficient to invoke the right
the Court explained by quoting the trial court, "a statement either is
such an assertion of the right to counsel or it is not."
Court in Smith also discussed the difference between invoking the right
to counsel and the waiver of that right, concluding that "a valid waiver
'cannot be established by showing only that [the accused] responded to further
police-initiated custodial interrogation.'" Smith, 469
¶26 A charged defendant may invoke his Sixth Amendment right to counsel at an extradition proceeding, even though it is a separate proceeding from the criminal action for which extradition is sought. See People v. Maust, 576 N.E.2d 965, 971 (Ill. App. 1 Dist. 1991) (concluding that Maust invoked his Sixth Amendment right to counsel for pending charges when he requested counsel during a hearing where he waived formal extradition); see also State v. March, 2011 WL 332327, at *25 (Tenn. Crim. App. Jan. 27, 2011) (concluding that March invoked his Sixth Amendment right to counsel by retaining counsel before he was returned from California to Tennessee).
b. The effect of Montejo
State now urges that we overrule Dagnall's conclusion that the waiver of
the right to counsel by a charged defendant who has affirmatively invoked his
right to counsel by securing the services of an attorney for the crimes charged
is invalid unless the defendant initiates the contact with the police. The State's argument is based on the 2009
Supreme Court decision in Montejo; however, Montejo does not
require the result that the State seeks.
Montejo decided only that courts need not "presume
that such a waiver is invalid under certain circumstances." Montejo, 556
was charged with first-degree murder and at his 72-hour hearing, the
the exact details were disputed, at some point during the excursion, the police
convinced Montejo to write an inculpatory letter of apology to the widow of the
appeal to the Louisiana Supreme Court, Montejo argued that admission of the
letter into evidence was a violation of his Sixth Amendment right to counsel
because the Office of Indigent Defender had been ordered to represent him;
therefore, he was represented when the police initiated contact with him.
Louisiana Supreme Court rejected Montejo's argument, reasoning that the
appealed to the United States Supreme Court.
The Supreme Court first rejected the
The Louisiana Supreme Court's answer to that unresolved question is troublesome. The central distinction it draws——between defendants who "assert" their right to counsel and those who do not——is exceedingly hazy when applied to States that appoint counsel absent request from the defendant. . . . How does one affirmatively accept counsel appointed by court order? An indigent defendant has no right to choose his counsel, so it is hard to imagine what his "acceptance" would look like, beyond the passive silence that Montejo exhibited.
court then noted that the "only
question raised by this case, and the only one addressed by the Jackson
rule, is whether courts must presume that such a waiver is invalid under
Montejo decision did not conclude that a charged defendant who has
affirmatively invoked his Sixth Amendment right to counsel by retaining and
receiving the services of a lawyer for the offenses charged must
"re-invoke" his Sixth Amendment right to counsel every time law
enforcement attempts to interrogate him.
To the contrary, the Court cited Massiah with approval, wherein
the Court concluded that eliciting testimony of a defendant who has appeared in
court with counsel retained for the pending charges was violative of the
defendant's Sixth Amendment rights.
Court in Montejo examined the origins of the
when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
¶37 The Court first concluded that not requiring the invocation of the
right to counsel by a defendant in order to trigger the
¶38 The Court did not change the rule of law set out in Massiah
that holds that a charged defendant who has secured and received representation
of counsel for the pending charges has invoked his Sixth Amendment right to
counsel, thereby preventing the subsequent eliciting of statements by the
defendant without the presence of counsel.
Massiah, 377 U.S. at 206 (concluding that Massiah was denied the
"basic protections of [the Sixth Amendment right to counsel] when there
was used against him at his trial evidence of his own incriminating words,
which federal agents had deliberately elicited from him after he had been
indicted and in the absence of his counsel.") The Court also reaffirmed the proscription of
police badgering a defendant to change his mind about his invocation of the
right to counsel made before police questioning began. Montejo, 556
¶39 Here, Forbush invoked his Sixth Amendment right to counsel while in
¶40 In some respects, Forbush's circumstances are similar to those in Massiah,
in that Massiah had appeared on pending charges with a lawyer and pleaded not
guilty. Massiah, 377
¶41 In regard to the protections afforded defendants in criminal proceedings, one interpretation of Forbush's argument is that he is not asking us to create a new interpretation of Article I, Section 7 of the Wisconsin Constitution in order to expand its protections beyond those afforded by the Sixth Amendment of the United States Constitution. Rather, Forbush may be asking us to maintain our past interpretations of Article I, Section 7. In order to address this argument, I review past interpretations of Article I, Section 7 that we have applied in cases where an accused's right to counsel is at issue.
¶42 Prior to Montejo, we held that "[t]he right to the
assistance of counsel is necessary to ensure that a criminal defendant receives
a fair trial. . . . A criminal defendant in
¶43 In the context of an ineffective assistance of counsel claim, we
also have concluded that Article I, Section 7's right to counsel is the same as
what we then understood to have been provided by the Sixth Amendment. Sanchez, 201
It is true, we find no express provision of law declaring that the county shall pay for services rendered by an attorney appointed by the court, in defending a person on trial for a criminal offense; and yet, it would be a reproach upon the administration of justice, if a person, thus upon trial, could not have the assistance of legal counsel because he was too poor to secure it.
Now, is the right to meet the witnesses face to face, and to have compulsory process to compel the attendance of unwilling witnesses, more important, or more valuable to a person in [jeopardy] of life or liberty, than the privilege of having the benefit of the talents and assistance of counsel in examining the witnesses, or making his defense before the jury? And would it not be a little like mockery to secure to a pauper these solemn constitutional guaranties for a fair and full trial of the matters with which he was charged, and yet say to him when on trial, that he must employ his own counsel, who could alone render these guaranties of any real permanent value to him.
¶44 The import of the discussion of the right to counsel under Article
I, Section 7 in Carpenter increases given that the opinion was authored
by Justice Orsamus Cole. Justice Cole
¶45 In addition to this early history of the right to counsel under
Article I, Section 7, careful consideration of underlying constitutional policy
supportive of this provision has led us to vigorously protect an accused's
right to counsel. The above-cited
language from early cases such as Carpenter demonstrates that the
long-standing principles relating to the right to counsel are among the most
important in protecting an accused. For
example, Carpenter pointed out how it would be nothing short of
"mockery" to afford the accused the right to compel and confront
witnesses, while not providing counsel to assist him. Carpenter, 9
¶46 We repeatedly have expressed similar constitutional rationales relating to the issues presented today. First, regarding a defendant's right to the cessation of questioning once he has been formally charged and is represented by counsel, we explained, by comparing the differences in the wording of the Sixth Amendment and Fifth Amendment right to counsel, that:
[t]he Sixth Amendment right to "Assistance of Counsel" is provided explicitly in the text of the Amendment and is designed to assist the "accused" with his or her "defence." The Fifth Amendment right to counsel is not expressly provided. It is a right that exists by implication, a prophylactic devised by courts to protect a person's right, in a criminal case, not to incriminate himself or herself involuntarily.
¶47 The constitutional policy underlying the Dagnall holding emphasizes that once a defendant moves from a "suspect" to an "accused," i.e., once a person has been formally charged, his or her right to counsel attaches. And in Dagnall, the defendant had affirmatively invoked his right to counsel by retaining and receiving the services of counsel. The strong constitutional protections under both the federal and state constitutions for an accused in the circumstances attendant to our Dagnall decision are logical given the competing interests at stake at that point in a prosecution. That is, the State seeks to obtain a confession from the accused while the accused has an interest in guarding against the powers of the State that are focused on convicting him. Moreover, much of the State's investigation will be completed by the time the State formally charges a defendant, and therefore, protections for an accused do not unduly hinder the State's ability to investigate crimes.
Dagnall, we also relied on the important policy rationale behind
preserving the attorney-client relationship.
This is a consideration separate and apart from other reasons for the
principles we explained. Indeed, "the
confidence and trust underlying the attorney-client relationship are
foundational to the practice of law and deeply rooted in our law and
Professional Rules." Sands v.
Menard, Inc., 2010 WI 96, ¶53, 328
Sparkman v. State, 27
Dagnall and many other cases cited above, we affirmed the rights that we
concluded charged defendants require for fair trials. I now conclude that the fundamental
constitutional principles underlying those decisions are just as compelling
today as we held them to be in the past.
Therefore, they continue to be sound policy for
¶51 In sum, I affirm the reasoning of Dagnall as controlling on the issue of the right to counsel for a defendant who has affirmatively invoked his right to counsel by requesting and receiving the services of counsel for pending charges. I agree with the State that Montejo did modify Dagnall such that there is no presumption of a Sixth Amendment violation due to police interrogation of a represented defendant when the "certain circumstances" of defendant match those of defendant-Montejo. I now apply these standards to the case at hand.
¶52 At the September 8, 2008 motion hearing, the parties stipulated that Forbush was represented by counsel at the time Norlander initiated questioning. This stipulation is consistent with Massiah, Davis and Smith. Stated otherwise, applying an objective standard to determine whether Forbush actually invoked his Sixth Amendment right to counsel by this representation to which the State has stipulated, requires the reasonable conclusion that he did invoke his right to counsel.
¶53 The parties did not stipulate to whether Norlander knew Forbush was represented. However, the circuit court made a finding of fact that authorities knew Forbush had retained counsel. This finding is not clearly erroneous.
¶54 In this regard, I reaffirm that authorities must not avoid
discovering whether an accused has invoked his Sixth Amendment right to
¶55 I agree with the circuit court's reasoning. Under the undisputed facts herein presented, Forbush affirmatively invoked his Sixth Amendment and Article I, Section 7 rights to counsel by retaining and receiving the services of counsel for the crimes charged, and law enforcement was aware of that representation when Norlander began to question Forbush. Accordingly, Norlander's questioning violated Forbush's right to counsel afforded by the Sixth Amendment and Article I, Section 7 of the Wisconsin Constitution, from its inception; the circuit court's suppression of Forbush's statements to Norlander was required due to the violation of Forbush's constitutional rights. Nothing in Montejo disturbs Edwards absolute bar to questioning a defendant who has invoked his right to counsel. Accordingly, Montejo is not applicable to the constitutional analysis applicable after Forbush affirmatively invoked the Sixth Amendment right to counsel by retaining and receiving the services of an attorney.
¶56 I conclude that in the factual context herein presented, Montejo does not sanction the interrogation that occurred. We so conclude because Forbush's right to counsel under the federal or state constitution had attached and was invoked affirmatively by Forbush before the investigator's questioning was initiated. I also conclude that the circuit court's finding that the investigator knew Forbush had secured legal counsel for the pending charges is not clearly erroneous. Furthermore, Forbush was not required to "re-invoke" his right to counsel when the investigator initiated interrogation. Accordingly, we reverse the decision of the court of appeals and affirm the suppression order of the circuit court.
By the Court.—The decision of the court of appeals is reversed and the cause is remanded to the circuit court.
¶57 SHIRLEY S. ABRAHAMSON, C.J. (concurring). Because Justice Roggensack's opinion appears as the first opinion in print and electronic publications and inconsistently employs the words "we" and "us" (incorrectly in many instances, inasmuch as no justice is joining her opinion), it is important to clarify the precedential value of Justice Roggensack's opinion. It has none. See Justice Roggensack's op., ¶2, n.3 (explaining that four justices agree to reverse the decision of the court of appeals, although they do not agree on the rationale).
¶58 I agree to some extent with the writings of both Justice Roggensack
and Justice Crooks. I agree with Justice
Roggensack's bottom line that Forbush's right to counsel was violated and that
Forbush's statements must be suppressed.
I agree with Justice Crooks's criticism of Justice Roggensack's
reasoning regarding Wisconsin law and Montejo v. Louisiana, 556 U.S.
___, 129 S. Ct. 2079 (2009). Justice Roggensack does not forthrightly rest
her decision on the
¶59 I conclude that Forbush's right to counsel is appropriately tethered to the Wisconsin Constitution.
¶60 I conclude that Forbush's right to counsel is protected under Article I, Section 7 of the Wisconsin Constitution, which provides: "In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel . . . ."
¶61 This case must be understood in the light of two decisions——our decision in State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680, and the United States Supreme Court's decision in Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009)——and in light of Wisconsin constitutional law and constitutional history.
¶62 In Dagnall, this court interpreted the Sixth Amendment to
the United States Constitution, not the Wisconsin Constitution. The Dagnall court suppressed a
defendant's incriminating statements under the Sixth Amendment, concluding that
a presumption existed that the defendant had invoked his right to counsel when
(1) the defendant had been charged; (2) the defendant had counsel; and (3) law
enforcement officers were aware that the defendant had counsel. Both Forbush and the State agree that the
well-established law enforcement practice in
¶63 In Montejo, the United States Supreme Court overruled its prior decisions to conclude that the protections of the Sixth Amendment right to counsel are equivalent to the protections of an accused's Fifth Amendment right to counsel. The Court ruled in Montejo that a defendant who has been charged with a crime may waive his Sixth Amendment right to counsel so long as the relinquishment of the right is voluntary, knowing, and intelligent; an equivocal request for counsel does not constitute a request for counsel under the Sixth Amendment.
¶64 The United States Supreme Court's interpretation of the Sixth Amendment in Montejo supersedes our interpretation of the Sixth Amendment in Dagnall and our previous interpretations of the Sixth Amendment. "[T]he Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of this court."
¶65 Thus, Forbush concludes that he is foreclosed by the Sixth Amendment. He focuses on the Wisconsin Constitution. I too focus my analysis on the Wisconsin Constitution. The core issue Forbush presents in the instant case is whether Article I, Section 7 of the Wisconsin Constitution requires the suppression of the statements he made to Detective Norlander.
¶66 Forbush calls our attention to Justice Scalia's majority opinion in Montejo, inviting state courts to look to their own constitutions. Justice Scalia wrote: "If a State wishes to abstain from requesting interviews with represented defendants when counsel is not present, it obviously may continue to do so."
¶67 No invitation from the United States Supreme Court is necessary for
a state court to abide by its own constitution.
¶68 State courts have, without question, the power to interpret their state constitutions differently than the United States Supreme Court has interpreted even parallel, analogous federal constitutional provisions.
¶69 It is axiomatic that a state's highest court is the final arbiter of the meaning of the state constitution, subject to the rule that a state may not infringe upon protections afforded by the federal constitution. Nearly fifty years ago our court explained that when interpreting our Constitution, decisions from the United States Supreme Court interpreting analogous provisions in the federal Constitution "are eminent and highly persuasive, but not controlling, authority . . . ."
¶70 This court has explained that it "will not be bound by the
minimums which are imposed by the Supreme Court of the
¶71 Based on our long tradition, I accept Justice Scalia's invitation
to interpret the protections afforded Forbush under the Wisconsin
Constitution. I conclude that under the
Wisconsin Constitution, an accused is afforded the protections this court
previously described in Dagnall,
to be attached to the Sixth Amendment.
Applying the holding of Dagnall to the
¶72 In reaching this conclusion I am following the course this court took in our recent decision in State v. Knapp, 2005 WI 127, 285 Wis. 2d 86, 700 N.W.2d 899. The history of Knapp is analogous to the history of the present case. Knapp provides an example of this court's interpreting the Wisconsin Constitution to afford greater protection to our citizens' liberties than that provided under the federal constitution.
¶73 In State v. Knapp (Knapp I), 2003 WI 121, 265
¶74 Thereafter, in United States v. Patane, 542 U.S. 630 (2004), the United States Supreme Court disagreed with our court's interpretation of the Fifth Amendment and concluded in a plurality opinion that the admission of such derivative evidence did not violate the Fifth Amendment. The United States Supreme Court vacated the Knapp I decision and remanded the case to this court. (In Montejo the Supreme Court disagreed with our court's interpretation of the Sixth Amendment in Dagnall.)
¶75 On remand of Knapp I, this court had to decide in Knapp II whether to follow the United States Supreme Court decision in Patane or stay with Knapp I and hold that the physical evidence obtained as the direct result of an intentional Miranda violation should be suppressed as a violation of Article I, Section 8 of the Wisconsin Constitution (the Fifth Amendment analogue). (In the instant case, this court has to decide whether to follow the United States Supreme Court decision in Montejo or adhere to Dagnall as a matter of state constitutional law.)
¶76 The State argued in Knapp II that Patane was dispositive because neither did Knapp raise violations of, nor did this court base its decision in Knapp II on, our state constitution's analogue of the Fifth Amendment. Moreover, the State argued that this court had declined in previous cases to interpret the Wisconsin Constitution's right against self-incrimination in Article I, Section 8 (textually almost identical to that right in the Fifth Amendment) more broadly than the federal constitutional right. (The State makes a similar argument in the instant case.)
¶77 On remand in Knapp II, relying upon Wisconsin's long and cherished history of providing robust protection for individual rights to preserve the integrity of our criminal justice system, this court held that the Wisconsin Constitution provides greater protections under Article I, Section 8 than are afforded under the analogous Fifth Amendment of the United States Constitution. In the present case, I would follow the precedent set forth in Knapp II and apply the state constitution.
an accused's right to counsel in pre-trial interrogation is imperative to
protect the trial rights of an accused and to enhance the integrity of the
fact-finding process. As the United
States Supreme Court recognized in Miranda: "Without the protections flowing from
adequate warning and the rights of counsel, 'all the careful safeguards erected
around the giving of testimony, whether by an accused or any other witness,
would become empty formalities in a procedure where the most compelling
possible evidence of guilt, a confession, would have already been obtained at
the unsupervised pleasure of the police.' Mapp v. Ohio, 367
¶79 I would interpret Article I, Section 7 of the Wisconsin
Constitution following the reasoning and conclusions set forth in Dagnall
¶80 For the reasons set forth, I conclude that the State violated Forbush's constitutional right to counsel under Article I, Section 7 of the Wisconsin Constitution. The circuit court properly suppressed his statements.
¶81 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
¶82 DAVID T. PROSSER, J. (concurring). In 2000 the Wisconsin Supreme Court
interpreted the Sixth Amendment right to counsel in the following
circumstances: (1) the defendant had been charged with a crime; (2) counsel had
been retained to represent the accused on that charge; (3) counsel informed law
enforcement authorities about the representation and admonished them not to
question the accused about the charge; and (4) both the law enforcement
officers involved and the accused knew of the representation and discussed
it. In these circumstances, the law
enforcement officers continued to question the accused, administering Miranda
three times, then interrogating the accused about the charge. Each time they elicited incriminating
information. The accused later attempted
to suppress this information.
¶83 The Dagnall court did not determine whether the accused's
statement to the officers——"My
lawyer told me that I shouldn't talk to you guys"——was sufficient to "invoke" his Sixth
Amendment right to counsel after he received a Miranda warning.
We hold that Dagnall was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge. Because Dagnall was an accused person under the Sixth Amendment who had an attorney to represent him on the specific crime charged, and because the attorney had informed the police of his representation of Dagnall and admonished them not to question his client about that crime, any subsequent questioning about that crime was improper.
¶84 The court added in its conclusion:
We hold that the Sixth
Amendment right to counsel protected Dagnall from police interrogation about
the homicide once Dagnall was formally charged and once an attorney represented
him on that charge. Because the
detectives went to
¶85 The Dagnall decision was this court's attempt to synthesize
and explain United States Supreme Court decisions on the right to counsel,
under the Sixth Amendment, as of mid-2000.
The decision affirmed a unanimous decision of the court of appeals, State
v. Dagnall, 228
¶86 The Dagnall decision did not eliminate the need to invoke
the right to counsel for "a charged defendant in custody who does not
have counsel." Dagnall,
¶87 But once a person has been charged and an attorney has been
retained or appointed for that charge, "an accused who has [ ] counsel . . . need not make a 'real
request' [an unambiguous invocation of the right to counsel] as required by the
statements constitute the law of
May 8, 2008, the Sheboygan County District Attorney's office had charged
Forbush with two felonies and secured a warrant for his arrest. On that day, Forbush was arrested on the
waived extradition and was transported to
is no dispute that during the week between Forbush's arrest in
short, Forbush's Sixth Amendment right to counsel was triggered by the filing
of a criminal complaint. Counsel was
present for Forbush in
the detective's questioning was not proper.
Any incriminating statements obtained from Forbush on the morning of May
16 should have been suppressed under then controlling
MONTEJO AND GANT
2009, while the State's appeal was pending in the court of appeals, the United
States Supreme Court handed down two important criminal law decisions: Montejo
v. Louisiana, 556
Montejo, the Supreme Court overruled its holding in Michigan
v. Jackson, 475 U.S. 625, 636 (1986), that once the Sixth Amendment right
to counsel is asserted, an accused may not validly waive that right in a
police-initiated custodial interrogation.
¶96 In overruling Jackson, the Court undercut many of the major
underpinnings of Dagnall, which relied heavily on
¶97 The Court implicitly recognized, however, that its changed
interpretation of the Sixth Amendment right to counsel is not the only
constitutionally acceptable approach.
"If a State wishes to abstain from requesting interviews
with represented defendants when counsel is not present, it obviously may
continue to do so." Montejo,
¶98 The second important criminal case in 2009 was
¶99 Many courts, including courts in
¶100 When this court was confronted with the holding in Gant, we
immediately accepted the Gant interpretation as controlling for future
searches but declined to apply the remedy of exclusion retroactively to
searches conducted prior to Gant.
See State v. Dearborn, 2010 WI 84, ¶¶3-4, 327
¶101 Because there was no question that the officers were acting in good
faith, we applied the good faith exception to the exclusionary rule and
declined to apply the remedy of exclusion.
many ways, the Forbush case presents the opposite of the good faith reliance
[I]f a suspect who has been charged responds to the Miranda warning by making references to an attorney even though she does not clearly express a wish for counsel, this would likely be considered an assertion of the 6th amendment right. . . . The court jealously protects the 6th amendment right to counsel.
The Miranda Primer, 9 (citing Dagnall, 236
¶103 At the time of Forbush's interrogation, the advent of the Montejo
ruling was barely a glimmer in Justice Scalia's eye. The Supreme Court would not grant certiorari
in Montejo until almost five months later (October 1, 2008), Montejo
¶104 Law enforcement should not be disadvantaged for its
"objectively reasonable reliance" on settled law. Dearborn, 327
¶105 The good faith exception to the exclusionary rule evolved from a
recognition that where law enforcement acts in good faith, the purpose of
deterrence is not served by suppressing reliable evidence.
¶106 The principles stated above should determine the outcome of this case and may affect other cases where law enforcement officers conducted inappropriate questioning of accused defendants before Montejo was decided. The principles stated above do not address the future. It is, however, important to note that the Supreme Court invited the states to preserve existing law that police-initiated questioning of accused persons charged with crimes and represented by counsel is presumed invalid and will lead to exclusion of incriminating evidence.
¶107 The Wisconsin Department of Justice was correct when it stated that
this court "jealously protects the 6th amendment right to
counsel." The Miranda Primer,
9. As we indicated in Dagnall,
the Sixth Amendment right to counsel arises after adversary judicial
proceedings have been initiated by the filing of a criminal complaint or the
issuance of an arrest warrant, Dagnall, 236
¶108 Interpreting the cases in 2000, this court said that "a charged
defendant in custody who does not have counsel must invoke, assert, or exercise
the right to counsel to prevent interrogation."
¶109 The upshot of Montejo is that a charged defendant in custody must invoke, assert, or exercise the right to counsel, clearly, to prevent interrogation, even after counsel has been hired or appointed, so long as a proper Miranda warning has been provided.
¶110 Justice Scalia acknowledged in Montejo that a
"bright-line rule like that adopted in
[T]he Court has already taken substantial other, overlapping measures toward the same end. Under Miranda's prophylactic protection of the right against compelled self-incrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right. Under Edwards' prophylactic protection of the Miranda right, once such a defendant "has invoked his right to have counsel present," interrogation must stop. And under Minnick's prophylactic protection of the Edwards right, no subsequent interrogation may take place until counsel is present, "whether or not the accused has consulted with his attorney."
¶111 According to Justice Scalia, "a defendant who does not want to
speak to the police without counsel present need only say as much when he is
first approached and given the Miranda warnings."
¶112 This blueprint for interrogation will inevitably raise questions about whether a particular accused's statements "say as much" as necessary to terminate interrogation in the absence of counsel. It raises questions about whether an attorney present at the jail and demanding to see her client will be permitted to confer with the accused unless the accused personally asks to confer with his attorney.
¶113 An accused's waiver of counsel must be knowing and intelligent and voluntary, and the state will have the burden of showing all three in every case. This is significant when we acknowledge that not all defendants are equal in their capacity to understand and appreciate their rights, and not all post-Miranda admissions will automatically pass muster.
¶114 Whether rights afforded by the Sixth Amendment will require additional protection in this state remains to be determined.
¶115 The law is ever changing. At
first glance, Montejo presents a dramatic shift in direction for Sixth
Amendment jurisprudence. If there is
anything to be learned from a study of constitutional law, however, it is that
even the most momentous decisions rarely escape some refinement over time. The Court's holding in Belton was perceived
to be very broad when it was issued, but the decision was not clarified and
narrowed until almost 30 years later. Gant,
¶116 Montejo is unquestionably the current controlling law on the subject of the Sixth Amendment right to counsel. But neither this court nor law enforcement currently has the benefit of the inevitable explanation, application, and modification of the principles that Montejo so recently announced. It is unnecessary here to expound on what additional protections, if any, may be needed in the future. It is enough now to uphold the protections that were in place when Brad Forbush was questioned in violation of settled law.
¶117 For the foregoing reasons, I respectfully concur.
¶118 N. PATRICK CROOKS, J. (dissenting). I lament the fact that three justices, each in a separate written opinion, take three divergent avenues in a futile effort to uphold the Dagnall rule and suppress statements Forbush voluntarily made to police. These varying approaches leave more questions than answers. Justice Roggensack, in her effort to save the Dagnall rule, employs an extremely narrow reading of Montejo, ignoring an entire section of that decision, in order to extract only the language and principles that support her position. Her attempt to minimize the effect of a United States Supreme Court decision rings hollow because Montejo clarified that the focus on retained versus appointed counsel is a distinction without a difference. After Montejo, retaining or appointing counsel does not, by itself, serve to invoke the Sixth Amendment right to counsel prohibiting a subsequent police-initiated interrogation. Both Justice Prosser and Chief Justice Abrahamson note as much in their writings. Justice Prosser, in his effort to save the Dagnall rule, invents an anomalous bad faith corollary to the good faith exception to the exclusionary rule. Chief Justice Abrahamson, in her effort to save the Dagnall rule, relies on the Wisconsin Constitution but pays scant attention to the fact that Dagnall was based entirely on the United States Constitution. I would follow the clear mandate in Montejo and overrule Dagnall. This result follows the letter and the spirit of Montejo, protecting a defendant's right to counsel while ensuring that justice will be done by the admission of voluntary statements of a defendant such as Forbush.
¶119 I disagree with the decisions of these justices to depart from
well-reasoned federal constitutional law, and thus I respectfully dissent. Part I analyzes the United States Supreme
Court's decision in Montejo
v. Louisiana, 556
¶120 I begin by clarifying the effect of Montejo to demonstrate
that Justice Roggensack's interpretation lacks any foundation in the language
of that decision. Her opinion gives far
too little credence to the United States Supreme Court’s careful examination of
the Sixth Amendment right to counsel and the rationale underlying the
¶121 Under Jackson, a waiver of the right to counsel was presumed
invalid where it was obtained during police-initiated questioning after the
State was notified that a charged defendant had secured representation by
counsel. Montejo, 129
¶122 The Montejo Court's holding encompassed two distinct but
related Sixth Amendment right to counsel issues. The Court first rejected Montejo's attempt to
¶123 In rejecting the expansion of
No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. And no reason exists to prohibit the police from inquiring. Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance.
¶125 Montejo also clarified that an unequivocal request for
counsel is required to invoke both the Fifth and Sixth Amendment right to
counsel. The United States Supreme Court has long
required an unequivocal and unambiguous request to invoke the Fifth Amendment
right to counsel. Davis v.
¶126 In Montejo, after rejecting his argument under the
now-defunct Jackson decision, the United States Supreme Court ordered a
remand to allow Montejo to argue that he “made a clear assertion of the right
to counsel,” which under Edwards would invalidate any statements
obtained after such an invocation if police initiated the subsequent
interrogation. Montejo, 129 S.
Ct. at 2091-92 (citing Davis, 512
¶127 At one time, the
¶128 Significantly, in its decision overruling Jackson and
clarifying that only an unequivocal request can invoke the Sixth Amendment
right to counsel, the United States Supreme Court disposed of the distinctions
between the Fifth and Sixth Amendment right to counsel in Montejo. In support of its abrogation of the
¶129 I emphasize these tenets of Montejo because the United States
Supreme Court’s definitive interpretation of the Sixth Amendment right to
counsel in Montejo clearly invalidates Justice Roggensack's reasoning
for upholding Dagnall and provides the appropriate outcome in this
case. The heart of Justice Roggensack's
rationale is based on three erroneous legal arguments: (1) requesting counsel
in out-of-state extradition proceedings invokes the right to counsel for a
subsequent interrogation in
¶130 There is also a fourth and quite critical factual flaw in Justice
Roggensack's reasoning. Even if Montejo
and Dagnall could be reconciled into a rule prohibiting the
police-initiated interrogation of a charged defendant "who has
affirmatively invoked his right to counsel by securing the services of an
attorney for the crimes charged," Justice Roggensack's op., ¶27, there is
no evidence that Forbush in fact did so in this case. While Forbush secured a
¶131 Despite the lack of evidence in the record that Forbush
affirmatively requested counsel in
¶132 Additionally, it simply is not possible to read Montejo as
narrowly as Justice Roggensack desires. Justice Roggensack insists that
Montejo is limited to the "certain circumstances" presented in
Montejo, which she vaguely asserts as "a charged defendant for whom
counsel had been appointed by the court, but for whom the Supreme Court could
not determine whether he had actually invoked his right to counsel and the
protections that would then flow from Edwards." Justice Roggensack's op., ¶34 (citing Montejo, 129
¶133 Federal and state courts around the country have recognized that after Montejo, neither requesting nor being appointed nor receiving the services of counsel serves to invoke the Sixth Amendment right to counsel. United States v. Johnson, No. 09-752, 2010 WL 4910889, at *3-4 (E.D. Pa. Dec. 2, 2010); United States v. Veals, No. 08-2235, at 6, 2010 WL 145110, (7th Cir. Jan. 15, 2010); People v. Vickery, 229 P.3d 278, 281 (Colo. 2010); Hughen v. State, 297 S.W.3d 330, 335 (Tex. Crim. App. 2009); Williams v. State, 38 So. 3d 188, 190-92 (Fla. Dist. Ct. App. 2010). Commentators have also noted that Montejo foreclosed any rule allowing representation by or the retention of an attorney to serve as an invocation of the Sixth Amendment right to counsel. Sixth Amendment—Right to Counsel—Interrogation Without Counsel Present, 123 Harv. L. Rev. 182, 183 (2009) ("Justice Scalia held that neither of the two proposed approaches to Jackson—applying it only when the defendant affirmatively requests counsel or applying it as soon as the defendant is granted counsel even if there is no affirmative request—is workable."). The writings of Justice Prosser and Chief Justice Abrahamson both recognize that Montejo repudiated this court's interpretation of the Sixth Amendment right to counsel in Dagnall. Justice Prosser's op., ¶¶96, 109; Chief Justice Abrahamson's op., ¶64.
¶134 A closer look at the context of the Court's language in Montejo
illuminates the fact that the "certain circumstances" are much
broader, including both the facts of this case and the Dagnall
rule. In summarizing the issue presented,
the Court stated, "The only question raised by this case, and the
only one addressed by the Jackson rule, is whether courts must presume
that such a waiver is invalid under certain circumstances." Montejo, 129
¶135 The decision did not conclude upon the United States Supreme Court's
explanation that the
¶136 Dagnall’s holding “that the Sixth amendment right to counsel
protected Dagnall from police interrogation . . . once Dagnall was formally
charged and once an attorney represented him on that charge,” directly
conflicts with Montejo and thus should no longer be the law in Wisconsin. Dagnall, 236 Wis. 2d 339, ¶67; see State v.
¶137 On a deeper level, Montejo rejected not only this court’s
holding in Dagnall, but also our reasoning in that case. Dagnall's
departure from the more defined Fifth Amendment right to counsel standards was
based, in part, on purported distinctions between the Fifth and Sixth Amendment
rights to counsel. I dissented in Dagnall
because there is no basis for deriving different standards from the Fifth and
Sixth Amendment rights to counsel. 236
¶138 Montejo rejected this court's interpretation of the Sixth Amendment
right to counsel in Dagnall, and it cannot survive without those Sixth
Amendment underpinnings. We explicitly
stated in Dagnall that our decision was based solely on the United
States Supreme Court’s interpretation of the Sixth Amendment right to counsel
and not on any interpretation of the Wisconsin Constitution. In fact, the Dagnall majority referred
to the Sixth Amendment 69 times and referred to the Wisconsin Constitution only
in a footnote, which was added to make absolutely clear that our decision was not
based on Article I, Section 7. 236
¶139 While Justice Roggensack insists that Montejo's
interpretation of the Sixth Amendment does not conflict with Dagnall,
she nevertheless suggests that Dagnall created a "fundamental
constitutional principle" underlying Article I, Section 7 that is
unencumbered by Sixth Amendment jurisprudence.
Justice Roggensack's op., ¶¶41-51. As noted in Justice Roggensack's opinion, ¶42, we have generally
interpreted the right to counsel under Article I, Section 7 consistent with
that in the Sixth Amendment. See State
v. Polak, 2002 WI App 120, ¶8,
254 Wis. 2d 585, 646 N.W.2d 845; State v.
Roggensack's reference to
another unique tactic to uphold the exclusion of Forbush's statements, Justice
Prosser invents a bad faith corollary to the good faith exception to the
exclusionary rule. We recently discussed the good faith exception in State
v. Dearborn, 2010 WI 84, 327
importantly, Justice Prosser fails to heed our warning in
further liberties with United States Supreme Court precedent, Justice Prosser
suggests that because it is unclear how Montejo, "the current
controlling law on the subject of the Sixth Amendment right to counsel,"
will be refined in the future, this court can wait and see how the law develops
before we decide whether to follow it.
Justice Prosser's op., ¶¶115-16.
This ignores the maxim that "this court is bound by the
interpretations which the United States Supreme Court has given" to
provisions of the federal constitution. State
v. Pitsch, 124
of our previous decisions illustrate the consequences of misinterpreting and
misapplying United States Supreme Court precedent. In State v. Ramos, 211
¶145 To reach their desired result, Justices Roggensack and Prosser need
not misapply our precedent and that of the United States Supreme Court, as they
have done here, because, as we have done in certain unique circumstances, there
are established methods through which we may depart from federal constitutional
rulings. For example, we may examine a
parallel provision of the Wisconsin Constitution to determine whether it
provides protections not afforded under the United States Constitution. See e.g., State v. Hansford,
¶146 Chief Justice Abrahamson's opinion follows the well-established method of examining whether the Wisconsin Constitution provides greater protections than the federal constitution. While I do not quibble with her approach, for the reasons set forth in this dissent, I strongly disagree with her result. I do not believe that there are any requirements in our Wisconsin Constitution or laws upon which an attempt to salvage the Dagnall rule may be founded.
¶147 The Dagnall rule is without any legal footing after Montejo. This rule should not survive for several
practical reasons as well. In its
decision rejecting the
¶148 As a result of the opinions of the three justices, statements Forbush made to police voluntarily after carefully considering whether to waive his right to counsel and tell his side of the story are held to be inadmissible. The justification for this result is unclear in light of the fact that, consistent with established Fifth Amendment law, had police questioned Forbush before charges were formally filed, his waiver would be valid and his statements would be admissible. However, since charges had been filed, they find his waiver invalid, even though if they followed the decision in Montejo, the waiver would be valid. Based on the clear holding of the United States Supreme Court in Montejo, I believe that there is no basis whatsoever for the rule set forth today.
¶149 Any interpretation of the right to counsel must strike a balance
between protecting a defendant’s rights and allowing law enforcement to seek
justice. See Montejo, 129
¶150 For the above reasons, we should follow the United States Supreme
Court and make it clear that Dagnall is no longer the law in
¶151 I believe it is also important to highlight that, in my dissent in Dagnall,
I raised many of the same concerns addressed by the United States Supreme Court
in its rejection of the
¶152 Therefore, I would affirm the court of appeals’ decision and remand
this case for trial. In so doing I would
make it clear that Dagnall is no longer the law in
¶153 I have emphasized in previous dissents and continue to emphasize
here that when different rules apply to charged and uncharged defendants there
may be a temptation to manipulate the timing of charging in a manner
inconsistent with the interests of justice.
Additionally, a bright-line rule prohibiting law enforcement from
initiating questioning with a charged and represented defendant will unduly
restrict law enforcement’s ability to obtain voluntary confessions. The result in this case comes at a serious
cost. When law enforcement is prevented
from obtaining voluntary confessions, “crimes go unsolved and criminals
unpunished.” Montejo, 129
¶154 For the reasons set forth herein, I respectfully dissent.
¶155 I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this dissent.
¶156 ANNETTE KINGSLAND ZIEGLER, J. (dissenting). I join Justice Crooks' dissent, but I write separately to emphasize my reason for joining his dissent.
¶157 For the past decade, the law in this state regarding custodial
interrogation of represented defendants has been governed by State v.
Dagnall, 2000 WI 82, 236
¶158 However, in the wake of Montejo v. Louisiana, 556
¶159 For that reason, I join Justice Crooks' writing and respectfully dissent.
¶160 I am authorized to state that Justice MICHAEL J. GABLEMAN joins this dissent.
 State v. Forbush,
2010 WI App 11, 323
 The Honorable Terence
T. Bourke of
 Chief Justice Shirley S. Abrahamson, joined by Justice Ann Walsh Bradley in an opinion based on reasoning that differs from that employed herein, concurs in concluding that Forbush's Article I, Section 7 right to counsel was violated and that his statements to Norlander must be suppressed; Justice David T. Prosser, in a separate opinion based on reasoning that differs from that employed herein and that employed by Chief Justice Abrahamson, concurs in concluding that Forbush's statements to Norlander must be suppressed; Justice N. Patrick Crooks, Justice Annette Kingsland Ziegler and Justice Michael J. Gableman dissent and have filed dissenting opinions.
 Miranda v.
 Forbush also argued that there was a Fifth Amendment violation, but the circuit court's Fifth Amendment holding is not on appeal.
 Attorney Mastantuono has continued to represent Forbush throughout this appeal.
 In full, the Sixth Amendment reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const. amend. VI.
The Supreme Court applied the Sixth Amendment right to counsel to the states through incorporation by the Due Process Clause of the Fourteenth Amendment in Gideon v. Wainwright, 372 U.S. 335 (1963).
 In full, Article I, Section 7, "Rights of accused," reads:
In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.
 Cf., Escobedo
Dagnall, the issue of whether Dagnall had invoked his right to counsel
under the Wisconsin Constitution was not raised and therefore, this court did
not directly address it. But rather, Dagnall
interpreted the law relative to a charged defendant through reference to past
Sixth Amendment interpretations. State
v. Dagnall, 2000 WI 82, ¶28 n.7, 236
 The detectives read
Dagnall his Miranda warnings on each occasion before they questioned
 The dissent disagreed,
arguing that the purpose of the
 Justice Crooks' dissent is
based on the unstated, but faulty, premise that Forbush did not invoke
his Sixth Amendment right to counsel by his appearance in
 The Wisconsin
Constitution was adopted in 1848. There
were two constitutional conventions, one in 1846 and 1847-48. State v. Hansford, 219
 Supreme Court Justices, Wisconsin Court System, http://wicourts.gov/about/judges/supreme/retired/cole.htm (last visited Apr. 18, 2011).
 Justice Crooks' dissent
asserts that the stipulation gives no support to the conclusion that Forbush
invoked his right to counsel. Justice
Crooks' dissent, ¶130. However, I conclude that the continuation of
legal representation in
 Norlander testified that he had reviewed Detective Weber's report prior to questioning Forbush and Detective Weber had been in contact with Scott Forbush, Forbush's attorney.
 The reader should note that this is not a waiver case, i.e., the question presented is not whether Forbush waived his right to counsel during Norlander's interrogation. This is an invocation case, i.e., the question presented is whether Forbush invoked his Sixth Amendment and Article I, Section 7 rights to counsel.
 Justice Roggensack, in an obfuscated attempt to avoid interpreting the Wisconsin Constitution, rests on an interpretation of Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009). I agree with Justice Crooks that her interpretation lacks foundation in the text of the decision.
I further agree with Justice Crooks's dissent that a
determination of an accused's constitutional rights is tethered to the text of
a constitution, not to "fundamental constitutional principles" or
"sound policy" as Justice Roggensack asserts in ¶¶44-49. There is neither support for, nor a need for,
the concoction of constitutional principles and policy unmoored from the solemn
constitutional guaranties the people of
In avoiding interpreting the Wisconsin Constitution,
Justice Roggensack rests on unmoored principles of public policy. It has been observed that public policy
"is a very unruly horse, and once you get astride it you never know where
it will carry you. It may lead you from
Justice Roggensack's view that our court's
interpretation of the federal Constitution in State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680, is in reality an
interpretation of the state constitution is erroneous, see Justice
Crooks's dissent, ¶¶136-137,
and contravenes the United States Supreme Court's doctrine of "adequate
and independent state ground[s]."
 The interpretation of
an accused's right to counsel under the Wisconsin Constitution is not based on
sound policy or the common law unmoored from the constitutional guaranties the
 State v. Dagnall,
2000 WI 82, ¶¶52-53,
 "The defendant may
waive the right whether or not he is already represented by counsel; the
decision to waive need not itself be counseled." Montejo, 129
 Montejo also
effectively overruled State v. Hornung, 229 Wis. 2d 469,
600 N.W.2d 264
(Ct. App. 1999), in which the court of appeals determined that strict
requirements of "unequivocally and unambiguously" asserting the right
to counsel, as determined under the Fifth Amendment, were not the appropriate
requirements under the Sixth Amendment.
The Hornung court, relying upon Michigan v. Jackson, 475
This court referred to the Hornung decision in State
v. Ward, 2009 WI 60, ¶43
 See State v.
 Forbush's Petition for Review at 2; Brief and Appendix of Defendant-Respondent-Petitioner at 1.
 Brief and Appendix of Defendant-Respondent-Petitioner at 23-24.
 Montejo, 129
 The United States Supreme
Court has explicitly acknowledged this authority on numerous occasions, even
going so far as offering invitations to state courts to do so on many
occasions, just as Justice Scalia has in Montejo. See, e.g., Montejo, 129
S. Ct. at 2089 ("If
a State wishes to abstain from requesting interviews with represented
defendants when counsel is not present, it obviously may continue to do
so" (emphasis in original).);
Oregon v. Hass, 420
Wisconsin Supreme Court has "a long history of recognizing the vitality of
the Declaration of Rights of the Wisconsin
Constitution . . . ."
State v. Pallone, 2000 WI 77, ¶92, 236
For a discussion of other state courts interpreting their own constitutions rather than viewing the state constitution as a restatement of the federal Constitution, see Knapp II, 285 Wis. 2d 86, ¶¶87-91 (Crooks, J., concurring).
 McCauley v. Tropic
of Cancer, 20
 State v. Doe, 78
 State v. Dagnall, 2000
WI 82, 236
 Hornung v. Hornung, 229
 State v. Ward,
2009 WI 60, ¶43 n.5,
 Dagnall, 236
 Carpenter v.
 Justices Kennedy and
O'Connor concurred in the judgment, agreeing with the plurality that admission
of nontestimonial physical fruits does not run the risk of admitting into trial
an accused's coerced incriminating statements against himself.
 State v. Knapp (Knapp
II), 2005 WI 127, 285
 Article I, Section 8 of the Wisconsin Constitution provides: "No person . . . may be compelled in any criminal case to be a witness against himself or herself."
 State v.
 Knapp II, 285
See Knapp II, 285 Wis. 2d 86, ¶2 (reinstating all portions of the prior Knapp I decision, 265 Wis. 2d 278, not implicated by the United States Supreme Court's order vacating the decision in light of United States v. Patane, 542 U.S. 630 (2004)).
 Carpenter v. Doe,
 Miranda v.
 The search in question
occurred on April 9, 2006. State v.
 The central focus of Montejo was “the scope
and continued viability of the rule announced by [the United States Supreme
Court] in Michigan v. Jackson. Montejo
 Justice Roggensack's failure to address Forbush's argument that he equivocally requested counsel and that such a request is sufficient to invoke the right to counsel implicitly recognizes that this argument lacks merit after Montejo. Chief Justice Abrahamson's opinion recognizes that Montejo clarified that a clear, unequivocal request for counsel is required to invoke both the Fifth and Sixth Amendment right to counsel, though she concludes that equivocal requests are sufficient to invoke the right to counsel under the Wisconsin Constitution. Chief Justice Abrahamson's op., ¶¶64 n.6, 71.
 Justice Roggensack primarily
relies on two decisions from other states, neither of which lend her any
support. The Appellate Court of
Illinois, relying on
Roggensack's reliance on several United States Supreme Court cases is similarly
misplaced. Both Davis and Smith
v. Illinois deal with the sufficiency of a request for counsel made during
a custodial interrogation after being notified of the right to have an attorney
 The extradition hearing in an
asylum state, in this case,
this case, Forbush secured his brother as counsel for his extradition hearing,
waived extradition, and was willingly transported back to
 Justice Roggensack's opinion asserts that, as a result of Montejo, Dagnall no longer requires courts to presume that a waiver by a charged and represented defendant is invalid. This begs the question: What then is left of the Dagnall rule that Justice Roggensack strives so mightily to hold onto? Justice Roggensack suggests that the Dagnall rule now means a defendant may invoke the Sixth Amendment right to counsel by "retaining and receiving the services of a lawyer" and need not "re-invoke" the right to counsel during custodial interrogation. Justice Roggensack's op., ¶35. Without the presumption, is there really anything meaningful left of the Dagnall holding?
 Justice Roggensack's
reliance, in part, on Montejo's approval of the Edwards rule,
which protects defendants from police "badgering," is misguided. Justice Roggensack's op., ¶33. The Court addressed the anti-badgering
rationale in the section overruling
 Justice Roggensack's
reliance on Massiah, 377
 I would also highlight that our decision in
Our decision in
Walkowiak was tethered to the Fifth and Fourteenth Amendments and Miranda/Edwards
jurisprudence up to that point.
similarly overrule Dagnall, and clarify the conflicting footnote in Ward, as
both were "tethered" to now overruled
 We should not lose sight of the fact that our
decisions have real consequences. As a
result of the majority's decision in Dagnall, his "statements
detailing his involvement, with co-defendant Christopher E. Murray, in beating
a man to death with baseball bats [was not] allowed in evidence. His conviction of first degree intentional
homicide by use of a dangerous weapon, party to a crime, [was] set
aside." Dagnall, 236
 To the extent that
Justice Roggensack's citation to Sparkman v. State, 27
 In this case, law
enforcement acted in direct contravention of clear, then-existing law under State
v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680. I do not condone that action. However, given the Supreme Court's subsequent
decision in Montejo v. Louisiana, 556