COURT OF APPEALS
DATED AND FILED
August 11, 2010
Acting Clerk of Court of Appeals
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
STATE OF WISCONSIN
IN COURT OF
State of Wisconsin,
Phillip K. Saeger,
from a judgment of the circuit court for Washington County: David
C. Resheske, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Anderson, J.
¶1 BROWN, C.J. Phillip
K. Saeger claims that, after he waived his privilege to remain silent and
willingly talked to officers for a period of time, he then nonetheless
unequivocally asserted his right to silence such that all further interrogation
should have ceased. He also claims that
his confession was involuntary because police used an empty promise to get him
to confess. But we hold that the
assertion of his right to silence was equivocal and also hold that the promise
made by the police was not an empty one but a commitment that the police had
the power to enter into and, in fact, fulfilled. We affirm.
¶2 During an investigation into several burglaries in Washington and Fond
du Lac counties the police executed a search warrant
at a residence where Saeger claimed to be staying. Saeger was not at the residence but was later
contacted by Illinois police and detained at
the South Beloit police department. While at the South Beloit police department,
Saeger was interviewed by two detectives, one from Washington
county and one from Fond du Lac
county. At the beginning of the
interview, the detectives read Saeger his Miranda
rights which he conceded he fully understood and voluntarily waived to speak
with the detectives.
¶3 During the interview Saeger was questioned about his role in several
burglaries that occurred in Washington and Fond du Lac counties. One detective testified that Saeger was
giving numerous excuses or numerous lies and was uncooperative. At some point during the interview the
detectives became aware that he was fearful of federal gun charges. Saeger testified that, after one detective
received a phone call where he learned a gun was found at Saeger’s girlfriend’s
house, it being the one stolen in a burglary in Fond du Lac county, they told him that he
could be charged federally and sentenced up to twenty-five years. Saeger and the detectives then argued over
this point. He testified that he was
scared and angry and said, interspersed with curses, “You … ain’t listening to
what I’m telling you. You don’t want to
hear what I’m saying. You want me to
admit to something I didn’t … do … and I got nothin[g] more to say to you. I’m done.
This is over.” Immediately after
this statement, more negotiating took place and the detectives agreed that they
would not bring federal charges against him or his girlfriend. This agreement culminated in a written
statement, signed by the two officers at 11:30 p.m., indicating that neither
county would charge him federally.
¶4 The interview continued with more truthful answers until 1:05
a.m. when one of the detectives started to write out a statement for Saeger. When the detective was finished at about 1:50
a.m., he went over the entire statement with Saeger and Saeger signed it. In the statement, he confessed to being a
“point-man” and “backup” in several burglaries in Fond du
Lac and Washington
counties. Saeger was charged with four
counts of burglary, party to a crime in Washington
county, and five counts of burglary, party to a crime, as well as eight counts of
theft in Fond du Lac
¶5 Saeger later moved to suppress his confession. At the hearing on the motion, both detectives
testified that they did not recall Saeger saying, at any time, that he did not
want to talk anymore or that he wanted an attorney. One testified that Saeger was an emotionally
excitable guy and did not remain calm throughout the interview, becoming upset
more than once. He further testified
that all three were in an ongoing, unfolding conversation that took place over
several hours. The circuit court denied
the motion to suppress. Thereafter,
Saeger pled no contest to one count of burglary, party to a crime, in each
county. He now appeals.
¶6 Saeger challenges both the circuit court’s ruling that he did
not invoke his right to remain silent and the determination that his confession
was involuntary because police coerced his statement by means of a false
promise. We review these issues under a
two-pronged standard. State
v. Jennings, 2002 WI 44, ¶20, 252 Wis. 2d 228, 647 N.W.2d
142. First, we will uphold the circuit
court’s findings of fact unless they are clearly erroneous. Id. Second, we independently review the
application of constitutional principles to the facts. Id.
¶7 A suspect’s right to remain silent has two distinct
parts. State v. Ross, 203 Wis. 2d 66, 73, 552
N.W.2d 428 (Ct. App. 1996). The first is
the right to remain silent, prior to questioning, unless the suspect chooses to
speak of his or her own will. Id. at
73-74. The second protection allows a
suspect to cut off questioning by invoking his or her right to remain
silent. Id. at 74. The first protection is not in question;
Saeger voluntarily waived his Miranda rights prior to questioning
and does not challenge that waiver. At
issue is the right to remain silent after the interrogation has begun. To determine if a suspect has invoked the
right to remain silent, we use what has become known as the “clear articulation”
¶8 The clear articulation rule was developed by the United
States Supreme Court in Davis v. U.S., 512 U.S. 452 (1994),
and was originally used to determine whether or not a suspect had invoked the
right to counsel. We adopted the clear
articulation rule and applied it to the right to remain silent in Ross.
Ross was suspected of sexual assault of
child. Ross, 203 Wis. 2d at 71. Before the relevant questioning, a detective
advised Ross of his Miranda rights and Ross stated that he understood them. Ross, 203 Wis. 2d at 71. The detective testified that Ross did not
answer his questions; he only stared at the detective. Id. This went on until the detective asked if the
victim was lying. Id.
Ross said no. Id. at 72. The detective then asked if what his victim
said was true and Ross replied, yes. Id. Ross was convicted of two counts sexual
assault of a child. Id. at 73. On appeal he argued that his statement should
be suppressed because he invoked his right to silence. Id. Applying the clear articulation rule we
concluded that Ross did not invoke his right to remain silent. Id.
at 78-79. We held that although a
suspect could invoke the right to silence without using words at all, id.
at 77, the suspect must make it sufficiently clear that he or she wants to
cut-off questioning so that a “reasonable police officer in the circumstances
would understand the statement to be an invocation of the right to remain
silent.” Id. at 78. We reasoned that, if the statement is
ambiguous, the officer is not duty-bound to cease questioning or ask the
suspect for clarification. Id. Ross’s silence was ambiguous because he said
nothing; therefore, he did not invoke his right to remain silent. Id.
¶9 A recent United States Supreme Court case teaches us that Ross
is good law. In Berghuis v. Thompkins,
130 S. Ct. 2250 (2010), Thompkins, a suspect
in a murder investigation, was read his Miranda rights and was then
interrogated. Thompkins, 130 S. Ct. at 2256. At
no time during the interrogation did he say that he wanted to remain silent,
that he did not want to talk with the police or that he wanted an
For most of the interrogation, he was silent, with the exception of a
few verbal responses. Id.
Eventually one of the detectives asked Thompkins if he believed in
God. Id. at 2257. Thompkins answer yes. Id. The detective followed up by asking if he
prayed, and if he prayed for God to forgive him for “shooting that boy.” Id. Thompkins again answered yes to both
questions and the interrogation ended soon after. Id. The jury found him guilty on several counts,
including first-degree murder. Id. at
2258. On appeal, Thompkins asserted that
his statements to the police were inadmissible because he had invoked his right
to remain silent by not saying anything for a sufficient period of time and
thus the interrogation should have stopped.
at 2259. The Court did not agree. Id. As in Ross, the Court used the clear
articulation rule and concluded that Thompkins’ silence was ambiguous and
therefore could not invoke his right to remain silent. Thompkins, 130 S.
Ct. at 2260.
¶10 In Wisconsin, a statement is equivocal as a matter of law when
there are reasonable competing inferences to be drawn from it. State v. Markwardt, 2007 WI App 242,
¶36, 306 Wis.
2d 420, 742 N.W.2d 546. In Markwardt,
the court ruled that when the suspect said, “[j]ust get me out of here” and “I
don’t want to sit here anymore,” it was not an invocation of the right to
remain silent because, in the context of the interrogation, it was reasonable
to believe that the outburst was in reaction to being caught in a web of lies,
which the officers laid bare. Id., ¶¶35-36.
¶11 Saeger’s outburst is analogous.
One detective interviewing Saeger testified that he was uncooperative
and lied often. He also testified that
his interviewing technique involved calling the suspect on his or her
lies. Further, the detectives knew that
Saeger was an excitable person, and just before his outburst, Saeger and the
detectives were arguing about if he could be charged federally. It was during this argument that Saeger
stated, “I’m done. This is over.” Taken in context, it was reasonable for the
detectives to conclude that his statement was merely a fencing mechanism to get
a better deal—one that would free him of exposure to federal charges. We acknowledge that a reasonable person could
also read his statement to mean that he actually wanted to invoke his right to
remain silent. Under Ross,
however, since there are reasonable competing inferences that could be drawn
from the statement, the statement is equivocal as a matter of law and is
therefore insufficient to invoke the right to remain silent. Saeger’s first issue fails.
¶12 The second issue is whether Saeger’s statements to the police
were involuntary because his confession was the result of police misconduct. Saeger contends that local police lack the
power to promise no federal charges but that was the promise made to him in
order to get him to confess. The
Washington County Circuit Court held that there was no police misconduct rising
to the level that the statement should be suppressed and therefore the motion
to suppress the statement was denied.
The Fond du Lac
County Circuit Court also
found that the statements were voluntary.
¶13 In State v. Owens, 148 Wis.
2d 922, 924, 436 N.W.2d 869 (1989), the appellant argued that promises from a
detective were coercive and therefore made his statements involuntary. Our supreme court declared that, for a court
to find a statement involuntary based on police misconduct, “there must be some
affirmative evidence of improper police practices deliberately used to procure
a confession.” Id.
at 931 (citing State v. Clappes, 136 Wis.
2d 222, 239 401 N.W.2d 759 (1987)). The
alleged improper police practice in Owens was the use of a promise in
exchange for cooperation. Id. at
927. The court ruled that although a
promise was made to the defendant, it was not improper police conduct because
the promise was fulfilled. Id. at
¶14 The same situation is present in this case. Saeger was bargaining to receive a deal that
would free him of exposure to federal charges and he received what he bargained
for. While the detectives did not have
the authority to decide whether to charge Saeger federally, they did have the
option to refrain from referring his case to federal authorities. They did not refer the matter to the U.S.
Attorney and Saeger was never charged with federal gun violations. The fact that the detectives kept their
promise shows that there is no affirmative proof of improper police conduct,
and therefore we conclude that the statement was voluntary. We affirm the circuit court’s denial of the
motion to suppress the statement.
By the Court.—Judgment affirmed.
recommended for publication in the official reports.