COURT OF APPEALS
DATED AND FILED
May 3, 2011
A. John Voelker
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 Reports.
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.
IN COURT OF APPEALS
Randy L. Martin,
from a judgment and orders of the circuit court for
¶1 CURLEY, P.J. Randy L. Martin appeals the judgment convicting him of being a felon in possession of a firearm and for carrying a concealed weapon. See Wis. Stat. §§ 941.29(2), 941.23 (2007-08). He also appeals the orders denying his motion to suppress evidence and his motion for reconsideration. Martin argues that the trial court erred in denying his motion to suppress statements he made to police because: an officer asked him questions likely to elicit incriminating responses while he was in police custody without giving him his Miranda warnings; the conversation between Martin and police was an “interrogation” for Miranda purposes even if Martin initiated it; and the resulting error was not harmless. Martin additionally argues that the trial court erred in denying his motion to suppress the handgun found in his car shortly after his arrest because it resulted from an unconstitutional, warrantless search. We affirm.
¶2 On November 14, 2008, Milwaukee Police Sergeant James Fidler observed an altercation involving Martin and another driver. Fidler had pulled up to an intersection where traffic had stopped at a red light when he observed Martin get out of his car and yell in the direction of a car ahead of him. As Martin walked toward the car ahead of him, the driver of that vehicle stepped outside. Martin pulled what looked like a weapon out of his coat pocket, pointed it at the other driver, and said, “I have something for you.” At that point, the other driver motioned to Fidler and Martin put the object inside his pocket and walked back to his car.
¶3 Sergeant Fidler promptly arrested Martin for disorderly conduct and searched him. Fidler recovered an expandable baton from Martin’s front coat pocket and a knife from Martin’s waistband.
¶4 Two other
¶5 Officer Smith showed the weapon to Martin and Henry. He then asked Martin and Henry whether either of them owned the gun. Both denied any knowledge of it. Officer Smith then turned to handcuff Henry. As Martin saw this happening, he asked Smith why he was arresting Henry. Smith explained that he was arresting Henry for carrying a concealed weapon. Martin asked the officers if they would let Henry go if Martin said the gun was his. Officer Smith replied: “I don’t want you to say it’s yours if its not. I just want the truth, is the gun yours.” Martin responded, “yeah, it’s mine if you let my uncle go.” Officer Smith then asked Martin to describe the weapon. Smith said he did so to prevent Martin from falsely confessing:
I just wanted the truth. I didn’t want him to say the gun was his just to get his uncle out of trouble, and by him describing the gun to me that satisfied me that he had personal knowledge or intimate knowledge of this weapon and knew about it.
¶6 Martin said that the gun was a “black 22-caliber hand gun.” His description was correct: the gun was in fact a .22-caliber, and, according to Smith, this would not have been obvious to someone who was not closely familiar with the gun.
¶7 Prior to this conversation, none of the officers on the scene gave Martin any warnings pursuant to Miranda.
¶8 Martin was subsequently charged with being a felon in possession of a firearm and for carrying a concealed weapon. Martin moved to suppress his admission that the gun was his, his description of the gun, and the gun itself at trial. The trial court denied Martin’s motion, and Martin’s statements and the gun were entered into evidence at trial. A jury found Martin guilty on both counts.
¶9 After trial, and prior to sentencing, Martin moved for
reconsideration of his search and seizure motion based on Arizona v. Gant, 129
¶10 On appeal, Martin argues that the trial court erred in denying his motion to suppress statements he made to police because: an officer asked him questions likely to elicit incriminating responses while he was in police custody without giving him his Miranda warnings; the conversation between Martin and police was an “interrogation” for Miranda purposes even if Martin initiated it; and the resulting error was not harmless. Martin additionally argues that the trial court erred in denying his motion to suppress the handgun found in his car shortly after his arrest because it resulted from an unconstitutional, warrantless search. We disagree and discuss each argument in turn.
A. The trial court did not err in
denying Martin’s motion to suppress his
¶11 We turn first to Martin’s argument that the trial court erred
in denying his motion to suppress statements he made to police while in
custody. The Fifth Amendment to the
United States Constitution provides that no “‘person ... shall be compelled in
any criminal case to be a witness against himself.’” See, e.g., State v. Cunningham,
¶12 Whether the trial court correctly concluded that a custodial
interrogation did not take place in this case is a mixed question of fact and
¶13 Because the parties do not dispute that Martin was in custody
when he claimed that the gun was his, and because they do not dispute that
Martin did not receive Miranda warnings, the sole issue
before us is whether Smith “interrogated” Martin. See Fischer, 259 Wis. 2d 799, ¶¶22-23
(“Custodial interrogation” for Miranda purposes “generally means
questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his or her freedom of action in any
significant way.” When a defendant is in
custody at the time of alleged incriminating statements, the remaining issue is
whether he or she was “interrogated” by the State.).
¶14 The United States Supreme Court further defined “interrogation”
Island v. Innis, 446 U.S. 291 (1980).
See, e.g., Cunningham, 144
¶15 “[T]he focus of the Innis test is ‘primarily upon the
perceptions of the suspect.’” Cunningham,
¶16 While the Innis test “is not directed at the
subjective intent of the police officer[,]” it is important to note that “‘where
a police practice is designed to
elicit an incriminating response from the accused, it is unlikely that the
practice will not also be one which the police should have known was reasonably
likely to have that effect.’” Cunningham,
¶17 Furthermore, in interpreting and applying the Innis
test, we “must keep in mind the evils addressed by Miranda.” Cunningham, 144
¶18 Finally, we note that “[i]n determining whether police conduct
or comment constitutes the functional equivalent of interrogation, ‘each case
must be considered upon its own facts.’”
State v. Bond, 2000 WI App 118, ¶15, 237
¶19 With these standards in mind, we conclude that Martin was not
interrogated for Miranda purposes and that the admission of his statements at
trial was therefore proper as a matter of law.
As a preliminary matter, we note that the particular comments at issue
here do not include Smith’s initial confronting of Martin and Henry with the
gun and do not include the first time when Smith asked them who owned the
gun. Rather, at issue are Smith’s
comments after Martin asked the officers if they would let Henry go if Martin
said the gun was his, as well as Smith’s comments after Martin said, “yeah, it’s
mine if you let my uncle go.” Viewed in
the context of the particular circumstances in this case, it is clear that
Smith’s comments to Martin at both points during this encounter were not
“‘designed’” with the aim of eliciting incriminating testimony, see Cunningham,
¶20 Moreover, Bond, which Martin analogizes to the
facts of his case, is distinguishable from the facts at issue here. Unlike Officer Smith in the case before us,
the officer whose comments were at issue in Bond “drew force” from
his “‘specific knowledge’” of the defendant and the defendant’s vernacular and
was accordingly able to “utilize a ‘particular form’ of speech” to elicit the
defendant’s incriminating response without directly questioning him. See id., 237
¶21 In our view, this case more closely resembles Fischer. In Fischer, police confronted the
defendant with evidence from a burglary scene that matched his footwear and
told him that “it shouldn’t become [sic] a surprise to him” if he were charged.
Fischer asked [Officer] Vento where the
Fischer then asked Vento what had been reported missing from the burglaries. Vento informed Fischer that some property had been taken from a car parked in the parking lot and from inside Goodyear, including a television and some stereo equipment. Vento then explained to Fischer that if Fischer was responsible for the crimes, “what typically helps in these types of cases ... is to make victims feel less like victims. And one of the ways to do that is to get some of the property back.” Fischer denied responsibility for the property taken from the car and then asserted that, hypothetically, if he were responsible, he would not be able to return any of the property because it would have been sold for drugs. Fischer further stated that a second person had been there.
Fischer then asked what had been reported missing from the burglary at F & F Tire World. Vento informed Fischer that some tools had been reported stolen. Fischer responded, saying he doubted that the person reporting the crime was being truthful because no tools were taken, that “he had all of his own tools with the receipts and could show a proper purchase, and he had no reason to take tools.”
¶22 In Fischer, this Court concluded that the officer’s answers to
Fischer’s questions, even when they resulted in incriminating responses, were
not “the functional equivalent of interrogation” for Miranda purposes. Fischer, 259
¶23 For these reasons, we cannot say that the trial court’s finding
that the officers asked no questions likely to elicit incriminating responses
was clearly erroneous, see Armstrong,
223 Wis. 2d at 352, nor can we say that the trial court erred in concluding as
a matter of law that no custodial interrogation occurred, see Cunningham, 144 Wis.
2d at 282. Because we conclude that the
trial court did not err, we need not consider whether any alleged error was
harmless. See State v. Zien, 2008 WI App 153, ¶3, 314
B. The trial court did not err in
denying Martin’s motion to suppress the contents
of the search of his vehicle.
¶24 Martin next argues that the trial court erred in denying his motion to suppress the contents of the search of his vehicle, and also erred in denying his motion for reconsideration.
¶25 Prior to trial, the trial court concluded that the officers had conducted a valid search incident to arrest pursuant to New York v. Belton, 453 U.S. 454 (1981), and Thornton v. United States, 541 U.S. 615 (2004). The trial court also determined that the search was a valid inventory search.
¶26 After trial, Martin moved the court to reconsider this ruling
in light of Gant, which held that a search incident to arrest is only valid
when the arrestee is unsecured and within reaching distance of the passenger
compartment at the time of the search or if it is reasonable to believe that
evidence relevant to the crime of arrest might be found in the vehicle.
¶27 Following the trial court’s ruling, the Wisconsin Supreme Court
decided State v. Dearborn, 2010 WI 84, 327 Wis. 2d 252, 786 N.W.2d 97,
v. Littlejohn, 2010 WI 85, 327
¶28 Martin concedes that he cannot prevail on this issue under
current law; however, he is pursuing this issue in order to preserve his right
to pursue it in the future. While we
find Martin’s arguments compelling, we will not address whether the supreme
court’s decisions in Dearborn and Littlejohn were
incorrect. See State ex rel. Swan v.
Elections Board, 133
By the Court.—Judgment and orders affirmed.
Not recommended for publication in the official reports.