author: ANDERSON, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Marc Norfleet, Defendant-Respondent.
    Court of Appeals

      No. 01-1374-CR.

      Submitted on briefs February 7, 2002.—

      Decided April 3, 2002.

    2002 WI App 140
    (Also reported in 647 N.W.2d 341.)

      On behalf of the plaintiff-appellant, the cause was submitted on the brief of Michael R. Klos, assistant attorney general, and James E. Doyle, attorney general.

      On behalf of the defendant-respondent, the cause was submitted on the brief of Alan D. Eisenberg of Law Offices of Alan D. Eisenberg, Milwaukee.
    Before Brown, Anderson and Snyder, JJ.
   ANDERSON, J.

¶ 1. The State appeals a judgment of acquittal that dismisses, with prejudice, the case against Marc Norfleet. The State argues that the trial court erred when it failed to comply with the State's request to hold an in camera inspection under Wis. Stat. § 905.10(3)(b) (1999-2000) to determine, on the record, whether there was a reasonable probability that the confidential informant could provide relevant testimony necessary to a fair determination on the issue of guilt or innocence. Additionally, the State argues that if the trial court's order of dismissal was in error, then Norfleet may be retried without violating the prohibition against double jeopardy. We conclude that there was sufficient evidence in the record to permit a rational court to conclude that a reasonable probability existed that the informant could provide relevant testimony necessary to a fair determination on the issue of guilt or innocence. Therefore, the decision to forego an in camera hearing was within the discretion of the trial court.

BACKGROUND

¶ 2. On June 29, 2000, as reported in an affidavit in support of the complaint, the police received a "tip" from a confidential informant that Norfleet was dealing drugs from his residence and that Norfleet kept the drugs at the corner of the parking lot outside his residence. Police, using a drug-sniffing dog, located a cellophane bag near a fence in the apartment building's parking lot. The cellophane bag contained fifteen plastic baggies with a total of seventy-five grams of cocaine inside the baggies. According to the affidavit, Norfleet's fingerprints were found on two of the plastic baggies and on one of the folded paper bindles recovered from the cocaine cache. A criminal complaint and warrant were filed on July 28, 2000, charging Norfleet with possession of a controlled substance, within 1000 feet of a school, with intent to deliver in violation of Wis. Stat. §§ 961.16(2)(b)l and 961.41(lm)(em)4.

¶ 3. On August 18, 2000, defense counsel filed a Motion and Demand for Discovery and Inspection to provide, inter alia, the names, addresses, and any relevant information provided by any informant in the case. On February 7,2001, five days before the jury trial was scheduled to begin, defense counsel received a report by Telefax from the Wisconsin State Crime Lab. The report stated that "unidentified latent prints on [plastic baggies] were examined and compared with the inked fingerprints ... [of Norfleet's girlfriend] and [n]o identification [was] effected." Defense counsel filed an affidavit on February 9, 2001, complaining about the "tardy" submission of the report.

¶ 4. In the State's opening statement, the district attorney revealed that the bag was sent to the State crime lab for fingerprint analysis prior to arresting and charging Norfleet. As defense counsel points out, the results of the fingerprint analysis were included in the charging document on July 28, 2000, with regard to Norfleet's fingerprints. However, the unidentified fingerprints were not revealed to defense counsel until five days prior to trial, a span of six months from the time the report was given to the State and defense counsel's Motion and Demand for Discovery.

¶ 5. From defense counsel's opening statement, the court first learned that Norfleet believed the fingerprint belonged to whoever placed the contraband there and might be that of the informant, Norfleet's landlord, or the police officers. Also, it appears from the record that the informant's fingerprint was never checked against the unidentified fingerprint.

¶ 6. During the trial, the State called Detective Daniel Dringoli to establish why police conducted a search near Norfleet's residence. The hearsay testimony concerning the informant was not admitted for the truth of the assertions. As can be seen from this testimony, the State actually established that the informant had knowledge beyond that of a mere tipster.

Q: I'd like to take you back to June 29th. of last year. At — on that date did you receive certain confidential information regarding drug trafficking occurring at Apartment No. 3 at 927 Louise Street in the City of Neenah?
A: Yes, I did.
Q: All right. Tell me the information that you received on this tip.
A: I received a phone call about possible drug dealing going on at 927 Louise Street.
Q: Go ahead.
A: I received a phone call from someone who indicated that they thought there might be drug activity going on at 927 Louise Street.
Q: Did the informant give you any particulars regarding the drug dealing?
A: That there was a black male that lived there and drove a green blazer.
Q: All right, what else?
A: That they saw this person going outside numerous times and there were people coming and going throughout the day and night.
Q: Was there any specific mention of where this — these drugs might be?
A: They said that there was an area outside by the dumpsters somewhere that they thought he was getting stuff from there.

¶ 7. On cross-examination, defense counsel asked the detective to disclose the informant's name; the detective refused. Defense counsel then asked the court to order disclosure. At this point, the prosecutor responded that the State was invoking its privilege of nondisclosure under Wis. Stat. § 905.10(1). The prosecutor requested an in camera hearing pursuant to § 905.10(3)(b), to determine if the informant's testimony would support the defense's theory. The following exchange then took place:

THE COURT: Well, the statute in Sub. 3(b) says, if it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of guilt or innocence or of a material issue on the merits in a civil case — which isn't relevant here — the judge shall give the State an opportunity to show, in camera, facts relevant to determining whether the informer can, in fact, supply that testimony. Now, that's normally done in the form of affidavits, but I could direct that the testimony be taken if it cannot be resolved satisfactorily.
[DEFENSE COUNSEL]: I'd like to point out that the divulging of a fingerprint was first brought to my attention last week. Then they sent me a report saying that only — that they compared that fingerprint to Amanda Scripture and that it wasn't hers, which is one of our witnesses. Then they sent me a letter saying two other people were being submitted for comparison, one of them Dringoli, and there's been no divulging of whose — who the fingerprint belongs to. This is unconscionable to withhold the informant in terms of the timing of these events. The very, very, very, very, very late disclosure of an unidentified fingerprint, the unconscionably delayed disclosure that it's not Amanda Scripture and then the totally untimely divulgence that there are two other people being submitted with no response as to those two.
THE COURT: Frankly, to me it's very unfair to come into a courtroom with a non-disclosed — informer, particularly under the circumstances where the defense is claiming that they had nothing to do with this. The State has an option I'm going to rule — well, I—
[PROSECUTOR]: I think.
THE COURT: —with this defense, they should have an opportunity to cross-examine this informer because the informer may very well be the one who placed it there if it wasn't the defendant and the jury's entitled to consider that. So I'm going to rule that the disclosure is relevant and is necessary to a fair determination of the issue of guilt or innocence in this case. The State now has a motion — now has an option. ■
[PROSECUTOR]: Could we adjourn for a few minutes?
THE COURT: Yes, we can take a short break.
[PROSECUTOR]: Thank you.
THE COURT: Take the jury down.
(Bailiff complies.)
(Brief recess.)
THE COURT: Back on the record in the absence of the jury. Mr. Priebe?
[PROSECUTOR]: Well, your Honor, the State, at this point, is not prepared to disclose the identity; but just citing 905.10(3)(b), the judge shall give the State an opportunity to show in camera why. I would invoke that part of the statute to explain to the court why—
[DEFENSE COUNSEL]: This is in camera.
[PROSECUTOR]: This is in open court.
THE COURT: Well, I don't consider this in camera; but on the other hand, I frankly don't know ... but under the circumstances as disclosed in the opening statements of the nature of the defense, not to disclose what could be a very material witness to this is certainly critical.
[PROSECUTOR]: Which is all the more reason we would like the chance to explain in camera. I think we have the right to do that.
[DEFENSE COUNSEL]: This isn't even timely to invoke that.
[PROSECUTOR]: The motion—
[DEFENSE COUNSEL]: We have already begun the jury.
THE COURT: Without the disclosure of the informer, tell me why you don't want to disclose.
[PROSECUTOR]: For a couple of reasons: pending investigations not related to this matter, as well as the safety of the informer.
THE COURT: Neither one has anything to do with this case. I find that's not sufficient. I have already found that the testimony from this informer or at least disclosure is relevant and necessary for a fair trial. This is still America. We don't operate in a star chamber. The State now has an option, you disclose or the case is dismissed.
[PROSECUTOR]: With due deference, Judge, I think we're entitled to say what our reasons are in camera.
[DEFENSE COUNSEL]: He just did.
THE COURT: You did. You said pending investigations and safety of the informant. If that's more important to the State than a conviction of this defendant, then the case is going to be dismissed, but I'm talking about a fair trial for a defendant who is presumed innocent and whose defense is that somebody set him up. Now, you want that to go through, but you don't want to disclose who kicked it all off. It's critical to the record.
[PROSECUTOR]: We're not prepared to disclose.
THE COURT: Then on my own motion the charge is dismissed.
[PROSECUTOR]: For the record, your Honor, the State requests without prejudice.
[DEFENSE COUNSEL]: Oh no.
THE COURT: With prejudice. The jury has been sworn.

¶ 8. The State appeals, arguing that the trial court erred when it failed to comply with the State's request to hold an in camera inspection under Wis. Stat. § 905.10(3) (b) to determine if the confidential informant could provide relevant testimony necessary to a fair determination on the issue of guilt or innocence. Additionally, the State argues that if we reverse the trial court's order of dismissal under § 905.10, then Norfleet may be retried without violating the prohibition against double jeopardy.

DISCUSSION

¶ 9. In reviewing a trial court's conclusion following an in camera interview, the scope of review is whether the trial court's decision is a reasonable exercise of discretion. State v. Outlaw, 108 Wis. 2d 112, 128-29, 321 N.W.2d 145 (1982); State v. Larsen, 141 Wis. 2d 412, 419, 415 N.W.2d 535 (Ct. App. 1987). "Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning. This process must depend on facts that are of record or that are reasonably derived by inference from the record and a conclusion based on a logical rationale founded upon proper legal standards." McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512 (1971).

In Camera Hearing

¶ 10. The evidentiary rule in question in this case is Wis. Stat. § 905.10(3)(b) which provides, in part:

(b) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case [and] the... state... invokes the privilege, the judge shall give the... state ... an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony .... If the judge finds that there is a reasonable probability that the informer can give the testimony, and the ... state ... elects not to disclose the informer's identity, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the judge may do so on the judge's own motion.

The rule recognizes the State's privilege with respect to informers and recognizes the reality that informers are an important aspect of law enforcement and that the anonymity of informers is necessary for their effective use. Outlaw, 108 Wis. 2d at 121. However, in the comments of the Wisconsin Judicial Council Committee, which formulated our evidentiary rules, the committee stated:

The informer privilege . . . may not be used in a criminal prosecution to suppress the identity of a witness when the public interest in protecting the flow of information is outweighed by the individual's right to prepare his defense.

Outlaw, 108 Wis. 2d at 121 (citation omitted).

¶ 11. Under Wis. Stat. § 905.10(3)(b), the defendant must make a threshold showing that "an informer may be able to give testimony." This threshold showing "does not place a significant burden upon the party seeking disclosure." Outlaw, 108 Wis. 2d at 125. There need only be a showing that an informer may be able to give testimony necessary to a fair trial. Id. at 126. The proposed testimony must be "necessary to support the theory of the defense." Id. at 141; State v. Hargrove, 159 Wis. 2d 69, 75, 469 N.W.2d 181 (Ct. App. 1990).

¶ 12. Once a showing is made, "it behooves the state to either disclose the identity of the informer or avail itself of the opportunity to offer proof of what in actuality the informer can testify about." Outlaw, 108 Wis. 2d at 126. This is the opportunity for the State to show that the informer cannot give testimony necessary to a "fair determination" of the guilt or innocence of the defendant. Id. "[T]he trial judge's role is limited to the relevance and admissibility of the testimony." Id. "Credibility may be assumed, but only for the purpose Of testing relevancy and admissibility. To make a more extensive inquiry into credibility at this stage of the proceedings would usurp the function of the jury." Id. at 126-27.

¶ 13. Once there is a finding, in the exercise of appropriate judicial discretion, that the informer's testimony is relevant and admissible on an issue material to the accused's defense and, hence, reasonably necessary on the question of guilt or innocence, the balance is irretrievably tipped to the side of disclosure. Id. at 128; Roviaro v. United States, 353 U.S. 53, 60-61 (1957). The in camera mechanism is intended to determine with reasonable accuracy whether the informer's testimony is necessary to the defendant's fair trial. If it is, the privilege is at an end, and the State must then balance the desirability of proceeding with a particular prosecution, as compared to suffering the damage of having a trusted informer unmasked. Outlaw, 108 Wis. 2d at 137.

¶ 14. In this case, the trial court reasonably exercised its discretion in concluding that the defendant not only made the threshold showing but that the informant's testimony was critical to the defendant's fair trial. The decision was based on the following facts and evidence presented at trial: (1) the theory of the defense that Norfleet was set up; (2) the extremely late disclosure of an unidentified fingerprint, by the State, to defense counsel; (3) the detective's testimony revealing that the informant was a material witness; and (4) the possibility that the informant planted the contraband. As a result, the trial court had enough information at this point to reasonably determine that Norfleet

[s]hould have an opportunity to cross-examine this informer because the informer may very well be the one who placed [the cocaine] there if it wasn't the defendant and the jury is entitled to consider that. (Emphasis added.)

¶ 15. At this point in the trial, any testimony the informant would give in camera was relevant and material to the accused's defense and reasonably necessary on the question of guilt or innocence. The only objective then of conducting an in camera hearing would be for the judge to determine the credibility of the informant, which would usurp the function of the jury.

¶ 16. The State argues for a literal application of the statute, even though there is nothing to be gained by implementing the in camera mechanism in this particular situation. Additionally, the State wants the dismissal reversed based on this perceived error; however, we cannot agree. The trial court used a logical rationale in arriving at this conclusion, even going so far as to give the State the opportunity to explain why it did not want to disclose. Therefore, we conclude that the trial court's decision was a reasonable exercise of discretion in determining that there was a reasonable probability that the confidential informant could provide relevant testimony necessary to a fair determination on the issue of guilt or innocence.

CONCLUSION

¶ 17. The trial court's decision not to hold an in camera hearing was a reasonable exercise of discretion under the circumstances of this case. The informant's testimony was necessary for a fair determination on the issue of guilt or innocence. Because we conclude that the trial court's order of dismissal was not in error, we need not address the double jeopardy issue.

By the Court. — Judgment affirmed.

       All statutory references are to the 1999-2000 version unless otherwise noted.

       Combining this with the State's late disclosure to defense counsel of the unidentified fingerprint makes the State's pretrial conduct suspicious.

       Wisconsin Stat. § 905.10 states in relevant part:
      Identity of informer. (1) Rule of privilege. The federal government or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.


source: Caselaw Access Project

author: SNYDER, J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent, v. Paul L. Polak, Defendant-Appellant.

    Court of Appeals

      No. 01-1873-CR.

      Submitted on briefs March 7, 2002.

    Decided April 3, 2002.

    2002 WI App 120
    (Also reported in 646 N.W.2d 845.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Philip J. Brehm of Janesville.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Christian R. Larsen, assistant attorney general, and James E. Doyle, attorney general.
    Before Nettesheim, PJ., Anderson and Snyder, JJ.

       Petition to review denied 7-26-02.

   SNYDER, J.

¶ 1. Paul L. Polak appeals from a judgment of conviction for uttering a forgery as a repeat offender and an order denying his motion for postcon-viction relief. Polak argues that the trial court erred in denying his motion for a new trial without an eviden-tiary hearing and in refusing to allow him to be produced to give testimony at the postconviction motion hearing. We disagree with Polak's contentions and affirm the judgment of conviction and the order denying postconviction relief.

FACTS

¶ 2. On May 16, 2000, Polak was charged with uttering a forgery and theft by fraud, both as a repeat offender. That day Polak made his initial appearance without counsel and indicated that he wanted to continue the case pro se. On May 24, 2000, Polak appeared for his preliminary hearing without counsel and again indicated that he wished to proceed pro se. Polak was bound over for trial and his arraignment was set for June 5, 2000.

¶ 3. On June 7, 2000, Polak appeared for his arraignment, without counsel, and again indicated that he did not wish to be represented by counsel. The trial court gave Polak some time to discuss with the State a potential resolution of the case. After a discussion off the record, the State indicated that an agreement had been reached. The State informed the trial court that upon Polak's plea to count one (uttering a forgery as a repeat offender), the State would move to dismiss and read in count two (theft by fraud as a repeater). At sentencing, the State agreed that it would either make no recommendation or agree with the recommendation of the presentence investigator. Polak agreed with the State's recitation of the agreement.

¶ 4. The trial court then informed Polak of the elements of uttering a forgery with a repeater penalty enhancer and discussed the waiver of counsel issue, notifying Polak that he had a right to counsel and that an attorney might be able to assist him with potential defenses or other considerations. Polak indicated that no one had threatened or promised him anything in exchange for his waiver of his right to counsel. The trial court then showed Polak a waiver of attorney form which Polak indicated he had reviewed, understood and signed. The trial court then found Polak had freely, voluntarily and intelligently waived his right to counsel and accepted his plea of no contest to count one.

¶ 5. At the September 8,2000 sentencing hearing, the district attorney expressed uneasiness with Polak's self-representation, in light of the potential period of imprisonment, and strongly recommended that Polak seek counsel prior to sentencing. Polak agreed to contact the public defender's office and to have an attorney appointed for the next court proceeding.

¶ 6. Polak was finally sentenced on October 25, 2000, this time appearing with counsel. The State made no sentencing recommendation and the presentence report recommended a three- to five-year initial confinement followed by four to six years' extended supervision. The trial court sentenced Polak to six years' initial confinement and fourteen years' extended supervision, consecutive to a sentence previously imposed in Dane county.

¶ 7. On May 4, 2001, Polak filed a postconviction motion requesting a new trial, alleging a denial of the right to counsel, and sentence credit; two affidavits were filed in support of this motion, one from Polak and another from his attorney. A hearing on this motion was held on June 29, 2001. While Polak appeared by telephone, the trial court determined that his presence at the hearing was unnecessary. Pursuant to a written order filed on July 9, 2001, the trial court granted Polak's motion for sentence credit but denied his motion for a new trial. Polak appeals.

DISCUSSION

¶ 8. The right to the assistance of counsel is necessary to ensure that a criminal defendant receives a fair trial, that all defendants stand equal before the law and ultimately that justice is served. State v. Klessig, 211 Wis. 2d 194, 201, 564 N.W.2d 716 (1997). A criminal defendant in Wisconsin is guaranteed this fundamental right to the assistance of counsel for his or her defense by both article I, section 7 of the Wisconsin Constitution and the Sixth Amendment of the United States Constitution. Klessig, 211 Wis. 2d at 201-02. The scope, extent and interpretation of the right to assistance of counsel is identical under both the Wisconsin and the United States Constitutions. Id. at 202-03.

¶ 9. The Sixth Amendment and article I, section 7 of the Wisconsin Constitution also give a defendant the right to conduct his or her own defense. Klessig, 211 Wis. 2d at 203. Just as the right to the assistance of counsel is identical under the Wisconsin and United States Constitutions, the right to represent oneself is also indistinguishable. Id.

¶ 10. The United States Supreme Court has recognized that the right to represent oneself seems to conflict with the right to the assistance of counsel and that the interaction of these two rights "creates somewhat of a dilemma for the trial judge who is confronted with the unusual defendant who desires to conduct his own defense." Id. When a defendant seeks to proceed pro se, the trial court must insure that the defendant (1) has knowingly, intelligently and voluntarily waived the right to counsel and (2) is competent to proceed pro se. Id. If these conditions are not satisfied, the trial court must prevent the defendant from representing himself or herself or deprive the defendant of his or her constitutional right to the assistance of counsel. Id. at 203-04. However, if the defendant knowingly, intelligently and voluntarily waives his or her right to the assistance of counsel and is competent to proceed pro se, the trial court must allow the defendant to do so or deprive him or her of the right to represent himself or herself. Id. at 204.

¶ 11. Whether a defendant has knowingly, intelligently and voluntarily waived his or her right to counsel requires the application of constitutional principles to the facts of the case, which we review independently of the trial court. Id. Whether an individual is denied a constitutional right is a question of constitutional fact that this court reviews independently as a question of law. Id. Nonwaiver is presumed unless waiver is affirmatively shown to be knowing, intelligent and voluntary. Id. The State has the burden of overcoming the presumption of nonwaiver. Id.

¶ 12. The specific requirements for a valid waiver were originally set forth by the Wisconsin Supreme Court in Pickens v. State, 96 Wis. 2d 549, 292 N.W.2d 601 (1980). Klessig, 211 Wis. 2d at 204. The Pickens court concluded that in order for an accused's waiver of counsel to be valid, the record must reflect not only his or her deliberate choice to proceed without counsel, but also his or her awareness of the difficulties and disadvantages of self-representation, the seriousness of the charge or charges he or she is facing and the general range of possible penalties that may be imposed if he or she is found guilty. Klessig, 211 Wis. 2d at 205 (citing Pickens, 96 Wis. 2d at 563-64). The Pickens court also stated that a colloquy on each of the above factors is not necessary in every case. Klessig, 211 Wis. 2d at 205 (citing Pickens, 96 Wis. 2d at 564).

¶ 13. However, Klessig overruled Pickens to the extent that Klessig mandates the use of a colloquy in every pro se case to establish knowing and voluntary waiver of the right to counsel. Klessig, 211 Wis. 2d at 206. Conducting such an examination of the defendant is the clearest and most efficient means of insuring that the defendant has validly waived his or her right to the assistance of counsel and of preserving and documenting that valid waiver for purposes of appeal and post-conviction motions. Id. Thus, a properly conducted colloquy serves the dual purposes of ensuring that a defendant is not deprived of his or her constitutional rights and of efficiently guarding our scarce judicial resources. Id.

¶ 14. To prove such a valid waiver of counsel, the trial court must conduct a colloquy designed to ensure that the defendant: (1) made a deliberate choice to proceed without counsel, (2) was aware of the difficulties and disadvantages of self-representation, (3) was aware of the seriousness of the charge or charges against him or her, and (4) was aware of the general range of penalties that could have been imposed upon him or her. Id. If the trial court fails to conduct such a colloquy, a reviewing court may not find, based on the record, that there was a valid waiver of counsel. Id.

¶ 15. When an adequate colloquy is not conducted, and the defendant makes a motion for a new trial or other postconviction relief from the trial court's judgment, the court must hold an evidentiary hearing on whether the waiver of the right to counsel was knowing, intelligent and voluntary. Id. at 206-07.

¶ 16. We conclude that the trial court conducted an adequate colloquy that demonstrates that Polak's waiver of the right to counsel was knowing, intelligent and voluntary; therefore, an evidentiary hearing on this issue was unnecessary.

¶ 17. We must note that at every step of this case, Polak was cautioned about self-representation. At his initial appearance on May 16, 2000, the following exchange occurred:

THE COURT: Mr. Polak, you do not wish the assistance of the public defender's office?
[POLAK]: No, I don't.
THE COURT: Do you understand that you are facing a very serious felony charge for which you could receive a $10,000 fine and/or up to 21 years incarceration?
[POLAK]: Yes, Ido.
THE COURT: You desire to proceed without the assistance of an attorney?
[POLAK]: Yup.
THE COURT: Are you going to retain private counsel?
[POLAK]: Nope.
THE COURT: You are going to go ahead without any assistance whatsoever?
[POLAK]: Yes, sir.
THE COURT: ... I would urge you to consider an attorney through the public defender's office or otherwise, you are going to be in over your head in terms of dealing with very serious charges and the penalties if convicted.
[POLAK]: I understand.

At his May 24, 2000 preliminary hearing, Polak was again warned against appearing without counsel:

THE COURT: You are appearing without an attorney?
[POLAK]: Yes, sir.
THE COURT: You have chosen to appear without an attorney. I think I went over with you the seriousness of the offense and you would be best served with an attorney, and you indicated you do not wish the services of an attorney, you did not wish to talk to the public defender's office?
[POLAK]: Yes, sir.
THE COURT: And you do not want advocate counsel nor do you wish to obtain a private attorney?
[POLAK]: Yes, sir.
THE COURT: You are prepared to proceed?
[POLAK]: Yes.
THE COURT: And you are prepared to represent yourself?
[POLAK]: Yes.

Finally, at the scheduled arraignment, the following discussion took place:

THE COURT: ... Was it your intention to seek representation on your own or retaining an attorney or what?
[POLAK]: Nope.
THE COURT: Okay. When you say nope, what do you mean?
[POLAK]: None of the above.
THE COURT: Okay. You understand it's still my decision if you represent yourself not yours?
[POLAK]: Exactly.
THE COURT: And it's going to take me a period of time to cover with you the aspects of that 'cause I wasn't expecting it this morning concerning your waiver of right to attorney so if you are unsuccessful representing yourself and I authorize you to do so, you don't have a grounds for appeal; in other words, saying the Court should have appointed me an attorney. All right?
[POLAK]: All right.
THE COURT: Then the second part of that is I have to be sure you are competent to represent yourself; in other words, you have enough education and/or experience, because you can still be held to the rules of law. There may be some disadvantages concerning potential defenses that might be available which you could potentially overlook and other things ....
[POLAK]: Well, I was thinking of hopefully getting this done as quickly as possible.

¶ "18. Polak then indicated that he wished to enter into a plea agreement with the State; the trial court allowed Polak and the State time for negotiations. The State then informed the trial court that a plea agreement had been reached; Polak would plead to count one and the State would move to dismiss count two. Before accepting the plea, the trial court required Polak to execute a written waiver of right to attorney form. The trial court then engaged Polak in the following discussion:

THE COURT: ... Now, because this is a criminal matter, you do have certain rights. You have a right to have an attorney represent you. If you can't afford an attorney, one could be appointed through the public defender's office although you may have an obligation to repay them for their services.
I wasn't there on May 8.1 don't know if you went to the Firstar Bank. I don't know if you presented a check. I don't know if there are circumstances concerning this matter where an attorney may be able to assist you with potential defenses or other considerations that may be available in terms of resolving the matter. If you proceed today by entering the plea, you'd obviously be waiving that right to an attorney because for most practical purposes the case is basically close to disposition if I accept the plea today. Do you understand that?
[POLAK]: Yes, Ido.
THE COURT: Has anyone threatened you in any way to waive your right to counsel?
[POLAK]: No, they haven't.
THE COURT: Are you doing it of your own free will? [POLAK]: Yes, lam.
THE COURT: Did anyone make a promise to you to get you to waive your right to an attorney?
[POLAK]: No.
THE COURT: Now, in relation to this matter I'm also holding up a waiver of right to attorney form. Have you read this and signed it?
[POLAK]: Yes, sir, I did.
THE COURT: First of all, do you have any question concerning the contents of that document, the rights contained in the waiver of right to attorney form? Anything about that document you don't understand that I can explain for you?
[POLAK]: No, sir.
THE COURT: Okay. Consequently, then, understanding the nature of the right to have an attorney represent you, it's your desire to waive that right and proceed today? Is that a correct statement?
[POLAK]: Yes.
THE COURT: For the record, then, the Court finds the defendant has freely, voluntarily, intelligently waived his right to counsel and the Court will proceed.

¶ 19. Based upon this record, we conclude that Polak understood the perils of self-representation and sufficiently acknowledged such perils on the record. We place particular emphasis on the written waiver of counsel form, used in conjunction with the oral colloquy, because that form unequivocally states Polak's awareness of the assistance an attorney could provide and that an attorney might discover helpful things unknown to Polak. In addition, the form states that an attorney might be able to get the charge reduced, which directly belies Polak's argument that he was unaware that an attorney might succeed in obtaining a better plea bargain.

¶ 20. Polak argues that the written form is insufficient because Klessig requires a personal colloquy. However, the trial court did not use the written form as a substitute for a personal colloquy but used it to supplement the colloquy between it and. Polak.

¶ 21. Polak further argues that State v. Vennemann, 180 Wis. 2d 81, 508 N.W.2d 404 (1993), required his presence at the postconviction motion hearing challenging the adequacy of the plea hearing. In Venne-mann, the Wisconsin Supreme Court held that under certain circumstances, a defendant must be produced for a postconviction hearing:

In order to determine whether a prisoner should be physically produced for a p'ostconviction evidentiary hearing pursuant to sec. 974.02 or sec. 974.06, the following test should he used. First, upon the filing of a motion to produce a prisoner for a postconviction hearing, the circuit court must review the motion papers to determine whether there are substantial issues of fact as to events in which the prisoner participated. Second, the circuit court must then ascertain that those issues are supported by more than mere allegations. If both prongs of the test are satisfied, the court must order the defendant physically produced for the hearing.

Vennemann, 180 Wis. 2d at 94-95 (citation omitted).

¶ 22. However, since the trial court conducted an adequate plea colloquy, and thus there were no substantial issues of fact to resolve, it was not necessary for Polak to be physically produced for the hearing. Id.

CONCLUSION

¶ 23. We conclude that the trial court's colloquy with Polak, supplemented by the waiver of right to attorney form read and signed by Polak, adequately demonstrates that his waiver of right to counsel was knowing, intelligent and voluntary. Consequently, an evidentiary hearing on this matter was unnecessary. Furthermore, because the trial court conducted an adequate plea colloquy, Polak's physical presence at the hearing was equally unnecessary. We therefore affirm the judgment of conviction and the order denying postconviction relief.

By the Court — Judgment and order affirmed.

       The waiver of right to an attorney form, signed by Polak, reads as follows:
      The undersigned, being the defendant in the above case, hereby waives the right to be represented by an attorney in these proceedings.
      I speak, read and write, [sic] the English language. I understand that I have the right to be represented by an attorney at all proceedings in this case; that if I cannot afford an attorney one will be appointed to represent me by the State Public Defender at no cost. I do understand, however, that if I am convicted and am placed on probation or fined, the Court may require me to reimburse reasonable attorney's fees.
      I also understand that an attorney may be helpful in assisting me in defending against the crime with which I have been charged, that a lawyer is experienced in the proceedings before the court and that a lawyer may know of defenses available to me or procedures which may result in the case being dismissed or the charge being reduced because of facts or circumstances not known to me.
      Knowing the above, I desire to waive my right to have an attorney represent me in this case, and I make this waiver freely and voluntarily without any threats or promises made to me to give up my right to an attorney.

       One could argue that Polak has waived appellate review of this issue. Although postconviction counsel requested the court's permission to offer Polak's testimony during the hearing, counsel did not file a motion asking that Polak be produced, did not argue that Polak needed to be present in person to do so and did not object when Polak appeared via telephone.


author: VERGERONT, PJ.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Zan Morgan, Defendant-Appellant.
    Court of Appeals

      No. 01-2148-CR.

      Submitted on briefs February 12, 2002.—

      Decided April 4, 2002.

    2002 WI App 124
    (Also reported in 648 N.W.2d 23.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Tim Provis, Madison.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Francisco Vasquez, assistant attorney general, and James E. Doyle, attorney general.
    Before Vergeront, PJ., Dykman and Deininger, JJ.
   VERGERONT, PJ.

¶ 1. Zan Morgan appeals a judgment of conviction for possession of THC, second offense, in violation of Wis. Stat. § 961.41(3g)(e) (1999-2000). Morgan contends the trial court erred in denying his motion to suppress an inculpatory statement he made in response to a police officer's question without being given Miranda warnings. We conclude Morgan was in custody when questioned by the officer and therefore his statement must be suppressed. Accordingly, we reverse and remand for a new trial.

BACKGROUND

¶ 2. At the hearing on Morgan's motion to suppress, City of Madison Police Officer Henry Whyte testified as follows. On February 18,1999, he went to an apartment building to investigate because a bag of marijuana was found in the freezer of an apartment that the tenant had vacated and intended to sublet. Officer Whyte met with a building security guard, Shawn Smith, to investigate the incident; Smith was also a part-time police officer. Both were armed. Officer Whyte was in plain clothes with his badge worn around his neck.

¶ 3. Officer Whyte obtained permission from the tenant to search the apartment. He and Smith entered the apartment, locking the door after them. Officer Whyte found a bag of marijuana in the freezer and a duffel bag with crack cocaine and a handgun in a closet. Officer Whyte called his sergeant to tell him what he found and the sergeant said he would be right there. Meanwhile, Smith alerted Officer Whyte to the fact that someone was trying to enter the apartment with a key. Both Officer Whyte and Smith drew their guns. As soon as the person, later identified as Morgan, entered the apartment, Whyte identified himself as a police officer and told Morgan to stop.

¶ 4. Morgan ran from the apartment and Officer Whyte chased him, yelling for him to stop. When Officer Whyte caught up to Morgan, Morgan was attempting to get into the driver's seat of a car. Another adult male was in the front passenger seat, and Officer Whyte thought there was a third adult male in the back seat, but that person was a child. Officer Whyte grabbed hold of Morgan and brought him to the trunk area of the car. Morgan did not offer any physical resistance after that and was cooperative. Officer Whyte handcuffed Morgan with his hands behind him, frisked him for weapons, found none, and sat him on the curb to the rear of the vehicle. Officer Whyte told Smith to watch Morgan, and he took the other adult, Dezel Jones, out of the car, put handcuffs on him, and sat him on the curb.

¶ 5. A police squad car arrived and Officer Whyte put both Morgan and Jones in the back of that squad car, both still handcuffed. Officer Whyte obtained Morgan's consent to search the car he had been trying to enter. On searching the car, the officer discovered a "blunt" in the car's ashtray. By that time Officer Whyte's sergeant had arrived, as well as another officer driving another police squad car into which Officer Whyte transferred Jones.

¶ 6. Officer Whyte asked Morgan, who was still handcuffed and sitting in the back of the squad car, what he knew about the blunt in the ashtray of the vehicle. According to Officer Whyte, Morgan responded that he and Jones were smoking the blunt before they got to the apartment that night. Before asking this question, Officer Whyte did not tell Morgan that he was under arrest, nor did he read to Morgan the Miranda warnings. At the time Officer Whyte asked this question, he was conducting an investigation to determine what, if anything, Morgan had to do with the drugs and gun found in the apartment, as well as who owned or possessed the blunt found in the car. Officer Whyte agreed that Morgan "couldn't go anywhere" while seated in the back of the squad car.

¶ 7. The trial court denied Morgan's motion to suppress. After summarizing Officer Whyte's testimony, the court concluded that the officer had reasonable suspicion that a crime had been or was to be committed, justifying Morgan's detention under Terry v. Ohio, 392 U.S. 1 (1968). The court next determined that Officer Whyte's decision to place Morgan and Jones in handcuffs was reasonable. His decision to put them in squad cars was also reasonable, the court determined, since the events took place in the middle of winter. The court found that Officer Whyte separated Morgan and Jones once another police car arrived so that he could hold the situation stable and do further investigation. The court concluded that a reasonable person in Morgan's position would have believed that he was being temporarily detained, and that the detention was reasonable and understandable given the circumstances facing the officer, the season of the year, and Morgan's conduct. Therefore, the trial court ruled, Miranda warnings were not necessary.

¶ 8. At trial, Officer Whyte testified that, in response to his question about the blunt, Morgan told him "we had been smoking it before." Morgan denied smoking the blunt. Jones testified that the blunt was his and he, but not Morgan, smoked it.

DISCUSSION

¶ 9. Morgan argues that the trial court erred in concluding that Miranda warnings were not necessary because, he asserts, he was "in custody" for Miranda purposes when Officer Whyte asked him about the blunt.

¶ 10. The prosecution may not use a defendant's statements stemming from custodial interrogation unless the defendant has been given the requisite warnings. Miranda v. Arizona, 384 U.S. 436, 444 (1966). In Miranda, the Court defined custodial interrogation as "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." Id. Subsequently, the Court held that the Miranda safeguards attach when a "suspect's freedom of action is curtailed to a 'degree associated with [a] formal arrest.'" Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). The relevant inquiry is how a reasonable person in the suspect's situation would understand the situation. Berkemer, 468 U.S. at 442.

¶ 11. In reviewing the trial court's decision, we accept that court's findings of historical fact unless they are clearly erroneous; however, whether a person is "in custody" for Miranda purposes is a question of law, which we review de novo based on the facts as found by the trial court. State v. Mosher, 221 Wis. 2d 203, 211, 584 N.W.2d 553 (Ct. App. 1998).

¶ 12. In determining whether an individual is "in custody" for purposes of Miranda warnings, we consider the totality of the circumstances, including such factors as: the defendant's freedom to leave; the purpose, place, and length of the interrogation; and the degree of restraint. State v. Gruen, 218 Wis. 2d 581, 594, 582 N.W.2d 728 (Ct. App. 1998). When considering the degree of restraint, we consider: whether the suspect is handcuffed, whether a weapon is drawn, whether a frisk is performed, the manner in which the suspect is restrained, whether the suspect is moved to another location, whether questioning took place in a police vehicle, and the number of officers involved. Id. at 594^96.

¶ 13. In this case the dispute between the parties in part centers on the correct legal test to be applied for Miranda purposes when an individual has been detained in a Terry stop, and we begin by addressing this issue. The State asserts that the inquiry under Miranda involves two steps, the first of which is a determination of whether the defendant was validly detained pursuant to Terry. The State also asserts that the "question of whether a person was in custody for [FJifth [A]mendment purposes is handled in essentially the same fashion as the question of whether a person has been arrested for [F]ourth [A]mendment purposes." We acknowledge that the analysis required by the Fourth Amendment and the analysis required by the Fifth Amendment are not always clearly distinguished in the case law. However, the analyses are not the same.

¶ 14. The Fourth Amendment prohibition of unreasonable searches and seizures protects the personal liberty interests of freedom of movement and freedom from governmental intrusion. See Schneckloth v. Bustamonte, 412 U.S. 218, 242 (1973); Terry, 392 U.S. at 16. In order to protect against unreasonable seizures, the Fourth Amendment requires, with certain narrowly defined exceptions, that formal arrests, or seizures that resemble formal arrests, be supported by probable cause to believe that the individual has committed a crime. See Michigan v. Summers, 452 U.S. 692, 699-700 (1981). Recognizing the need for law enforcement to temporarily detain persons to investigate possible criminal activity when there is not probable cause, the Court in Terry, 392 U.S. at 16-22, held that in certain circumstances temporary investigative stops are reasonable even though they are seizures and even though the officer does not have probable cause. Under the Fourth Amendment the test is ultimately whether the officer's action was justified at its inception, and whether the intrusiveness of the particular seizure is reasonable given the totality of the circumstances; and reasonableness is determined by balancing the governmental interests in crime prevention against the individual's right to be free from governmental intrusion. Terry, 392 U.S. at 19-21, 22-27. Morgan does not challenge any of the officers' actions as unreasonable under the Fourth Amendment.

¶ 15. The Fifth Amendment protects a different interest — the right not to be compelled to incriminate oneself. Miranda, 384 U.S. at 467. The requirement for Miranda warnings is based on the need to protect the fairness of a criminal defendant's trial. Schneckloth, 412 U.S. at 240. The Court decided that without these safeguards, "the process of in[-]custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel [the individual] to speak where [the individual] would not otherwise do so freely." Miranda, 384 U.S. at 467.

¶ 16. Thus, when we inquire whether a person is in custody for Miranda purposes, we do not focus only on the reasonableness of the police officer's conduct: that is relevant insofar as it has a bearing on how a reasonable person in the suspect's situation would perceive his or her situation, but it is not dispositive. Officers may act reasonably in detaining and restraining suspects, but, when the challenge is that a Miranda warning should have been given, the issue is whether those acts give rise to a custodial situation. State v. Pounds, 176 Wis. 2d 315, 322, 500 N.W.2d 373 (Ct. App. 1993). For this reason the relevant factors — as we articulated them in Gruen, 218 Wis. 2d at 594-96, and have listed them in ¶ 12 of this decision — are directed to the duration and the degree of restraint. For this reason, too, we have recognized that even during a valid Terry stop a defendant may be considered "in custody" for Fifth Amendment purposes and entitled to Miranda warnings before questioning. Gruen, 218 Wis. 2d at 593. The fact that a defendant is detained pursuant to a Terry stop does not dispel the need for Miranda warnings, but is simply one of the factors to consider as part of the totality of the circumstances to determine whether a reasonable person in the defendant's position would have considered himself or herself "in custody" given the degree of restraint. Gruen, 218 Wis. 2d at 594.

¶ 17. Applying the factors we articulated in Gruen, we conclude that a reasonable person in Morgan's situation would have considered himself or herself in custody given the degree of restraint. The court found that the time between when he was handcuffed and when he was asked the question about the blunt was "very short" and, while there is no direct testimony on that time span, it is reasonable to infer from the record that the duration was not such as to weigh in favor of a conclusion of "in custody." However, we conclude that other factors would lead a reasonable person in Morgan's situation to believe he or she was in custody. Morgan was handcuffed; he was frisked; he was put handcuffed in a squad car with another suspect and then, upon the arrival of another squad car, the other suspect was put in that squad car so that Morgan was alone; and there were four officers on the scene at the time of questioning, plus Smith. Although no gun was drawn on Morgan in the squad car, Officer Whyte and Smith had both drawn their guns on Morgan when he entered the apartment. The questioning of Morgan took place in a squad car, which, based on Officer Whyte's own testimony, Morgan could not leave. Only a single question is involved in this appeal, but the question directly asks about Morgan's connection to contraband found in the car Morgan was entering.

¶ 18. The trial court considered that the fact that Morgan was not removed from the scene weighed against a determination that he was in custody. However, Morgan was physically moved by the officer from the car he was entering to the curb, and from the curb to the police squad car. As stated in United States v. Smith, 3 F.3d 1088 (1993), "[h]is movement was curtailed as if he were handcuffed to a chair in a detective's office or placed in a holding pen in a station house or put behind bars." Smith, 3 F.3d at 1097 (concluding that the suspect, handcuffed, frisked, removed from the taxicab in which he was riding, separated from his property and his associates, told to sit at a specific place on the grass, and outnumbered by police officers, was in custody for Miranda purposes).

¶ 19. The trial court also apparently considered that the cold weather here weighed against a determination of "in custody" for Miranda purposes, and the State makes that argument on appeal. However, this case is not factually similar to Gruen, 218 Wis. 2d at 596-97, on which the State relies. In Gruen, the police officer came upon a car stuck in a snow bank at 1:30 a.m. and observed Gruen walking away from the car. Id. at 586. The officer proceeded to stop Gruen to ask him about the car. Id. However, because the officer was outside his jurisdiction, he called for another officer from the appropriate municipality. Id. at 586-87. The officer testified that while waiting for the other officer, it was so cold outside that he asked Gruen if he wanted to have a seat in the officer's police van and Gruen accepted the offer. Id. at 587. In analyzing these facts, we considered it significant that the officer asked Gruen if he wanted to have a seat in the police van because of the cold, rather than ordering Gruen to get into the van. Id. at 596. We reasoned that "[a] reasonable person is less likely to believe he or she is in custody when he or she is asked, rather than ordered, to do something by a police officer." Id.

¶ 20. Here, Officer Whyte testified that when a police squad car arrived, he "put them both [Morgan and Jones] into the squad car." There is no testimony, or reasonable inference from the testimony, that the officer asked Morgan if he wanted to get into the squad car, or that Morgan had any choice about getting into the squad car, or that Officer Whyte even mentioned the cold. In these circumstances, a reasonable person put into a police squad car is not less likely to believe he or she is in custody simply because it is cold outside.

¶ 21. The State also points to cases, cited in State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991), holding that the use of handcuffs does not necessarily transform a custodial stop into an arrest. Swanson, 164 Wis. 2d at 448 (citing United States v. Glenna, 878 F.2d 967, 972 (7th Cir. 1989), and United States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983)). However, we do not consider one particular factor in isolation; rather, we look at all relevant factors as they together bear on the suspect — the totality of the circumstances. See Gruen, 218 Wis. 2d at 594.

¶ 22. Finally, the State contends that in deciding whether a reasonable person in the defendant's position would believe himself or herself to be in custody, we must define a "reasonable person" as an "innocent person" according to United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988). Then, relying on Swanson, 164 Wis. 2d at 449, and State v. Quartana, 213 Wis. 2d 440, 450-51, 570 N.W.2d 618 (Ct. App. 1997), the State argues that Morgan was not in custody because a reasonable innocent person in his situation would expect to be permitted to leave once the officer had the situation under control and had resolved any ambiguity as to whether the person had committed a crime.

¶ 23. Although no Wisconsin court has specified that the reasonable person for Miranda analysis is the "reasonable innocent person," we view the addition of "innocent" as a clarification rather than a change in the "reasonable person" standard. The court in Corral-Franco, 848 F.2d at 540, was relying on an earlier Fifth Circuit decision, United States v. Bengivenga, 845 F.2d 593 (5th Cir. 1988), which explained that the reasonable person through whom we view the situation for Miranda purposes "must be neutral to the environment and to the purposes of the investigation — that is, neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances." Bengivenga, 845 F.2d at 596. This is simply another way of saying that the standard is the objective one of the reasonable person, not the subjective one of the suspect in the particular case, who may assume he or she is being arrested because he or she knows there are grounds for an arrest.

¶ 24. However, although we agree with the State that for purposes of Miranda, we should consider a reasonable innocent person in Morgan's situation, we do not agree with the implication of its argument that our inquiry here is whether a reasonable innocent person would understand that if that person answered Officer Whyte's questions, and the answers showed he or she was innocent, the person would be allowed to leave. The point of the Miranda warnings is to protect one's right not to answer questions when the answers might incriminate oneself. It is not logical to decide whether those warnings should be given by assuming that an innocent person would answer those questions, would thereby convince the officer he or she is innocent, and so would be allowed to leave. In Miranda, the Supreme Court specifically rejected the argument that an unfettered right to detention for interrogation should be allowed because it would ultimately benefit the person questioned, in that once police inquiry determines there is no reason to believe the person has committed any crime, the person will be released without the need for further formal procedures. Miranda, 384 U.S. at 482. The Supreme Court stated: "Custodial interrogation ... does not necessarily afford the innocent an opportunity to clear themselves." Id.

¶ 25. Neither Swanson nor Quartana provides authority to the contrary. Both concerned routine traffic stops. Both addressed the question whether the stops — including giving field sobriety tests in the former and, in the latter, transporting the suspect back to the scene of the accident which he had left and giving field sobriety tests there — were reasonable under Terry or were arrests not supported by probable cause. In both cases the courts decided that the officers' activities were reasonable under Terry, concluding that reasonable persons in the suspects' situations would understand that they were free to leave after passing the field sobriety tests. Swanson, 164 Wis. 2d at 449; Quartana, 213 Wis. 2d at 451. These cases do not suggest that when we are deciding whether a person is in custody for Miranda purposes and the situation is not a routine traffic stop, we are to assume a reasonable person is one who is innocent and answers the question in an exculpatory manner.

¶ 26. We conclude that Morgan was in custody when he was questioned by Officer Whyte, and therefore Miranda warnings were required to safeguard his privilege against self-incrimination. Because Morgan did not receive Miranda warnings prior to responding to Officer Whyte's question, his statement in response must be suppressed. Because it was not suppressed, we reverse and remand for a new trial.

By the Court. — Judgment reversed and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

        Miranda v. Arizona, 384 U.S. 436 (1966).

       The record does not disclose what Smith was wearing.

       A "blunt" is a cigar from which the tobacco has been removed and replaced with marijuana.

       Officer Whyte testified at one point that he asked Morgan "if he knew what was in the car, in the ashtray of the vehicle"; at a later point, he testified that he asked Morgan "what he knew about the blunt in the ashtray."

       The court also ruled that Morgan's response was voluntary and not coerced, but that issue is not before us on appeal.

       In the context of arguing that Morgan was not "in custody," the State asserts that "there was no major interrogation of Morgan," that the one question he was asked was one that "would be expected in the course of an investigatory stop." It is not clear to us whether the State intends to argue that Morgan was not under "interrogation" within the meaning of Fifth Amendment case law. The State says nothing further on this topic. "Interrogation" for Miranda purposes is express questioning, as well as any words or actions on the part of the police (other than those normally attendant to arrest and custody) "that the police should know are reasonably likely to elicit an incriminating response from the suspect." State v. Cunningham, 144 Wis. 2d 272, 277, 423 N.W.2d 862 (1988) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). We see no basis for concluding that Officer Whyte's express question was not "interrogation," and the State has provided us with none. Nor does the State present any authority for what may be its implicit premise that the brevity of the exchange makes it not "interrogation." We have recently recognized that the brevity of the exchange is not controlling and may instead confirm the evocative power of the officer's question, stating that to conclude otherwise would be to discount a Miranda violation simply because the person quickly succumbed. State v. Bond, 2000 WI App 118, ¶ 22, 237 Wis. 2d 633, 614 N.W.2d 552, aff'd by an equally divided court, 2001 WI 56, 243 Wis. 2d 476, 627 N.W.2d 484. In the absence of a developed argument by the State, we will assume it does not intend to argue that, even if Morgan was "in custody" for Miranda purposes, he was not subject to interrogation.

       According to a number of commentators, the confusion arises because the United States Supreme Court in California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam), and later in Berkemer v. McCarty, 468 U.S. 420, 440 (1984), defined the concept of "in custody" for Miranda purposes as the situation in which a suspect's freedom of action is curtailed to a degree associated with a formal arrest. There is disagreement among commentators and in lower courts whether this means that the Fourth Amendment question of whether a seizure is an arrest (and therefore requires probable cause rather than reasonable suspicion) is the same as whether a suspect is in custody for Miranda purposes. See, e.g., Mark A. Godsey, When Terry Met Miranda: Two Constitutional Doctrines Collide, 63 FoRdham L-Rev. 715, 718-19, 734-41 (1994); Richard A. Williamson, The Virtues (and Limits) of Shared Values: The Fourth Amendment

        and Miranda’s Concept of Custody, 1993 U. III. L. Rev. 379, 391-95; Thomas Gerry Bufkin, Comment, Terry and Miranda: The Conflict Between the Fourth and Fifth Amendments to the United States Constitution, 18 Miss. C. L. Rev. 199, 200-01 (1997); Note, Custodial Engineering: Cleaning Up the Scope of Miranda Custody During Coercive Terry Stops, 108 Hahv. L. Rev. 665, 668-69 (1995). There is apparently agreement among the commentators and the courts that the force permissible to detain suspects in a valid Terry stop has increased since Terry and Berkemer were decided, and this has made the relationship between the Fourth Amendment and the Fifth Amendment in the context of á Terry stop more significant. See, e.g., United States v. Perdue, 8 F.3d 1455, 1463-66 (10th Cir. 1993); Godsey, supra, at 728-33; Williamson, supra, at 396-408, Bufkin, supra, at 211-12; Custodial Engineering, supra, at 671-72; see also United States v. Smith, 3 F.3d 1088, 1096-97 (7th Cir. 1993).
      The court in State v. Swanson, 164 Wis. 2d 437, 475 N.W.2d 148 (1991), abrogated Wisconsin's subjective test for arrest under the Fourth Amendment and adopted the test from Berkemer: "whether a reasonable person in the defendant's position would have considered himself or herself to be 'in custody' given the degree of restraint under the circumstances." Swanson, 164 Wis. 2d at 446-47 (citing Berkemer, 468 U.S. at 441-42, and State v. Koput 142 Wis. 2d 370, 380, 418 N.W.2d 804 (1988), which addressed the issue of whether the defendants were in custody for Miranda purposes). In a footnote the court in Swanson cited United States v. Corral-Franco, 848 F.2d 536, 541 (5th Cir. 1988), a case that adopted in a Fourth Amendment context the Berkemer standard to distinguish between an investigative Terry stop and the degree and duration of restraint associated with a formal arrest. Swanson, 164 Wis. 2d at 446 n.5. This court has followed Swanson and applied the Berkemer standard to cases deciding whether a seizure is an arrest under the Fourth Amendment. See, e.g., State v.

        Vorgurger, 2001 WI App 43, ¶ 14, 241 Wis. 2d 481, 624 N.W.2d 398, review granted, 2001 WI 88, 246 Wis. 2d 165, 630 N.W.2d 219 (Wis. May 8, 2001) (No. 00-0971-CR); State v. Quartana, 213 Wis. 2d 440, 449-50, 570 N.W.2d 618 (Ct. App. 1997).
      However, the United State Supreme Court, while using a reasonable person standard to determine whether a person is seized within the meaning of the Fourth Amendment, see Florida v. Royer, 460 U.S. 491, 501-02 (1983) (plurality opinion) ("[A] show of official authority such that 'a reasonable person would have believed he [or she] was not free to leave.'"), has not used a reasonable person standard to determine when the restraint imposed in a detention becomes unreasonable unless supported by probable cause. In Royer, 460 U.S. at 501-04, the Court used the balancing test employed in Terry to decide whether the degree and duration of restraint exceeded that which was reasonable for an investigative stop and must therefore be supported by probable cause. The Court has done the same in subsequent decisions. See e.g., United States v. Sharpe, 470 U.S. 675, 685-88 (1985); United States v. Hensley, 469 U.S. 221, 228-29 (1985). Reasons why the standard for "in custody" for Miranda purposes is formulated according to the perception of a reasonable person in the suspect’s situation, while the standard for an arrest under the Fourth Amendment is not, are discussed in Williamson, supra, at 404-05. But see Custodial Engineering, supra, at 672-78. We need not address these issues concerning the Fourth Amendment, because Morgan confines his challange on appeal to the lack of Miranda warnings.

       In order to meet the Fourth Amendment’s requirement of "reasonablemenss," a temporary stop for investigative purposes must be justified by an officer’s reasonable suspicion "in light of his or her experience" that some criminal activity has taken place or is taking place. State v. Gruen, 218 Wis. 2d 581, 590, 582 N.W.2d 728 (Ct. App. 1998). In addition, the detention must be temporary and employ the least intrusive means reasonably available to verify or dispel the officer’s suspicion. Id. at 590-91.

       In commenting on the distinction between the purpose of permitting a temporary detention under certain circumstances — to protect police officers and the general public — and the purpose of the Miranda rule — to protect the fairness of the criminal trial — the Seventh Circuit has said: " '[T]here is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment.' Accordingly, a completely different analysis of the circumstances is required. [For Miranda purposes, t]he inquiry is much narrower. The number of relevant factors is severely limited." Smith, 3 F.3d at 1097 (citations omitted).

       Since we decided Gruen, the Wisconsin supreme court, citing Berkemer, 468 U.S. at 440, has stated that "if a detained motorist is treated in such a manner that he or she is rendered 'in custody' for practical purposes, Miranda protections are triggered." State v. Griffith, 2000 WI 72, ¶ 69 n.14, 236 Wis. 2d 48, 613 N.W.2d 72.

       Other factors relevant to our conclusion that Gruen was not "in custody" for Miranda purposes were: Gruen was not handcuffed; although he was in the police van, he was not locked in when he was questioned because the officer opened the door and spoke to Gruen while standing on one of the van's steps; the detention was about ten to fifteen minutes, which we considered reasonable given that the officer had to wait for the officer from the appropriate municipality; Gruen was questioned at the scene of the crime; he was frisked, but no guns were drawn on him and he was not ordered to the ground; only the two officers were present; and there were only three "short" general, common-sense investigatory questions: "What happened?," "Oh, so you were driving then?," and "Well, then who was driving?" Gruen, 218 Wis. 2d at 597-98.

       Although the United States Supreme Court has apparently not held that the "reasonable person" test for Miranda purposes is a "reasonable innocent person," it has made clear that the reasonable person test for purposes of deciding whether a seizure occurred under the Fourth Amendment presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 437-38 (1991) (remanding for an evaluation of whether there was a "seizure" and, in that context, rejecting the defendant's argument that a police search of his bag violated his Fourth Amendment rights because "no reasonable person would freely consent to a search of luggage that he or she knows contains drugs"). The Bostick court cited language from Michigan v. Chesternut, 486 U.S. 567, 574 (1988), as agreeing with this principle: "This 'reasonable person' standard... ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached."


author: DYKMAN, J.

text:
    Department of Natural Resources, Plaintiff-Respondent, v. Bruce D. Bowden, Defendant-Appellant.
    Court of Appeals

      No. 01-2820.

      Submitted on briefs January 22, 2002.

    Decided April 4, 2002.

    2002 WI App 129
    (Also reported in 647 N.W.2d 865.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Timothy L. Angel of Angel & Angel, S.C., Dodgeville.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of Erik C. Peterson, district attorney, Dodgeville.
    Before Vergeront, EJ., Dykman and Roggensack, JJ.

       This case was converted from a one-judge appeal to a three-judge appeal pursuant to Wis. Stat. Rule 809.41(3) (1999-2000).

   DYKMAN, J.

¶ 1. Bruce Bowden appeals from a judgment of conviction for violating Wis. Admin. Code § NR 45.05(l)(c) (Nov. 2001). He argues that Wis. Stat. § 59.73(2) (1999-2000) authorizes land surveyors to drive motor vehicles on land managed by the Department of Natural Resources. We disagree and affirm.

Background

¶ 2. Bruce Bowden is the land surveyor for Iowa County. On December 2, 2000, Bowden went to Blue Mounds State Park in a pickup truck to "reestablish the section corners ... along the east side of Section 2 [of the park]." Before starting work, Bowden stopped at the ranger station to speak to Karl Heil, the park ranger and an officer for the Department of Natural Resources. Bowden informed Heil that he needed to survey inside the park on one of the trails. Heil told Bowden that he could go back on the trail, but that he could not drive on it; he would have to walk back. When Bowden assured Heil that he would not damage the trail, Heil warned Bowden that he would issue a citation for operating a motor vehicle in an unauthorized area if Bowden insisted on driving on the trail.

¶ 3. The conversation ended and Bowden returned to his truck. He drove it onto the trail, parking near the area he was going to survey. When he returned to the parking lot after he was finished surveying, Heil issued him a citation for driving the pickup truck on the trail, contrary to Wis. Admin. Code § NR 45.05(l)(c).

¶ 4. Bowden filed a motion to dismiss, which the circuit court denied. After a bench trial, the court found Bowden guilty of violating Wis. Admin. Code § 45.05(l)(c). Bowden appeals.

Decision

¶ 5. This case requires us to interpret Wis. Stat. § 59.73 and Wis. Admin. Code § NR 45.05. These are questions of law, which we review de novo. Gilbert v. DOR, 2001 WI App 153, at ¶ 7, 246 Wis. 2d 734, 633 N.W.2d 218.

¶ 6. Bowden makes two interrelated arguments. First, he argues that he did not violate Wis. Admin. Code § NR 45.05(1)(c). Second, he contends that to the extent that he violated the regulation, Wis. Stat. § 59.73 provides him with immunity from prosecution. We disagree with both of these contentions.

¶ 7. Wisconsin Admin. Code § 45.05(1)(c) provides:

No person may operate or park any vehicle as defined in s. 340.01(74), Stats., which is required to be registered by law on lands under the management, supervision and control of the [DNR] except:
1. On highways as defined in s. 340.01(22), Stats.
2. In posted parking areas and boat ramps.
3. Overnight by permit at state trail parking areas.
4. As otherwise specifically authorized by law or administrative rule.

There is no dispute that Bowden's pickup truck is a vehicle within the meaning of Wis. Stat. § 340.01(74), or that the trail is under the management, supervision and control of the DNR. It is also undisputed that the trail was not a highway or a posted parking area. Bowden contends, however, that the fourth exception applies because he was "specifically authorized" to drive his truck on the trail by Wis. Stat. § 59.73(2).

¶ 8. Wisconsin Stat. § 59.73(2) provides:

Subdividing sections. Whenever a surveyor is required to subdivide a section or smaller subdivision of land established by the United States survey, the surveyor shall proceed according to the statutes of the United States and the rules and regulations made by the secretary of the interior in conformity to the federal statutes. While so engaged a surveyor and the surveyor's assistants shall not be liable as a trespasser and shall be liable only for any actual damage done to land or property.

Bowden focuses on the last sentence of subsection (2) to make his argument. He asserts that because surveyors are not liable as trespassers, this authorizes him to drive a truck on trails controlled by the DNR. We reject this argument.

¶ 9. The DNR did not charge Bowden with trespassing, it charged him with operating a motor vehicle in an unauthorized area. Therefore, Wis. Stat. § 59.73(2) simply does not apply. The statute grants surveyors only a right of access. It does not give a surveyor the right to bring a vehicle of his or her choice onto park trails. Following Bowden's argument to its logical conclusion would prevent the DNR from restricting surveyors in any way. But Bowden himself acknowledges that it is appropriate for the DNR "to impose time, place and manner restrictions" on surveyors. This is what the DNR has done. It has concluded that driving vehicles on certain trails creates a risk of damaging the land, and has therefore prohibited such conduct. Although Bowden protests that he did not damage the land, whether that is so is ultimately irrelevant. Preventing property damage may be the general purpose of Wis. Admin. Code § NR 45.05(l)(c), but it is not an element of the regulation. Bowden violated the regulation the moment he drove his truck in an unauthorized area. Had he damaged the land as well, he could have been subject to additional penalties.

¶ 10. We do not doubt, as Bowden contends, that trucks are normally used in the course of surveying, that a motor vehicle is "the most efficient and cost effective way to gain access to property" and that the denial of motor vehicle use makes surveying more "burdensome." But knowing this does not change the plain language of Wis. Admin. Code § NR 45.05(l)(c). Bowden has not argued that the DNR rule makes it physically impossible to perform his statutorily prescribed duties under Wis. Stat. § 59.45. And although it might be desirable to include an exception for surveyors in § NR 45.05(1)(c), we cannot read one in by judicial fiat. Bowden must persuade either the DNR to create an exception or the legislature to override the DNR regulation by statute.

¶ 11. We conclude that Bowden does not meet the exception under Wis. Admin. Code § NR 45.05(l)(c)4. Further, there is no conflict between § NR 45.05(l)(c) and Wis. Stat. § 59.73(2).

By the Court. — Judgment affirmed.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

       Wisconsin Stat. § 59.45 provides:
      (1) Surveyor; duties, (a) The county surveyor shall do all of the following;
      1. Execute, personally or by a deputy,’ all surveys that are required by the county or by a court. Surveys for individuals or corporations may be executed at the county surveyor's discretion.
      2. Make, personally or by a deputy, a record, in books or on drawings and plats that are kept for that purpose, of all corners that are set and the manner of fixing the corners -and of all bearings and the distances of all courses run, of each survey made personally, by deputies or by other land surveyors and arrange or index the record so it is an easy to use reference and file and preserve in the office the original field notes and calculation thereof. Within 60 days after completing any survey, the county surveyor shall make a true and correct copy of the foregoing record, in record books or on reproducible papers to be furnished by the county and kept in files in the office of the county surveyor to be provided by the county. In a county with a population of 500,000 or more where there is no county surveyor, a copy of the record shall also be filed in the office of the regional planning commission which acts in the capacity of county surveyor for the county.
      3. Furnish a copy of any record, plat or paper in the office to any person on demand and upon payment to the county of the required fees.
      4. Administer to every survey assistant engaged in any survey, before commencing their duties, an oath or affirmation to faithfully and impartially discharge the duties of survey assistant, and the deputies are empowered to administer the same.
      5. Perform all other duties that are required by law.
      (b) Surveys for individuals or corporations may be performed by any land surveyor who is employed by the parties requiring the services, providing that within 60 days after completing any survey the land surveyor files a true and correct copy of the survey in the office of the county surveyor. In counties with a population of 500,000 or more the copy shall be filed in the office of the register of deeds and in the office of the regional planning commission which acts in the capacity of county surveyor for the county.
      (2) SURVEYOR; DEPUTIES. The county surveyor may appoint and remove deputies at will on filing a certificate thereof with the clerk.
      (3) SURVEYOR; FEES. In addition to the regular fees of land surveyors that are received from the parties employing the county surveyor, the county surveyor may receive a salary from the county.