Failure to give Miranda warnings is intentional violation.

• Author: Ziemer, David

Byline: David Ziemer

Asking a handcuffed suspect whether he has any drugs on his possession, without giving Miranda warnings, is an intentional Miranda violation, the Wisconsin Court of Appeals held on Aug. 12.

In February 2001, Milwaukee police officers responded to a complaint that shots were fired from a car. The officers saw a parked car that they believed fit the description they were given. Three men, including Derrick E. Hopkins, were in the car.

The officers saw "furtive movements" by the men in the car once they "realized the officers were behind them." The officers approached the car, and could smell the odor of burning marijuana coming from it. With guns drawn, the officers asked if anyone in the car had "any guns or drugs." Hopkins replied that he had a gun.

One of the officers took Hopkins from the car, handcuffed him, and removed the gun from Hopkins's pocket. Later, another officer asked the handcuffed Hopkins, who was then sitting in a police squad car, whether he had any drugs. Hopkins replied that he had marijuana in one of his pockets.

None of the officers ever advised Hopkins of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), before asking any of these questions or before taking the gun and marijuana from Hopkins.

Hopkins was charged with carrying a concealed weapon, and possession of marijuana. He moved to suppress the evidence, but Milwaukee County Circuit Court Judge Patricia D. McMahon denied the motion. Hopkins then pleaded guilty to the charges.

Hopkins appealed the denial of the suppression motions, and the court of appeals affirmed the denial of the motion to suppress the gun, but reversed the denial of the motion to suppress the marijuana.

CCW

In light of the Wisconsin Supreme Court decisions in State v. Hamdan, 2003 WI 113, and State v. Cole, 2003 WI 112, which expounded on the constitutional right to bear arms, the court ordered the parties to brief whether Hopkins' possession of the concealed weapon was lawful, but ultimately, the court rejected Hopkins' constitutional challenge based on the right to bear arms.

The court first found that, by pleading guilty, Hopkins waived his right to challenge sec. 941.23 as applied to him. Cole, 2003 WI 112, par. 46.

The court also found that Hopkins did not have a colorable right to bear arms, in any event. The court concluded, "Hopkins alleges in his supplemental brief that: he was cooperative when arrested, he was basically homeless,' he was living on money...