Suspect can't invoke Miranda before arrest, Wisconsin Court of Appeals holds.

• Author: Ziemer, David

Byline: David Ziemer

A suspect's invocation of Miranda does not render his subsequent statements inadmissible, if he was not in custody at the time of the invocation, the Wisconsin Court of Appeals held on March 15.

On May 7, 2002, sheriff's investigator David Hake and New Richmond Police Chief Mark Samelstad spoke to Richard Allen Hassel at his home about recent fires. Several times, Hassel told the officers "I can't talk to you."

According to Hake, he did not consider this an invocation of Hassel's Miranda rights, since the parties mutually continued conversing. "He asked us questions and we asked him," Hake testified. Hake further testified that he did not read Hassel his Miranda rights since Hassel was not in custody at that time.

At the conclusion of the conversation, Hake and Samelstad arrested Hassel, taking him to jail. Hake told him that they would be back to talk to him the next morning.

At 9 a.m. on May 8, Hake and Samelstad returned with special agent Michael Van Keuren from the Wisconsin Department of Justice to interview Hassel. The officers indicated they wanted to speak to Hassel about his chemical dependencies and his problem of starting fires. At 9:20 a.m., Hake read Hassel his Miranda rights, and Hassel signed an acknowledgement and waiver form.

He also stated something to the effect of "I don't know if I should talk to you," but during the subsequent three-hour interview, he never asked to stop the questioning. During the interview, he made incriminating statements.

Hassel was charged with ten counts of arson. Hassel moved to suppress his statements, contending he had invoked his right to silence on May 7 and that this right was violated by the continued questioning on May 8. St. Croix County Circuit Court Judge Eric J. Lundell denied the motion.

Hassel then entered a plea pursuant to an agreement with the State. Hassell appealed the denial of his suppression motion, but the court of appeals affirmed in a decision by Judge Michael W. Hoover.

The court held that Hassel did not invoke his Miranda rights by saying, "I can't talk to you" when police interrogated him at his home on May 7.

The court acknowledged that police must cease questioning a suspect when Miranda's right to remain silent - or right to counsel - is invoked. Nevertheless, the court found no invocation of the right, because Hassel was not in custody at the time, citing State v. Pheil, 152 Wis. 2d 523, 530-31, 449 N.W.2d 858 (Ct.App.1989): "Miranda and its...