Wisconsin Law Journal
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 that he received from Social Security because of his mother’s death,’ he ‘bought the [gun] about two months before the incident,’ and the prosecutor commented before the trial court that Hopkins ‘stated he never fired the gun and he simply carried it for protection.’ Although ‘protection’ is an element of the Hamdan ‘as applied’ criteria, Hopkins, like Cole, does ‘not assert that he had the weapon[] [on his person] in response to any specific or imminent threat.’ In light of the foregoing, we reject Hopkins’s constitutional challenge to the enforcement against him of Wis. Stat. sec. 941.23, and his request for an evidentiary hearing.”
Turning to the suppression motions, the court held that the trial court properly denied the motion to suppress the gun. Citing New York v. Quarles, 467 U.S. 649, 654-660 (1984), the court held, “Police need not ... first give Miranda warnings to a person whom they reasonably suspect may have access to a weapon before they ask questions designed to locate the weapon and neutralize its danger.”
THC
However, the court held that the marijuana should have been suppressed. The court noted, “By the time the officer asked Hopkins whether he had any drugs, Hopkins was handcuffed and under police control. Unlike access to a gun, neither the police nor the public were at risk from Hopkins’s potential access to the marijuana.”
The court declined to apply the inevitable discovery doctrine, finding that the State waived any argument that the marijuana would have been discovered irrespective of the officer’s asking Hopkins whether he had any drugs before telling Hopkins about his rights under Miranda.
The court then held that, pursuant to State v. Knapp, 2003 WI 121, the marijuana must be suppressed because the Miranda violation was intentional. In Knapp, the Wisconsin Supreme Court left open the issue whether the fruit of searches conducted after negligent Miranda violations must be suppressed.
Applying Knapp, the court of appeals stated, “Although Knapp left open for another day whether suppression would be required if the police ‘negligently,’ rather than intentionally, do not advise a custodial interviewee of his or her rights under Miranda, we do not see, at least under the circumstances of this case, how, given the ubiquity of Miranda and the decision’s age, a modern-day police officer would not know that a person from whom a gun was just taken and who was handcuffed and under police control in a squad car was in ‘custody’ for Miranda purposes (cites omitted).”
Accordingly, the court held that the marijuana should have been suppressed, and reversed the conviction for possession of a controlled substance.
What the court held
Case: State of Wisconsin v. Derrick E. Hopkins, No. 01-2797-CR.
Issues: Where a police officer asked a suspect whether he had any guns or drugs, and the suspect replied he had a gun, must the gun be suppressed?
Where a police officer asked a suspect who was in custody and in handcuffs, whether he had any drugs, without giving any Miranda warnings, and the suspect replied that he had marijuana, must the marijuana be suppressed?
Holdings: No. Police need not give Miranda warnings to a person whom they reasonably suspect may have access to a weapon before they ask questions designed to locate the weapon and neutralize its danger.
Yes. Where the suspect was clearly in custody, the Miranda violation was intentional, and the marijuana must be suppressed.
Counsel: Scott A. Szabrowicz, Milwaukee, for appellant; Thomas J. McAdams, Milwaukee; Kent L. Lovern, Milwaukee, for respondent.
Analysis:
Because the charges in this case were both misdemeanors, and thus the appeal was decided by one judge instead of three, and it is not eligible for publication, it has no precedential effect. Nevertheless, it is important to know that the court of appeals apparently is reading State v. Knapp, 2003 WI 121, both very broadly, and with an added wrinkle not found in the Knapp decision.
In Knapp, a police officer deliberately and strategically chose not to give Miranda warnings to a homicide suspect who was in custody and being interrogated, because then the suspect would be unlikely to answer questions. Knapp, 2003 WI 121, par. 37. Based on statements by the suspect, the officer seized evidence that incriminated him. The Wisconsin Supreme Court held the Miranda violation was intentional, and therefore, the evidence seized based on the statements must be suppressed.
In contrast, in the case at bar, there was no finding that the failure to give Miranda warnings was a deliberate course of action. Nor could there have been such a finding; Hopkins was under arrest and eventually would have been searched, revealing the marijuana. Rather than asking him if he had drugs on his person, the officers could have (legally) just searched him.
Thus, unlike the officers in Knapp, the officers here had nothing they could possibly have gained by intentionally violating Miranda in asking Hopkins whether he had drugs on him. In Knapp, the officer could not, and would not, have discovered the incriminating evidence without the illegal questioning.
Furthermore, the officer was only repeating a question that had earlier (and lawfully) been asked. Before arresting Hopkins, the officer asked whether he had any guns or drugs. Hopkins responded in the affirmative to having a gun, but said nothing about drugs.
After the gun was seized and Hopkins was taken into custody, another officer repeated the question about whether he had drugs on him.
Clearly, Hopkins should have been given his Miranda warnings, and the officers’ failure to do so made the questioning unlawful. However, the decision here conflates the question of how clear it is that a Miranda violation occurred with the question of whether the violation was intentional or negligent.
In doing so, the court effectively turns the subjective inquiry employed in Knapp into an objective inquiry that more closely resembles the qualified immunity inquiries in civil rights actions than it does Knapp.
As noted, this decision is not binding precedent. Nevertheless, attorneys should be aware of it, and when arguing cases such as this, they should be prepared to argue the case based on objective reasonable officer standards, as well as the subjective standard employed by the Supreme Court in Knapp.