Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed headings, citations and footnotes from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. Emphasis in the original opinion is italicized and underlined.
The Case: State v. K.R.C.
Protasiewicz
Majority: Justice Janet Protasiewicz (15 pages), joined by Chief Justice Jill Karofsky and Justices Rebecca Frank Dallet and Susan Crawford
Concurrence: Justice Brian Hagedorn (13 pages), joined by Justices Annette Kingsland Ziegler and Rebecca Grassl Bradley
Upshot
We hold that Kevin was in custody for purposes of Miranda when he made statements to law enforcement. Because he was under custodial interrogation and was never Mirandized, his statements should have been excluded at trial. However, we hold that admitting his custodial statements was harmless error. Accordingly, we need not address whether his statements were involuntary. We affirm the court of appeals and the delinquency finding.
Background
In June 2022, Kevin was in seventh grade and 12 years old. One day at school, Kevin touched a classmate in the groin as he walked by. The classmate reported the incident to school staff and to his father, who spoke with a school administrator and eventually a school resource officer (a law enforcement officer deployed to a school, also known as an SRO).
The next day, Kevin was removed from class for questioning. The interview was in the school resource officer’s office. The room was “a very small tight office . . . kind of like a closet,” and it had a single door which remained closed during the interview.
Kevin sat in the office with two police officers. Both were strangers to him: one worked at another school and the other was new. One officer did the questioning. She sat across from Kevin, perhaps 10 feet away, and she wore street clothes and a vest that identified her as a police officer. The second officer was in full police uniform and was armed. He stood positioned in front of the door throughout the questioning. He did not speak. Kevin was alone in the room with the two officers for the entirety of this questioning, except for a moment when a staff member knocked on the door to see if Kevin was there.
A piece of printer paper with a handwritten message was taped to the office wall. In purple and blue marker, the paper said: “You Are in Here Voluntarily Unless Told Otherwise. You are Being Filmed And Can Leave at Any Time!” Though the piece of paper hung close to Kevin during the interview, no one acknowledged it or explained it to Kevin.
The officer questioned Kevin about touching the other student. Though the tone was conversational and some questions were open-ended, the officer told Kevin that there were witnesses, despite knowing there were none. She also asserted to Kevin that “it happened.” The officer did not provide Miranda warnings to Kevin. She never told him that he was free to leave, that he did not need to answer questions, or that he could call his parents. The officer questioned him for approximately 10 minutes, and Kevin sat in a comfortable position and seemed to understand the conversation. At some point during the interview, Kevin said that “he accidently, possibly, hit” the other student’s groin. After the questioning, the officers let Kevin leave the office, but it is not clear where he went.
Less than an hour later, the interrogation resumed. This questioning took place in the student services area, which was right outside the school resource officer’s office. Kevin sat in a cubicle designated for in-school suspension. Three or four adult authority figures stood around Kevin—the two officers, an assistant principal, and perhaps another school staff member. The questions were “more direct” this time. Whereas the first interview involved asking questions to figure out what happened, this time the authority figures told Kevin what they heard happened. Though the assistant principal did much of the talking this round, one officer asked some questions and may have raised her voice with Kevin. They questioned him for two or three minutes, and Kevin once again stated that he “did it by accident.” After the interrogation, Kevin remained in in-school suspension.
***
The State filed a delinquency petition charging Kevin with one count of Fourth Degree Sexual Assault. Kevin moved to suppress his statements to the officers, arguing that law enforcement elicited the statements in violation of Miranda and that his statements were involuntary. The circuit court held a suppression hearing and heard testimony from the school resource officer who questioned Kevin. In the end, the circuit court denied the suppression motion, concluding that Kevin’s statements were admissible because “this was a non-custodial voluntary conversation.”
The circuit court held a bench trial at which four witnesses testified, including the school resource officer, who testified about Kevin’s statements that he might have accidentally touched the other student. The court found Kevin delinquent. Kevin appealed, arguing that his statements should have been suppressed. The court of appeals affirmed, finding that Kevin was not in custody and that his statements were voluntary.
Guts
To determine whether interrogation prior to a Miranda warning about now-familiar rights was “custodial” and thus impermissible, first, we ask whether a reasonable person would have felt free to leave. To do so, we consider the totality of the circumstances. We must look at the objective circumstances, not subjective views. Relevant factors include “the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.” We have also said we consider “the degree of restraint; the purpose, place, and length of the interrogation; and what has been communicated by police officers.” In turn, when evaluating 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.”
Second, the court looks at whether the environment was similar to the type of station-house questioning in the Miranda case.
***
Reasoning in a pertinent U.S. Supreme Court case highlights the special care we must take when analyzing the interrogation of children. It is a “commonsense reality” and “beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave.” And when it comes to interrogation, events that “would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.” The Court also addressed the unique nature of schools. A student’s presence at school is compulsory and . . . disobedience at school is cause for disciplinary action.”
When analyzing Miranda custody in the school setting, courts consider factors similar to those in the adult context, but also consider factors unique to students. For example, courts have considered traditional adult-custody factors—albeit from the perspective of a child—such as: traditional indicia of arrest, like frisks and handcuffs; physical restraints; the length of the interrogation; the location of the interrogation; statements made during the interrogation; and whether the student was released at the end of the interrogation.
But courts consider some factors unique to school interrogations. First, courts, of course, consider the age of the student. Second, courts consider the role of police versus school administration; the more police officers are present, and the more they play a role in questioning, the more likely a student is in custody. Finally, courts will consider whether parents or other friendly adults were contacted or were in the room.
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The facts of Kevin’s interrogation establish that he was in custody. It started when Kevin was removed from class for questioning, which would likely unsettle a middle schooler. He went to the student services area where he met not with school staff or friendly adults, but with two police officers, one of whom was fully uniformed, armed, and equipped with handcuffs. Both the officers were strangers to him. They questioned him in a small, closet-like room, designated for law enforcement use. For all intents and purposes, this office was the schoolhouse version of a police-station interrogation room. The door was closed. While Kevin sat across from one officer who questioned him, another fully uniformed and armed officer stood positioned in front of the door. The questioning officer asked him about an alleged sexual assault. She told him—untruthfully—that there were witnesses. She also accusingly told him “it happened.” No one told him he could reach out to his parents or any other adult. No one told him he was free to leave. No one told him he did not need to answer questions. It is true that the paper sign hung on the wall, the interview was 10 minutes long, the officer spoke to Kevin in a conversational tone from approximately 10 feet away, Kevin was allowed to leave the office after the questions, and he was not handcuffed or frisked. But in the end, a 12-year-old boy was questioned in a closet-like law-enforcement office with two police officers, one who was fully uniformed and standing in front of the door.
***
. . . . We would not expect that a child would ask a fully uniformed and armed police officer to step away from the door so that he could leave. This is especially true given that Kevin was questioned by police officers only and in a space designated for law enforcement. And other factors point toward a lack of freedom to leave: Kevin was restrained in a small space with a closed door, there were no parents or friendly adults in the room, and no one told him he could leave or refuse to answer questions. The piece of paper on the wall does not change our conclusion. No one acknowledged the paper or explained its message, and the circuit court found it was unclear whether Kevin even saw it. Further, its physical characteristics—handwritten in marker and taped to the wall—undermine its impact. And its language—“you are in here voluntarily unless told otherwise”—might have been confusing to a 12-year-old. In some cases, freedom-to-leave advisements may be weighty, but not in this case.
***
The interview in the school-suspension cubicle makes our custody determination a closer call, but we conclude that a reasonable 12-year-old would not have felt free to leave. Importantly, this interview occurred within an hour of the previous interview, just outside the school resource officer’s office, and with the same officers present. Moreover, as Kevin looked up from his seat, he would have seen three or four adult authority figures standing around him. A reasonable student would not feel free to disobey them by walking away. And after all, Kevin was in a school-suspension cubicle. Students do not feel free to walk out of suspension.
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Our statutes counsel that criminal judgements shall not be affected by errors “which do not prejudice the defendant.” Considering harmless error furthers “the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence.” An error is harmless if it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” We conclude the admission of Kevin’s statements under custodial interrogation was harmless.
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A reasonable factfinder would have found that the State proved all the elements of Fourth Degree Sexual Assault even without Kevin’s inadmissible statements. The court erred in admitting Kevin’s statements that he “might have accidently touched” the victim. The value to the circuit court of those statements, if any, would have been that Kevin admitted the contact occurred. But that evidence already came in through the assistant principal. The assistant principal testified that he talked to Kevin without law enforcement present and Kevin said there was a “tap” or a “hit.” Moreover, Kevin’s statement was not necessary to a finding of intent. Indeed, Kevin’s statement suggests the touching was accidental, while the circuit court heard other evidence that it was intentional. The victim testified that he thought Kevin touched him intentionally, and provided details to support that conclusion: Kevin angled toward the victim with his hand out; Kevin cupped his hand; Kevin was not swinging his arms or messing around in a way that could have led to an accidental hit; and Kevin did not say “oops” or otherwise apologize for the contact. Finally, the State did not mention Kevin’s statements under custodial interrogation in its closing.
In sum, the school resource officer’s testimony about Kevin’s statements was duplicative of other testimony, unnecessary for a finding of intent, and went unmentioned during the State’s closing. We conclude that, beyond a reasonable doubt, a rational factfinder would have found Kevin delinquent even without his statements while under Miranda custody.
Hagedorn
I would affirm the court of appeals as well, but for different reasons. Kevin was not entitled to Miranda warnings prior to questioning because this encounter was not a “custodial” interrogation as defined by Miranda and its progeny. Even if Kevin was not free to leave, this brief, fragmented questioning during the school day did not approximate the kind of prolonged, inherently coercive police station questioning to which Miranda’s prophylactic rules apply.
In my view, the majority’s contrary view misses the forest for the trees, erroneously transforming a rather ordinary schoolhouse questioning (on a serious offense, to be sure) into a matter of constitutional moment. The majority overemphasizes the freedom to leave inquiry, and offers little analysis on the critical question of how this interrogation compares to the station house questioning in Miranda. The Supreme Court has made clear “that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.” To be sure, the Miranda framework can be challenging to apply. It is even harder when the suspect is a minor, with one commentator opining that court rulings on these matters “appear to be utterly irreconcilable.” Even so, Kevin’s situation is not analogous to the coercive pressures that motivated the Court in Miranda. And while a trip to the office may cause an ordinary 12-year-old student to sweat, these run of the mill schoolhouse fears do not—at least under the facts here—require that the student be warned of his constitutional rights first. I respectfully concur.
***
. . . We must first determine whether a reasonable person in Kevin’s position would have felt free to end the interview and leave. The majority spends considerable time contending that a reasonable 12-year-old in the same situation would not have felt free to leave. On one level, that is reasonable, and I need not spend much time disputing it. However, that conclusion here is odd because, during the middle of this two-part interview, he did leave at the officer’s invitation. I am unaware of any Miranda cases where the suspect is told he is free to go, then leaves, and yet is still determined to be in custody. Given the majority’s analysis treating this as one continuous interrogation, the fact that Kevin did leave when told he could is pretty sound evidence that he was not functionally under arrest. The majority marshals no authority for this unusual situation either.
In any event, much like a traffic stop or the prison context, the freedom to leave analysis is not particularly helpful to the determination of whether Kevin was in custody. During the school day, a student’s freedom is always limited and subject to the direction of adults in whose care they have been entrusted. It wouldn’t matter whether the adult giving direction is a principal, teacher, coach, instructional aide, or SRO. Thus, although I question the conclusion that a reasonable person in Kevin’s position would not have felt free to leave the questioning by the SRO (given that Kevin was afforded the opportunity to depart, and did so), this prerequisite—even if satisfied—is of little assistance in answering the main question.
Turning to the ultimate question, for an interrogation to be custodial for purposes of Miranda, the circumstances of Kevin’s questioning must be akin to the police-dominated atmosphere that Miranda’s prophylactic procedures were designed to guard against. As the following analysis spells out, would a reasonable 12-year-old in this situation feel some pressure? Absolutely. But was this the kind of hostile, inherently coercive questioning that animated the court in Miranda? It was not.
***
. . . This entire officer-involved investigation was extremely brief. The initial interview with the officers was just 10 minutes, followed by a substantial break where Kevin was free from police supervision, followed by a two to three minute session led by the vice principal. In no way was this a set of interviews that can be described as “relentless questioning” “with no respite from the atmosphere of domination.” Kevin was not subject to an environment marked by psychological trickery designed to wear him down over time. Quite the contrary, the main interview—and the only one conducted alone with law enforcement—was conversational, with no one raising their voice, and no aggressive tactics or fist-pounding.
***
Even though there were two officers in the room, the second officer was in training and did not participate in the interrogation, which minimized the impact of his presence. He may have been standing in front of the door, but there is no sense in the record that a reasonable 12-year-old would interpret this as a show of force or restraint. The room was, according to the testimony, quite small. Kevin was not physically restrained, handcuffed, or frisked, nor were there any markers of arrest. Kevin was not cut off from the outside world. He sat comfortably in the SRO’s office. Within the first 10 minutes of questioning, a school administrator even made sure he arrived at the SRO’s office. And Kevin left after the first questioning for up to an hour—hardly the marker of being in custody. Following the interview, he was set free for school activities; he was not taken into custody or arrested. In short, the typical marks of functional arrest are simply not present.
The majority sees things differently. And given the contradictory cases on these questions, its decision presents a reasonable countervailing view. Even the court of appeals described this as a close case. The majority correctly points to some facts that make this case more difficult. Officer Propson lied about there being a witness to the event, at one moment pointedly asserting “it happened.” Perhaps she raised her voice during the second brief encounter that included school administration. And Kevin was brought back for ongoing questioning after he had been initially allowed to leave. One of the officers was fully uniformed, including with his weapons. At no point were Kevin’s parents, presumably the friendliest adults available, mentioned by anybody. These facts give some support to the idea that a reasonable person in Kevin’s situation would have felt pressured to confess.
Under my read of the cases, however, more is required to approximate the coercive environment at issue in Miranda. Someone in Kevin’s shoes would certainly feel the weight of adult condemnation. His conscience might even call him to come clean in the face of a serious infraction. But this normal human experience should not so quickly be placed on par with the uniquely coercive station house questioning to which Miranda applies. The majority places inordinate weight on the vulnerability of children in this atmosphere. But the Supreme Court has explained that the Fifth Amendment’s privilege against self-incrimination “is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’” Rather, “[t]he sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion.” In the context of Miranda itself, it is police coercion that the prophylaxis is designed to guard against. And we simply do not have that kind of environment here.
In the end, this was a brief, non-coercive interview in a safe and familiar location. A reasonable person in Kevin’s position would have been nervous, scared, and concerned about the consequences that might follow. He would certainly feel pressure to talk to an officer, just like a student would on a trip to the principal’s office. But the environment Kevin faced was not the police-dominated inherently coercive atmosphere to which Miranda’s procedural safeguards apply. Whereas Miranda was worried about a defendant being “thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures,” Kevin was in a familiar place with familiar people where he was subject to conversational questioning, even if somewhat pointed at times. Whereas Miranda was worried about an environment “created for no purpose other than to subjugate the individual to the will of his examiner,” this was an extremely short set of fragmented interviews during a school day conducted by the school officer and administration. The persistent interrogator in Miranda can exercise complete dominion over the suspect until he gets his confession. Only then will the interview end. A reasonable person in Kevin’s situation, however, knows he can be saved by the bell; the school day does not last forever. He was already given permission to leave one short interview, so a reasonable person would think he would be allowed to leave again.