State v. Knapp

JON E WILCOX, J.

¶ 95. 0dissenting). I do not join the majority opinion in this case because the court has failed to adhere to the doctrine of stare decisis. This court has previously established that Article I, Section 8 of the Wisconsin Constitution 1 does not create broader rights than those provided by the Fifth Amendment of the United States Constitution. 2 Accordingly, I would *136 affirm the order of the circuit court in conformity with the holding of United States v. Patane, 542 U.S. 630 , 124 S. Ct. 2620 (2004).

¶ 96. As I explained in my dissent in Johnson Controls, Inc. v. Employers Insurance of Wausau, 2003 WI 108, ¶¶ 133-164 , 264 Wis. 2d 60 , 665 N.W.2d 257 , stare decisis is important because " '[rjespect for precedent promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.'" Id., ¶ 138 (Wilcox, J., dissenting) (quoting State v. Outagamie County Bd. of Adjustment, 2001 WI 78, ¶ 29 , 244 Wis. 2d 613 , 628 N.W.2d 376 ) (internal quotation omitted). Furthermore, "[w]hen legal standards 'are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.'" Id. (Wilcox, J., dissenting) (quoting State v. Stevens, 181 Wis. 2d 410, 441-42 , 511 N.W.2d 591 (1994)(Abrahamson, J., concurring)).

¶ 97. I do not question the majority's assertion that this court has the power to impose greater protections under the Wisconsin Constitution than those required under the United States Constitution. See majority op., ¶ 57. However, this case is not about a question of power or a question of "new federalism." It is a question of adherence to precedent. This court has already determined that the right against self-incrimination afforded by Article I, Section 8 of the Wisconsin Constitution is, as the majority puts it, in "lock-step," majority op., ¶ 59, with the Fifth Amendment of the United States Constitution. See State v. Sorenson, 143 Wis. 2d 226 , 421 N.W.2d 77 (1988).

*137 ¶ 98. In Sorenson , the defendant contended that "the state violated his constitutional rights to due process and to remain silent by commenting during cross examination and during closing argument upon his silence." Id. at 255 . The defendant argued that the self-incrimination provision in the state constitution provided broader protections than its counterpart in the federal constitution. The Sorenson court dismissed this argument as follows:

In the past, our cases interpreting the right to remain silent have paralleled federal analysis used for the United States Constitution and Amendments. See, e.g., Odell v. State, 90 Wis. 2d 149, 153 , 279 N.W.2d 706 (1979); Rudolph v. State, 78 Wis. 2d 435, 442 , 254 N.W.2d 471 (1977); Reichhoff v. State, 76 Wis. 2d 375, 379-80 , 251 N.W.2d 470 (1977). Further, in comparing the language of the federal self-incrimination provision with that of the Wisconsin section, we note the federal amendment uses the word 'shall,' while the Wisconsin Constitution uses the word 'may.' While both protect against self-incrimination there can be no logical argument that the state constitutional provision creates a broader right since the language of the Wisconsin Constitution is certainly no stronger than that used in the United States Constitution. As a result, we find no basis for interpreting state constitutional language beyond the articulated scope of federal constitutional guarantees in this case.

Sorenson, 143 Wis. 2d at 259-60 . As such, this court refused to interpret Article I, Section 8 any broader than the United States Supreme Court's interpretation of the Fifth Amendment.

¶ 99. In the more recent case of State v. Jennings, 2002 WI 44 , 252 Wis. 2d 228 , 647 N.W.2d 142 , we again declined to interpret Article I, Section 8 of our state constitution broader than the Fifth Amendment of the *138 federal constitution. In Jennings , the defendant argued that this court should "establish a state constitutional rule requiring the police to clarify ambiguous references to counsel during custodial interrogations." Id., ¶ 37. As noted by the majority, in Jennings we stated that when the language of the Wisconsin Constitution and the United States Constitution is " 'virtually identical' ... Wisconsin courts have normally construed" the constitutions consistent with each other. Id., ¶ 39 (quoting State v. Agnello, 226 Wis. 2d 164, 180-81 , 593 N.W.2d 427 (1999) (citing State v. Tompkins, 144 Wis. 2d 116, 133 , 423 N.W.2d 823 (1988))). This court, in Jennings , then applied the same analysis utilized in Sorenson. Jennings, 252 Wis. 2d 228, ¶ 41 . Accordingly, we again refused to interpret Article I, Section 8 of our constitution as providing more rights than its federal counterpart. As such, we declined to impose, as a matter of state constitutional law, a rule requiring police to cease a custodial interrogation and clarify a suspect's equivocal or ambiguous references to counsel under Article I, Section 8 of the Wisconsin Constitution. Id., ¶ 42. 3

¶ 100. In addition to this court's parallel interpretation of the self-incrimination clauses of the state and federal constitutions, we have also consistently interpreted Wisconsin's due process clause, contained in Article I, Section 8, in conformity with the Fifth Amendment to the federal constitution. See State v. *139 Hezzie R., 219 Wis. 2d 848 , 580 N.W.2d 660 (1998). "This court has repeatedly stated that the due process clauses of the state and federal constitutions are essentially equivalent and are subject to identical interpretation." Id. at 891 (citing Reginald D. v. State, 193 Wis. 2d 299, 307 , 533 N.W.2d 181 (1995)). See also Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73 , 236 Wis. 2d 113 , 613 N.W.2d 557 (noting that Wisconsin Supreme Court cases interpreting the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution have found no substantial differences between the due process protections provided in each document).

¶ 101. In my view, the majority has not " 'come forward with the type of extraordinary showing that this [c]ourt has historically demanded before overruling one of its precedents.'" Johnson Controls, 264 Wis. 2d 60, ¶ 137 (Wilcox, J., dissenting) (quoting Payne v. Tennessee, 501 U.S. 808, 848 (1991) (Marshall, J., dissenting)). Ultimately, I am troubled by this court's recent trend of departing from our long history of interpreting similarly-worded provisions of the state and federal constitutions in concert. See State v. Dubose, 2005 WI 126, ¶ 40 , 285 Wis. 2d 143 , 699 N.W.2d 582 (providing for a broader interpretation of Article I, Section 8 of the Wisconsin Constitution than the Due Process Clause of the United States Constitution, even though this court has never interpreted the two provisions differently).

¶ 102. We should not suddenly change our well-settled manner of interpreting Article I, Section 8, simply to avoid the impact of the United States Supreme Court's recent decision in Patane . Such a tactic seriously undermines the "prestige, influence, and func *140 tion of the judicial branch of state government." People v. Norman, 112 Cal. Rptr. 43 , 49 (Cal. Ct. App. 1974).

¶ 103. To paraphrase the California Court of Appeal in Norman :

[I]f the meaning of the Constitution is as fluid as the personal whims of the Court's membership would make it, it is really no constitution at all. A set of principles setting governmental authority within those bounds is meaningless if [seven] Delphic oracles are permitted to divine its meaning and state it anew each time a question is proposed for resolution... . For the same reason, the state system should accept the interpretation of the United States Supreme Court of language in the federal Constitution as controlling of our interpretation of essentially identical language in the [Wisconsin] Constitution unless conditions peculiar to [Wisconsin] support a different meaning. Judges do not represent people, they serve people. To do so, they must not represent a political or social point of view; they must serve the rule of law.

Id. (internal quotations and citations omitted). 4

¶ 104. Finally, I note that contrary to the majority's assertion, Missouri v. Seibert, 542 U.S. 600 , 124 S. Ct. 2601 (2004), simply has no application to the case at bar. First, Seibert focused on a two-tiered police interrogation scheme. The scheme was implemented as follows: 1) the police questioned a suspect until a confession was obtained; and 2) the Miranda warnings were then read to the suspect, after which the police *141 repeated the previous questioning until the suspect gave the same confession. Seibert, 124 S. Ct. at 2602 . The Supreme Court held that Seibert's postwarning statements were inadmissible. Id. at 2613.

¶ 105. In this case, Detective Roets did not utilize such a scheme; he asked Knapp what he had been wearing the prior evening, without first reading Knapp the Miranda warnings. See majority op., ¶¶ 7-8. In response, Knapp pointed to a pile of clothing that Detective Roets then seized. Id., ¶ 8. These two scenarios are not comparable, and as such, the analysis developed in Seibert has no application to this case. Second, Seibert focused on the admissibility of verbal statements. This case concerns the admissibility of physical evidence. As the Supreme Court explained in Patane , "the Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause. The Self-Incrimination Clause, however, is not implicated by the admission into evidence of the physical fruit of a voluntary statement. Accordingly, there is no justification for extending the Miranda rule to this context." Patane, 124 S. Ct. at 2626 . Thus, because Seibert and the case at bar involve different types of evidence and different procedures for obtaining that evidence, Seibert has no application to the present case.

¶ 106. In sum, I am of the opinion that our prior decisions concerning the interpretation of Article I, Section 8 of the Wisconsin Constitution are clear and should not be abandoned. I am not persuaded that this court should depart from our practice of interpreting Article I, Section 8 of the Wisconsin Constitution in conformity with the United States Supreme Court's interpretations of the Fifth Amendment of the United States Constitution. As such, I am compelled to dissent.

*142 ¶ 107. I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins in this dissent.

Article I, Section 8 of the Wisconsin Constitution provides in relevant part: "No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself."

The Fifth Amendment to the United States Constitution provides in relevant part: "No person ... shall be compelled in any criminal case to be a witness against himself, nor be *136 deprived of life, liberty, or property, without due process of law."

For additional authority concerning the co-extensive rights of the self-incrimination clauses in Article I, Section 8 and the Fifth Amendment, see State v. Hall, 207 Wis. 2d 54, 67-68 , 557 N.W.2d 778 (1997); State v. Schultz, 152 Wis. 2d 408 , 416 n.6, 448 N.W.2d 424 (1989); State v. Fencl, 109 Wis. 2d 224 , 237 n.9, 325 N.W.2d 703 (1982); State v. Mallick, 210 Wis. 2d 427 , 429 n.1, 565 N.W.2d 245 (Ct. App. 1997).

1 recognize that this opinion of the California Court of Appeal was later vacated by the California Supreme Court in People v. Norman, 538 P.2d 237 (Cal. 1975). I quote this opinion solely for the persuasiveness of its reasoning. However, I note that the above-quoted language was also reproduced in the dissent in Norman, 538 P.2d at 246 (Clark, J. dissenting).