Amicus Curiae Brief — Daniel J. H. Bartelt, Petitioner v. Wisconsin

No. 17-1584

In the Supreme Court of the United States

DANIEL J.H. BARTELT,

Petitioner,

v.

WISCONSIN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE WISCONSIN SUPREME COURT

BRIEF OF THE RODERICK AND SOLANGE

MACARTHUR JUSTICE CENTER AS AMICUS CURIAE

IN SUPPORT OF PETITIONER’S REQUEST

FOR CERTIORARI

Rex S. Heinke

Counsel Of Record

Akin Gump Strauss

Hauer & Feld LLP

1999 Avenue of the

Stars

Suite 600

Los Angeles, CA 90067

(310) 229-1000

rheinke@akingump.com

David M. Shapiro

Roderick And Solange

MacArthur Justice Center

375 E. Chicago Avenue

Chicago, IL 60611

(312) 503-0711

Bryan M. Wittlin

Drinker Biddle & Reath

LLP

1800 Century Park East

Suite 1500

Los Angeles, CA 90067

(310) 203-4041

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF ARGUMENT .................................... 1

ARGUMENT ............................................................... 3

I.

Some Police Officers Are Trained To

Circumvent This Court’s Jurisprudence in

Miranda By Advising Suspects That They

Are Not In Custody. ........................................... 3

II. Law Enforcements’ Intentional Avoidance

Of Miranda By Advising Suspects That

They Are Not In Custody Is Pervasive. ........... 11

III. Post-Miranda Cases Have Enabled Some

Police Officers To Conduct Coercive

Interrogations Without Giving Miranda

Warnings By Advising Suspects That

They Are Not In Custody. ................................ 12

IV. This Court Should Intervene To Prevent

Law Enforcement From Conducting UnMirandized Interrogations After A

Suspect Confesses To A Crime. ....................... 14

CONCLUSION ......................................................... 14

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Bartelt v. Wisconsin,

379 Wis. 2d 588 (2018) ......................................... 14

Berkemer v. McCarty,

468 U.S. 420 (1984) ............................................ 3, 4

California v. Beheler,

463 U.S. 1121 (1983) .....................................passim

Dickerson v. United States,

530 U.S. 428 (2000) ................................................ 4

Howes v. Fields,

565 U.S. 499 (2012) ................................................ 6

Locke v. Cattell,

476 F.3d 46 (1st Cir. 2007) ................................... 12

Miranda v. Arizona,

384 U.S. 436 (1966) .......................................passim

Oregon v. Mathiason, 429 U.S. 492

(1977) ...................................................................... 6

Smith v. Clark,

612 F. App’x 418 (9th Cir. 2015), cert.

denied, 136 S. Ct. 1464 (2016) ......................passim

Stansbury v. California,

511 U.S. 318 (1994) ................................................ 6

iii

United States v. LeBrun,

363 F.3d 715 (8th Cir. 2004) ................................ 12

United States v. Muegge,

225 F.3d 1267 (11th Cir. 2000) ............................ 12

Yarborough v. Alvarado,

541 U.S. 652 (2004) ................................................ 6

Other Authorities

Emily Bretz, Don't Answer the Door:

Montejo v. Louisiana Relaxes Police

Restrictions for Questioning NonCustodial Defendants, 109 MICH. L.

REV. 221 (2010) ............................................... 4, 5, 8

Cal. Peace Officers’ Assoc., Too Much

Miranda, TRAINING BULL. SERVICE

(May 2006) .............................................................. 4

Fred E. Inbau, et al., CRIMINAL

INTERROGATION AND CONFESSIONS

(5th ed. 2011) .......................................................... 7

Interrogation Law, POST Telecourse

Reference Guide (Aug. 2003).............................. 8, 9

Richard A. Leo, From Coercion to

Deception: The Changing Nature of

Police Interrogation in America, 18

CRIME L. & SOC. CHANGE 35 (1992) ....................... 6

iv

Aurora Maoz, Empty Promises: Miranda

Warnings in Noncustodial

Interrogations, 110 MICH. L. REV.

1309 (2012) ............................................... 6, 7, 8, 11

Robert C. Phillips, Fifth Amendment;

Miranda, LEGAL UPDATE (Deputy

Dist. Attorney & Law Enforcement

Liaison Deputy, San Diego, Cal.)

(Oct. 2005)............................................................. 10

Devallis Rutledge, Non-Custodial Sta-

tionhouse Interrogations: How to

Talk to Suspects Without Mirandizing, Police: THE L. ENFORCEMENT

MAG. (Jan. 1, 2009)................................................. 8

SACRAMENTO SHERIFF’S DEP’T TRAINING

ACAD., CLASS HANDOUT, INTERVIEWS

& INTERROGATIONS (Ron Wells,

Instructor, 2004) ..................................................... 5

Charles D. Weisselberg, Mourning

Miranda, 96 CALIF. L. REV. 1519

(2008) .............................................................passim

1

INTEREST OF THE AMICUS CURIAE 1

The Roderick and Solange MacArthur Justice

Center (“RSMJC”) is a public interest law firm founded in 1985 by the family of J. Roderick MacArthur to

advocate for human rights and social justice through

litigation. RSMJC has offices at Northwestern Pritzker School of Law, at the University of Mississippi

School of Law, in New Orleans, in St. Louis, and in

Washington, D.C. RSMJC attorneys have led civil

rights battles in areas that include police misconduct,

the rights of the indigent in the criminal justice system, compensation for the wrongfully convicted, and

the treatment of incarcerated men and women.

SUMMARY OF ARGUMENT

Whether a law enforcement officer has to give

Miranda warnings to question a suspect is determined by whether the suspect is in custody. Miranda

v. Arizona, 384 U.S. 436, 461 (1966). This Court “has

never explicitly clarified how much weight a ‘you’re

not under arrest’ advisement may be given” when deciding whether a suspect was in custody. See, e.g.,

Smith v. Clark, 612 F. App’x 418, 422 (9th Cir. 2015)

(Watford, J., concurring), cert. denied, 136 S. Ct. 1464

(2016). Some lower courts, however, have given “allbut-dispositive weight” to such an advisement. Id. In

doing so, these courts misapply California v. Beheler,

1 No counsel for a party authored this brief in whole or part,

nor did any person or entity, other than the amicus or its counsel, make a monetary contribution to the preparation or submission of this brief. Counsel of record for the parties have received

timely notice of the intent to file this brief, and have consented

to this filing.

2

463 U.S. 1121 (1983), a case in which a suspect was

told during questioning that he was not under arrest,

and this Court held that he was not in custody. Seizing on this, law enforcement trains officers to keep

interrogations nominally non-custodial by telling

suspects “you’re not under arrest” or “you’re free to

leave.” This tactic is engrained to the point that officers have coined a name for it: “Beheler-ing.”

In this case, the lower court found that Petitioner

Daniel J.H. Bartelt was not in custody, even after he

confessed to a serious crime. This decision allows officers to continue with un-Mirandized questioning after a suspect confesses to a serious crime, even

though no reasonable person would believe they are

free to leave in such circumstances.

As it did with Beheler, law enforcement will seize

onto this ruling to circumvent Miranda if this Court

does not intervene. Law enforcement will seek to

keep post-confession interrogations technically noncustodial by, among other things, repeating hollow

“you’re free to leave” warnings and maintaining the

same tone of voice after a suspect confesses.

These steps will not change the reality that no

reasonable suspect will feel free to leave in such circumstances. Accordingly, this Court should grant Petitioner’s petition for a writ of certiorari to the Wisconsin Supreme Court and address the practice—

condoned by many lower courts—of un-Mirandized

interrogations in the highly coercive situation Petitioner was in here: a stationhouse interrogation after

confessing to a serious crime.

3

ARGUMENT

The officers here chose not to give Miranda warnings after Petitioner confessed to a crime. The Wisconsin Supreme Court approved this decision by holding that Petitioner was not in custody.

If this Court does not intervene, the rule applied

by the lower court here will empower officers to continue un-Mirandized questioning in such highly coercive circumstances.

I.

Some Police Officers Are Trained To Circumvent

This Court’s Jurisprudence in Miranda By Advising Suspects That They Are Not In Custody.

In Miranda, this Court explained that the “incommunicado interrogation of individuals in a policedominated atmosphere” generates “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak

where he would not otherwise do so freely.” Miranda

v. Arizona, 384 U.S. 436, 445, 467 (1966). This Court

prescribed Miranda warnings “to combat these pressures and to permit a full opportunity to exercise the

privilege against self-incrimination.” Id. at 467.

“The Court has pegged the trigger for Miranda

warnings to the concept of ‘custody,’ defined to mean

either formal arrest or circumstances in which the

suspect has otherwise been ‘deprived of his freedom

of action in any significant way.’” See, e.g., Smith v.

Clark, 612 F. App’x 418 (9th Cir. 2015), cert. denied,

136 S. Ct. 1464 (2016) (quoting Miranda, 384 U.S. at

444); see Berkemer v. McCarty, 468 U.S. 420, 428–31

(1984). This is because “the coercion inherent in custodial interrogation blurs the line between voluntary

4

and involuntary statements, and thus heightens the

risk that an individual will not be ‘accorded his privilege under the Fifth Amendment . . . not to be compelled to incriminate himself.’” Dickerson v. United

States, 530 U.S. 428, 435, (2000) (citing Miranda, 384

U.S. at 439). 2

However, law enforcement has become “adroit in

the realm of non-custodial investigation,” 3 with some

officers creating “non-custodial interrogation contexts

that are indistinguishable in many respects from

post-arrest questioning.” 4

Training materials produced by various law enforcement entities discourage “needlessly Mirandiz[ing]” suspects 5 and specifically describe this

Court’s decision in California v. Beheler, 463 U.S.

As a corollary to this framework, “[i]f the police take a

suspect into custody and then ask him questions without informing him of [his Miranda rights], his responses cannot be introduced into evidence to establish his guilt.” Berkemer v.

McCarty, 468 U.S. 420, 429 (1984) (collecting cases).

2

Don't Answer the Door: Montejo v. Louisiana

Relaxes Police Restrictions for Questioning Non-Custodial Defendants, 109 MICH. L. REV. 221, 236 (2010).

3 Emily Bretz,

4 Charles D. Weisselberg, Mourning Miranda, 96 CALIF. L.

REV. 1519, 1546 (2008).

Weisselberg, supra note 4, at 1542 n.131 (quoting Cal.

Peace Officers’ Assoc., Too Much Miranda, TRAINING BULL. SERVICE (May 2006), at 2) (noting training manual describing a situation as one where officer “needlessly Mirandized” a suspect

instead of giving a “Beheler admonition”)); see also id. (citing police trainings and manuals “suggesting a series of tactics to convince a subject to come to the police station for an interview

without Miranda warnings”).

5

5

1121 (1983) (per curiam) as “‘a wonderful case for

use.’” 6

Courts rely on Beheler and its progeny when deciding whether a suspect was in custody during an interrogation. Beheler’s step-brother killed a woman in

the course of his attempt, together with Beheler, to

steal from the woman. 7 Beheler called the police, told

them his step-brother killed the victim, and “voluntarily agreed to accompany police to the station house

although the police specifically told Beheler that he

was not under arrest.” 8 The Court explained: “At the

station house, Beheler agreed to talk to police about

the murder, although the police did not advise Beheler of the rights provided him under [Miranda].

The interview lasted less than 30 minutes. After being told that his statement would be evaluated by the

district attorney, Beheler was permitted to return to

his home.” 9 The Court held that Beheler was not in

custody, based on the totality of the circumstances,

supra note 4, at 1542 n.131 (quoting SACRAMENTO SHERIFF’S DEP’T TRAINING ACAD., CLASS HANDOUT, INTERVIEWS & INTERROGATIONS 2, 18 (Ron Wells, Instructor, 2004);

6 Weisselberg,

Bretz, supra note 3, at 238 (collecting sources describing the

breadth of law enforcement attention on tactics to take advantage of Beheler).

7

riam).

California v. Beheler, 463 U.S. 1121, 1122 (1983) (per cu-

8

Id.

9

Id.

6

and thus the officers were not required to give him

his Miranda warnings. 10

Since then, this Court has repeatedly reaffirmed

that the custody test is based on an objectively reasonable person standard. See, e.g., Stansbury v. California, 511 U.S. 318, 325 (1994). In Stansbury, this

Court clarified that “an officer’s views concerning the

nature of an interrogation, or beliefs concerning the

potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in

custody, but only if the officer’s views or beliefs were

somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom

to leave.” 11

These post-Miranda decisions have allowed some

police “officers to easily manipulate the distinction

between custodial and noncustodial interrogations.” 12

Id. at 1125 (citing Oregon v. Mathiason, 429 U.S. 492,

495 (1977)).

10

11 Stansbury v. California, 511 U.S. 318, 325 (1994) (emphasis added); see also Yarborough v. Alvarado, 541 U.S. 652,

669 (2004) (whether a suspect was in custody is based on “objective circumstances of the interrogation”); Howes v. Fields, 565

U.S. 499, 515 (2012) (applying objectively reasonable person

standard to determine if questioning of prisoner was a custodial

interrogation).

Aurora Maoz, Empty Promises: Miranda Warnings in

Noncustodial Interrogations, 110 MICH. L. REV. 1309, 1320-21

(2012); Richard A. Leo, From Coercion to Deception: The Changing Nature of Police Interrogation in America, 18 CRIME L. &

SOC. CHANGE 35, 44 (1992); Weisselberg, supra note 4, at 1541.

12

7

This is because, under these cases, “it does not matter

if officers bring a defendant to the police station intending to arrest him or if the defendant actually believes he is in custody, so long as a court determines,

at an ex post suppression hearing, that some abstract, hypothetical, objectively reasonable person

would have felt free to leave.” 13

With an eye toward these cases, law enforcement

trains officers to keep interrogations of a nature that,

upon ex post review, would be held non-custodial.

Criminologist and law professor Fred Inabu, who

coauthored the initial police manuals to which the

Miranda court reacted, continues to write training

manuals and counsels that: “whenever possible, officers should conduct formal interrogations in a ‘noncustodial environment’ to avoid awarding suspects the

increased rights that accompany custodial interrogations” so as to expand the number of admissible confessions. 14 Another manual teaches officers:

Because warnings are only required prior to custodial interrogation, one way to minimize the adverse impact of Miranda on investigations is to

try to conduct interrogations whenever possible

in non-custodial settings (such as at the suspect’s

home or on the street, without arrest-like restraints). . . . [I]t is also possible to interrogate an

13 Weisselberg,

supra note 4, at 1541–42.

supra note 12, at 1321 (citing Fred E. Inbau, et al.,

CRIMINAL INTERROGATION AND CONFESSIONS (5th ed. 2011),

at p. 89).

14 Maoz,

8

un-arrested suspect at the police station without

warnings, if the situation is handled properly. 15

Officers across the country are specifically

trained to use the Beheler admonishment, i.e., to tell

a suspect “you’re not under arrest” or “you’re free to

leave,” to avoid triggering the need to give Miranda

warnings. 16 This circumvents Miranda’s purposes,

however, because officers can “transform questioning

scenarios and employ softly coercive techniques that

create, in non-custodial settings, the very compelling

pressures that Miranda sought to eliminate.” 17 Indeed, in some instances, giving a Beheler warning

15 Bretz, supra note 3, at 238–39 n.132 (2010) (citing Devallis Rutledge, Non-Custodial Stationhouse Interrogations: How to

Talk to Suspects Without Mirandizing, Police: THE L. ENFORCEMAG.

(Jan.

1,

2009),

available

at

MENT

http://www.policemag.com/Channel/Patrol/Articles/

2009/01/Non-Custodial-Stationhouse-Interrogations.aspx.)

16 Weisselberg, supra note 4, at 1546 (citing Interrogation

Law, POST Telecourse Reference Guide (Aug. 2003), at E1,

available

at

http://www.post.ca.gov/training/cptn/pdf/Interrogation%20Law%

202003.pdf); Maoz, supra note 12, at 1321 (citing id.) (“Further,

a study of police training materials in California reveals the development of a ‘Beheler admonishment.’ Officers call suspects

down to the stationhouse for interrogation, and then inform

them that they are not under arrest and are free to leave, thereby obviating the need—as the training goes—to worry about following the mandates of Miranda.”).

supra note 3, at 239; Weisselberg, supra note 4, at

1547 (“The Miranda Court assumed that the element of ‘custody’

would effectively separate interrogations that contain inherently

compelling pressures from those that do not . . . [but] giving Beheler warnings does not uniformly make stationhouse interrogations less coercive.”).

17 Bretz,

9

may actually make certain interrogation tactics more

effective at exerting pressure to confess. 18

Yet the examples of trainings encouraging officers to use Beheler-ing abound. A POST training

course teaches that a Beheler admonishment will

make an interrogation non-custodial, and that after

giving the admonishment officers “may use the full

toolkit of interrogation tactics—including confrontation, cutting off denials, and minimization techniques—to question a non-custodial suspect at the

stationhouse.” 19 Some trainings also include suggested language for “Beheler admonishments.” 20 Indeed, the Ninth Circuit has observed that California

police departments commonly interpret Beheler to

Specifically, a Beheler admonishment may aid an interrogating officer’s efforts to employ “minimization” techniques.

Weisselberg, supra note 4, at 1547. Under this approach, officers focus questioning on why the suspect committed the crime

with an aim toward minimizing the moral culpability for the

conduct. Id. Giving a Beheler admonishment may “make the

‘why’ approach all the more credible. The message to suspects is

something like this: ‘You’re not under arrest. In fact you’re free

to go. I just need to know why you took the money. Was it because you are a bad person, or did you need to buy food for your

kids?’” Id.

18

19 Weisselberg, supra note 4, at 1543 n.136 (citing Interrogation Law, POST Telecourse Reference Guide (Aug. 2003), at

E1, available at

http://www.post.ca.gov/training/cptn/pdf/Interrogation%20Law%

202003.pdf).

20

Id.

10

mean that so long as a suspect is told he or she is not

under arrest, Miranda warnings are unnecessary. 21

Some trainings emphasize that Beheler allows officers to decide when giving the warnings would work

strategically in their favor. Specifically, officers are

told to give the warnings if the suspect seems cooperative and likely to waive their rights. On the other

hand, if the suspect appears unlikely to waive their

rights, officers are trained to avoid the Miranda

warnings and instead give a Beheler admonishment. 22 In a legal update, Prosecutor Robert C. Phillips advises:

If . . . the subject appears to be uncooperative and

not likely to waive, consider taking the coerciveness (i.e., the “custody”) out of the interrogation

by simply informing him that he is not under arrest (e.g.; see California v. Beheler, infra.), when

practical to do so under the circumstances, and

interview the subject without a Miranda admonishment and waiver. 23

Thus, officers are trained to strategically avoid

giving Miranda warnings.

21

Clark, 612 F. App’x at 421, 423 (Watford, J., concurring).

22 Weisselberg,

supra note 4, at 1541.

Id. at 1542-43 (quoting Robert C. Phillips, Fifth Amendment; Miranda, LEGAL UPDATE (Deputy Dist. Attorney & Law

Enforcement Liaison Deputy, San Diego, Cal.) (Oct. 2005)).

23

11

II.

Law Enforcements’ Intentional Avoidance Of

Miranda By Advising Suspects That They Are

Not In Custody Is Pervasive.

Importantly, the trainings appear to be effective:

these tactics are used by officers nationwide. One

scholar found, by 2008, “decisions with some form of

Beheler admonishments in questioning” by federal

agents 24 and by police in at least thirty-two states

(not including the state at issue in this case, Wisconsin) and the District of Columbia. 25 The practice of

using this admonishment to avoid giving Miranda

warnings is pervasive enough that law enforcement

has coined a term for the practice, calling it “Behelering.” Indeed, in Smith v. Clark, where the Court held

that a suspect was not in custody, one interrogating

officer asked another after the defendant’s initial interrogation: “You Beheler-ing here?” 26

24 Id. at 1545-46 n.140 (citing cases involving Beheler admonishments by the Bureau of Alcohol, Tobacco and Firearms;

the Naval Criminal Investigative Service; the Missouri Highway

Patrol; FBI; Air Force Office of Special Investigations; and local

law enforcement in those cases); see also Maoz, supra note 12, at

1321 (discussing use of Beheler admonishments).

Id. at 1545 n.141 (citing cases with Beheler admonishments by law enforcement in Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Washington, D.C., Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Maryland, Maine,

Minnesota, Nebraska, Nevada, New Mexico, North Carolina,

North Dakota, Ohio, Oklahoma, Rhode Island, South Dakota,

Tennessee, Texas, Utah, Virginia, Washington and West Virginia).

25

Clark, 612 F. App’x at 424 (Watford, J., concurring). As

Judge Watford points out in his concurring opinion, “[u]ntil the

Supreme Court says otherwise, California courts will remain

26

12

Officers are trained to, and do, exploit opportunities to subvert this Court’s jurisprudence in Miranda.

This phenomenon is demonstrated by law enforcement’s use of a “Beheler admonishment” to avoid giving Miranda warnings.

III.

Post-Miranda Cases Have Enabled Some Police

Officers To Conduct Coercive Interrogations

Without Giving Miranda Warnings By Advising

Suspects That They Are Not In Custody.

Law enforcement’s misuse of Beheler is enabled

by some lower courts that, when deciding whether a

suspect was in custody, give significant or “all-butdispositive” weight to the fact that a suspect was told

that he or she was not under arrest or was free to

leave. See, e.g., Clark, 612 F. App’x at 424, (Watford,

J., concurring) (observing that California courts give

“all-but-dispositive weight to a ‘you’re not under arrest’ advisement” and noting that this Court “has

never explicitly clarified how much weight a ‘you’re

not under arrest’ advisement may be given, much less

explicitly forbidden state courts to give such an advisement the heavy weight it received here.”); see also

Locke v. Cattell, 476 F.3d 46, 53–54 (1st Cir. 2007)

(“Most significantly, [defendant] was told at least five

times that he did not have to speak with the police

and that he was free to leave.”); United States v.

Muegge, 225 F.3d 1267, 1271 (11th Cir. 2000) (finding a non-custodial interview primarily because the

suspect was told directly that he was free to leave);

United States v. LeBrun, 363 F.3d 715, 724 (8th Cir.

free to validate the ‘Beheler-ing’ of suspects, even when that

practice is used to evade Miranda’s requirements.” Id. at 422.

13

2004) (holding that defendant who was “specifically

told on four different occasions during the course of

the interview that he was not under arrest and could

go home” was not in custody).

In Clark, the police intensely interrogated the 16year-old defendant in a small, windowless room in

the police station, for hours, without any family

members present. 27 Yet, in finding that the defendant was not in custody, the only factor the court identified was that he had been advised three times that

he was not under arrest. 28 The Ninth Circuit also

noted in its majority opinion that this Court has not

“categorically prohibited the deliberate use of the

‘you’re not under arrest’ strategy.’” 29

When the Beheler admonishment is weighed too

significantly against custody, it can allow officers to

game Constitutional criminal procedure because officers can still conduct intensely coercive questioning

so long as they tell the suspect “you’re not under arrest” or “you’re free to leave.” This allows for the too

easy evasion of Miranda’s protections.

Smith v. Clark, 612 F. App’x 418, 422 (9th Cir. 2015)

(Watford, J., concurring).

27

28

Id.

29

Id. at 421.

14

IV.

This Court Should Intervene To Prevent Law

Enforcement From Conducting Un-Mirandized

Interrogations After A Suspect Confesses To A

Crime.

As it does with Beheler, law enforcement will exploit the lower court’s rule to evade Miranda if this

Court does not intervene. Specifically, law enforcement will likely train officers to repeat Beheler admonishments after a suspect confesses to a crime.

Officers will also likely be taught to keep a calm tone

of voice if they decide to keep an interrogation noncustodial after a confession. See, e.g., Bartelt v. Wisconsin, 379 Wis. 2d 588, 611, n.11 (2018) (noting that

after the confession the officers did not “raise their

voice” and “the ambiance of the interview remained

[largely] unchanged.”). These steps, however, will not

eliminate the overriding reality: no suspect would feel

free to leave after confessing to a serious crime.

CONCLUSION

The decision of the Wisconsin Supreme Court enables officers to use un-Mirandized questioning after

a suspect has confessed to a serious crime. If this

Court does not intervene, law enforcement will seize

the opportunity to train police officers to exploit the

rule applied by the Wisconsin Supreme Court below.

This phenomenon is demonstrated by the strategic

and institutionalized use of Beheler admonishments.

The lower court’s decision would also allow for broader misuse of Beheler, as law enforcement will train

officers to continuing telling suspects—after they confess—that they are free to leave.

15

The Court should issue a writ of certiorari to address un-Mirandized questioning after a suspect has

confessed to a serious crime because permitting this

practice to continue undermines Miranda’s purpose of

protecting suspects’ Fifth Amendment rights.

Respectfully submitted,

Rex S. Heinke

Counsel of Record

Akin Gump Strauss

Hauer & Feld LLP

1999 Avenue of the Stars

Suite 600

Los Angeles, CA 90067

(310) 229-1000

rheinke@akingump.com

David M. Shapiro

Roderick And Solange

MacArthur Justice Center

375 E. Chicago Avenue

Chicago, IL 60611

(312) 503-0711

Bryan M. Wittlin

Drinker Biddle & Reath

LLP

1800 Century Park East

Suite 1500

Los Angeles, CA 90067

(310) 203-4041

Counsel for Amicus Curiae

JULY 11, 2018