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Wisconsin Court of Appeals Reverses Circuit Court Suppression Order in Sheboygan County Case


"Today's decision reinstates the defendant's confession in a case of attempted sexual assault and false imprisonment," says Van Hollen.  "It also brings Wisconsin law into conformity with recent United States Supreme Court precedent."


MADISON - In a pretrial appeal brought by attorneys from the Wisconsin Department of Justice, the Wisconsin Court of Appeals held today that  Sheboygan County law enforcement officers did not violate Brad E. Forbush's constitutional rights to counsel when they questioned him on charges of attempted second-degree sexual assault and false imprisonment.  The Wisconsin appellate court concluded that a 2009 United States Supreme Court decisionMontejo v. Louisianaoverruled the Wisconsin case relied upon by the Sheboygan County Circuit Court to suppress Forbush's confession.


After Forbush's arrest, Sheboygan County authorities obtained a waiver of his right to counsel and took an inculpatory statement.  Forbush moved to suppress his statement, arguing that his constitutional rights to an attorney were violated because someone from a law firm contacted the Sheboygan County District Attorney's Office district attorney and indicated the firm either did or was going to represent him.  Forbush claimed Wisconsin law prohibited questioning him without his attorney present and made his waiver of counsel invalid.  The Sheboygan County Circuit Court agreed and suppressed the statement.  The Wisconsin Department of Justice appealed.


Adopting the Department's position, the Wisconsin Court of Appeals reversed the suppression order, concluding that the United States Supreme Court's decision in Montejo effectively overruled Wisconsin law on point:

In Montejo, Montejo appeared in court and an attorney was appointed to represent him. Later that day, detectives asked Montejo to show where he had earlier indicated a murder weapon was located. They read Montejo his Miranda rights, which he waived. During the excursion he wrote an inculpatory apology letter. After returning, Montejo met his attorney who objected to the questioning of Montejo outside the attorney's presence. The Louisiana Supreme Court concluded the trial court properly denied Montejo's suppression motion.


On appeal to the United States Supreme Court, Montejo proposed an interpretation of Jackson much like the one our state supreme court adopted in Dagnall: police may not initiate any further interrogation once a charged defendant is represented. Montejo, 129 S. Ct. 2079, 2085. The Court rejected this proposal and went further. It overruled Jackson, concluding the rule's purpose protecting defendants from police badgeringcould be adequately achieved through rules articulated in other case law. Id. at 2090. The Court stated that under the Miranda-Edwards-Minnick line of cases, "a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but 'badgering' by later requests is prohibited."  Id. (discussing Minnick v. Mississippi, 498 U.S. 146 (1990), Edwards v. Arizona, 451 U.S. 477 (1981), and Miranda v. Arizona, 384 U.S. 436 (1966)).


We agree with the State that when the Supreme Court overruled Jackson, it also effectively overruled Dagnall. Not only did Dagnall's holding rely on the Jackson rule, but Montejo eschewed Dagnall's central tenet: that the right to an attorney is automatically invoked as soon as a defendant is represented. See Montejo, 129 S. Ct. 2079, 2085. Montejo overruled this interpretation of the Sixth Amendment.


The Wisconsin Court of Appeals also concluded that the Wisconsin Constitution did not require suppression of Forbush's statement.

Wisconsin Attorney General J.B. Van Hollen praised the decision.  "Today's decision reinstates the defendant's confession in a case of attempted sexual assault and false imprisonment," said Van Hollen.  "It also brings Wisconsin law into conformity with recent United States Supreme Court precedent."


The Wisconsin Court of Appeals's decision in State of Wisconsin v. Brad E. Forbush, No. 2008AP3007-CR, appears on the court's website:


Forbush's case now returns to Sheboygan County Circuit Court for further proceedings.  Forbush enjoys a presumption of innocence in that court.  The charging documents filed in this case contain allegations that the State must prove beyond a reasonable doubt at trial.


The Sheboygan County District Attorney's Office represents the State in Sheboygan County Circuit Court.  Assistant Attorney General Aaron R. O'Neil represented the State in the Wisconsin Court of Appeals.