Aug. 13, 2024 – Statements from a juvenile who was subjected to psychological pressure by police in three interviews conducted over 26 hours must be suppressed, the Wisconsin Court of Appeals (District IV) has ruled in State v. Kruckenberg, 2023AP396 (July 25, 2024).

At 2 a.m. on Jan. 9, 2021, the police went to a residence in Albany to check out a report of a missing newborn.

The police learned that C.D., age 14, had four days earlier given birth without her parents’ knowledge. Logan Kruckenberg Anderson (Kruckenberg), age 16, was the child’s father.

Kruckenberg told the police he’d given the baby to his friend Tyler, so Tyler could take the baby to an adoption agency.

The police did not handcuff or physically restrain Kruckenberg during the interview.

Albany Interview

The police questioned Kruckenberg at the Albany police department, beginning at 9 a.m. on January 10.

Before the interview, the police told Kruckenberg he was free to leave. During the interview, Kruckenberg cried. He said he’d had nothing to eat or drink – and hadn’t slept – for three days.

Brodhead Interview

Just after 11 p.m. on January 10, the police went to the residence of E.F. Kruckenberg was close to E.F. and had been living with her since the summer of 2020.

James Pertzborn, a special agent with the state Department of Justice’s Division of Criminal Investigation, asked Kruckenberg to come to the Brodhead police department to answer questions.

E.F. attended the interview at Kruckenberg’s request.

During the interview, Pertzborn accused Kruckenberg of lying. Pertzborn also said he couldn’t help Kruckenberg if he didn’t tell him the truth.

After Pertzborn said “[W]e need to … give that precious child of yours a proper burial,” Kruckenberg said that on the day the baby was born, he’d put it in a backpack, walked to a wooded area in Albany with a friend, and placed it in a hollow tree, and under the snow.

Interview in Albany Woods

Pertzborn drove Kruckenberg to the woods at about 2 a.m. on January 11. The police soon found the baby’s corpse.

Pertzborn drove Kruckenberg back to the Albany police station. After more questioning there, a Green County Sheriff’s Office deputy arrested Kruckenberg.

In a subsequent interview on January 11, Kruckenberg said he’d shot the baby twice before leaving it in the woods.

The police did not handcuff or physically restrain Kruckenberg during any of the January 10 interviews.

Motion to Suppress

The Green County District Attorney charged Kruckenberg with first-degree intentional homicide and moving/hiding/burying the corpse of a child.

Kruckenberg moved to dismiss all evidence of his statements to Pertzborn during the January 10 interviews.

The circuit court granted the motion, after concluding that Kruckenberg’s statements were involuntary statements made in police custody without the warnings required under Miranda v. Arizona, 384 U.S. 436 (1966).

The State appealed.

Custody After ‘Burial’ Comment

On appeal, the State argued that the circuit court erred by suppressing Kruckenberg’s statements to Pertzborn during the three January 10 interviews because the statements were both voluntary and non-custodial under Miranda.

Writing for a three-judge panel, Judge Chris Taylor explained that whether a defendant’s statements were voluntary required analyzing the totality of the circumstances to balance whether the pressure exerted by the police was greater than the defendant’s ability to resist, given his or her personal characteristics.

Taylor pointed out that under Wisconsin Supreme Court caselaw, a finding of police coercion was a prerequisite to a determination that a defendant’s statements were involuntary.

The panel concluded that the January 10 interviews were cumulatively coercive, beginning with Pertzborn’s comment about a “proper burial,” because: 1) as a juvenile, Kruckenberg was uncommonly susceptible to pressure from the police; and 2) Kruckenberg had been with the police for 13 of the 26 hours that elapsed between the time the police first contacted him and the time he was arrested.

“These repeated, lengthy interviews, conducted in the early morning hours and late at night, are evidence of coercive police conduct,” Judge Taylor wrote.

Taylor also pointed to:

• the “heavy psychological pressure” employed by Pertzborn;

• the fact that Pertzborn leveraged E.F.’s relationship with Kruckenberg to bring additional pressure to bear on Kruckenberg; and

• Pertzborn’s conflation of his offers to help Kruckenberg with E.F.’s offers to help.

That conflation, Taylor wrote, “had the effect of misrepresenting that Pertzborn’s purpose in being present was to help Kruckenberg rather than to interrogate him as an agent of the state.”

Regarding Kruckenberg’s susceptibility to police pressure, Taylor pointed to the following:

• Kruckenberg was a minor who’d had minimal prior experience with the police;

• Kruckenberg told the police during the first interview on January 10 that he hadn’t slept or consumed food or drink for three days;

• While E.F. was with Kruckenberg during the interviews at the two police departments, she didn’t act as a buffer and thus didn’t balance out the unequal power position between Pertzborn and Kruckenberg.

No Custody Before ‘Burial’ Comment

The panel concluded that Kruckenberg was not in police custody for purposes of Miranda before Pertzborn made the “proper burial” comment.

Judge Taylor pointed out that Pertzborn told Kruckenberg repeatedly that he wasn’t under arrest and wasn’t required to answer questions.

Taylor also noted that Kruckenberg repeatedly told Pertzborn that he understood those advisements.

Additionally, Judge Taylor reasoned, the police didn’t frisk Kruckenberg before or during the interrogation at the Brodhead police station; nor did they place him in handcuffs or otherwise restrain him.

Kruckenberg argued that during the first interview at the Albany police station the police told Kruckenberg not to leave E.F.’s property, the police later took his cell phones, and a police officer escorted him to the bathroom at the Brodhead police station.

While those facts “may present a close issue,” Taylor wrote, Kruckenberg’s stated understanding of the advisements, the absence of any physical restraints, and E.F.’s presence during the pertinent part of the interrogation meant that Kruckenberg was not in police custody on January 10 prior to Pertzborn’s “proper burial” comment.

The Court of Appeals affirmed in part, reversed in part, and remanded the cause to the circuit court.