State v. Giovanni X. Smyczeck Rivera

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COURT OF APPEALS DECISION DATED AND FILED
September 23, 2026 Samuel A. Christensen Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.
Appeal No. 2024AP2101-CR STATE OF WISCONSIN
Cir. Ct. No. 2022CF1483
IN COURT OF APPEALS DISTRICT II
STATE OF WISCONSIN,
PLAINTIFF-APPELLANT,
V.
GIOVANNI X. SMYCZECK RIVERA,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Waukesha County: MICHAEL O. BOHREN, Judge. Reversed.
Before Lazar, P.J., Gundrum, and Grogan, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
11 PER CURIAM. The State seeks review of a circuit court order granting Giovanni X. Smyczeck Rivera's motion to suppress statements made to

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law enforcement officers both before and after being advised of his Miranda
rights during the course of a child pornography investigation. See Miranda v.
Arizona, 384 U.S. 436 (1966). It says the court erred both in concluding that
Smyczeck Rivera’s pre-Miranda statements were inadmissible because he was in
custody during the questioning that occurred during the execution of the search
warrant and in also excluding the post-Miranda statements under Missouri v.
Seibert, 542 U.S. 600 (2004). Based upon our review of the briefs and Record, we
reverse.
¶2 In January 2022, the New Berlin Police Department received
information from the National Center for Missing and Exploited Children
regarding a child pornography investigation involving an account eventually tied
to Smyczeck Rivera. The investigation ultimately resulted in the State charging
Smyczeck Rivera with ten counts of possession of child pornography contrary to
WIS. STAT. § 948.12(1m) and (3)(a) (2023-24),1 one count of possession of
tetrahydrocannabinols (THC) contrary to WIS. STAT. § 961.41(3g)(e), and one
count of possession of drug paraphernalia contrary to WIS. STAT. § 961.573(1).
The drug-related charges stemmed from marijuana and drug paraphernalia
discovered during execution of the search warrant.
¶3 Smyczeck Rivera filed a motion seeking to suppress incriminating
statements and any derivative evidence based on an alleged Miranda violation,
and the circuit court held a two-day motion hearing at which New Berlin Police
Department Detectives Joshua Guevara and Thomas Johannik, as well as
Smyczeck Rivera, testified.
1 All references to the Wisconsin Statutes are to the 2023-24 version.

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¶4 Detective Guevara testified that in the course of the investigation, he
obtained a search warrant for the Brookfield residence where Smyczeck Rivera
lived with his mother and stepfather as well as for their vehicles. Multiple law
enforcement officers executed the search warrant at approximately 6:00 a.m. on
July 19, 2022. Guevara, the lead investigator, along with Detective Johannik,
initially made contact with Smyczeck Rivera in his driveway after parking their
unmarked vehicle at the end of Smyczeck Rivera’s driveway as he was about to
leave for work. Smyczeck Rivera was neither handcuffed nor placed under arrest;
however, he consented to a brief search of his person for weapons. This was the
only time during the interaction that an officer made physical contact with
Smyczeck Rivera. Guevara thereafter explained to Smyczeck Rivera that they had
received a tip regarding child pornography tied to an account they believed was
associated with him, and Smyczeck Rivera ultimately confirmed the account was
his, that no one else had access to the account, and that he had shared the child
pornography so that he would not get kicked out of a chat room. Smyczeck Rivera
asked whether there would be any jail time, and Guevara stated that although he
would not be taking Smyczeck Rivera to jail that day, he could make no promises
about the future.
¶5 Detective Johannik remained approximately five to ten feet away
from Smyczeck Rivera while Detective Guevara questioned him, and other
officers walked past while going in and out of the house. Johannik at times
engaged in casual conversation with Smyczeck Rivera; however, Guevara was the
only one who questioned him regarding the investigation, and out of the
approximately one hour law enforcement was on the scene, Guevara only engaged
in questioning for approximately 25 minutes. Smyczeck Rivera ultimately went to
the police station voluntarily to be booked for possession of marijuana-related

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charges stemming from the marijuana and drug paraphernalia discovered in his
bedroom. While at the police station, Guevara advised Smyczeck Rivera of his
Miranda rights for the first time, and Smyczeck Rivera thereafter largely provided
the same information he had provided during Guevara’s prior questioning in
Smyczeck Rivera’s driveway.
¶6 The circuit court granted the suppression motion based largely on its
understanding of three cases—State v. Kilgore, 2016 WI App 47, 370 Wis. 2d
198, 882 N.W.2d 493; Seibert; and Oregon v. Elstad, 470 U.S. 298 (1985). First,
the court concluded Smyczeck Rivera was in custody while the detectives
questioned him in his driveway, and that his pre-Miranda statements were
therefore inadmissible. In large part, it appears to have reached this decision
based on its conclusion that the search warrant execution and corresponding
interview had been “structured in order to get all the evidence[,]” including
incriminating statements, prior to administering the Miranda warning contrary to
Seibert.2 In reaching this conclusion, the court’s totality of the circumstances
analysis was minimal at best. Second, the court also suppressed the post-Miranda
statements based on Seibert. The State appeals.
¶7 In reviewing a circuit court’s decision on a motion to suppress, “we
apply a two-step standard.” State v. Lonkoski, 2013 WI 30, ¶21, 346 Wis. 2d 523,
828 N.W.2d 552. First, we will accept the circuit court’s factual findings “unless
they are clearly erroneous.” Id. Applying those factual findings to the relevant
constitutional principles, we determine de novo whether an individual was in
2 Interestingly, shortly prior to reaching this conclusion, the circuit court stated that it
was “not sure that the evidence in this case supports the decision that it’s a two-phase -- it was
meant to be a two-phased interrogation,” which was “one of the concerns that [it had].”

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custody. Id. We neither weigh a witness’s testimony nor assess a witness’s
credibility, see Lang v. Lowe, 2012 WI App 94, ¶16, 344 Wis. 2d 49, 820 N.W.2d
494, but instead defer to the circuit court’s credibility determinations, see
Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647
(1979).
¶8 We must first determine whether Smyczeck Rivera was in custody
while being questioned during the execution of the search warrant at his home
such that officers were required to administer a Miranda warning. If he was in
custody, we must also determine to what extent his pre- and post-Miranda
statements must be suppressed. On appeal, the State asserts that under the totality
of the circumstances, Smyczeck Rivera was not in custody during questioning in
his driveway and that his statements are therefore admissible because no Miranda
violation occurred. Alternatively, it argues that even if Smyczeck Rivera was in
custody at the time and those statements are therefore inadmissible, the
post-Miranda statements made at the police station are not subject to suppression
under Elstad. Smyczeck Rivera, to the contrary, asserts he was in custody while
being questioned in his driveway and that those statements must be suppressed,
and he also asserts the post-Miranda statements are inadmissible under Seibert
because the police intended to employ a two-stage interrogation to subvert
Miranda’s requirements. We agree with the State.
¶9 “Miranda warnings are a procedural safeguard aimed at ‘protecting
a defendant’s Fifth Amendment privilege against self-incrimination.’” State v.
Rejholec, 2021 WI App 45, ¶18, 398 Wis. 2d 729, 963 N.W.2d 121 (citation
omitted). Accordingly, a Miranda warning must be administered prior to a
custodial interrogation. See, e.g., Miranda, 384 U.S. at 444, 492; Elstad, 470 U.S.
at 309; Yarborough v. Alvarado, 541 U.S. 652, 661 (2004). For Miranda

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purposes, “[a] person is in custody … if the person is either formally arrested or
has suffered a restraint on freedom of movement of the degree associated with a
formal arrest.” State v. Goetz, 2001 WI App 294, ¶11, 249 Wis. 2d 380, 638
N.W.2d 386. Whether an individual is in custody for Miranda purposes is
determined based on the totality of the circumstances. State v. Martin, 2012 WI
96, ¶35, 343 Wis. 2d 278, 816 N.W.2d 270.
¶10 Factors relevant to the “in custody” inquiry include “the suspect’s
freedom to leave, the purpose, place and length of the interrogation and the degree
of restraint.” State v. Mosher, 221 Wis. 2d 203, 211, 584 N.W.2d 553 (Ct. App.
1998); see also State v. Blatterman, 2015 WI 46, ¶30, 362 Wis. 2d 138, 864
N.W.2d 26. As to the degree of restraint, reviewing courts consider: (1) “whether
the suspect is handcuffed”; (2) “whether a weapon is drawn”; (3) “whether a frisk
is performed”; (4) “the manner in which the defendant was restrained”;
(5) “whether the suspect is moved to another location”; (6) “whether questioning
took place in a police vehicle”; and (7) “the number of officers involved.”
Mosher, 221 Wis. 2d at 211. “The test is ‘whether a reasonable person in the
defendant’s position would have considered himself or herself to be in custody,
given the degree of restraint under the circumstances.’” See, e.g., State v. Pounds,
176 Wis. 2d 315, 321, 500 N.W.2d 373 (Ct. App. 1993) (citation omitted). The
State bears the burden of establishing by a preponderance of the evidence that an
individual was not in custody for Miranda purposes. State v. Harris, 2016 WI
App 2, ¶9, 366 Wis. 2d 777, 874 N.W.2d 602 (2015).
¶11 Applying the above factors, we conclude Smyczeck Rivera was not
in custody while being questioned in his driveway. First, although
Smyczeck Rivera was detained while officers executed the search warrant, this did
not automatically render him “in custody” for Miranda purposes under these

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circumstances. See Kilgore, 370 Wis. 2d 198, ¶29-34 (“a detention during
execution of a search warrant does not amount to custody in and of itself”; “the
objective circumstances must be the functional equivalent of a formal arrest, along
with the inherently coercive aspects of custodial questioning designed to overcome
the suspect’s free choice”). While that may not always be the case, here,
Smyczeck Rivera was neither placed in handcuffs or otherwise restrained apart
from a brief pat-down for officer safety nor informed that he was not free to leave.
This counsels against a conclusion that he was in custody simply because he was
detained during execution of the search warrant.
¶12 Both the place and length of questioning also indicate
Smyczeck Rivera was not in custody. Specifically, the questioning occurred in the
open in Smyczeck Rivera’s driveway—not in a police station or other custodial
setting—and although the officers were on scene for approximately one hour,
Detective Guevara was engaged in questioning Smyczeck Rivera for less than half
that time. While the questioning lasted for more than a few minutes, it was less
than the 30 minutes at issue in Lonkoski, where our supreme court concluded the
defendant was not in custody for Miranda purposes. See Lonkoski, 346 Wis. 2d
523, ¶¶26, 31 (stating that open-ended questions lasting approximately 30 minutes
did not indicate that the defendant was in custody). Additionally,
Smyczeck Rivera’s body language was generally relaxed—he spent much of the
interview leaning against a vehicle in his driveway—and his responses were at
times interspersed with seemingly casual conversation. Taken together, these
factors are not indicative of a custodial setting.
¶13 Although it is true that Detective Guevara questioned
Smyczeck Rivera to obtain information related to the child pornography
investigation, this does not inherently render this a custodial interrogation.

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See State v. Bartelt, 2018 WI 16, ¶33, 379 Wis. 2d 588, 906 N.W.2d 684 (“Any
interview of one suspected of a crime by a police officer will have coercive
aspects to it … [b]ut police officers are not required to administer Miranda
warnings to everyone whom they question.” (Alteration and omission in original;
citation omitted.)). And, to the extent Smyczeck Rivera asserts that Guevara was
deceptive regarding whether there was “jail time” associated with the crime being
investigated, Guevara clearly confirmed that while he did not intend to take
Smyczeck Rivera to jail that day, he could make no guarantees regarding what
may transpire in the future. We are not convinced the purpose or nature of
Guevara’s questioning here tips the balance such that Smyczeck Rivera was in
custody for Miranda purposes.
¶14 Finally, the degree of restraint likewise does not suggest
Smyczeck Rivera was in custody while in his driveway. As noted, he was casually
standing against a vehicle during the majority of the questioning, he was not
handcuffed, and Detectives Guevara and Johannik only briefly restrained him
while performing a brief search for officer safety. No weapons were drawn, and
although multiple officers were on scene, the additional officers were present to
execute the search warrant and had little, if any, interaction with Smyczeck Rivera
at all.
¶15 Based on the totality of the circumstances, we are satisfied that
Smyczeck Rivera was not in custody at the time Detective Guevara questioned
him in his driveway. Because he was not in custody, no Miranda violation
occurred and the circuit court therefore erred in concluding Smyczeck Rivera’s
pre-Miranda statements while being questioned in his driveway were
inadmissible. We also conclude that the circuit court erred in excluding

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Smyczeck Rivera’s post-Miranda statements under Seibert, as that case is
inapplicable based on the circumstances present here.
By the Court.—Order reversed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.