State v. Toby Pierce, Jr.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 22, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1450-CR Cir. Ct. No. 2020CF2800

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

TOBY PIERCE, JR.,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: JANET C. PROTASIEWICZ and ELLEN R. BROSTROM,
Judges. Affirmed.

Before White, C.J., Donald, P.J., and Geenen, J.

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).
No. 2023AP1450-CR

¶1 PER CURIAM. Toby J. Pierce appeals a judgment, entered on his
guilty plea, convicting him of a hit-and-run resulting in death.1 Specifically,
Pierce challenges the circuit court’s denial of his suppression motion. We affirm.

BACKGROUND

¶2 The State charged Pierce with hit-and-run resulting in death and
knowingly operating a motor vehicle while suspended causing death. According
to the criminal complaint, a car struck and killed a pedestrian, L.S., and left the
scene of the accident without stopping. The next day, police went to Pierce’s
home. While speaking with him there, Pierce admitted that the night before he
was out with a friend, probably had too much to drink, and hit a pedestrian with
his car after the pedestrian “came out of nowhere.” In a later interview, conducted
after police provided Pierce with Miranda warnings, Pierce stated that he struck
something with his car, but he did not know what he struck.2

¶3 Pierce moved to suppress the statements he made to police at his
home because police failed to provide him with his Miranda warnings. The
following relevant evidence was presented during the hearing on the motion to
suppress.

1
While Pierce appeals from both a judgment and an order, we address only the
judgment. Pierce is not challenging the order denying his postconviction motion asking the
circuit court to find him eligible for the Substance Abuse Program.

The Honorable Janet C. Protasiewicz presided over the suppression motion, accepted
Pierce’s plea, and sentenced him. The Honorable Ellen R. Brostrom issued the order denying his
postconviction motion.
2
Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2023AP1450-CR

¶4 Officer Sean Koscielak was the State’s sole witness. Officer
Koscielak testified that the day after the hit-and-run accident, he reviewed
surveillance camera footage and was able to identify the car that hit L.S. Officer
Koscielak and his partner Officer Braunreiter then canvassed the area and located
a car with damage to its front end parked in an alley, which Officer Koscielak
believed was the car that hit L.S. Dispatch informed him that the car was
registered to Pierce.

¶5 That night Officer Koscielak and Officer Braunreiter, who were not
in a marked squad car, knocked on Pierce’s door. In addition to knocking on the
door, Officer Koscielak stated that Officer Braunreiter may have shined his
flashlight into Pierce’s second-floor window. Officer Koscielak testified that he
was dressed in plain clothes and had a gun in a holster at his hip and Officer
Braunreiter was similarly dressed.

¶6 After a minute, Pierce answered the door, the officers identified
themselves as police officers, and they asked Pierce “something to the effect of do
you know why we’re here.” Pierce responded “about my vehicle out back.” The
officers responded affirmatively. Officer Koscielak testified that Pierce “turned
around, walked upstairs[,] and invited us inside.” The officers followed Pierce to
the second floor of the house, and they spoke further with him while his girlfriend
was also present.

¶7 Officer Koscielak asked Pierce what happened to his car, and Pierce
admitted that while he was driving with a friend, a pedestrian “came out of
nowhere.” Pierce hit the pedestrian and kept driving. Pierce also stated that he
probably had a little too much to drink when he hit the pedestrian. Based on his
statements, the officers arrested Pierce. Officer Koscielak said the entire

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No. 2023AP1450-CR

conversation took about ten minutes. At no point during their interaction with
Pierce at his home did the officers give him Miranda warnings. The officers did
not draw their weapons, threaten Pierce, accuse him of anything, or raise their
voices.

¶8 Pierce testified next. He said that he was asleep when his girlfriend
saw flashing lights outside the window. Pierce then heard knocking at his door,
went downstairs in shorts and a t-shirt, and opened the door. When he opened the
door, he saw two police officers standing at the doorway with badges around their
necks and guns in their holsters. The officers asked him if he was “Toby,” he
stated “yes,” and they asked if he knew why they were there and he responded
affirmatively. Pierce testified that the officers asked if they could talk to him, and
he said yes, inviting them in. They all went upstairs. Pierce’s girlfriend was
present, but she did not say anything. Pierce asked the officers how they got his
name and address, and they told him a video captured his license plate. The
officers asked him what happened, and Pierce told them he had been in an
accident.

¶9 Pierce said he did not tell the officers he had struck someone or say
he had been drinking. Pierce acknowledged that he told the police that he drove
home after the accident. The officers had Pierce get dressed and said he needed to
go with them. They did not handcuff Pierce or draw their weapons, they spoke in
a normal tone of voice, and they did not badger or threaten him. He said the
conversation took “maybe 20 minutes.” Pierce said he felt he was not free to leave
and did not ask the officers to leave because they were steadily asking him
questions.

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No. 2023AP1450-CR

¶10 After listening to the testimony, the circuit court found that Pierce
invited the officers inside and “a short period of questioning” took place with
Pierce’s girlfriend present. The court found that the questioning “was very brief in
nature,” that Pierce’s girlfriend was present, and he was not handcuffed. In
reference to Pierce, the court concluded: “Doesn’t sound like you were coerced in
any way, doesn’t sound like you were scared. Sounds like you actually knew it
was just a matter of time before they’d be coming to your door.” The court found
that Pierce “absolutely” was not in custody and that it was not “a close call.”
Accordingly, the court denied Pierce’s suppression motion.

¶11 Pierce subsequently pled guilty to hit-and-run resulting in death.
The circuit court sentenced him to 10 years of initial confinement and 10 years of
extended supervision.

DISCUSSION

¶12 Pierce appeals the denial of his suppression motion. See WIS. STAT.
§ 971.31(10) (2023-24) (permitting appellate review of an order denying a motion
to suppress evidence, notwithstanding the defendant’s guilty or no-contest plea).3
“The review of a circuit court’s order granting or denying a suppression motion
presents a question of constitutional fact. We will uphold the court’s factual
findings unless they are clearly erroneous, but we independently apply
constitutional principles to those facts.” State v. Coffee, 2019 WI App 25, ¶6, 387
Wis. 2d 673, 929 N.W.2d 245 (citations omitted).

3
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP1450-CR

¶13 Both the Fifth Amendment of the United States Constitution and
article I, section 8 of the Wisconsin Constitution provide that no person shall be
compelled to incriminate themselves without the due process of law. See State v.
Bartelt, 2018 WI 16, ¶26, 379 Wis. 2d 588, 906 N.W.2d 684. The constitutional
right against self-incrimination requires that law enforcement officers inform
suspects of their rights to remain silent and to have an attorney present during
custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Because
“Miranda and its progeny are aimed at dispelling the compulsion inherent in
custodial surroundings … the Miranda safeguards apply only to custodial
interrogations under both constitutions.” Bartelt, 379 Wis. 2d 588, ¶30 (citation
and quotation marks omitted). When a person is subjected to a custodial
interrogation, “[i]f the warnings are not given, any statements made are
inadmissible in court.” State v. Halverson, 2021 WI 7, ¶1, 395 Wis. 2d 385, 953
N.W.2d 847.

¶14 Pierce contends that he was in custody at his doorstep, as soon as
one of the officers asked him if he knew why the officers were there. Pierce
argues that this was an “accusatory question” and that the police manifested their
belief that he was a suspect. To support his position, he relies on the following:

[A]n 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.

State v. Mosher, 221 Wis. 2d 203, 216-17, 584 N.W.2d 553 (Ct. App. 1998)
(emphasis omitted; citation omitted).

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No. 2023AP1450-CR

¶15 According to Pierce, the purpose of the question was to obtain an
answer from him about the hit-and-run and the damage police observed to his
car—information relevant to the elements of a hit-and-run offense. See State v.
Thexton, 2007 WI App 11, ¶9, 298 Wis. 2d 263, 727 N.W.2d 560 (“[A]
presentence interview is accusatorial, and as such requires Miranda warnings, ‘to
the extent that it seeks statements from a defendant on an element upon which the
[S]tate still has the burden of proof’”). He claims that when analyzed in
conjunction with “the urgency police displayed,” a reasonable person would not
have felt free to end the interaction with the officers.

¶16 Our state supreme court provided an in-depth explanation of what it
means to be in custody:

The test to determine whether a person is in custody under
Miranda is an objective test. The inquiry is “whether there
is a formal arrest or restraint on freedom of movement of a
degree associated with a formal arrest.” Looking at the
totality of the circumstances, courts will consider whether
“a reasonable person would not feel free to terminate the
interview and leave the scene.”

We consider a variety of factors to determine
whether under the totality of the circumstances a reasonable
person would feel at liberty to terminate an interview and
leave. Such factors include: the degree of restraint; the
purpose, place, and length of the interrogation; and what
has been communicated by police officers. “When
considering the degree of restraint, we consider: whether
the suspect is handcuffed, whether a weapon is drawn,
whether a frisk is performed, the manner in which the
suspect is restrained, whether the suspect is moved to
another location, whether questioning took place in a police
vehicle, and the number of officers involved.”

If we determine that a suspect’s freedom of
movement is curtailed such that a reasonable person would
not feel free to leave, we must then consider whether “the
relevant environment presents the same inherently coercive
pressures as the type of station house questioning at issue in
Miranda.” In other words, we must consider whether the

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No. 2023AP1450-CR

specific circumstances presented a serious danger of
coercion, because the “freedom-of-movement test identifies
only a necessary and not a sufficient condition for Miranda
custody.” Importantly, a noncustodial situation is not
converted to one in which Miranda applies simply because
the environment in which the questioning took place was
coercive. “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.” Therefore, “Miranda
warnings are not required ‘simply because the questioning
takes place in the station house, or because the questioned
person is one whom the police suspect.’” And finally, “the
initial determination of custody depends on the objective
circumstances of the interrogation, not on the subjective
views harbored by either the interrogating officers or the
person being questioned.”

Bartelt, 379 Wis. 2d 588, ¶¶31-33 (footnote omitted; citations omitted).

¶17 Here, under the totality of the circumstances, Pierce was not in
custody when the police officers arrived at his home and immediately asked if he
knew why they were there. He was not under arrest, handcuffed, or otherwise
physically restrained in his freedom of movement to a degree associated with a
formal arrest. No weapons were drawn, no commands given, no actions that could
be considered a show of force other than the police officers having guns in their
holsters. The police officers spoke to Pierce in his residence at Pierce’s invitation,
with his girlfriend present, for somewhere between 10 and 20 minutes. See id.,
¶38 (holding that a 30 or 35 minute interview length indicates a lack of custody).
Pierce acknowledged that the officers did not raise their voices, threaten, or badger
him.

¶18 We disagree with Pierce’s contention that the initial question by
police was accusatory. Asking a person if he knows why police are present does
not seek a statement about an element of a crime. As summed up by the State, “an
answer of either ‘yes’ or ‘no’ would not be a statement about an element of a

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No. 2023AP1450-CR

crime and would not imply guilt.”4 Moreover, we are unpersuaded by the
“urgency” that Pierce references, which consists of police officers arriving at his
home at night, while he was sleeping, shining flashlights through his windows,
and knocking on his door. The urgency he references is not supported by the
circuit court’s findings.

¶19 Because we conclude no Miranda violation occurred, Pierce’s
contention that his statements should have been suppressed fails.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

4
The State goes on to note that if this was enough for custody, police would seemingly
be prohibited from conducting a “knock and talk,” or asking any questions of a potential suspect
without Miranda warnings.

9