(Affirming 110 Wis.2d 742, 330 N.W.2d 248 (Ct.App.).)

WILLIAM A. BABLITCH, J.

Burdette Woods seeks review of an unpublished decision of the court of appeals affirming his conviction of second degree murder and manslaughter. He argues that his oral confession should have been suppressed because it was obtained in violation of his constitutional and statutory rights. We hold that his oral confession was admissible, and we therefore affirm his conviction.

The issues presented for review are:

(1) Did the police have probable cause to take Woods into custody on a charge regarding the theft of a chain saw? We conclude that they did.

(2) Was the taking of Woods into custody on a charge regarding the theft of a chain saw rendered illegal because it was the stated purpose of the police to question Woods about another crime once they had him in custody? We conclude that it was not.

(3) Did Woods waive his right to counsel? We conclude that he did.

(4) Did Woods' conduct before and during questioning constitute an assertion of his right to remain silent, thereby rendering the continued questioning of Woods by the police a violation of his constitutional rights? We conclude that Woods' conduct was not an assertion of his right to remain silent.

(5) Did Woods waive his right to remain silent? We conclude that he did.

(6) Under the totality of circumstances, were Woods' waivers of his right to counsel and his right to remain silent knowingly, intelligently and voluntarily made? We conclude that they were.

(7) At the time Woods was taken into custody and questioned, did he have a right to counsel under sec. 48.23(1)(a), Stats., and under the sixth and fourteenth amendments to the United States Constitution? We conclude that he did not. We affirm the decision of the court of appeals.

Henry and Beryl Schwab were beaten to death in their Shawano county home on September 10, 1979. The day after their bodies were found, it was reported to the police that Burdette Woods, a juvenile who was sixteen years, nine months old, had been seen in the vicinity of the Schwab home either on the day of the murders or the following day. Woods was subsequently observed closely watching officers investigate the scene of the murders. Woods became the focus of the murder investigation on September 19, 1979.

During the course of the investigation, but prior to the time that Woods became the focus of it, the police received information from a reliable source that Woods had made an unsolicited attempt to sell a chain saw to a nearby resident. Officers investigated and discovered that the saw had been stolen seventeen months earlier from a local hardware store. On September 22, the officers obtained a written statement from the individual to whom Woods had attempted to sell the saw.

On September 23, 1979, officers Trombi and Thorpe went to Woods' grandparents' trailer, where Woods was living, and took him into custody on a charge regarding the theft of the saw. The officers, with the knowledge of David Gage, a juvenile intake worker, had made a decision prior to that time to question Woods about the Schwab murders immediately after they had Woods in custody. The officers took Woods to their squad car, and Trombi read Miranda warnings to him. Trombi asked Woods if he understood his rights, to which Woods responded by making affirmative head gestures that he did. Trombi asked Woods if he wished to consult an attorney, to which Woods shook his head "no." Trombi then asked Woods if he wished to answer questions or make a statement, to which Woods did not respond.

Within one-half hour after the officers had taken him into custody, Woods was taken to the sheriff's department, where Gage met them. At the suppression hearing, Trombi testified that Gage again informed Woods of his rights. Woods indicated that he had already been read his rights. Gage also asked Woods if he wanted an attorney, to which Woods replied "no." At the suppression hearing, Gage testified that he additionally had asked Woods if Woods needed anything, and he thought Woods said that he wanted some cigarettes. Gage then filled out a form entitled "Request for Temporary Physical Custody."

After a 45-minute booking procedure, Trombi and Thorpe took Woods to a well lit and ventilated room where they questioned him for approximately 15 to 20 minutes. Woods was seated at a table and Thorpe and Trombi were seated near him. Woods was not handcuffed or otherwise restrained. The officers had placed a photograph album on a table in the room. The album contained some 3 1/2" x 5" pictures of the murder scene and the surrounding area. The album was open to pictures of the Schwabs taken after they had been murdered, and was placed approximately one to two feet from where Woods was seated.

During the questioning, Trombi and Thorpe asked Woods several times if Woods wanted to talk to them. Woods did not respond to those questions. Trombi and Thorpe also asked Woods questions concerning the Schwab murders. At one point, Trombi asked Woods why he went into the woods the day after the murders and Woods replied, "I never went in the woods the next day." Woods made no other verbal responses while Thorpe and Trombi questioned him.

After their questioning, Trombi and Thorpe left the room. Robert Ankenbrandt and Wendell Harker, investigators from the Wisconsin Division of Criminal Investigation, then entered the room. Trombi had informed them that he had advised Woods of his constitutional rights. Once inside, Harker asked Woods if he had been advised of his rights by Trombi, to which Woods responded affirmatively. Ankenbrandt and Harker then began questioning Woods about the Schwab murders. Woods made no response to their questions until approximately twenty to thirty minutes into the questioning. At that point, Woods gave an oral statement, in which he acknowledged that he had killed the Schwabs and gave detailed facts about the murders.

After Woods gave the oral statement, Harker again advised him of his Miranda rights. Woods stated that he did not have any money to hire an attorney. Harker and Ankenbrandt then obtained a written statement from Woods, in which Woods confessed to killing the Schwabs.

Juvenile court jurisdiction over Woods was waived, and a criminal complaint was filed against him. Woods subsequently filed a motion to suppress the oral and written statements in which he confessed to the murders. The trial court, citing Woods' statement that he did not have any money to hire an attorney, granted the motion to suppress the written statement on the grounds that it was obtained in violation of Woods' right to counsel. However, the court denied the motion to suppress the oral statement, which had been given prior to Woods' statement about his inability to pay for an attorney.

Woods pled guilty, was convicted and sentenced. He subsequently appealed to the court of appeals, which affirmed the judgment. Woods then filed a petition for review, which we granted.

TAKING INTO CUSTODY

1. Did The Officers Have Probable Cause To Take Woods Into Custody On A Charge Regarding The Theft Of A Chain Saw?

If the historical facts are undisputed, probable cause for an arrest is a question of law that is subject to independent review on appeal, without deference to the trial court's conclusion. State v. Drogsvold, 104 Wis.2d 247, 262, 311 N.W.2d 243 (Ct.App. 1981). Because the facts in this case are undisputed, we may independently review whether the officers had probable cause to take Woods into custody.

Section 48.19(1)(d)3, Stats., provides that a child may be taken into custody under circumstances in which the officer believes on reasonable grounds that the child committed an act in violation of a state or federal criminal law. Section 48.19(3) provides: "Taking into custody is not an arrest except for the purpose of determining whether the taking into custody or the obtaining of any evidence is lawful." Because Woods challenges the the lawfulness of the officers' action in taking him into custody, the standards governing probable cause to arrest an adult are applicable to a determination whether the taking of Woods into custody was lawful.

Reasonable grounds and probable cause are synonymous, and are defined as follows: "'The "reasonable grounds" or what is more commonly referred to as probable cause, is that quantum of evidence which would lead a reasonable police officer to believe that the defendant probably committed a crime.'" Johnson v. State, 75 Wis.2d 344, 348, 249 N.W.2d 593 (1977), quoting Ball v. State, 57 Wis.2d 653, 659, 205 N.W.2d 353 (1973). The question is whether the "facts and circumstances . . . were such that police officers of reasonable caution could have believed the defendant probably committed the crime." Johnson, 75 Wis.2d at 350.

A violation of sec. 943.20(1)(a), Stats., occurs when a person "intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without his consent and with intent to deprive the owner permanently of possession of such property." A violation of sec. 943.34 occurs when a person intentionally receives or conceals stolen property. See Wis. J.I. — Criminal, sec. 1481. In this case, officers learned prior to taking Woods into custody that he had made an unsolicited attempt to sell a chain saw valued at $134.95 for $20.00 to Sheldon Davids. Woods was apparently not well known to Davids because Davids did not even know Woods' correct surname. Woods indicated to Davids that his grandfather had given him the saw. Davids took the saw and told Woods that he should stop back later so that Davids would pay him. When Davids' father learned of the attempted sale, he became suspicious and immediately checked with the sheriff's department, informing the department that Woods had offered to sell a chain saw to his son. Mr. Davids subsequently gave the saw to officers at the sheriff's department. The officers checked the serial number on the saw and determined that it matched the serial number of a chain saw that the owner of a hardware store had reported was stolen on March 16, 1978. Based on these undisputed facts, we conclude that police officers of "reasonable caution" could have believed that Woods committed the crime of theft, contrary to sec. 943.20(1)(a), or the crime of receiving stolen property, contrary to sec. 943.34. The officers therefore had probable cause to take Woods into custody.

2. Was The Taking Of Woods Into Custody On A Charge Regarding The Their Of A Chain Saw Rendered Illegal Because It Was The Stated Purpose Of The Police To Question Woods About The Murders Immediately Thereafter?

Woods contends that the officers violated his right under the fourth amendment to the United States Constitution and Article I, sec. 11 of the Wisconsin Constitution to be protected from unreasonable searches and seizures. He argues that his custody and detention were unreasonable seizures because the officers' motivation in taking him into custody was to interrogate him about the Schwab murders.

In support of this argument, Woods cites the discussion in W. LaFave, Search And Seizure, sec. 1.2 at 26 (1983 Pocket Part), concerning fourth amendment activity that would not have been undertaken ". . . but for the 'underlying intent or motivation' which, standing alone, could not supply a lawful basis for the police conduct." These situations may result in the suppression of evidence acquired pursuant to the fourth amendment activity undertaken. See, e.g., State v. Volk, 291 So.2d 643 (Fla.App. 1974).

The determination whether the taking of Woods into custody was illegal because it violated his fourth amendment rights is a question of law. We independently review questions of law. See First Nat. Leasing Corp. v. Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251 (1977). We conclude that the officers' decision to take him into custody was lawful because it was supported by probable cause. The United States Supreme Court has held that:

". . . the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Scott v. United States, 436 U.S. 128, 138 (1978).

Although the officers wanted to question Woods concerning the Schwab murders, that does not render his custody invalid or unreasonable. At the time Trombi and Thorpe took Woods into custody, there were reasonable grounds to believe that Woods had violated a state criminal law. This provided a lawful basis for the officers to take Woods into custody.

In addition, once Trombi and Thorpe had a lawful basis to take Woods into custody, it was reasonable for them and the state agents to question Woods concerning the Schwab murders. The record indicates that Trombi, Thorpe, Ankenbrandt and Harker knew of information possibly linking Woods to the murders, and they considered him a suspect. The provisions of ch. 48, Stats., do not expressly prohibit questioning of a juvenile after he is taken into custody.

Woods also asserts that his detention resulting from the order that Gage signed was unlawful because Gage's alleged motivation in ordering his detention was to allow the officers to interrogate him, and that Gage's decision to order Woods' detention was therefore predetermined. We find no merit to this argument. Woods' detention was lawful, and once the officers lawfully had Woods in custody, they were entitled to question him. They did not need Gage's authorization to question Woods.

THE ORAL STATEMENT

Woods argues that his oral statement is inadmissible because it was obtained in violation of the fifth and fourteenth amendments to the United States Constitution, and Art. I, sec. 8 of the Wisconsin Constitution. He contends that he did not waive his right to counsel, and that even if he did, it was not a knowing and intelligent waiver. He also contends that his conduct constituted an assertion of his right to remain silent. Woods further argues that he did not waive his right to remain silent either expressly or through a course of conduct, and that even if a waiver of his right to remain silent could be inferred from his conduct, the waiver was not voluntarily made.

Prior to addressing those issues, it is appropriate to discuss the applicable standard of review. In reviewing the issues that Woods raises, an appellate court examines two determinations made by the trial court, but applies a different standard of review to each. First, the trial court determines the evidentiary or historical facts relevant to the issue in this case, namely, the circumstances surrounding the giving of the oral statement. Second, the trial court then applies those facts to resolve the constitutional questions which, in this case, are whether Woods waived his rights, and whether the waivers were knowingly, intelligently and voluntarily made. See State v. Carter, 33 Wis.2d 80, 88-91, 96, 146 N.W.2d 466 (1966); State v. Hoyt, 21 Wis.2d 284, 305-06, 128 N.W.2d 645 (1964) (Wilkie, J., concurring).

The standard of review by the appellate court of the trial court's findings of evidentiary or historical facts is that those findings will not be upset on appeal unless they are contrary to the great weight and clear preponderance of the evidence. State v. Mazur, 90 Wis.2d 293, 309, 280 N.W.2d 194 (1979). This standard of review does not apply, however, to the trial court's determination of constitutional questions. Instead, the appellate court independently determines the questions of "constitutional" fact. See Fare v. Michael C., 442 U.S. 707 (1979); Mazur, 90 Wis.2d at 309-10. These questions are not questions of evidentiary or historical fact, but are rather questions that require "application of constitutional principles to the facts as found. . . ." Mazur, 90 Wis.2d at 309, quoting Brown v. Allen, 344 U.S. 443, 507 (1953) (opinion of Frankfurter, J.). The rationale for the independent review of an ultimate question of "constitutional" fact has been explained as follows:

". . . Whether the defendant voluntarily made the confession is a matter of fact. However, it is a question of 'constitutional' fact which must be independently determined by this [appellate] court. A finding of voluntariness is a necessary condition of the use of a confession as evidence by the state, as a matter of federal constitutional law."

"The scope of constitutional protections, representing the basic value commitments of our society, cannot vary from trial court to trial court, or from jury to jury. Reasonable men can differ as to whether a given confession was voluntary. Whatever the ultimate substantive dimension of these rights might be, they must be uniform throughout the jurisdiction. This can be accomplished only if one decision maker has the final power of independent determination. It is the task of this court to determine the voluntariness of a confession by applying certain standards articulated by the United States supreme court to the facts of the given case." Hoyt, 21 Wis.2d at 305-306 (Wilkie, J. concurring).

In this case, therefore, the trial court's findings of evidentiary or historical facts surrounding the interrogation of Woods will not be overturned unless they are contrary to the great weight and clear preponderance of the evidence. However, we must independently determine whether Woods waived his rights to counsel and to remain silent, and if he did, whether under the totality of circumstances his waivers were knowingly, intelligently and voluntarily made. 3. Did Woods Waive His Right To Counsel?

Shortly after he was taken to the county jail, Woods was again asked by Gage if he wanted an attorney. Woods orally responded that he did not. The trial court concluded that Woods waived his right to counsel. We agree. Based on the trial court's findings and the undisputed facts, we conclude beyond a reasonable doubt that Woods waived his right to counsel prior to making the oral statement. 4. Did Woods Assert His Right To Remain Silent By His Conduct?

Although courts have held that a defendant's silence after being advised of his right to remain silent is equivalent to an express assertion of that right, that is not the case here. The undisputed facts indicate that Woods did not remain totally silent after he was advised of his rights. After Trombi read the Miranda rights to Woods in the squad car, he asked Woods if Woods understood each right, including the right to remain silent, to which Woods indicated by affirmative head gestures that he understod [understood] the Miranda rights. Thorpe also testified that he heard Woods say "uh huh", meaning "yes", after Trombi asked Woods if he understood his rights. Trombi asked Woods in the squad car if Woods wanted to consult an attorney, to which Woods indicated by shaking his head that he did not.

After Gage asked Woods if he had been informed of his rights, he asked if Woods wished to consult an attorney. Woods did not stand mute, but stated that he did not wish to consult an attorney. When Ankenbrandt later asked Woods if he had been informed of his constitutional rights, Woods again spoke by responding "yes".

After Trombi read Woods his rights in the squad car and Woods indicated that he did not wish to consult an attorney, Trombi asked Woods if he wished to answer questions or make a statement. Woods did not respond at that point. Several times during their questioning of Woods at the station, Trombi and Thorpe asked Woods if he wanted to talk to them. Woods did not respond to those questions, although he had previously responded to other questions, such as when Trombi asked him in the squad car if he understood his rights. Woods also responded to a question Trombi asked concerning the Schwab murders. Trombi asked Woods why he went into the woods the day after the murders. Woods replied, "I never went into the woods the next day." At no time prior to or during the questioning did Woods indicate that he wanted the questioning to stop.

Woods' conduct, therefore, was neither total silence nor total responsiveness. However, the following undisputed facts indicate that Woods did not assert his right to remain silent: (1) Woods clearly indicated on a number of occasions that he understood his right to remain silent. (2) He indicated that he was aware of his right to have the police stop questioning him at any time. (3) Woods never indicated he wanted the questioning to stop. (4) The questioning was of a relatively short duration. (5) The police frequently asked Woods whether he wished to talk to them. It was from these facts that the police had to decide whether Woods was making up his mind to talk to them, or whether he was in effect asserting his right to remain silent.

The situation the police were confronted with was a difficult one: a suspect whose conduct and responses indicated neither the desire to remain silent nor the desire to answer. Woods' entire course of conduct could reasonably have been interpreted by the police to be a weighing by him of the decision to answer questions, not as an assertion of his right to remain silent. Given the serious implication of the questions propounded, Woods might well have wanted time to make up his mind. His decision may have hinged on a number of factors, including a desire on his part to know, to the extent the police questions might indicate, what evidence the police had implicating him. This is supported by the fact that at one point during questioning he denied being in the woods by the Schwab residence the day after the murders.

Given that Woods was aware of his right to remain silent, that he understood his right to stop the questioning at any time he desired, that he did not indicate by gestures or verbal responses that he wanted the questioning to stop, that he did make some oral responses, that the questioning was of relatively short duration, and that the police made frequent efforts to determine whether he wished to assert his right to remain silent, we conclude that Woods' conduct was not an assertion of his right to remain silent. 5. Did Woods Waive His Right To Remain Silent?

It is not constitutionally required that a defendant either orally or in writing expressly waive his rights to counsel or to remain silent. Silence coupled with an understanding of his rights and a course of conduct consistent with waiver may support the finding of a valid waiver. North Carolina v. Butler, 441 U.S. 369, 373 (1979); Jordan v. State, 93 Wis.2d 449, 465, 287 N.W.2d 509 (1980).

As noted above, Woods' conduct up to the point when he began to give the incriminating oral statement was consistent with the conduct of a person going through the process of determining whether to answer questions. At the point that he began to answer the questions put to him, and thereby incriminate himself, he was clearly indicating that he had decided to waive his right to remain silent. As noted above, Woods did not remain totally silent during this period, but orally responded to some of the police questions. Additionally, Woods was informed on more than one occasion of those rights, and he indicated on two separate occasions that he understood them. His conduct during the questioning was such that it was reasonable to believe he was making a determination whether he would waive his right to remain silent. Thus, when he began to respond fully to the questions propounded, he was implicitly informing the police he had made a decision to waive his right to remain silent and to answer their questions. The trial court found that Woods waived his right to remain silent. We agree. Based on the trial court's findings and the undisputed facts, we conclude beyond a reasonable doubt that Woods waived his right to remain silent. 6. Under The Totality Of Circumstances, Were Woods' Waivers Of His Right To Counsel And His Right To Remain Silent Knowingly, Intelligently And Voluntarily Made?

We do, however, independently examine those facts to determine whether, as a matter of federal constitutional law, Woods' waivers were knowingly, intelligently and voluntarily made. A determination whether an accused knowingly, intelligently and voluntarily waived his rights depends on the totality of circumstances surrounding the interrogation. This "totality of circumstances" analysis applies even when the individual who was interrogated is a juvenile. See Fare v. Michael C., 442 U.S. 707, 725 (1979). Relevant factors to be considered include the juvenile's age, experience, education, background, intelligence, and the capacity to understand the warnings given, the nature of his fifth amendment rights, and the consequences of waiving those rights. Fare, 442 U.S. at 725. The state has the burden of proving beyond a reasonable doubt that an accused knowingly, intelligently and voluntarily waived his Miranda rights. State v. Hernandez, 61 Wis.2d 253, 258, 212 N.W.2d 118 (1973).

Woods argues that the waiver of his right to counsel was not a knowing and intelligent waiver, and he cites various reasons to support his assertion. He contends that he did not knowingly and intelligently waive his right to counsel because he was not told why he had been taken into custody until the questioning began, and he did not know the reason he was to be interrogated when he indicated to Thorpe and Trombi in the squad car, and later to Gage, that he did not wish to consult an attorney. There is no indication in the record that Trombi, Thorpe or Gage specifically informed Woods at the time he was taken into custody and prior to his waiver of counsel that he would be questioned about the Schwab murders. However, we conclude that there is no merit to Woods' assertion. Even if Woods did not know that he would be questioned about the murders at the time he waived his right to counsel, that does not render his oral statement inadmissible. See United States v. Anderson, 533 F.2d 1210, 1212 n. 3 (D.C. Cir. 1976).

Woods also contends that his statement to Ankenbrandt and Harker to the effect that he could not afford an attorney which he made after he gave the oral statement but before he gave the written statement, reflects that he did not fully understand his right to counsel at the time he waived it. This contention is without merit. The fact that Woods indicated at a later point in time after he gave the oral statement that he could not afford an attorney in no way indicates that he lacked the capacity or knowledge to make a knowing and intelligent waiver of his right to counsel prior to the time he made the oral statement. The trial court determined that Woods knowingly and intelligently waived his right to counsel. We agree. We conclude, based on the trial court's findings and the undisputed facts in the record, that under the totality of circumstances, Woods knowingly and intelligently waived his right to counsel.

Woods also cites various reasons why the waiver of his right to remain silent was not voluntarily made. We shall address each of the reasons he cites separately.

a. Misrepresentations Made By The Police.

Woods argues that the officers made certain misrepresentations during the questioning which resulted in an involuntary waiver of his right to remain silent. The issue raised is one this court has never squarely addressed: the effect of a misrepresentation made by officers to a suspect during interrogation on the voluntariness of a subsequent waiver of the right to remain silent.

Prior to reaching the issue of the effect of misrepresentation on the waiver of a right to remain silent, we must first determine whether the officers' statements that Woods refers to were, in fact, misrepresentations. It is undisputed that during Thorpe's and Ankenbrandt's questioning of Woods, they made statements to the effect that they had more evidence against Woods linking him to the Schwab murders than they actually had. It is also undisputed that during Ankenbrandt's and Harker's questioning of Woods, Ankenbrandt showed him Henry Schwab's wallet and a fingerprint card with two circles drawn around the prints. Ankenbrandt tapped the fingerprint card and wallet and said to Woods something to the effect that "this is what's going to pin you down". The first statements were clearly misrepresentations, because the officers later testified that they knew them to be false at the time they made the statements. In addition, the statements were of a type that could reasonably have created a misimpression in Woods' mind. The second alleged misrepresentation is of a somewhat different nature, in that the statement by the police was an indication that evidence existed which the police at that time did not positively know to be untrue. We conclude, however, that this was also a misrepresentation. The officers made the statement without regard to its truth, and it was also of a type likely to create a misimpression in the defendant's mind.

We now consider the effect of these misrepresentations on the voluntariness of Woods' waiver of the right to remain silent. Woods argues that the voluntariness of any waiver of his Miranda rights and of his oral confession was vitiated by these misrepresentations. Woods cites the following language from Miranda to support his assertion: ". . . any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege." 384 U.S. at 476. We do not agree, however, that this dictum established a per se rule that any misrepresentation that police make during questioning automatically renders a waiver of the right to remain silent involuntary, or a confession inadmissible.

In the four cases the Supreme Court decided in conjunction with its opinion in Miranda, the court was not confronted with factual situations involving the effect of alleged misrepresentations made during custodial interrogation on the voluntariness of a waiver of the right to remain silent, or on the admissibility of a subsequent confession. In Frazier v. Cupp, 394 U.S. 731, 739 (1969), however, the court considered the effect of misrepresentations by police on the admissibility of a confession and held that the misrepresentations were insufficient to render an otherwise voluntary confession inadmissible. In Frazier, the misrepresentations were viewed in terms of their effect on the voluntariness of a confession and whether the confession would be admissible, given the totality of circumstances surrounding the confession. We conclude that this approach is applicable to a consideration of the effect of misrepresentation by police on the voluntariness of a waiver of a defendant's right to remain silent as well. Given the decision in Frazier, and the emphasis in Miranda on voluntariness, we do not believe that the court in Miranda adopted a per se rule that the existence of misrepresentations by police during custodial interrogation automatically renders a waiver of the right to remain silent involuntary or a confession given after a waiver of that right inadmissible.

In Schilling v. State, 86 Wis.2d 69, 271 N.W.2d 631, (1978), an interrogating officer referred to a murdered victim's wallet and suggested to the defendant that his fingerprints might be found on it. Because we concluded that there was no misrepresentation under the circumstances, we did not reach the issue of the effect of an actual misrepresentation by the police during interrogation on a waiver of the right to remain silent. We noted, however, that in Frazier, the United States Supreme Court held that even an actual misrepresentation by an interrogator does not ipso facto make a confession inadmissible. Id.

In State v. Cooper, 217 N.W.2d 589, 597 (Iowa 1974), the Iowa Supreme Court discussed the effect of misrepresentation on the voluntariness of a waiver of rights and concluded:

"Deception of any nature by representatives of the state cannot be condoned. However, we conclude deception standing alone does not render a waiver of constitutional rights involuntary as a matter of law unless the deceiving acts amount to a deprivation of due process. Nevertheless, deception becomes a factor to be considered in reviewing the totality of the circumstances in making the determination as to the voluntariness of the waiver even though the act does not per se produce exclusion."

The court also indicated that the test of voluntariness is whether the officers' behavior was such as to overbear the defendant's will and bring about a confession not freely self determined. 217 N.W.2d at 596.

Other courts that have considered the effect of misrepresentation on the voluntariness of a waiver have addressed the test of voluntariness in terms of "overbearing the, defendant's will to resist," or "deprivation of due process." These courts have generally held that misrepresentation is but one factor to consider under the totality of circumstances. We agree. The effect of misrepresentation on the voluntariness of a waiver of the right to remain silent, like a determination of the effect of misrepresentation on the voluntariness of a confession, is dependent upon the totality of circumstances.

We hold that when police have made a misrepresentation during interrogation of a suspect prior to a waiver of the right to remain silent, and the suspect then waives that right, the state must establish beyond a reasonable doubt that under the totality of circumstances, the waiver was voluntarily made. The test of voluntariness is whether the individual or cumulative effect of the misrepresentations under the totality of circumstances created such pressure on the suspect as to overcome his free will. If the state fails to meet its burden, the waiver of the right to remain silent is involuntary, and any statement obtained must be suppressed. The totality of circumstances that must be considered include factors such as age, intelligence, education, whether the suspect was advised of his rights, duration of the interrogation, the conditions under which the interrogation was conducted, and the suspect's capacity to understand the nature of the rights given and the consequences of waiving those rights. An additional circumstance to be considered and weighed carefully when misrepresentation is involved is the nature of the misrepresentation itself, that is, whether the misrepresentation was of a type that would lead a defendant to believe that it might be necessary to waive the right to silence in order to benefit or protect himself or to protect someone he would have reason to want to protect.

Whether the effect of the misrepresentation under the totality of circumstances created pressure sufficient to overcome a suspect's free will is a determination that must be made on a case by case basis. The court must decide whether the defendant's ability to make a free and reasoned choice was impaired. In Haynes v. Washington, 373 U.S. 503, 515 (1963), the Supreme Court indicated that a determination of voluntariness requires an assessment of the effect of the police practice on the "mind and will of an accused." The pressures created may not be so great that the suspect's will may be considered to be "overborne", or his capacity to make a rational choice impaired. See Miranda, 384 U.S. at 507, n. 4 (Harlan, J., dissenting).

This holding is consistent with decisions by other courts that have addressed the issue of the effect of misrepresentation on the voluntariness of a confession. For example, in People v. Boerckel, 385 N.E.2d 815 (Ill. 1979), police misrepresented to the defendant that his fingerprints had been found at the scene of the crime. The defendant then confessed to the crime and subsequently argued that his confession was coerced and involuntary. The court indicated that the test of voluntariness of a confession is whether it was made freely and without compulsion. The court held that the misrepresentation did not render the confession involuntary. Similarly, in State v. Winters, 556 P.2d 809 (Ariz.App. 1976), police misrepresented to the defendant that his fingerprints matched those found at the scene of the crime. The defendant confessed to the crime, and argued that his confession was involuntary. The court stated that voluntariness must be viewed in relation to the totality of circumstances, and that a statement induced by fraud or trickery is not involuntary unless there is additional evidence that the defendant's will was overborne or that the confession is unreliable. The rationale for applying those principles to the issue before us is the same.

In this case, we conclude that under the totality of circumstances, the effect of the misrepresentations, individually or cumulatively, did not create such pressure on Woods as to overcome his free will or render his waiver involuntary. The misrepresentations were not of a type that would create pressure sufficient to overbear Woods' will, or to impair his ability to make a free and reasoned choice. There was nothing in the nature of the misrepresentations, implicit or in fact, to lead Woods to believe it might be necessary to waive his right to silence in order to benefit or protect himself or to protect another he would have reason to want to protect. In addition, when the misrepresentations are viewed in conjunction with the other circumstances in this case, such as Woods' age and intelligence, his alert condition during the questioning, the short duration of the questioning, and the lack of threats or physical abuse, it is evident that Woods' ability to make a free and reasoned choice was not impaired by the fact that misrepresentations were made.

We have addressed the issue of the use of photographs of victims during questioning of suspects in the context of determining the voluntariness of a defendant's confession. In McKinley v. State, 37 Wis.2d 26, 154 N.W.2d 344 (1967), and Bradley v. State, 36 Wis.2d 345, 153 N.W.2d 38 (1967), we condemned the practice of taking a defendant to the morgue for a "corpse identification", and indicated that such a practice might render a confession involuntary. In State v. Wallace, 59 Wis.2d 66, 207 N.W.2d 855 (1973), we cautioned against officers' use of gruesome photographs ". . . as a substitute for morgue identification of victims of criminal acts." 59 Wis.2d at 85. We held, however, that the use of photographs of a corpse during interrogation of the defendant did not render the defendant's confession involuntary.

We do not sanction the use of gruesome photographs of victims during questioning of an accused. We conclude, however, that the use of such photographs is but one factor to consider in the totality of circumstances when determining the voluntariness of a waiver of Miranda rights and of a subsequent confession.

As we recognized in Wallace, there is a difference in impact between morgue viewings and photographs. The sudden effect of viewing the actual corpse is much more dramatic than being seated near photographs of a murder victim. In addition, in both McKinley and Bradley, the morgue viewings were of victims who were either a relative or friend of the defendants, which presumably would create a more emotional impact than if the victim was unknown to the defendant.

In this case, the trial court found that Woods was never forced to look at the photographs. There is nothing in the record to indicate that Woods even looked at the pictures. The photographs also were of victims who were neither relatives nor friends of Woods. It is reasonable to assume that the use during questioning of pictures of victims who are friends or relatives of a defendant could create a more emotional atmosphere than if the pictures are of victims who have no personal connection with the defendant. We conclude that the use of the photograph album did not overbear Woods' will to resist, and did not render Woods' waiver and confession involuntary.

Woods also refers to Ankenbrandt's statement when he showed Woods the wallet and fingerprint card to the effect that "this is what's going to pin you down." This statement was not made in a threatening context. The statement was made as part of the fingerprint ploy that Ankenbrandt used to create the inference that Woods' fingerprints had been found on Schwab's wallet. This could not be considered a threat as that term is normally used to determine whether a waiver of rights and a confession were coerced by promises or threats. A threat for those purposes normally conveys a message that some harm or detriment will occur to the defendant or his friends, or that the defendant's situation will worsen if he does not confess.

Woods has cited no other alleged promises or threats that the officers may have made during the questioning, and the record reveals none. Based on the undisputed facts, we conclude that the statements alluded to by Woods did not render his waiver invalid or his confession involuntary.

7. Did Woods Have Statutory And Constitutional Rights To Counsel?

We conclude that the right to counsel under sec. 48.23(1), Stats., did not attach during the detention and subsequent questioning of Woods. Section 48.23(1) provides, in pertinent part:

"Right to counsel. (1) RIGHT OF CHILDREN TO LEGAL REPRESENTATION. Children subject to proceedings under this chapter shall be afforded legal representation as follows:

"(a) Any child alleged to be delinquent under s. 48.12 or held in a secure detention facility shall be represented by counsel at all stages of the proceedings, but a child 15 years of age or older may waive counsel provided the court is satisfied such waiver is knowingly and voluntarily made and the court accepts the waiver. . . ."

"Proceedings" is not defined in ch. 48. Section 990.01(1) relating to general rules of statutory construction, provides that all words and phrases shall be construed according to common and approved usage, except that technical words and phrases and others having a peculiar meaning shall be construed according to that meaning. The common and approved usage of a word in a statute may be ascertained by reference to a recognized dictionary. Kollasch v. Adamany, 104 Wis.2d 552, 563, 313 N.W.2d 47 (1981).

Webster's Third New International Dictionary 1807 (1961) includes the following definition of "proceedings": "e (1) . . . the course of procedure in a judicial action or in a suit in litigation: legal action." Black's Law Dictionary 1368 (1968) defines "proceeding" as: ". . . the form and manner of conducting juridical business before a court or judicial officer. . . ." These definitions indicate that "proceedings" within sec. 48.23(1), Stats., are legal proceedings before the court. This interpretation is consistent with the language of sec. 48.23 (1), providing that a juvenile may waive counsel under that provision only if the court determines that the waiver was knowingly and voluntarily made, and accepts the waiver.

We conclude that neither the temporary custody order that Gage signed, nor the custodial interrogation of Woods, were "proceedings" within the meaning of sec. 48.23(1)(a), Stats., for which counsel was required. When a juvenile alleged to have committed a delinquent act is taken into custody and not immediately released, he is referred to an intake worker who performs an intake inquiry. See secs. 48.20(3) and 48.24. The intake worker reviews the need to hold the juvenile in custody. Sec. 48.20(7)(b). If the intake worker does not release the juvenile, a judicial hearing is held pursuant to sec. 48.21 to determine if the juvenile court will order that the juvenile be held in custody.

If at the time the juvenile is taken into custody he is alleged to have committed a delinquent act, the intake worker must also determine whether the juvenile should be referred to juvenile court for delinquency proceedings. Upon determining that such referral is necessary, the intake worker requests that the district attorney, corporation counsel, or other official specified in sec. 48.09, Stats., file a petition under sec. 48.25. That section provides, in relevant part: "Petition: authorization to file. (1) A petition initiating proceedings under this chapter shall be signed by a person who has knowledge of the facts alleged. . . ." (Emphasis added.) If the juvenile alleged to be delinquent is temporarily held in custody and entitled to a detention hearing under sec. 48.21, the delinquency petition under sec. 48.25 must be filed by the hearing date. Section 48.21(2) also discusses proceedings under ch. 48 and provides: "PROCEEDINGS CONCERNING RUNAWAY OR DELINQUENT CHILDREN. Proceedings concerning a child who comes within the jurisdiction of the court under s. 48.12 . . . shall be conducted according to this subsection." (Emphasis added.)

The above provisions indicate that the first "proceeding" at which Woods would have been entitled to counsel under sec. 48.23(1), Stats., was a court hearing under sec. 48.21 to determine whether to continue to hold him in custody. When a juvenile is brought into custody and ordered detained by an intake worker, there are no court proceedings until a hearing is held pursuant to sec. 48.21. If the intake worker requests that the district attorney file a delinquency petition, the court also becomes involved in the delinquency proceedings after the petition is filed and when formal hearings are held to determine the juvenile's status. There are no proceedings before the juvenile court under ch. 48, however, when a juvenile is ordered to be placed in temporary custody after he is taken into custody, and if the juvenile is questioned by police officers at that time.

We also conclude that because formal adversary judicial proceedings had not been initiated against Woods when he was taken into custody, he had no sixth or fourteenth amendment right to counsel at the time he was questioned. The sixth and fourteenth amendment right to counsel applies only to criminal prosecutions. In Kirby v. Illinois, the United States Supreme Court held that this right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against a defendant. 406 U.S. at 688. The court indicated that in its prior decisions involving the sixth and fourteenth amendment right to counsel, ". . . all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." 406 U.S. at 689.

The court also noted that the initiation of judicial criminal proceedings is the starting point of our system of adversary criminal justice. It is only then that the government has committed itself to prosecute, and only then ". . . that the adverse positions of government and defendant have solidified." Id. The court therefore declined to import into a routine police investigation a sixth and fourteenth amendment right to counsel, which it stated was historically applicable only after the onset of ". . . formal adversarial proceedings." Id.

When Woods was taken into custody, the intake worker signed a temporary custody order. That did not mean, however, that "adversary judicial criminal proceedings" had been initiated against him at that point. Under ch. 48, Stats., the analog to the "commitment to prosecute" cited in Kirby is the filing of a delinquency petition under sec. 48.25. The filing of a petition in juvenile court constitutes a formal criminal charge against the juvenile, for it only at that point that the juvenile is charged with violating a state or federal criminal law. It is also at that point that the state commits itself to "prosecuting" the juvenile, and the adverse positions of the government and juvenile solidify. Until the petition is filed, the state has made no formal decision to commence delinquency proceedings against the juvenile.

We hold that Woods did not become the subject of a "criminal prosecution" within the meaning of the sixth amendment until a formal petition was filed under sec. 48.25, Stats., which alleged him to be delinquent. Because he was not the subject of any procedure approximating a criminal prosecution at the time Gage signed the temporary detention order, any sixth and fourteenth amendment right to counsel he may have had did not attach when he gave the oral statement. The statement therefore was not obtained in violation of that constitutional right.

By the Court. — The decision of the court of appeals is affirmed.