Order. September 29, 2017

Transcription

1 Order Michigan Supreme Court Lansing, Michigan September 29, PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v SC: COA: Genesee CC: FC JOHN EDWARD BARRITT, Defendant-Appellee. / Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder, Justices On order of the Court, the application for leave to appeal the February 14, 2017 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE that part of the judgment of the Court of Appeals holding that the defendant was subjected to custodial interrogation. Although the Court of Appeals properly concluded that the trial court erred by failing to apply the correct legal standards, the Court of Appeals should have remanded this case to the trial court for application of those standards in the first instance. Accordingly, we REMAND this case to the Genesee Circuit Court to determine, in light of all of the objective circumstances surrounding the interrogation: (1) whether a reasonable person would have felt that he was not at liberty to terminate the interrogation and leave; and (2) whether the environment presented the same inherently coercive pressures as the type of station house questioning at issue in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). See Howes v Fields, 565 US 499, 509; 132 S Ct 1181; 182 L Ed 2d 17 (2012); Yarborough v Alvarado, 541 US 652, 663; 124 S Ct 2140; 158 L Ed 2d 938 (2004); People v Elliott, 494 Mich 292, 308 (2013). We do not retain jurisdiction. I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. t0926 September 29, 2017 Clerk

2 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, FOR PUBLICATION February 14, :05 a.m. v No Genesee Circuit Court JOHN EDWARD BARRITT, LC No FC Defendant-Appellee. Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ. SHAPIRO, J. The prosecution brings this interlocutory appeal 1 from the trial court s decision to suppress statements made by defendant during a police interview conducted without the provision of Miranda 2 warnings. Because defendant was subject to custodial interrogation we affirm. FACTS AND PROCEDURE On May 4, 2015, the Mount Morris Township police department contacted the Calhoun County Sheriff s Department asking for their assistance in locating Amy Wienski, who had been reported as missing. Wienski was not at home when deputies arrived, and, suspecting foul play, the deputies obtained and executed a search warrant. While the deputies were at the home, defendant, who was Wienski s boyfriend, arrived in a vehicle driven by another civilian. The police asked him to accompany them to a Calhoun County Sheriff s Department office for an interview, and he was transported there in the back seat of a police car. At the station defendant was questioned for approximately 90 minutes by Detectives Bryan Gandy and Steve Hinkley but was not given Miranda warnings at any time. At the conclusion of the interrogation, he was 1 We granted leave in People v Barritt, unpublished order of the Court of Appeals, entered July 1, 2016 (Docket No ). 2 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). -1-

3 handcuffed and transported to the custody of the Mt. Morris Police Department. He was later charged with multiple crimes related to the death of Wienski. 3 Defendant brought a pre-trial motion to suppress evidence of statements he made during the deputies questioning on the grounds that he was subject to custodial interrogation without Miranda warnings. The trial court conducted an evidentiary hearing at which it heard testimony from Deputy Mahan, who transported defendant to the station, and from Detective Gandy. The court also reviewed the transcript of the officers questioning of defendant. The court granted defendant s motion, in part on reliance on MCL 763.7, and we granted the prosecution s interlocutory application for leave to appeal. During the hearing, Mahan and Gandy each testified that, while they were at Wienski s home, defendant arrived in a vehicle driven by another civilian. Mahan testified that defendant was approached by police officers upon his arrival. Gandy testified that he was one of the officers that approached defendant and that he told defendant he wished to speak to him about Wienski. Specifically, Gandy testified that he ask[ed] [defendant] if he would go to the Homer Police Department with us so we could sit down and talk to him in a better area rather than standing out in the grass there at the home. Gandy stated that defendant rode with Mahan to the sheriff s office. Mahan testified I had a marked car there and I had [defendant] have a seat in the back of my car. He also explained that his vehicle was one of a whole line of law enforcement vehicles leaving Wienski s house. Gandy testified that police also asked the person who had driven defendant to Wienski s house to follow them to the sheriff s office, and he acknowledged that defendant was not given the opportunity to ride to the sheriff s office with this person. Mahan testified that defendant was not handcuffed. He was not asked whether or not the back doors of the patrol car could be opened from the inside, but testified that he let [defendant] out of the car when they arrived at the sub-station. Defendant was then escorted into the building by Gandy and Hinkley, both of whom were armed. The building was the former township police department building, which had since been converted for use as a general township building with a section reserved for use by the sheriff s department. Gandy testified that the doors to the office are locked on the outside so that not just anyone can enter, but that the doors do not lock from the inside and so do not prevent anyone from leaving. Gandy testified that defendant was seated closer to the exit doors than was himself and Hinkley, but the record did not reveal whether it was objectively apparent that the doors were not locked from the inside. Gandy testified that the interview was not confrontational, but the transcript of the interview contains multiple exchanges that were clearly heated, specifically when the detectives repeatedly accused defendant of not being truthful in his statements. For example, when defendant denied knowledge of what had happened to Wienski, Hinkley replied: I don t like 3 Defendant was charged with one count of felony-murder, MCL (1)(b), one count of carjacking, MCL a, one count of second-degree arson, MCL (1), one count of fourth-degree arson, MCL (1), and one count of tampering with evidence, MCL a(6)(b). -2-

4 bullshit. I m not going to bullshit you and you don t bullshit me. Listen to me, dude, I m square business. No bullshit. Okay? The questioning lasted about 90 minutes. Gandy acknowledged that neither he nor Hinkley ever told defendant that he was free to leave, and the interview transcript reveals that defendant was not told that he was not under arrest until page 79 of the 90 page interview transcript and then only in response to defendant s statement I think I need a lawyer now. When defendant responded by asking that the interview end, Hinkley twice said we can finish at any time, but rather than ending the questioning, Hinkley continued the interrogation, saying to defendant: You re lying about the car. Lying, lying, lying. Okay. That s just it, period. Okay? I mean I know enough, I m so positive about that, I will call you a liar to your face, and I don t do that to people. Okay? You lied, lied, lied. Okay? So that means to me either you did something on purpose to her or something accidentally happened to her. Okay? Now, this is a real simple choice for you. Okay? All right? This is an accident or it s on purpose. Okay? You you got to man up sometime in your life. You ve got to man up and you ve got to come to some type of reasonable situation from this. Something happened. You know it happened. I know it happened. I know you re lying about the car, dude. I know you re lying about the car. I you re lying about the car dude. I mean, I d frickin put my paycheck that troubles me about her. I don t think you did it on purpose. I think it was an accident. All right, dude? I m I m telling you, I m pretty sure it was an accident. All right. You know it was an accident. I know it was an accident. What happened to her? When defendant answered I don t know, Hinkley responded, you do know. Defendant again said I don t know and Hinkley responded, you definitely know and then left the room. While Hinkley was out of the room, defendant, speaking to Gandy, asked for an attorney a second time, and Gandy responded, We re going to wait for Detective Hinkley to come back. Shortly thereafter, Hinkley returned to the interview room with a K-9 officer and dog. The K-9 officer, Sergeant Brad, told defendant that the dog was a good boy and friendly. Defendant responded to these comments about the dog by stating I bet he has his moments where he isn t to which Sergeant Brad responded, Oh, he ll blow you right off your feet if I send him. While the dog remained in the room, Sergeant Brad said to defendant: I m not in charge of nothing. I just stand around, do things, sit here with you while they while they, you know discuss other information and things that might ve come in.... But I ll tell you what, the truth always comes out. * * * You know what I mean? So, I guess it s one of those things if you the sooner the truth comes out, the easier it is to to deal with, you know what I mean? * * * -3-

5 You want to make sure that you re as truthful as possible because because you know, it s going to be rough otherwise. You see what I mean? After Gandy explained that they were going to take defendant to the Mt. Morris Police Department, Brad stated, Listen, John, before you go, is there anything else that you want to tell em? We talked for a second. I know you got something else there. I can see it written all over your face. Defendant answered, No and Brad said, You can t stick with it forever, bud.... Just got to say say the truth. Say what happened. Defendant again stated that he did not know what happened, and was then handcuffed for transport to Mt. Morris. At that point defendant asked, [A]m I being arrested? Two officers responded to the question by offering obfuscating responses. 4 At the conclusion of the evidentiary hearing, the trial court ruled that defendant had been in custody during the questioning and so granted defendant s motion. In setting forth its reasoning, the trial court substantially relied on the statutory definition of place of detention provided at MCL 763.7, 5 which provides: a police station, correctional facility, or prisoner holding facility or another governmental facility where an individual may be held in connection with a criminal charge that has been or may be filed against the individual. The trial court reasoned that because the interrogation of defendant occurred in a police station, which, by statute, constitutes a place of detention, he was in custody for purposes of Miranda. ANALYSIS Although we reject the trial court s reliance on MCL 763.7, we agree that defendant was in custody at the time of his interrogation and so affirm. 6 4 The following exchange occurred after defendant asked if he was under arrest: DETECTIVE GANDY: We re transporting you to another department and that s going to be up to them. But we, can t transport you without being restrained, for safety reasons. [DEFENDANT]: He said yeah, so I am being arrested: UNIDENTIFIED SPEAKER: I didn t say yeah. [DEFENDANT]: I thought you said yeah. UNIDENTIFIED SPEAKER: I didn t say nothin. 5 MCL is located in Chapter III, Rights of Persons Accused in The Code of Criminal Procedure, MCL et seq. 6 We review a trial court s factual findings in a ruling on a motion to suppress for clear error. People v Attebury, 463 Mich 662, 668; 624 NW2d 912 (2001). We review a trial court s -4-

6 Consistent with the right against self-incrimination: [T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966).] In order to determine whether someone was in custody or otherwise deprived of his freedom of action a court is to consider the totality of the circumstances, with the key question being whether the defendant reasonably believed that he was not free to leave. People v Mendez, 225 Mich App 381, ; 571 NW2d 528 (1997). 7 The trial court, while reaching the correct result, short-circuited the totality of the circumstances analysis by concluding that MCL 763.7(f) was dispositive to the question of whether or not defendant was in custody. The statute defines place of detention as a police station, correctional facility, or prisoner holding facility or another governmental facility where an individual may be held in connection with a criminal charge that has been or may be filed against the individual. MCL 763.7(f). The trial court concluded that because defendant was in a location defined by the statute as a place of detention, it meant that he was in custody for purposes of Miranda. The trial court erred by reading the statute so broadly. MCL is the definitional provision that applies to MCL and , which require that any police interview conducted in a place of detention be videotaped. This requirement creates a clear record of the nature of the interrogation, the actions of the police and the statements made by the defendant. It does not, however, transform all interviews that occur in places defined as a place of detention into custodial interrogation for purposes of Miranda. This is demonstrated in the text of MCL itself. Subsection (a) of that provision paraphrases the constitutional jurisprudence in its definition of custodial detention, stating, Custodial detention means an individual's being in a place of detention because a law interpretation of the law or the application of a constitutional standard to uncontested facts de novo. Id. 7 The ultimate question or whether a person was in custody for purposes of Miranda warnings is a mixed question of fact and law, which must be answered independently by the reviewing court after review de novo of the record. Mendez, 225 Mich. App. at 382 citing Thompson v. Keohane, 516 US 99, 116 S Ct 457, 133 L Ed 2d 383 (1995) superseded on other grounds by statute as stated in McNary v Lemke, 708 F3d 905, 915 (CA 7, 2013). -5-

7 enforcement official has told the individual that he or she is under arrest or because the individual, under the totality of the circumstances, reasonably could believe that he or she is under a law enforcement official's control and is not free to leave. MCL 763.7(a). The fact that a police station is a place of detention is a fact that should be considered among the totality of the circumstances, but the statute also makes clear that a person can be in a police station, and can be questioned at that location, without necessarily being in custody. It further makes clear that the test of whether the person is in custody is to be determined by consideration of the totality of the circumstances as Miranda jurisprudence has always required. The U.S. Supreme Court has made clear that Miranda warnings need not be given simply because the questioning takes place in the station house. Oregon v Mathiason, 429 US 492, 495; 97 S Ct 711; 50 L Ed 2d 714 (1977). Although the trial court erred in its conclusion that MCL 763.7(f) was dispositive, we nevertheless affirm its ruling because the totality of the circumstances demonstrates that defendant was subject to custodial interrogation without the required Miranda warnings. 8 The totality of the circumstances inquiry requires us to examine all of the facts surrounding the interview to determine how a reasonable person in defendant s position would have gauged the breath of his or her freedom of action. Yarborough v Alvarado, 541 US 652, 663; 124 S Ct 2140; 158 L Ed 2d 938 (2004). Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 US 99, 112, 116 S Ct 457, 465, 133 L Ed 2d 383 (1995) (footnote omitted) superseded on other grounds by statute as stated in McNary v Lemke, 708 F3d 905, 915 (CA 7, 2013). The prosecution argues that this case is comparable to Mathiason, where the Supreme Court held that the defendant had not been in custody while questioned at a police station. We reject this comparison as the facts described in the Mathiason opinion are in sharp contrast to those in this case. First, in Mathiason, the officers informed the defendant that they could meet where it would be convenient for him, while in this case the officers specifically asked defendant to go to the police station, which they told him would be a better area for the interview. Second, in Mathiason, the defendant drove himself to the police station, and the officers met him there, while in this case defendant was driven to the police station in the back seat of a fully marked patrol car that was one of several in a long line of police vehicles. While officers testified that they did not force defendant to ride in the patrol car, they acknowledge that he was not given the option to ride with the civilian who had driven him to Wienski s home and who, upon police 8 Where a trial court reaches the correct result for the wrong reason, its decision need not be reversed on appeal. People v Jory, 443 Mich 403, 425; 505 NW2d 228 (1993). -6-

8 request, was also driving to the police station. 9 Third, in Mathiason, upon arrival at the police station, the defendant was immediately informed that he was not under arrest and the pre- Miranda questioning lasted no more than five minutes after defendant had come to the office. Id. at 492. In the instant case nearly all the questioning occurred before the police said to defendant that he was not under arrest. 10 Fourth, in this case the pre-miranda interview was far longer and was marked by confrontational questioning unlike Mathiason. Fifth, the Mathiason Court noted that at the conclusion of the interview, the defendant did in fact leave the police station without hindrance, while in the instant case, defendant was handcuffed and transported to another police department. The prosecution points out that the door to the interview room was not locked. However, even assuming that a reasonable person would have been aware of that fact, it is clearly outweighed by other circumstances: defendant was never told that he was free to leave, the officers were armed and in uniform, 11 the questioning was at times aggressive and included repeated accusations of lying and demands that defendant change his statement. 12 An officer did eventually tell defendant that he was not under arrest, but this was very late in the interview. 13 Further, when told he was not under arrest, defendant responded then why am I here? This reaction is consistent with our objective reading of the officers prior actions as custodial. When 9 Not only would this person have been able to give defendant a ride to the interview, but a reasonable person would observe that another individual whom the police wished to question was driving himself to the interview whiles he was riding in the back seat of a patrol car. 10 The officer s statement to defendant that he was not under arrest also appears inconsistent with the actual circumstances of the situation, particularly given that very shortly thereafter defendant was handcuffed and transported to another police department. 11 The dissent s reliance on Illinois v Perkins, 496 US 292; 110 S Ct 2394; 110 L Ed 2d 243 (1990) is inapposite. In that case, the suspect was placed in a jail cell with a government agent who appeared in all respects to be another inmate. Id. at The suspect, believing his cellmate to be another inmate, boasted to him that he had committed the subject murder and then later claimed that the statement was inadmissible because he was in custody in the cell and had not been given a Miranda warning. Id. at 295. The Perkins Court concluded that the suspect was in custody, but that there was no interrogation because [c]onversations between suspects and undercover agents do not implicate the concerns underlying Miranda. The essential ingredients of a police-dominated atmosphere and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. Id. at [S]uch an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. Miranda, 384 US at Notably, the statement that defendant was not under arrest came in direct response to defendant s request for an attorney. A person could reasonably have understood it as a rebuff of his request for counsel rather than as an assurance that he had full freedom of movement. -7-

9 defendant indicated that he did not want to continue the interview, the officer continued to question him and again repeatedly accused him of lying. When defendant said for a second time that he wanted a lawyer and did not want to continue the interview, a different officer, accompanied by a police dog, entered the room and continued the questioning during which he said that the dog would blow you right off your feet if I send him. Ultimately, as soon as the police decided to end the interview, defendant was handcuffed and transported to another police department. This case is not comparable to Mathiason. To the contrary, it bears multiple hallmarks of custodial interrogation. Nor is this case comparable to the other case-law cited and relied on by the prosecution. In Mendez, 225 Mich App at , we held that a defendant s pretrial statement to the police should not be suppressed, where the defendant picked the time of the interview in response to a police letter requesting an interview, drove himself to the police station, was left alone and unrestrained in an interview room, and after giving written answers to some questions... was allowed to leave and where [t]he investigators testified that they informed defendant at the outset of the interview that he was not under arrest.... This case is also distinguishable from People v Zahn, 234 Mich App 438; 594 NW2d 120 (2007) and People v Coomer, 245 Mich App 206; 627 NW2d 612 (2001). In the former the questioning took place in a private location of defendant s choosing, and he was told that he was not in custody or under arrest. Zahn, 234 Mich App at In the latter, the questioning occurred in defendant s own apartment, and the police told her that she was not under arrest and that they would leave if she wanted them to do so. Coomer, 245 Mich App at We respectfully note that the dissent does not address the totality of the circumstances, referencing only those facts that favor a finding of non-custody. The fact that the door to the police station was not locked and the fact that defendant was not handcuffed do weigh in favor of such a conclusion, but they are by no means dispositive and are outweighed by facts supporting the opposite conclusion. Nor can we agree that the fact that the interrogation occurred in a causal atmosphere because the defendant was provided with a beverage and the officers ordered a pizza for themselves. Provision of a beverage does not vitiate custodial pressures, nor does it replace the Miranda warning as a constitutional guarantee. The dissent also refers to the fact that defendant was told twice that he could end this at any time and that he was not under arrest. However, as noted above, see page 4 of this opinion, all of these statements occurred on page 79 of the 90 page transcript immediately after defendant requested an attorney and indicated he did not want to continue the questioning. And immediately after making these statements, the same officer undertook the most aggressive questioning of the entire interrogation, brought in the canine, and placed defendant in handcuffs. From an objective standpoint, being told that he could end this and that he was not under arrest had little if any meaning given what occurred immediately thereafter. Finally, we cannot agree with the dissent s characterization of a suspect being advised that he is not under arrest or permitting a defendant to leave the interview without being arrested as merely a courtesy. In Mathiason, the existence of these courtesies constituted two of the three reasons the Court found that the defendant was not in custody. See 429 US at That -8-

10 Defendant was subject to custodial interrogation without having been provided Miranda warnings. Although the trial court s legal analysis was in part erroneous, it reached the correct result, and we affirm. /s/ Douglas B. Shapiro /s/ Elizabeth L. Gleicher Court emphasized that the suspect came voluntarily to the police station... was immediately informed that he was not under arrest [and] [a]t the close of a ½-hour interview... did in fact leave the police station without hindrance. Id. at 495. The dissent s suggestion that defendant could not have been in custody because he was never told that he was under arrest turns Mathiason and Miranda on their heads by suggesting that officers may act as if a suspect is in custody but avoid the need to provide Miranda warnings simply by not stating that the suspect is under arrest. -9-

11 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, FOR PUBLICATION February 14, 2017 v No Genesee Circuit Court JOHN EDWARD BARRITT, LC No FC Defendant-Appellee. Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ. GLEICHER, J. (concurring). I concur with the majority that defendant John Barritt was in custody during the time he was questioned by the Calhoun County deputies. This case illustrates, however, that determining whether a person is in custody can be challenging. Both the majority and the dissent raise arguments consistent with the record. Both opinions cite valid caselaw. I write separately to flesh out an additional analytical approach. Miranda instructs that in all settings in which [a person s] freedom of action is curtailed in any significant way, the police must warn the suspect of his right to remain silent and assure him that an exercise of that right will be honored. Miranda v Arizona, 384 US 436, 467; 86 S Ct 1602; 16 L Ed 2d 694 (1966). This is so because the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements[.] Dickerson v United States, 530 US 428, 435; 120 S Ct 2326; 147 L Ed 2d 405 (2000). Thus, the familiar warnings are an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. Miranda, 384 US at 468. Whether an interrogation atmosphere exists depends on whether the person being questioned is actually in police custody. [C]ustody is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. Howes v Fields, 565 US 499, ; 132 S Ct 1181; 182 L Ed 2d 17 (2012). We determine whether a person is in custody by objectively evaluating all of the circumstances surrounding the interrogation. Stansbury v California, 511 US 318, 322; 114 S Ct 1526; 128 L Ed 2d 293 (1994). Our goal is to determine how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action. Id. at 325. In other words, we ask: would a reasonable person in the suspect s position have understood that he or she was free to walk away from the police during the questioning? - 1 -

12 Caselaw from other jurisdictions offers organizational structures that assist in determining the presence or absence of custody for Miranda purposes. My application of those approaches convinces me that Barritt was in police custody during the questioning. In Howes, 565 US at 509, the United States Supreme Court identified a handful of [r]elevant factors that should guide a court s custody inquiry: the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints..., and the release of the interviewee at the end of the questioning. (Citations omitted.) The Supreme Court assigned no particular weight to any of the factors; the factual considerations are guides rather than rigid or immutable requirements. When applied to the facts of this case, these factors compel the conclusion that Barritt was in custody while being questioned about Amy Wienski s disappearance. As to location, an interview that takes place in public, or in a suspect s home, weighs against a finding of custody. See Berkemer v McCarty, 468 US 420, 438; 104 S Ct 3138; 82 L Ed 2d 317 (1984); Beckwith v United States, 425 US 341, 342, ; 96 S Ct 1612; 48 L Ed 2d 1 (1976). On the other hand, a police station environment represents the quintessential police-dominated atmosphere referenced in Miranda, 384 US at 445. The Howes Court put it this way: A person who is cut off from his normal life and companions and abruptly transported from the street into a police-dominated atmosphere may feel coerced into answering questions. Howes, 565 US at 511 (citations omitted). Here, the station house location of the questioning weighs in favor of a finding of custody. In my view, this is true whether the door to the office in which Barritt was questioned was locked or unlocked. The central thrust of this consideration is the general location of the questioning, not its distinct features. The caselaw provides no bright-line rules regarding how long an interrogation must proceed before its duration is more consistent with custody than not. Ninety minutes, the time that elapsed before Barritt s arrest, likely falls on the shorter end of the spectrum. But see Yarborough v Alvarado, 541 US 652, 665; 124 S Ct 2140; 158 L Ed 2d 938 (2004) (a two-hour interview pointed toward a finding of custody); United States v FNU LNU, 653 F3d 144, 155 (CA 2, 2011) (the interview lasted for 90 minutes, substantially longer than most interviews that we have deemed non-custodial in other contexts ). Here, the 90 minutes of questioning began at approximately 7:40 p.m. Objectively, two hours of night-time questioning is more consistent with a perception of custody than with a belief that one could simply get up and walk out of the room. Statements made during an interview are also relevant to a custody determination. In Yarborough, the Supreme Court observed that the failure of an interrogating officer to tell a suspect that he could leave militated toward a finding of custody. Yarborough, 541 US at 665. The Supreme Court of New Hampshire weights that fact heavily in its custody analysis: Here, the question is whether the restraint on the defendant s movement was akin to a formal arrest. Consequently, whether the defendant was told that he was at liberty to terminate the interrogation provides strong evidence as to whether a reasonable person in the defendant s position would feel free to leave. Thus, notwithstanding the fact that the defendant was told that he was not under - 2 -

13 arrest, the lack of evidence that he was told he was free to terminate the interrogation supports a finding of custody at some point during the interrogation. [State v McKenna, 166 NH 671, 680; 103 A3d 756 (2013).] See also People v Elmarr, 181 P3d 1157, 1163 (Colo, 2008) (finding it important[] that the defendant was never told he was not under arrest, or that he was free to leave ); State v Ortiz, 766 NW2d 244, 252 (Iowa, 2009) (finding that the defendant was in custody based in part on the fact that [e]ven though [the officer] never told Ortiz he was under arrest at the station, [the officer] also never told Ortiz he was free to leave the station ); and Howes, 565 US at 515 (fact that police told incarcerated suspect that he was free to return to his cell and end interview was [m]ost important consideration in making custody determination). Barritt was never told that he could return home. And although an objective standard governs our review, the testimony of detective Bryan Gandy supports that Barritt would not have been permitted to leave the station had he asked to do so. Gandy admitted that when applying for a search warrant of Wienski s home, he averred that the description of the subject who burned Amy Winski s [sic] rental car matches that of John Barritt. Barritt was the prime suspect in a criminal investigation. It stretches credulity that the deputies would have permitted him to walk out of station. Objectively, the officers failure to advise Barritt of his right to do so (since he was not under arrest at the time) weighs in favor of a custody finding. Furthermore, as the majority opinion elucidates, the nature of Barritt s interrogation also objectively demonstrates that Barritt was in the officers custody. The New Hampshire Supreme Court observed in McKenna: The accusatory nature of questioning is widely recognized as a factor weighing in favor of a finding of police custody. McKenna, 166 NH at 681. While the officers personal opinions about the guilt of their subject are irrelevant to a custody analysis, those beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. Stansbury, 511 US at 325. The officers adopted an aggressive tone during the interrogation. They repeatedly challenged Barritt s claim that he did not know where Wienski was, and had not driven her car. The tenor of the questioning was consistent with confession-extraction and therefore with custody. The use of physical restraints is a fact that pushes the scale toward a custody finding. Although handcuffing a suspect is not dispositive of custody, it goes a long way toward establishing that an individual reasonably felt that he was not at liberty to terminate an interrogation. White v United States, 68 A3d 271, (DC Ct App, 2013). But effective restrictions on a defendant s movement can be a product of verbal, psychological, or situational restraint. McKenna, 166 NH at 678. Here, Barritt was not handcuffed. Nevertheless, he was driven to the police station in the back seat of a marked police vehicle and left there in the company of two deputies, questioned in a room with the door closed in a locked building during nonworking hours. In my view, these very real physical restraints on Barritt s freedom tend to demonstrate a custodial situation. 1 1 The dissent points out that Barritt agreed to ride in a marked police car. While this is true, it ignores the surrounding circumstances. When Barritt pulled up at his home, he found a number of deputies performing a search of the property. His pets had been taken into custody. He was - 3 -

14 The final factor referenced in Howes, the release of the interviewee at the end of the questioning, weighs in favor of a finding of custody. I readily concede that the Supreme Court s designation of this fact as relevant to a custody analysis seems somewhat anomalous, as it does not touch on the events of the interrogation itself. For an in-depth discussion of this factor, see Pettinato, The Custody Catch-22; Post-Interrogation Release as a Factor in Determining Miranda Custody, 65 Ark L Rev 799, 818 (2012) ( One oddity that has resulted from the general lack of clarity in Miranda custody jurisprudence is the consideration of postinterrogation arrest or release in the totality-of-the-circumstances test. ). Applied in this case, the Howes custody factors weigh heavily in favor of a finding of custody. Barritt was taken to the police station in the back seat of a marked car, was accusatorily questioned in a police station by two armed deputies, was never told that he could leave or terminate the questioning, and was arrested when the interview concluded despite not having confessed to playing any part in Wienski s disappearance. The factor approach suggested in Howes forces a court to maintain a wide-angle focus in determining whether a reasonable person in a suspect s position would have felt free to terminate police questioning. The majority hews closely to this totality-of-the-circumstances mandate. The facts surrounding Barritt s interrogation, viewed through the Howes factors lens, strongly support that a finding of custody. I join the majority in full. /s/ Elizabeth L. Gleicher immediately approached by an armed deputy who (in the deputy s words) had Mr. Barritt have a seat in the back of my car. According to that same deputy, Barritt was escorted in the police department. These circumstances are far more consistent with a restriction of freedom that with a voluntary cooperation. In McKenna, 166 NH at 684, the New Hampshire Supreme Court discussed a custody factor relevant to the character of the interrogation: the fact that the police initiated the contact with the defendant. When law enforcement authorities instigate a confrontation between the suspect and the criminal justice system... custody is more likely to exist. Id. (quotation makrs and citation omitted). Here, a number of officers arrived at the home Barritt shared with Wienski and executed a search warrant. As in McKenna, this fact weighs in favor of a custody finding. See also Ross v State, 45 So3d 403, 415 (Fla, 2010) (citation omitted) (in which the Florida Supreme Court also relies on the manner in which police summon the suspect for questioning as a factor of importance in ascertaining custody)

15 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, FOR PUBLICATION February 14, 2017 v No Genesee Circuit Court JOHN EDWARD BARRITT, LC No FC Defendant-Appellee. Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ. K. F. KELLY, P.J. (dissenting). I respectfully dissent. Because defendant was not in custody at the time of his statement, he was not entitled to a Miranda 1 warning. I would reverse. In order to determine whether someone was in custody this Court must consider the totality of the circumstances, with the key question being whether the defendant reasonably believed that he was not free to leave. People v Mendez, 225 Mich App 381, ; 571 NW2d 528 (1997). See also People v Steele, 292 Mich App 308, ; 806 NW2d 753 (2011). When considering the totality of the circumstances, this Court must consider the objective circumstances of the interrogation, not [] the subjective views harbored by either the interrogating officers or the person being questioned. Stansbury v California, 511 US 318, 323; 114 S Ct 1526; 128 L Ed 2d 293 (1994). Specifically, the Court has held that Miranda warnings need not be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Oregon v Mathiason, 429 US 492, 495; 97 S Ct 711; 50 L Ed 2d 714 (1977). Rather, the Court in Miranda revealed that it was concerned with an atmosphere that would generate inherently compelling pressures which work to undermine the individual s will to resist and to compel him to speak where he would not otherwise do so freely. Illinois v Perkins, 496 US 292, 296; 110 S Ct 2394; 110 L Ed 2d 243 (1990), quoting Miranda, 384 US at 467. As mentioned, these circumstances have been limited to where the objective facts of the interrogation reveal that a defendant would not feel free to end the interrogation of his own free will and leave. See Steele, 292 Mich App at Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). -1-

16 Given the factual circumstances surrounding the present case, defendant s interview was not a custodial interrogation requiring Miranda warnings for admissibility. Of specific importance is that defendant agreed to voluntarily come to the police station to answer questions. Furthermore, defendant agreed to ride in a marked police car. During the interview with the police, defendant was placed in a room that was not locked or secured, and in which the various officers in the building felt free to come and go at their own leisure. Defendant was offered a beverage, officers came in the room to ask the other officers about pizza orders, and defendant repeatedly indicated that he wanted to help the investigation as much as possible. Defendant was not restrained in any manner during the interview and was never told he was under arrest or that he was not free to leave. In fact, as conceded by defense counsel at oral argument, he was told twice that he could end this at any time and that he was not under arrest. A reasonable person presented with those circumstances would reasonably believe[] that he was [] free to leave. Mendez, 225 Mich App at Similarly, in Mathiason, the defendant came to the police station willingly, was told that he was not under arrest, was taken to an office where the door was closed but not locked, and questioned while sitting at a desk with a police officer. Under these circumstances, the Court held that there is no indication that the questioning took place in a context where [the defendant s] freedom to depart was restricted in any way. Id. at 495. Defendant in the present case was also at the police station willingly, taken to a room with the door closed but not locked, and was questioned at a desk across from a police officer. Although the defendant in Mathiason was specifically told that he was not under arrest at the start of the interrogation, and was allowed to leave after the interrogation, while defendant here was not provided the same courtesies, I do not find those factual differences to be determinative. Specifically, while defendant may not have been told he was not under arrest or allowed to leave the interview without being placed under arrest, he was subject to a casual environment that portrayed defendant s lack of arrest he was not restrained and watched as the police officers interviewing him engaged in casual conversation with the other officers in the building. In light of these circumstances, defendant s interview would not generate inherently compelling pressures which work to undermine the individual s will to resist and to compel him to speak where he would not otherwise do so freely. Perkins, 496 US at 296, quoting Miranda, 384 US at 467. In other words, defendant had not been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda, 384 US at 444. As such, defendant was not in custody, and therefore, Miranda warnings were not required for the interview. The trial court should have denied defendant s motion to suppress defendant s statement. /s/ Kirsten Frank Kelly -2-