              If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                   revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                      March 26, 2019
                Plaintiff-Appellee,

v                                                                     No. 340033
                                                                      Wayne Circuit Court
WALTER AARON KELLY,                                                   LC No. 16-008683-01-FH

                Defendant-Appellant.


Before: O’BRIEN, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

RONAYNE KRAUSE, J. (dissenting)

        I respectfully dissent regarding defendant’s motion to suppress. The trial court stated that
if defendant had been handcuffed during the questioning, it would have suppressed the gun
found in the car as evidence. The majority accurately states that the trial court clearly erred in its
belief that defendant was not handcuffed and thus not in custody. However, I respectfully
believe the majority misinterprets binding case law in reaching its decision to affirm. The trial
court should have suppressed the gun, and this Court should therefore vacate defendant’s
conviction and sentence. I would therefore decline to address defendant’s self-representation
argument as unnecessary.

        As the majority states, police are obligated to give Miranda1 warnings to an accused
when that person is being subjected to a custodial interrogation. See People v Tanner, 496 Mich
199, 207; 853 NW2d 653 (2014). “Statements made by a defendant to the police during a
custodial interrogation are not admissible unless the defendant waives his constitutional right
against self-incrimination voluntarily, knowingly, and intelligently.” People v Barritt, ___ Mich
App ___, ___; ___ NW2d ___ (2018) (Docket No. 341984), slip op at p 2. There is no dispute
that defendant was never given Miranda warnings. Furthermore, I agree with the majority that
defendant was unambiguously in custody during the relevant questioning, and the trial court



1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602, 16 L Ed 2d 694 (1966).



                                                 -1-
clearly erred in finding otherwise. As a general matter, it would therefore appear that
defendant’s responses to the police questioning should be suppressed.

        Not all inquiries by a police officer necessarily constitute “interrogation” for Miranda
purposes. However, the majority relies on the statement in Miranda that “[g]eneral on-the-scene
questioning as to facts surrounding a crime or other general questioning of citizens in the fact-
finding process is not affected by [its] holding.” Miranda v Arizona, 384 US 436, 477; 86 S Ct
1602, 16 L Ed 2d 694 (1966). It is unambiguous from the context in Miranda that the United
States Supreme Court intended that statement to avoid “hamper[ing] the traditional function of
police officers in investigating crime” and clarify that “[s]uch investigation may include inquiry
of persons not under restraint.” Id. (emphasis added). Thus, the exception upon which the
majority relies depends on the subject of questioning not being in custody at the time. See
People v Hill, 429 Mich 382, 397-399; 415 NW2d 193 (1987). In other words, where “defendant
was not under arrest or in a police-dominated, coercive atmosphere as intended by Miranda,” an
“officer’s brief on-the-scene questioning” may well not constitute an interrogation. People v Ish,
252 Mich App 115, 118; 652 NW2d 257 (2002). The fact scenario here is, the majority agrees,
completely the opposite.

       I therefore cannot agree with the majority’s conclusion that defendant’s statements were
not obtained in violation of Miranda, and therefore I cannot agree that the police had probable
cause to search the vehicle on that basis. I would vacate defendant’s conviction and sentence,
and remand for further proceedings the trial court and parties deem appropriate after suppressing
the gun as evidence.

                                                            /s/ Amy Ronayne Krause




                                               -2-
