                                                                                       Michigan Supreme Court
                                                                                             Lansing, Michigan
                                                                Chief Justice:         Justices:



Syllabus                                                        Robert P. Young, Jr.   Michael F. Cavanagh
                                                                                       Stephen J. Markman
                                                                                       Mary Beth Kelly
                                                                                       Brian K. Zahra
                                                                                       Bridget M. McCormack
                                                                                       David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been             Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.               Corbin R. Davis


                                               PEOPLE v ELLIOTT

       Docket No. 144983. Argued March 6, 2013 (Calendar No. 9). Decided June 25, 2013.

               Samuel Lee Elliott was convicted by a jury in the Jackson Circuit Court of armed
       robbery, MCL 750.529. A man had entered a gas station, told the attendant he had a gun, and
       demanded the store’s money. Elliott, who had been on parole following a prior conviction, was
       arrested the following day pursuant to a warrant for failing to report to his parole officer.
       Elliott’s brother had contacted the police, informing them that Elliott had robbed the gas station.
       Elliott was interrogated by the police after he was informed of his rights pursuant to Miranda v
       Arizona, 384 US 436 (1966). The police stopped questioning Elliott after he invoked his right to
       counsel. Three days later, while still in jail, Elliott confessed to a parole officer when she
       questioned him about the robbery in conjunction with serving Elliott with notice of additional
       parole-violation charges. The parole officer had not informed Elliott of his Miranda rights
       before questioning him. Defense counsel moved to suppress the confession. The court, Thomas
       D. Wilson, J., denied the motion, concluding that the parole officer had not acted as a law
       enforcement officer when questioning Elliott. Following his conviction and sentencing, Elliott
       appealed. The Court of Appeals, BECKERING, P.J., and OWENS and SHAPIRO, JJ., reversed and
       remanded for a new trial, holding that a parole officer is a law enforcement officer for Miranda
       purposes, that Elliott was in custody when the parole officer interrogated him, that Elliott’s
       confession was inadmissible because he had invoked his right to counsel before questioning, and
       that the trial court’s error in admitting the confession was not harmless. 295 Mich App 623
       (2012). The Supreme Court granted the prosecution’s application for leave to appeal. 491 Mich
       938 (2012).

             In an opinion by Justice MARKMAN, joined by Justices KELLY, ZAHRA, and VIVIANO, the
       Supreme Court held:

               In Miranda, the United States Supreme Court held that the Fifth Amendment’s
       prohibition against compelled self-incrimination requires that the accused be given a series of
       warnings before being subjected to custodial interrogation. The right to have counsel present is a
       corollary of the right against compelled self-incrimination because the presence of counsel
       during custodial interrogation is one way in which to ensure that statements made during
       custodial interrogation are not the product of compulsion. If custodial interrogation is not
       preceded by an adequate warning, statements made during the interrogation may not be
       introduced into evidence at the accused’s trial. Once the accused has invoked the right to
       counsel, the accused may not be subjected to further custodial interrogation until counsel has
been made available to the accused unless the accused initiates further communication,
exchanges, or conversations with the police. In the absence of a post-invocation custodial
interrogation, there can be no infringement of the right to have counsel present during a custodial
interrogation. Custodial interrogation is questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his or her freedom of action in any
significant way. When a parolee is incarcerated for an alleged parole violation, “custodial”
means more than just the normal restrictions that exist as a result of the incarceration;
incarceration alone is not enough to create a custodial situation for Miranda purposes. Whether
incarceration constitutes custody for Miranda purposes depends on whether it exerts the coercive
pressure that Miranda was designed to guard against—the danger of coercion that results from
the interaction of custody and official interrogation. The first step is to determine whether the
accused’s freedom of movement was curtailed. If so, the court must then ask whether the
relevant environment presented the same inherently coercive pressures as the type of station
house questioning at issue in Miranda. In this case, the meeting took place in the jail library, it
lasted only 15 to 25 minutes, Elliott was not physically restrained, and a reasonable person in
Elliott’s position, a parolee, would be aware that a parole officer acts independently of the police
who placed him or her in custody and that the parole officer has no control over the jail, its staff,
or the individuals incarcerated there. On balance, these facts were consistent with an
environment in which a reasonable person would have felt free to terminate the interview and
leave. Thus, Elliott’s freedom of movement was not curtailed. However, even if Elliott’s
freedom of movement was curtailed, Elliott failed to show that the meeting presented the same
inherently coercive pressures as the type of station house questioning at issue in Miranda. Elliott
presented no evidence of coercion or psychological intimidation. Any inherently coercive
attributes of the parolee/parole officer relationship, which the Court of Appeals relied on in
reaching its decision, were inapplicable in this case because the parole officer who questioned
Elliott was not Elliott’s supervising officer and thus they did not have the kind of unique
relationship of trust and confidence that the Court of Appeals assumed that they did. Viewing
the totality of the circumstances, there was no custodial interrogation. Because Elliott was not
subjected to custodial interrogation by the parole officer, even if she was a law enforcement
officer, neither Elliott’s right to be given a series of warnings before custodial interrogation nor
his right to have counsel present during custodial interrogation was violated. Accordingly, the
trial court did not err by admitting Elliott’s confession.

        Judgment of the Court of Appeals reversed; defendant’s conviction and sentence
reinstated.

        Chief Justice YOUNG, concurring, agreed with the majority’s decision to reverse the
judgment of the Court of Appeals and reinstate Elliott’s conviction and sentence. Even if the
parole officer’s interrogation of Elliott was a custodial interrogation by a law enforcement
officer, defendant waived any right to have counsel present during the interrogation. The parole
officer testified at trial that Elliott had submitted a letter to the police indicating that he wanted to
speak with them again and that defendant had reiterated that request when speaking with her.
Thus, Elliott initiated further communication, exchanges, or conversations with the police, and
the parole officer did not violate Elliott’s Fifth Amendment rights.
        Justice MCCORMACK, joined by Justice CAVANAGH, dissenting, asserted that the Court of
Appeals correctly reversed Elliott’s conviction and remanded for a new trial, although she agreed
with the majority that the dispositive issue was whether Elliott was subjected to custodial
interrogation, not the nature of the relationship between Elliott and the parole officer. Because
Miranda applied to the initial questioning of defendant by the police and Elliott had requested
counsel, Elliott could not be subjected to further custodial interrogation about the robbery until
counsel had been made available to him or he initiated communication. The parole officer’s
questioning of Elliott violated his Fifth Amendment rights under Edwards v Arizona, 451 US
477 (1981), because the custodial environment established at the initial police interview never
ceased and defendant did not initiate the conversation with the parole officer. Alternatively,
Justice MCCORMACK asserted that the parole officer’s questioning of Elliott constituted its own
custodial interrogation for Miranda purposes. Justice MCCORMACK concluded that Elliott had
not waived his Fifth Amendment right to counsel given that Elliott did not initiate the interview
with the parole officer, that the prosecution never made a waiver argument, and that Elliott’s
alleged letter to the police was not in the record.




                                    ©2013 State of Michigan
                                                                              Michigan Supreme Court
                                                                                    Lansing, Michigan
                                                        Chief Justice:          Justices:



Opinion                                                 Robert P. Young, Jr. Michael F. Cavanagh
                                                                             Stephen J. Markman
                                                                             Mary Beth Kelly
                                                                             Brian K. Zahra
                                                                             Bridget M. McCormack
                                                                             David F. Viviano

                                                                         FILED JUNE 25, 2013

                              STATE OF MICHIGAN

                                      SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellant,

 v                                                               No. 144983

 SAMUEL LEE ELLIOTT,

               Defendant-Appellee.


 BEFORE THE ENTIRE BENCH

 MARKMAN, J.

        We granted leave to appeal to consider whether the trial court erred by admitting

 defendant’s confession to a parole officer. The Court of Appeals held that the admission

 of defendant’s confession violated Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L

 Ed 2d 694 (1966), and Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378

 (1981), because Evans was a “law enforcement officer” for purposes of Miranda. We

 respectfully disagree because this is not a sufficient condition for the application of these

 decisions. Even if every parole officer constitutes a “law enforcement officer,” neither an
accused’s right under Miranda to be given a series of warnings nor an accused’s right

under Edwards to have counsel present apply absent “custodial interrogation” by the

officer. Because defendant was not subjected to “custodial interrogation” by the parole

officer as that term has come to be understood under Miranda and its progeny, neither

defendant’s Miranda nor defendant’s Edwards rights were violated, regardless of

whether the parole officer was a law enforcement officer. Thus, the trial court did not err

by admitting defendant’s confession. By focusing on the wrong constitutional question,

the Court of Appeals considerably expanded the domain of Miranda, particularly with

regard to parole officers. Accordingly, we reverse the judgment of the Court of Appeals

and reinstate defendant’s conviction and sentence.

                               I. FACTS AND HISTORY

      In 2006, defendant was convicted of unarmed robbery in violation of MCL

750.530, and the trial court sentenced him to serve a prison term of 3 to 15 years.1 In

February 2010, at the discretion of the parole board, defendant was granted parole and


1
  Defendant was adjudicated responsible as a juvenile in 1982 for assault and battery and
in 1983 for fourth-degree criminal sexual conduct. In 1987, defendant pleaded guilty to
minor in possession. In 1990, he pleaded guilty to operating a vehicle while under the
influence of alcohol, and in 1991, he pleaded guilty to three counts of assault and battery
and one count of disturbing the peace. In that same year, he also pleaded guilty to
assaulting a police officer and, when he violated probation, he was sent to prison. Also in
1991, in separate cases, he pleaded guilty to malicious destruction of property over $100
and malicious destruction of property under $100. In 1992, he pleaded guilty to
misdemeanor resisting a police officer and spent 20 days in jail. In 1993, he pleaded
guilty to both possessing an open intoxicant and urinating in public. In 1994, he was
convicted of unarmed robbery and sentenced to 5 to 30 years in prison. In 2003, shortly
after his release from prison, he pleaded guilty to resisting a police officer and received
yet another prison term.


                                            2
provisionally released from prison.     Upon release, defendant was placed under the

supervision of a parole officer and required to abide by certain conditions of parole.

These conditions included that defendant not engage in behavior that constitutes a

violation of any federal, state, or local law, that he not use or possess controlled

substances, and that he follow the parole officer’s instructions and report as required by

the officer.

       On June 17, 2010, defendant was taken into custody by police pursuant to a

warrant for failing to report, and the next day, his parole officer, Jason Golightly, served

defendant with a notice of parole violation pertaining to that failure. On the same day,

after advising defendant of his Miranda rights, detectives of the Jackson Police

Department questioned defendant concerning a robbery that had occurred at

approximately 4:00 a.m. on June 16, 2010, at a Jackson gas station. After voluntarily

answering several questions, defendant requested an attorney.            The police then

discontinued the interrogation.

       On June 21, 2010, while defendant was still incarcerated, his parole officer was on

vacation, so another officer, Cheryl Evans, went to the jail to serve defendant with an

amended notice of parole violation that identified three additional parole violations, one

of which related to the June 16 robbery.2 Evans testified as follows regarding what

occurred at the jail:


2
  Before going to the jail, Evans reviewed the police report that was created following the
robbery. She learned from another parole officer that defendant’s brother had turned
defendant in. She also talked to a detective, Ed Smith, who had questioned defendant at


                                             3
              Q.     And what, exactly does [“serve him parole violation charges
       and get his statement”] mean? What do you do? What’s the process when
       that happens?

              A.    When a person is served with a parole violation charge, when
       we determine they -- or we believe they have violated a condition of their
       parole, we have charges made up. They’re on a piece of paper.

              We then go and meet with the person. We serve them the charges,
       which means I say “Count I,” “Count II” -- or, for him, it was Count -- it
       was an additional count, so it was Count III, Count IV, Count V. And then
       I review it with him. I ask him for a statement. We talk a little bit. And
       then he decides whether he signs the bottom -- not saying he’s guilty -- just
       signs that he received the charges.

             Then he’s offered a preliminary parole violation hearing, which is a
       probable cause hearing. And, again, he waived that, but waiving that does
       not admit he’s guilty. It’s just that he’s waiving the preliminary hearing.

              Q.     So, did you do all this with the Defendant?

              A.     Yes.

                                          * * *

              Q.     And did he give you a statement?

              A.     Yes, he did.

            Q.      Did one of the charges have to do with the robbery at the
       Admiral gas station?

              A.     Yes.

              Q.     Did he give you a statement as to those charges?

              A.     Yes.


the jail a few days earlier. Evans testified that “what we generally do is, if they’re in the
middle of an investigation, we just ask them whether or not -- if I can go talk to the
person without interfering with their investigation, because our issue is separate than
theirs.” Smith testified that he told Evans that defendant had requested an attorney, but
Evans testified that she did not recall Smith telling her that.



                                             4
               Q.     And what did he say?

                A.      We talked generally about everything that was going on and
        he said that he’d been having a rough time. He said that he was living with
        his cousin, Laurie Brooks, who has a couple of kids, and that he felt -- he
        wasn’t able to get a job and hold a job -- and he felt that he was putting a
        lot of financial stresses on her. And he also said, you know, he, himself,
        got a little stressed about it and was having a lot of trouble adjusting and he
        slipped and started using his cocaine again.

               And he said he went into the Admiral gas station. He told me that he
        walked in there to the clerk, asked the clerk for some cigarettes. The clerk
        turned around to get cigarettes. As the clerk turned around -- he actually
        showed me what he did -- he leaned forward like this onto the counter and
        told the guy in a low voice to -- told him to give him the money and he
        wouldn’t get hurt, and then he said the guy gave him the money and he left.

        Relevant here, the meeting between Evans and defendant took place in the jail

library and lasted approximately 15 to 25 minutes. Evans did not inform defendant of his

Miranda rights or tell defendant that he was not required to speak to her absent a lawyer

being present. According to Evans, during the meeting, defendant told her that he had

submitted a letter indicating that he wished to talk to the police again, and at the end of

the meeting, defendant asked Evans to convey to the police that he wished to speak to

them.

        Defendant was eventually charged with armed robbery for the gas station incident,

and he was tried before a jury. At the beginning of trial, defendant moved to suppress

Evans’s testimony regarding defendant’s confession, arguing that it was improperly

obtained because defendant had not been informed of his Miranda rights and because

defendant had previously requested counsel. After conducting a hearing, the trial court

determined that Evans had not been acting in concert with law enforcement officials and



                                              5
that Evans was not herself a law enforcement officer obligated to give Miranda warnings.

Accordingly, the court denied defendant’s motion and admitted Evans’s testimony

regarding defendant’s confession. The jury convicted defendant of armed robbery, and

he was sentenced as a fourth-offense habitual offender to a prison term of 15-30 years.

      Defendant appealed, arguing that the trial court had erred when it denied his

motion to suppress Evans’s testimony regarding his confession and that the error was not

harmless. In a published opinion, the Court of Appeals held that a parole officer is a law

enforcement officer for purposes of Miranda, that defendant was in custody when Evans

interrogated him, and that the statements made by defendant were thus “inadmissible in a

subsequent trial [because] the parolee invoked the right to counsel before questioning.”

People v Elliott, 295 Mich App 623, 646; 815 NW2d 575 (2012). The Court of Appeals

agreed with defendant that the trial court’s error in denying the motion to suppress was

not harmless given the significance the prosecutor had placed on Evans’s testimony. Id.

at 647-648. The Court of Appeals reversed defendant’s conviction and remanded for a

new trial. Id. at 626. We granted the prosecutor’s application for leave to appeal.

People v Elliott, 491 Mich 938 (2012).3


3
  The Court of Appeals also held that the trial court did not clearly err by finding that
Evans had not acted in concert with, or at the request of, the police. Elliott, 295 Mich
App at 636. Defendant does not appeal that holding. Thus, our order granting the
prosecutor’s application stated as follows:

             The parties shall address whether, and, in light of Howes v Fields,
      565 US ___; 132 S Ct 1181; 182 L Ed 2d 17 (2012), under what custodial
      circumstances, a parole officer not acting in concert with police is required
      to provide the warnings prescribed by Miranda v Arizona, 384 US 436; 86


                                            6
                             II. STANDARD OF REVIEW

      “We review a trial court’s factual findings in a ruling on a motion to suppress for

clear error. To the extent that a trial court’s ruling on a motion to suppress involves an

interpretation of the law or the application of a constitutional standard to uncontested

facts, our review is de novo.” People v Attebury, 463 Mich 662, 668; 624 NW2d 912

(2001). Whether a court applied the correct constitutional standard is reviewed de novo.

People v McRae, 469 Mich 704, 710; 678 NW2d 425 (2004).

                                    III. ANALYSIS

      In Miranda, the United States Supreme Court held that the Fifth Amendment’s

prohibition against compelled self-incrimination requires that the accused be given a

series of warnings before being subjected to “custodial interrogation.”4 Miranda, 384 US

at 444 (“Prior to any questioning, the person must be warned that he has a right to remain

silent, that any statement he does make may be used as evidence against him, and that he

has a right to the presence of an attorney, either retained or appointed.”). The right to



      S Ct 1602; 16 L Ed 2d 694 (1966), before questioning an in-custody
      parolee who, during police questioning, has previously invoked his right to
      counsel under Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d
      378 (1981), about an offense giving rise to an alleged parole violation, if
      the parole officer’s testimony concerning the parolee’s responses to such
      questioning is to be admissible at the trial for that offense. [Elliott, 491
      Mich 938.]
4
  The United States Constitution and the Michigan Constitution both prohibit
“compelled” self-incrimination. US Const, Am V (“No person shall . . . be compelled in
any criminal case to be a witness against himself . . . .”); Const 1963, art 1, § 17 (“No
person shall be compelled in any criminal case to be a witness against himself . . . .”).



                                            7
have counsel present during custodial interrogation is a corollary of the right against

compelled self-incrimination, because the presence of counsel at custodial interrogation

is one way in which to “insure that statements made in the government-established

atmosphere are not the product of compulsion.” Id. at 466; see also id. at 470. If the

custodial interrogation is not preceded by an adequate warning, statements made during

the custodial interrogation may not be introduced into evidence at the accused’s criminal

trial. Id. at 444-445.

       The prosecutor concedes that Miranda warnings were not given by the parole

officer. Thus, the pertinent question is whether the meeting with the parole officer that

resulted in defendant’s inculpatory statements constituted custodial interrogation. If the

meeting did not constitute custodial interrogation, the ruling of the trial court was correct

and the statements were properly admitted into evidence. See People v Hill, 429 Mich

382, 397; 415 NW2d 193 (1987) (indicating that Miranda warnings are not required

unless the accused is subject to custodial interrogation). On the other hand, if the

meeting did constitute custodial interrogation, the ruling of the trial court was in error and

the statements were improperly admitted into evidence.

       There is no dispute that defendant invoked his right to have counsel present during

custodial interrogation when he was questioned on June 18 by Jackson police detectives

about the gas station robbery and that the invocation triggered certain safeguards pursuant

to Edwards, 451 US at 484-485. In Edwards, the United States Supreme Court created

“additional safeguards” for when the accused invokes his right to have counsel present

during custodial interrogation:


                                              8
             [W]hen an accused has invoked his right to have counsel present
      during custodial interrogation, a valid waiver of that right cannot be
      established by showing only that he responded to further police-initiated
      custodial interrogation even if he has been advised of his rights. . . .
      [H]aving expressed his desire to deal with the police only through counsel,
      [he] is not subject to further interrogation by the authorities until counsel
      has been made available to him, unless the accused himself initiates further
      communication, exchanges, or conversations with the police. [Edwards,
      451 US at 484-485.]

Edwards concerns only the manner in which the accused, after invoking his right to have

counsel present during custodial interrogation, can validly waive that right and thereafter

be subjected to further custodial interrogation absent counsel.5 If the accused is never

subjected to custodial interrogation after he has invoked his right to counsel, Edwards is

inapplicable. In other words, according to Edwards, the right the accused invokes under

Miranda is the right to have counsel present during custodial interrogation. Edwards,

451 US at 485-486 (“The Fifth Amendment right identified in Miranda is the right to

have counsel present at any custodial interrogation.”).       In the absence of a post-

invocation custodial interrogation, there can be no infringement of that right. See, e.g.,

Maryland v Shatzer, 559 US 98, 111; 130 S Ct 1213; 175 L Ed 2d 1045 (2010) (“In every


5
  The prosecutor does not argue that defendant validly waived the right to have counsel
present during custodial interrogation. Rather, he simply argues that defendant did not
have the right to have counsel present during his meeting with Evans. Because we agree,
we also do not address waiver in this opinion. That is, unlike the dissenting opinion, we
conclude that because the parole officer did not subject defendant to custodial
interrogation, defendant had no right to counsel during his meeting with the parole
officer. Because we conclude that defendant had no right to counsel to waive, we do not
need to address the concurring opinion’s conclusion that defendant waived that right.
The dissenting opinion would broaden the concept of custodial interrogation and thereby
ensure that in some unknown number of future cases, voluntary confessions such as that
which occurred in this very case, would be rendered inadmissible.


                                            9
case involving Edwards, the courts must determine whether the suspect was in custody

when he requested counsel and when he later made the statements he seeks to

suppress.”); Edwards, 451 US at 487 (“We think it is clear that Edwards was subjected to

custodial interrogation [at a second meeting with the police] . . . and that this occurred at

the instance of the authorities.”).

       The pertinent question in this case is not, as the Court of Appeals believed it to be,

“whether Evans was a law enforcement officer under Miranda as a matter of law given

her status as a parole officer . . . .” Elliot, 295 Mich App at 636. Although Miranda

discussed the constitutional safeguards in terms of “questioning initiated by law

enforcement officers,” Miranda, 384 US at 444, neither Miranda’s right to be given a

series of warnings nor Edwards’s right to have counsel present apply absent custodial

interrogation, regardless of whether a parole officer constitutes a law enforcement officer.

Thus, to determine whether a defendant’s Miranda or Edwards rights have been violated,

we must first resolve whether the meeting with the parole officer constituted custodial

interrogation.6   Because we conclude that defendant was not subjected to custodial


6
  Although we agree with the dissent that defendant “could not be subjected to further
custodial interrogation about the robbery until counsel had been made available to him or
he initiated communication,” post at 2 (emphasis added), we disagree that “Evans’s
interview of defendant about the robbery [cannot] be viewed as noncustodial because
custody, for purposes of Miranda and Edwards, was not broken between the initial
interrogation by the police and Evans’s subsequent questioning three days later,” post at
3. For all of the reasons set forth in this opinion, we believe that defendant’s meeting
with the parole officer cannot be viewed as the same as his meeting with the police in
terms of constituting “custodial interrogation.” Further, however, we believe it is clear
that these constituted entirely distinct episodes, distinct in terms of when they occurred,
distinct in terms of their participants, distinct in terms of who was doing the interrogation,


                                             10
interrogation by the parole officer, we need not further consider whether a parole officer

not acting in concert with or at the request of the police may be considered a law

enforcement officer for purposes of Miranda. By focusing on the wrong constitutional

question, the Court of Appeals considerably expanded the domain of Miranda,

particularly with regard to parole officers.

                         A. “CUSTODIAL INTERROGATION”

       In Miranda, the United States Supreme Court defined “custodial interrogation” as

“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.” Id.

Custodial interrogation occurs “during ‘incommunicado interrogation of individuals in a

police-dominated atmosphere.’” Illinois v Perkins, 496 US 292, 296; 110 S Ct 2394; 110

L Ed 2d 243 (1990), quoting Miranda, 384 US at 445. “That atmosphere is said to


distinct in terms of their venue, distinct in terms of their subject matter and purpose,
distinct in terms of their coercive aspects, and distinct in terms of the overall environment
in which they took place. That one of these episodes can be characterized as involving
custodial interrogation carries no particular significance in terms of whether the other can
be similarly characterized, as it must be, before defendant’s Miranda rights are
implicated. Although, by treating these distinct episodes as part of a “continuing”
sequence of events that “never ceased” the dissent can impute the attributes of one
meeting to the other meeting, we do not believe this accurately describes the relationship
between the events. Indeed, the dissent itself acknowledges that the police “stopped
questioning” defendant when he invoked his right to have counsel present, and the dissent
identifies no reason why the custodial interrogation that existed during the meeting with
the police should necessarily be thought to carry over to the meeting with the parole
officer. The only relevant question under Edwards is whether the meeting with the
parole officer did or did not constitute custodial interrogation, and we believe that it did
not.




                                               11
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. “‘Fidelity to the doctrine

announced in Miranda requires that it be enforced . . . only in those types of situations in

which the concerns that powered the decision are implicated.’” Perkins, 496 US at 296,

quoting Berkemer v McCarty, 468 US 420, 437; 104 S Ct 3138; 82 L Ed 2d 317 (1984).

       Where, as here, a parolee is incarcerated for an alleged parole violation,

“custodial” means more than just the normal restrictions that exist as a result of the

incarceration. Indeed, the United States Supreme Court has held that “imprisonment

alone is not enough to create a custodial situation within the meaning of Miranda.”

Howes v Fields, 565 US __, __; 132 S Ct 1181, 1190; 182 L Ed 2d 17 (2012); see also

Shatzer, 559 US at 112-113. Instead, whether “incarceration constitutes custody for

Miranda purposes . . . depends upon whether it exerts the coercive pressure that Miranda

was designed to guard against—the ‘danger of coercion [that] results from the interaction

of custody and official interrogation.’” Shatzer, 559 US at 112 (emphasis and alteration

in original), quoting Perkins, 496 US at 297. In determining whether defendant was

presented with the same inherently coercive pressures that were the basis for the decision

in Miranda, we find Fields instructive.

       In Fields, a Michigan prisoner, Randall Fields, was escorted from his prison cell

by a corrections officer to a conference room in which he was questioned by two sheriff’s

deputies about criminal activity he had allegedly engaged in before coming to prison.

Fields was questioned for between five and seven hours and was at no time given


                                            12
Miranda warnings or advised that he did not have to speak with the deputies. Fields was

told more than once that he was free to leave and return to his cell. The deputies were

armed, but Fields remained free of restraints. The conference room door was sometimes

open and sometimes shut. Several times during the interview Fields stated that he no

longer wanted to talk to the deputies, but he did not ask to go back to his cell. After

Fields eventually confessed and the interview concluded, he had to wait an additional 20

minutes for an escort before returning to his cell well after the time when he generally

went to bed.

      Under these facts, the United States Supreme Court held that Fields was not in

custody for purposes of Miranda, and set forth the following constitutional standards:

              As used in our Miranda case law, “custody” is a term of art that
      specifies circumstances that are thought generally to present a serious
      danger of coercion. In determining whether a person is in custody in this
      sense, the initial step is to ascertain whether, in light of “the objective
      circumstances of the interrogation,” a “reasonable person [would] have felt
      he or she was not at liberty to terminate the interrogation and leave.” And
      in order to determine how a suspect would have “gauge[d]” his “freedom of
      movement,” courts must examine “all of the circumstances surrounding the
      interrogation.” Relevant factors include the location of the questioning, its
      duration, statements made during the interview, the presence or absence of
      physical restraints during the questioning, and the release of the interviewee
      at the end of the questioning.

              Determining whether an individual’s freedom of movement was
      curtailed, however, is simply the first step in the analysis, not the last. Not
      all restraints on freedom of movement amount to custody for purposes of
      Miranda. We have “decline[d] to accord talismanic power” to the freedom-
      of-movement inquiry, and have instead asked the additional question
      whether the relevant environment presents the same inherently coercive
      pressures as the type of station house questioning at issue in Miranda.
      “Our cases make clear . . . that the freedom-of-movement test identifies
      only a necessary and not a sufficient condition for Miranda custody.”



                                            13
                                         * * *

              When a prisoner is questioned, the determination of custody should
      focus on all of the features of the interrogation. These include the language
      that is used in summoning the prisoner to the interview and the manner in
      which the interrogation is conducted. [Fields, 565 US at __; 132 S Ct at
      1189-1190, 1192 (citations omitted; alterations in original).]

The Court then held that questioning a person in prison does not generally “involve the

shock that very often accompanies arrest,” that “when a prisoner is questioned, he knows

that when the questioning ceases, he will remain under confinement,” that a prisoner “is

unlikely to be lured into speaking by a longing for prompt release,” and that a prisoner

knows his questioners “probably lack the authority to affect the duration of his sentence.”

Id. at __; 132 S Ct at 1190-1191. The Court found it “important” that Fields “was told at

the outset of the interrogation, and was reminded again thereafter, that he could leave and

go back to his cell whenever he wanted.” Id. at __; 132 S Ct at 1193. However, it also

noted that Fields “was not advised that he was free to decline to speak with the deputies.”

Id. at __; 132 S Ct at 1193. Despite this failing, the Court held that Fields was not in

custody for purposes of Miranda.

      Pursuant to Fields, the first constitutional step is to determine “whether an

individual’s freedom of movement was curtailed . . . .” Fields, 565 US at __; 132 S Ct at

1189. If so, the court should then ask “the additional question whether the relevant

environment presents the same inherently coercive pressures as the type of station house

questioning at issue in Miranda.” Id. at __; 132 S Ct at 1190. Thus, “[n]ot all restraints

on freedom of movement amount to custody for purposes of Miranda.” Id. at __; 132 S

Ct at 1189.


                                            14
       In the instant case, the meeting at issue took place in the jail library, it was of short

duration (15 to 25 minutes), defendant was not physically restrained, and he was escorted

to the library by a deputy, not by the parole officer. We note, as does the dissent, that one

difference between this case and Fields is that defendant in this case was never told that

he was free to leave the meeting and return to his cell. However, given that the meeting

in this case lasted approximately 15 to 25 minutes, and the one in Fields lasted for five to

seven hours, we do not think this fact is particularly compelling, much less dispositive,

under the circumstances.7 More significant is the fact that defendant was not free to leave

the jail library by himself. In this respect, this situation resembles that of the defendant in

Fields:

              Because he was in prison, respondent was not free to leave the
       conference room by himself and to make his own way through the facility
       to his cell. Instead, he was escorted to the conference room and, when he
       ultimately decided to end the interview, he had to wait about 20 minutes for

7
  See Stansbury v California, 511 US 318, 322; 114 S Ct 1526; 128 L Ed 2d 293 (1994)
(“In determining whether an individual was in custody, a court must examine all of the
circumstances surrounding the interrogation . . . .”) (emphasis added). The dissent states
that “the Fields majority cited the fact that the defendant in that case was told he was free
to leave as the ‘[m]ost important’ factor in its determination that the defendant was not in
custody.” Post at 6 (alteration in original). More precisely, however, the Court found this
fact to be the “most important” only in “offset[ting]” the facts that supported the
“argument that Miranda’s custody requirement was met: The interview lasted for
between five and seven hours in the evening and continued well past the hour when
respondent generally went to bed; the deputies who questioned respondent were armed;
and one of the deputies, according to respondent, ‘[u]sed a very sharp tone’ . . . .” Fields,
565 US at __; 132 S Ct at 1193 (alteration in original). As defendant in this case was not
interviewed for five to seven hours late into the night by armed deputies who used a sharp
tone, it is of considerably less relevance that the parole officer did not apprise defendant
that he was free to return to his cell, because no such similarly harsh circumstances
existed in the first place that needed to be “offset” by this fact.




                                              15
       a corrections officer to arrive and escort him to his cell. But he would have
       been subject to this same restraint even if he had been taken to the
       conference room for some reason other than police questioning; under no
       circumstances could he have reasonably expected to be able to roam free.
       [Id. at __; 132 S Ct at 1193 (emphasis added).]

Moreover, much like the prisoner in Fields, a “reasonable person” in defendant’s

“position,” i.e., a parolee,8 would be aware that a parole officer is acting independently of

the police who placed him in custody and has no control over the jail, its staff, or the

individuals incarcerated there.9 Thus, on balance, we conclude that defendant’s “freedom

of movement” was not “curtailed” during the meeting at the jail library. Id. at __; 132 S

8
  Berkemer v McCarty, 468 US 420, 442; 104 S Ct 3138; 82 L Ed 2d 317 (1984) (“[T]he
only relevant inquiry is how a reasonable man in the suspect’s position would have
understood his situation.”); Yarborough v Alvarado, 541 US 652, 663; 124 S Ct 2140;
158 L Ed 2d 938 (2004) (“Courts must examine ‘all of the circumstances surrounding the
interrogation’ and determine ‘how a reasonable person in the position of the individual
being questioned would gauge the breadth of his or her freedom of action.’”).
Relevantly, the suspect in Yarborough was also not told “that he was free to leave.” Id. at
655.
9
  Fields, 565 US at ___; 132 S Ct at 1191 (2012), quoting Perkins, 496 US at 297
(“‘When the suspect has no reason to think that the listeners have official power over
him, it should not be assumed that his words are motivated by the reaction he expects
from his listeners.’”). See also, In JDB v North Carolina, ___ US ___, ___; 131 S Ct
2394, 2404, 2406; 180 L Ed 2d 310 (2011) (stating that “so long as the child’s age was
known to the officer at the time of police questioning . . . its inclusion in the custody
analysis is consistent with the objective nature of [the Miranda custody] test” because “a
child’s age differs from other personal characteristics that . . . have no objectively
discernible relationship to a reasonable person’s understanding of his freedom of
action”). JDB thus distinguished age from a suspect’s “prior interrogation history with
law enforcement,” noting that the latter could not be considered without compromising
the objective nature of the custody analysis because the effect of this experience is
contingent on the psychology of the individual suspect. Id. at ___; 131 S Ct at 2404. We
do not think it is an unreasonable or “subjective” conclusion that a parolee is more
generally aware, precisely because he or she is a parolee, that a parole officer acts
independently of the police and has no control over the jail, its staff, or the individuals
incarcerated there.


                                             16
Ct at 1189.10 The facts are consistent with an “‘environment in which a reasonable

person would have felt free to terminate the interview and leave.’” Id. at __; 132 S Ct at

1193, quoting Yarborough v Alvarado, 541 US 652, 664-665; 124 S Ct 2140; 158 L Ed

2d 938 (2004).

        Even if defendant could show that his freedom of movement was somehow

curtailed during the meeting, he still fails to explain how the meeting “present[ed] the

same inherently coercive pressures as the type of station house questioning at issue in

Miranda.” Fields, 565 US at __; 132 S Ct at 1189-1190 (“[W]hether an individual’s

freedom of movement was curtailed, however, is simply the first step in the analysis, not

the last. . . .   We have ‘decline[d] to accord talismanic power’ to the freedom-of-

movement inquiry, and have instead asked the additional question whether the relevant

environment presents the same inherently coercive pressures as the type of station house

questioning at issue in Miranda.”) (citation omitted; second alteration in original). See

also United States v Salyers, 160 F3d 1152, 1159 (CA 7, 1998) (“Custody ‘implies a

situation in which the suspect knows he is speaking with a government agent and does

not feel free to end the conversation; the essential element of a custodial interrogation is




10
   The dissent, post at 8 n 17, errs in its suggestion that Fields did not discuss defendant’s
status as an inmate in the “freedom of movement” inquiry in that case. See Fields, 565
US at ___; 130 S Ct at 1193 (stating that because the respondent was in prison “under no
circumstances could he have reasonably expected to be able to roam free”). We believe
that defendant’s “parolee status” is similarly relevant. See also, Shatzer, 559 US at 107-
108.



                                             17
coercion.’”), quoting United States v Martin, 63 F3d 1422, 1429 (CA 7, 1995) (emphasis

added).

       In this case, there is no evidence of coercion or any other manner of psychological

intimidation. The parole officer visited defendant as part of her job as a parole officer;

her only reasons for speaking to defendant were to advise him of parole violation

charges,11 advise him of his right to a preliminary hearing on those charges,12 and to see

if he was prepared to waive his right to a preliminary hearing. The officer was required

to do all of this as part of her job, regardless of whether defendant was in or out of jail.

Defendant cannot show inherently coercive pressures that caused him to discuss the

robbery with the parole officer. Defendant was in jail for other parole violation charges

(absconding) that were unrelated to the charges Evans was there to serve. Also, unlike in

Fields, defendant was not questioned for an extended period of time by armed police

officers who used a “‘sharp tone’” and “profanity.” Fields, 565 US at __; 132 S Ct at

1193 (citation omitted). And also unlike in Fields, in which the defendant indicated on

several occasions during the interview that he did not want to talk to the police officers,

defendant in this case did not even once indicate that he did not want to talk to the parole

officer. Nor is there any evidence that the meeting “continued well past the hour” when

11
  See MCL 791.239a(2) (“Prior to the preliminary hearing, the accused parolee shall be
given written notice of the charges . . . .”)
12
   See MCL 791.239a(1) (“Within 10 days after an arrest for an alleged violation of
parole, the parolee shall be entitled to a preliminary hearing to determine whether there is
probable cause to believe that the conditions of parole have been violated or a fact-
finding hearing held pursuant to [MCL 791.240a].”)



                                            18
defendant “generally went to bed,” id. at __; 132 S Ct at 1193, that the officer had the

authority to alter the duration of defendant’s incarceration,13 or that defendant could not

terminate the meeting. This situation does not represent custodial interrogation because

defendant was not subjected to the type of coercive pressure against which Miranda was

designed to guard. It is hardly the sort of incommunicado, police-dominated atmosphere

involving custodial interrogation and the “overbearing” of the subject’s will toward

which Miranda was directed. Accordingly, in our judgment, there was no “custodial

interrogation” as that term has come to be understood under Miranda and its progeny.

      The dissent argues that Fields and Shatzer (another opinion that held that

imprisonment alone is insufficient to create a custodial interrogation situation within the

meaning of Miranda) are significantly distinguishable from the instant case because the

defendants in those cases “were both serving sentences for unrelated crimes and living in

the prison in which they were interviewed.” Post at 4. However, the dissent fails to

recognize that a parolee who is incarcerated as a result of violating a condition of his


13
   Contrary to the dissent’s suggestion, the mere fact that Evans, who was not even
defendant’s supervising parole officer, “was present at the jail to serve parole violation
charges on defendant” does not mean that Evans had the “‘authority to affect the duration
of his sentence . . . .’” Post at 9, quoting Fields, 565 US at ___; 132 S Ct at 1191. As
explained in Fields, 565 US at ___; 132 S Ct at 1191, “a prisoner, unlike a person who
has not been convicted and sentenced, knows that the law enforcement officers who
question him probably lack the authority to affect the duration of his sentence.”
(Emphasis added.) Also, the dissent offers no factual support for its assertion that
“Evan’s influence [c]ould have been critical” regarding “how much time defendant
served . . . .” Post at 9 n 21. Instead, it appears that Evans merely filled in for
defendant’s supervising parole officer and completed the single discrete task of serving
defendant with an amended notice of parole violations, and that defendant’s supervising
parole officer was the one ultimately responsible for overseeing his parole violation.



                                            19
parole is at that juncture no different than a prisoner who was never paroled in the first

place, at least in the sense that both are imprisoned as a result of their underlying

offenses. Defendant here was arrested by the police pursuant to a warrant that was issued

because he had absconded from parole. Because defendant was on parole and a warrant

for his return had been issued as a result of his violation of a condition of parole,

defendant, pursuant to Michigan law, could not be considered anything other than a

“prisoner,” as were the defendants in Fields and Shatzer. People v Holder, 483 Mich

168, 172-173; 767 NW2d 423 (2009) (“A paroled prisoner is not considered released;

rather, the prisoner is simply permitted to leave the confinement of prison.”); MCL

791.238(1) (“Each prisoner on parole shall remain in the legal custody and under the

control of the department.”); MCL 791.238(2) (“A prisoner violating the provisions of his

or her parole and for whose return a warrant has been issued by the deputy director of the

bureau of field services is treated as an escaped prisoner . . . .”). Therefore, we do not

agree that Fields and Shatzer are distinguishable, much less “significantly” so, on this

basis.

         In viewing the totality of circumstances in Fields and in the present case, we

believe that if there was no custodial interrogation in the Miranda sense in Fields, there

was certainly no custodial interrogation in the instant case. In Fields, the defendant was

questioned by armed police officers; here, defendant was questioned, if you can even call

it that, by an unarmed parole officer. In Fields, the defendant was questioned by armed

police officers who were trying to obtain a confession from the defendant; here,

defendant met with an unarmed parole officer who was there for the principal purpose of


                                           20
serving defendant with an amended notice of parole violations. In Fields, the defendant

was questioned by armed police officers for about 5 to 7 hours; here, defendant met with

an unarmed parole officer for 15 to 25 minutes. In Fields, the armed police officers used

a “sharp tone” and “profanity” while questioning the defendant for several hours; here,

the unarmed parole officer was altogether cordial and sympathetic with defendant during

their brief meeting.   In Fields, the armed police officers continued to question the

defendant until well past his regular bedtime; here, the unarmed parole officer did not

keep defendant up late at night. In Fields, the defendant repeatedly stated that he did not

want to talk to the armed police officers; here, defendant never indicated in any manner

that he did not wish to talk to the unarmed parole officer. We believe it is clear that the

totality of circumstances in Fields far more closely resembles the kind of custodial

interrogation that generated the extraordinary protections of Miranda than does the

totality of circumstances in the present case-- yet even in Fields, such circumstances were

viewed by the United States Supreme Court to be insufficient to trigger the requirements

of Miranda.

      Moreover, the “inherently coercive” attributes of the parolee/parole officer

relationship that the Court of Appeals relied on in reaching its conclusions are wholly

inapplicable here because Evans was not defendant’s supervising officer. The Court of

Appeals explained:

             The rationale for the suppression of statements elicited during a
      custodial interrogation by a law enforcement officer who does not adhere to
      Miranda is to “combat” the “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.” Miranda, 384 US at 467; see


                                            21
       also [People v] Williams, 244 Mich App [533, 539; 624 NW2d 575 (2001)].
       Such “inherently compelling pressures” exist in the relationship between a
       parolee and a parole officer. Indeed, this Court has recognized that “both
       parolees and probationers are under heavy psychological pressure to answer
       inquiries made by their supervising officers.” People v Faulkner, 90 Mich
       App 520, 524; 282 NW2d 377 (1979) (quotation marks and citations
       omitted). This heavy psychological pressure exists because of the unique
       relationship between a parolee and parole officer.

               . . . [T]he parolee-parole officer relationship often becomes a
       relationship of trust and confidence, as does the probationer-probation
       officer relationship addressed by Justice Marshall in Murphy. See Murphy,
       465 US at 459–460 (Marshall, J., dissenting). As a parolee develops trust
       and begins to confide in a parole officer, the parole officer is more likely to
       elicit from the parolee incriminating statements that the parolee would
       likely not make to a police interrogator. [Elliot, 295 Mich App at 643.]

       However, the Court of Appeals failed to recognize that the parole officer in the

instant case was not defendant’s parole officer and thus that they did not have the kind of

“unique relationship” of “trust and confidence” that the Court of Appeals assumed that

they did.14 Indeed, much, if not all, of the persuasive authority cited by the Court of

Appeals seems inapposite when someone other than the defendant’s supervising parole

officer is conducting the meeting.15




14
   Even if, as the dissent asserts, defendant and Evans had developed a “unique
relationship” of “trust and confidence” that created some “psychological pressure” on
defendant to answer Evans’s inquires, this would not necessarily have converted
defendant’s otherwise voluntary statements into compelled ones.
15
  See, e.g., Elliott, 295 Mich App at 642-643, citing Murphy, 465 US at 459-460
(Marshall, J., dissenting).



                                             22
                              B. MINNESOTA v MURPHY

      In Minnesota v Murphy, 465 US 420; 104 S Ct 1136; 79 L Ed 2d 409 (1984), the

respondent was given a suspended prison sentence and placed on probation. During the

course of a meeting at his probation officer’s office, the respondent, upon questioning by

his probation officer, admitted that he had committed a rape and murder in 1974. The

probation officer had previously received information from a treatment counselor that

respondent had admitted to the 1974 crimes.

      The respondent moved to suppress the confession, but the trial court found that he

had not been in custody at the time of the confession and that the confession was neither

compelled nor involuntary despite the absence of Miranda warnings. The Minnesota

Supreme Court reversed, holding that the respondent’s

      failure to claim the privilege when he was questioned was not fatal to his
      claim “[b]ecause of the compulsory nature of the meeting, because [the
      respondent] was under court order to respond truthfully to his agent’s
      questions, and because the agent had substantial reason to believe that [the
      respondent’s] answers were likely to be incriminating.” [Murphy, 465 US
      at 425, quoting State v Murphy, 324 NW2d 340, 344 (Minn, 1982) (first
      alteration in original).]

      The United States Supreme Court reversed, holding that Miranda warnings are not

necessary during the course of a routine probation interview, even when there is a

connection between the probation officer-interviewer and the criminal investigative

process. The Court rejected the proposition that the fact that the probation officer was

consciously seeking incriminating evidence was relevant.       Murphy, 465 US at 431

(“[T]he probation officer’s knowledge and intent have no bearing on the outcome of this




                                           23
case.”). The Court also rejected the argument that the respondent might have reasonably

expected that his statements to the probation officer would remain confidential:

              [W]e cannot conclude that [the probation officer’s] actions would
       have led a reasonable probationer to believe that his statements to her
       would remain confidential. A probationer cannot pretend ignorance of the
       fact that his probation officer “is a peace officer, and as such is allied, to a
       greater or lesser extent, with his fellow peace officers.” . . . The fact that
       [the respondent] apparently expressed no surprise on being informed that
       his statements would be made available to the police, moreover, strongly
       suggests that he was not misled by any expectation that his statements
       would remain confidential. [Id. at 432.]

Finally, the Court held that

       the coercion inherent in custodial interrogation derives in large measure
       from an interrogator’s insinuations that the interrogation will continue until
       a confession is obtained. Since [the respondent] was not physically
       restrained and could have left the office, any compulsion he might have felt
       from the possibility that terminating the meeting would have led to
       revocation of probation was not comparable to the pressure on a suspect
       who is painfully aware that he literally cannot escape a persistent custodial
       interrogator. [Id. at 433 (citation omitted).][16]

       Some courts have noted that a parole officer’s questioning can be inherently more

coercive than a law enforcement officer’s questioning because the parole officer can put

the parolee in prison more easily than can a police officer.17 However, whatever the


16
  The Court further noted that the rule in Miranda was crafted to apply to a situation that
“thrusts an individual into ‘an unfamiliar atmosphere’ or ‘interrogation environment . . .
created for no purpose other than to subjugate the individual to the will of his examiner.’”
Murphy, 465 US at 433, quoting Miranda, 384 US at 457. The situation is one that “is
said to convey to the suspect a message that he has no choice but to submit to the
officers’ will and to confess.” Murphy, 465 US at 433.
17
   See 2 LaFave, Criminal Procedure (3d ed), § 6.10(c), p 878 (“[S]ome courts have
reached [the conclusion] that custodial interrogation (other than routine interviews) by a
probation or parole officer is governed by Miranda because the probationer or parolee is


                                             24
merits of this analysis, this concern does not exist to the same extent once the accused is

already in jail for a parole violation because the primary source of the parole officer’s

potential for coercion no longer exists. In this sense, a meeting after the accused has

been arrested for violating his parole presents a less threatening situation than one

conducted by a parole or probation officer before the accused has been arrested. In this

case, defendant had already been given notice that his parole was being revoked and that

he was in jail for that reason. Thus, no parole officer could threaten to put him in jail; he

was already there. Moreover, this was not his parole officer. Defendant could not

reasonably be under any illusions that Evans would have possessed any power to

immediately free or detain him when he was not even her charge. As was the case in

Murphy, there “is no direct evidence that [defendant] confessed because he feared that his

probation would be revoked if he remained silent.” Id. at 437. Similarly, defendant’s

request at the end of the meeting that the parole officer convey to the police that he

wished to speak to them “strongly suggests that he was not misled by any expectation

that his statements would remain confidential.” Id. at 432.




under ‘heavy psychological pressure to cooperate’ with one who can recommend his
imprisonment.”) (citations omitted); State v Gallagher, 46 Ohio St 2d 225, 227; 348
NE2d 336 (1976) (“[A] parolee is under heavy pressure to cooperate with his parole
officer * * * (who, allegedly,) had the power to recommend the return to prison of a
parolee under his charge . . . .”) (citation and quotation marks omitted).



                                             25
                                  C. ESTELLE v SMITH

       Unlike the dissent, we disagree that Estelle v Smith, 451 US 454; 101 S Ct 1866;

68 L Ed 2d 359 (1981), is particularly “instructive” with regard to the question at issue

here-- custody. Post at 10. Indeed, Estelle did not even address that issue. Instead,

Estelle simply assumed that the respondent in that case was in custody for Miranda

purposes because he “was in custody at the Dallas County Jail when the examination was

ordered and when it was conducted.” Id. at 467. Moreover, since Estelle was decided,

the Court has affirmatively held that prisoners are not invariably in custody for purposes

of Miranda. See Fields, 565 US at ___; 132 S Ct at 1190. Because Estelle predated

Fields and thus did not engage in the analysis that Fields now requires in determining

whether an accused/prisoner was in custody for Miranda purposes, we do not believe that

Estelle is relevant with regard to whether defendant was in custody for Miranda

purposes, which the dissent agrees is the controlling issue.18

       Moreover, Estelle is also significantly distinguishable because it involved a court-

ordered psychiatric examination. In Estelle, the Court held that the admission of a



18
   The dissent cites Estelle for the proposition that somebody other than a police officer,
such as a psychiatrist who performs a court-ordered psychiatric examination, can conduct
a custodial interrogation for purposes of Miranda. We do not necessarily disagree with
this proposition. However, as both this and the dissenting opinions recognize, “the
dispositive issue is whether defendant was subject to custodial interrogation, not the
nature of the relationship between the questioner and defendant.” Post at 1. Because we
conclude that defendant was not subjected to a custodial interrogation for Miranda
purposes, it is wholly unnecessary to address whether a parole officer is a law
enforcement officer for Miranda purposes. Infra at 10-11.



                                             26
psychiatrist’s testimony to establish an element of proof necessary to support the

imposition of capital punishment violated the respondent’s Fifth Amendment privilege

against compelled self-incrimination. The psychiatrist’s testimony related to a 90-minute

pretrial competency examination that the psychiatrist had administered to the

respondent.19 The Court emphasized that the competency examination “was ordered

even though defense counsel had not put into issue [the respondent’s] competency to

stand trial or his sanity at the time of the offense,” Estelle, 451 US at 457 n 1, and that

this was a “compulsory examination,” to which the respondent was “compelled to

respond,” yet “he was given no indication that the compulsory examination would be

used to gather evidence necessary to decide whether, if convicted, he should be sentenced

to death,” id. at 467-468. The Court summarized:

             To meet its burden, the State used respondent’s own statements,
      unwittingly made without an awareness that he was assisting the State’s
      efforts to obtain the death penalty. In these distinct circumstances, the

19
    The Court explained the circumstances of the examination and how those
circumstances implicated the Fifth Amendment:

              The fact that respondent’s statements were uttered in the context of a
       psychiatric examination does not automatically remove them from the reach
       of the Fifth Amendment. The state trial judge, sua sponte, ordered a
       psychiatric evaluation of respondent for the limited, neutral purpose of
       determining his competency to stand trial, but the results of that inquiry
       were used by the State for a much broader objective that was plainly
       adverse to respondent. Consequently, the interview with Dr. Grigson
       cannot be characterized as a routine competency examination restricted to
       ensuring that respondent understood the charges against him and was
       capable of assisting in his defense. Indeed, if the application of Dr.
       Grigson’s findings had been confined to serving that function, no Fifth
       Amendment issue would have arisen. [Estelle, 451 US at 465 (citation
       omitted).]


                                            27
       Court of Appeals correctly concluded that the Fifth Amendment privilege
       was implicated.

                                         * * *

              A criminal defendant, who neither initiates a psychiatric evaluation
       nor attempts to introduce any psychiatric evidence, may not be compelled
       to respond to a psychiatrist if his statements can be used again him at a
       capital sentencing proceeding. . . .

              . . . [U]nder Miranda v Arizona, we must conclude that, when faced
       while in custody with a court-ordered psychiatric inquiry, respondent’s
       statements to Dr. Grigson were not “given freely and voluntarily without
       any compelling influences” and, as such, could be used as the State did at
       the penalty phase only if respondent had been apprised of his rights and had
       knowingly decided to waive them. [Id. at 466, 468 (citation omitted;
       emphasis added).]

Unlike what occurred in Estelle, there was no court-ordered “compulsory examination” to

which defendant was “compelled to respond” in this case. As a result, Estelle is wholly

inapplicable.20




20
 We also note that Estelle concerned the Sixth Amendment right to counsel, not the Fifth
Amendment right to counsel:

               Because psychiatric examinations of the type at issue here are
       conducted after adversary proceedings have been instituted, we are not
       concerned in this case with the limited right to the appointment and
       presence of counsel recognized as a Fifth Amendment safeguard in
       Miranda. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68
       L.Ed.2d 378. Rather, the issue before us is whether a defendant’s Sixth
       Amendment right to the assistance of counsel is abridged when the
       defendant is not given prior opportunity to consult with counsel about his
       participation in the psychiatric examination. [Estelle, 451 US at 470 n 14
       (citation omitted).]



                                           28
                                 IV. CONCLUSION

      Neither an accused’s right under Miranda to be given a series of warnings nor an

accused’s right under Edwards to have counsel present apply absent custodial

interrogation. Because defendant was not subjected to custodial interrogation by the

parole officer, even if she was a law enforcement officer, neither of those rights were

violated, and thus the trial court did not err by admitting defendant’s confession.

Accordingly, we reverse the judgment of the Court of Appeals and reinstate defendant’s

conviction and sentence.



                                                     Stephen J. Markman
                                                     Mary Beth Kelly
                                                     Brian K. Zahra
                                                     David F. Viviano




                                          29
                             STATE OF MICHIGAN

                                     SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellant,

v                                                             No. 144983

SAMUEL LEE ELLIOTT,

              Defendant-Appellee.


YOUNG, C.J. (concurring).
       I concur in the majority’s decision to reverse the judgment of the Court of Appeals

and reinstate defendant’s conviction and sentence. Even if parole officer Cheryl Evans’s

interrogation of defendant was a custodial interrogation by a law enforcement officer, the

facts here indicate that defendant waived any right to have counsel present during this

interrogation.1 As a result, I believe that the question whether defendant’s interrogation

was custodial for Miranda purposes is immaterial to the result in this case.

       Evans testified at trial that defendant had submitted a letter to police indicating

that he wanted to talk with them again and that defendant had reiterated that request when


1
  The parties have not argued the waiver issue. However, we generally do not disturb a
trial court’s ruling when it reaches the right result for the wrong reason. See, e.g., People
v Brownridge, 459 Mich 456, 462; 591 NW2d 26 (1999). Moreover, in this case, every
member of the Court agrees that the relevant issue in this case is not—as the trial court
and Court of Appeals ruled and the parties argued—whether Evans acted as a “law
enforcement officer” pursuant to Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed
2d 694 (1966).
talking with her.2 Because defendant had already sought to discuss the case with the

police at the time Evans questioned him about the robbery, he “initiate[d] further

communication, exchanges, or conversations with the police.”3            Furthermore, this

initiation of communication with Evans (even assuming for the purposes of Miranda that

she was a law enforcement officer) was knowing and intelligent.4 Initially, “defendant

was properly advised of his rights and understood them . . . .”5 And his request at the end

of the meeting that Evans reiterate to the police his desire to speak with them underscores

that his waiver was knowing and intelligent. Moreover, as the majority rightly notes, this

request “‘strongly suggests that he was not misled by any expectation that his statements

[to her] would remain confidential.’”6 Therefore, as Evans did not violate defendant’s

Fifth Amendment rights, I concur that his conviction should be affirmed.


                                                          Robert P. Young, Jr.

2
 While Justice MCCORMACK would not rely on Evans’s testimony, this testimony has
not been challenged, much less rebutted.
3
  Edwards v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981).
Even though defendant did not initiate the particular conversation with Evans, he
nevertheless initiated communication with law enforcement officials and, in doing so,
“evinced a willingness and a desire for a generalized discussion about the
investigation . . . .” Oregon v Bradshaw, 462 US 1039, 1045-1046; 103 S Ct 2830; 77 L
Ed 2d 405 (1983) (plurality opinion); accord id. at 1055 (Marshall, J., dissenting) (“[I]n
order to constitute ‘initiation’ under Edwards, an accused’s inquiry must demonstrate a
desire to discuss the subject matter of the criminal investigation.”).
4
    See id. at 1044-1045.
5
    Id. at 1046 (citation and quotation marks omitted).
6
 Ante at 25, quoting Minnesota v Murphy, 465 US 420, 432; 104 S Ct 1136; 79 L Ed 2d
409 (1984).



                                               2
                            STATE OF MICHIGAN

                                     SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellant,

v                                                            No. 144983

SAMUEL LEE ELLIOTT,

              Defendant-Appellee.


MCCORMACK, J. (dissenting).
       I believe that the Court of Appeals correctly reversed defendant’s conviction and

remanded for a new trial. I would therefore affirm its judgment, although I agree with the

majority that the dispositive issue is whether defendant was subject to custodial

interrogation, not the nature of the relationship between the questioner and defendant.

While the nature of the relationship between the questioner and the defendant may inform

the determination of whether custodial interrogation occurred, it is not the lynchpin of the

analysis.   However, because I conclude in this case that defendant was subject to

custodial interrogation by the parole officer, I disagree with the majority that his

statements to her were admissible at trial. Accordingly, I respectfully dissent.

                                     I. APPLICATION

       Because the majority correctly sets forth much of the applicable law and

determines that custodial interrogation is the decisive issue, I turn right to the case at

hand: Did the circumstances surrounding parole officer Cheryl Evans’s questioning of
defendant amount to custodial interrogation, making his statements inadmissible at his

later trial for the robbery because the interrogation violated Miranda v Arizona1 and

Edwards v Arizona,2 in light of defendant’s prior request for counsel?            Unlike the

majority, I conclude that the answer is yes.

             A. DEFENDANT’S INITIAL ARREST AND INTERROGATION

         Like the parties, the majority does not dispute that the initial police interrogation

concerning the robbery for which defendant was convicted constituted custodial

interrogation to which Miranda applies.3           Nor can that conclusion be seriously

questioned. Defendant was arrested and taken to jail, depriving him of his freedom of

movement, and he was subjected to the precise “station house questioning” by police

officers that was found to be inherently coercive in Miranda.4 The officers were thus

obligated to, and did, give defendant Miranda warnings. Because Miranda applied,

defendant’s request for counsel triggered Edwards, and he could not be subjected to

further custodial interrogation about the robbery until counsel had been made available to

him or he initiated communication.          The detectives honored his request, stopped

questioning him, and according to Smith, even told Evans that defendant had invoked his

right to counsel before she interviewed him.

1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966) .
2
    Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981).
3
  See People v Elliott, 295 Mich App 623, 633; 815 NW2d 575 (2012) (“[I]t is not
disputed that defendant’s June 18, 2010, police interrogation constituted a custodial
interrogation under Miranda.”).
4
    Howes v Fields, 565 US ___, ___; 132 S Ct 1181, 1190; 182 L Ed 2d 17 (2012).



                                               2
     B. DEFENDANT WAS SUBJECT TO CUSTODIAL INTERROGATION WHEN
                       EVANS QUESTIONED HIM

         This leaves one issue: whether Evans’s questioning of defendant three days later

violated Edwards. I disagree with the majority that Evans’s interview of defendant about

the robbery can be viewed as noncustodial because custody, for purposes of Miranda and

Edwards, was not broken between the initial interrogation by the police and Evans’s

subsequent questioning three days later.

                    1. EDWARDS, NOT FIELDS, CONTROLS HERE

         I conclude that Evans’s interview with defendant violated Edwards because the

custodial environment established at the initial police interview never ceased, and

defendant did not initiate this conversation.     The United States Supreme Court in

Maryland v Shatzer described the “paradigm Edwards case” as one in which “the suspect

has been arrested for a particular crime and is held in uninterrupted pretrial custody while

that crime is being actively investigated.”5 While defendant was technically arrested for

violating his parole, the custodial interrogation that immediately followed his arrest

indisputably involved the gas station robbery. Thus, that defendant was not initially

arrested for the robbery is of no moment. As in other paradigmatic Edwards cases

described in Shatzer, defendant never “regained a sense of control or normalcy” after he

was “initially taken into custody for the crime under investigation.”6 In this case, just as

in Edwards, defendant made the inculpatory statements at issue three days after his initial



5
    Maryland v Shatzer, 559 US 98, 106; 130 S Ct 1213; 175 L Ed 2d 1045 (2010).
6
    Id. at 107.



                                             3
police interview, during which everyone agrees he invoked his right to counsel while

confined to the local jail.7

         These facts stand in stark contrast to those of the defendants in Shatzer and Fields,

who were both serving sentences for unrelated crimes and living in the prison in which

they were interviewed.         In those cases, the defendants were interviewed in their

“accustomed surroundings,” and when returned to the general prison population they

simply resumed their “daily routine.”8 In this case, defendant did not live at the Jackson

County Jail. The majority asserts that defendant “could not be considered anything other

than a ‘prisoner,’ as were the defendants in Fields and Shatzer.”9 That argument is

untenable given the similarities between this case and the paradigmatic Edwards case and

the significant differences between this case and Shatzer and Fields. Defendant had not

been placed back into his “normal” correctional facility environment, although he might

legally have been a “prisoner” due to his parole status.10 However, and most important, it

is not in dispute that he was not placed in custody for Miranda purposes for violating

parole, but rather so that the police could interrogate him about the robbery. In short, it is

unclear the extent to which Shatzer and Fields apply outside the context of prison inmates


7
    See id. (describing the facts in Edwards).
8
    Id. at 113.
9
    Ante at 20.
10
  See ante at 20. The majority’s citation to the parole statutes for the proposition that all
parolees are “prisoners” under Michigan law does not justify incorporation of that very
broad understanding of “prisoner” into the Miranda context. State statutes do not control
the application of federal constitutional principles.



                                                 4
incarcerated on an unrelated charge and interviewed somewhere within the correctional

facility that serves as their day-to-day home. But it is clear to me that here Edwards, and

not Fields, controls.

       Further, the custodial environment established during the initial police interview

was not broken merely because it was a parole officer rather than a police officer who

later questioned defendant about the same subject. First, the relationship between the

questioner and the offender is not decisive. Second, Evans questioned defendant about

the very crime for which he was previously questioned by the police officers and had

invoked his Fifth Amendment right to counsel. Accordingly, defendant’s prior assertion

of his right to counsel was still in effect when Evans interviewed him in the jail library.

Because he did not initiate that discussion, it was in violation of Edwards.

       Some of the facts relied on by the majority to support its position, in fact, further

illustrate why this case is governed by Edwards and not Fields. For example, the

majority notes that, as in Fields, defendant here was not free to leave the jail library by

himself and roam free. But the significance of that fact in Fields was to demonstrate that

the defendant’s freedom of movement was curtailed all the time because he lived in a

prison as a result of a prior conviction and sentence.11 In other words, being unable to

roam free was the defendant’s normal life, which inherently made that restriction less


11
   See Fields, 565 US at ___; 132 S Ct at 1194 (“Returning to his cell would merely have
returned him to his usual environment. . . . ‘Interrogated suspects who have previously
been convicted of crime live in prison. When they are released back into the general
prison population, they return to their accustomed surroundings and daily routine—they
regain the degree of control they had over their lives prior to the interrogation.’”), quoting
Shatzer, 559 US at 113.



                                              5
coercive. By contrast, before his arrest and custodial interrogation by the police three

days earlier, defendant’s freedom of movement was not restricted by daily incarceration.

While the facts of Fields may be similar on this point, their legal significance is not.12

        2. EVEN UNDER FIELDS, CUSTODIAL INTERROGATION OCCURRED

         Even assuming that the majority is correct that defendant’s ongoing

Miranda/Edwards status was irrelevant and the Fields framework is applicable here

instead, and I firmly believe it is not, a comparison between the facts of this case and

Fields demonstrates that defendant was subjected to custodial interrogation. As in Fields,

defendant did not invite the interview with Evans or consent to it in advance and he was

not advised that he was free to decline to speak with Evans. Unlike in Fields, however,

defendant in this case was not told that he was free to leave. Notably, the Fields majority

cited the fact that the defendant in that case was told he was free to leave as the “[m]ost

important” factor in its determination that the defendant was not in custody.13 The Court

went to the trouble to repeat its emphasis on this factor as “especially” important at the

end of its opinion.14 Thus, I disagree with the majority that this fact is neither controlling

nor particularly compelling here.

12
  This conclusion is further supported by the fact that in the typical Miranda analysis, the
inability to leave the interview freely is considered a factor supporting a finding of
custody for purposes of Miranda. See, e.g., JDB v North Carolina, ___ US ___, ___;
131 S Ct 2394, 2411; 180 L Ed 2d 310 (2011).
13
     Fields, 565 US at ___; 132 S Ct at 1193.
14
   Id. at ___; 132 S Ct at 1194 (“Taking into account all of the circumstances of the
questioning—including especially the undisputed fact that respondent was told that he
was free to end the questioning and to return to his cell—we hold that respondent was not
in custody within the meaning of Miranda.”).



                                                6
      The majority believes that defendant’s parolee status itself is relevant to the

freedom of movement inquiry because it makes him more familiar with law enforcement

and the type of environment in which he was interviewed. However, given that Miranda

requires an analysis of whether “in light of ‘the objective circumstances of the

interrogation,’ a ‘reasonable person [would] have felt he or she was not at liberty to

terminate the interrogation and leave,’”15 defendant’s subjective beliefs about his freedom

of movement are irrelevant. As the United States Supreme Court has held, “a suspect’s

prior interrogation history with law enforcement has no role to play in the custody

analysis because such experience could just as easily lead a reasonable person to feel free

to walk away as to feel compelled to stay in place.”16 I see no distinction between a

defendant’s prior history with law enforcement and his parolee status. A parolee is a

parolee because of his or her prior history with law enforcement. That “inquiry turns too




15
   Fields, 565 US at ___; 132 S Ct at 1189 (emphasis added; citation omitted; alteration
in original).
16
   JDB, ___ US at ___; 131 S Ct at 2404 (“Because the effect in any given case would be
‘contingent [on the] psycholog[y]’ of the individual suspect, the Court explained, such
experience cannot be considered without compromising the objective nature of the
custody analysis.”), quoting Yarborough v Alvarado, 541 US 652, 668; 124 S Ct 2140;
158 L Ed 2d 938 (2004); see also Alvarado, 541 US at 666-667 (stating that “[o]ur
opinions applying the Miranda custody test have not mentioned the suspect’s age, much
less mandated its consideration. The only indications in the Court’s opinions relevant to
a suspect’s experience with law enforcement have rejected reliance on such factors,” and
that “[t]here is an important conceptual difference between the Miranda custody test and
the line of cases from other contexts considering age and experience. The Miranda
custody inquiry is an objective test”) (emphasis added).



                                            7
much on the suspect’s subjective state of mind and not enough on the ‘objective

circumstances of the interrogation.’”17

         Also in critical contrast to Fields, when defendant was questioned by Evans, he

indisputably had asserted his Fifth Amendment right to counsel. Fields, who had been

incarcerated for some time for some other unrelated offense and presumably had become

acclimated with his incarceration, was not previously questioned about the subject of his

interrogation, nor had he therefore previously asserted his Fifth Amendment right to

counsel. Irrespective of the reason for defendant’s initial arrest, defendant here had been

continually incarcerated during the three days after the police had questioned him and he

had invoked his right to counsel. The effect of this difference is hard to underestimate.

         Because a reasonable person faced with these objective circumstances would not

have felt at liberty to terminate the interrogation and leave, the first part of the Miranda

inquiry is satisfied. I also conclude that Evans’s interview with defendant presented the

“same inherently coercive pressures as the type of station house questioning at issue in

Miranda”18 even if it is considered as a discrete event distinct from defendant’s initial

17
   Alvarado, 541 US at 669 (citation omitted). The majority supports its reliance on the
relevance of defendant’s parolee status by citing to Fields and its discussion of whether
the interrogator has “official power” over the defendant. See ante at 16 n 9. This is
wrong for two reasons. First, that quote appears nowhere in the Fields discussion of the
freedom-of-movement inquiry; rather, it is mentioned in the discussion of whether
“imprisonment alone,” i.e., when the deprivation of freedom of movement is already
established, is sufficient to create a custodial situation within the meaning of Miranda.
Second, the quotation only establishes that the questioner’s power over the defendant is
relevant. It does not make relevant whether a reasonable parolee would know that his
parole officer “has no control over the jail, its staff, or the individuals incarcerated there.”
18
     Fields, 565 US at ___; 132 S Ct at 1190.



                                                8
custodial interrogation. Defendant was summoned to the jail library and was given no

indication that he could decline to attend or leave the interview at any time. He was

interviewed about the basis for his parole violations by Evans, the person serving as his

parole officer for purposes of their meeting and with whom defendant had a prior

relationship.19 Perhaps most importantly, defendant had already been advised that he had

a right to counsel before answering questions about the robbery, had taken that invitation

up and requested counsel, but had not yet been provided counsel when he found himself

questioned again about the same subject. Finally, Evans plainly had “authority to affect

the duration of his sentence,”20 as she was present at the jail to serve parole violation

charges on defendant that could undoubtedly affect the amount of time defendant spent

incarcerated.21      Under these circumstances, the interview subjected defendant to

inherently coercive pressures for purposes of Miranda. Accordingly, Evans’s interview

19
   The majority attaches great significance to the fact that Evans was not defendant’s
regular parole officer. However, it is significant that Evans testified that she had
supervised defendant in the past, that she “couldn’t even count the number of times” she
had been in contact with him, and that she and defendant “have respect for each other for
the way he’s dealt with us in the past and the way that I’ve dealt with him.” Thus, the
majority’s assertion that no “unique relationship” existed between the two of them is, at
the very least, open to debate. Moreover, that Evans was not defendant’s regular parole
officer did not remove or dilute her power over him given that she was plainly a state
actor responsible for overseeing his parole violation case at the time of the interview.
20
     Id. at ___; 132 S Ct at 1191.
21
  Indeed, had defendant not been convicted of the armed robbery, the parole violations
may have been dispositive of how much time defendant served, and Evans’s influence
would have been critical. Additionally, at the time of Evans’s interview, the parole
violations had not been adjudicated; she was there to serve defendant with the violation
charges. What penalty would result from the charges was still unknown to defendant
during this interview.



                                            9
with defendant constituted its own custodial interrogation even under the Fields

framework on which the majority relies.

           Estelle v Smith is also instructive in determining whether Evans’s interview with

defendant constituted its own custodial interrogation.22       In that case, a psychiatrist

interviewed the defendant in jail to evaluate the defendant’s competency to stand trial.

The United States Supreme Court held that the state could not introduce the defendant’s

statements or the psychiatrist’s conclusions, which were based on those statements. The

Court noted that “[t]he considerations calling for the accused to be warned prior to

custodial interrogation apply with no less force to the pretrial psychiatric examination at

issue here.”23 The Estelle Court further observed that the defendant was in custody when

the examination was conducted, and noted that the fact that he was questioned by a

psychiatrist designated by the trial court to conduct a neutral competency examination,

rather than by a police officer, government informant, or prosecuting attorney, was

“immaterial.”24 The crucial inquiry, rather, was the role the psychiatrist played at the

defendant’s trial, which included testifying for the prosecution on the crucial issue of


22
  Estelle v Smith, 451 US 454; 101 S Ct 1866; 68 L Ed 2d 359 (1981). I articulate my
argument in this manner because as explained in part I(B)(1) of my opinion, my primary
contention is that the custodial environment established at the initial police interview
never ceased, so Edwards controls.
23
  Id. at 467. The majority contends that Estelle is irrelevant to the custody issue because
the Court simply assumed the defendant in Estelle was in custody for Miranda purposes
because he was in jail. I disagree. In fact, the Estelle Court analyzed whether the
psychiatric examination involved a coercive environment. Thus, it is instructive with
regard to the custody issue.
24
     Id.



                                              10
respondent’s future dangerousness. In providing that testimony, the Court ruled, “his role

changed and became essentially like that of an agent of the State recounting unwarned

statements made in a postarrest custodial setting.”25

           It is not disputed that defendant was in physical custody when Evans conducted

the interview, that his interrogation was related to the robbery, or that he had previously

asserted his Fifth Amendment right to counsel when questioned by police about the same

subject. The role Evans played at the time of the interview is “immaterial” per Estelle.26

The significant issue about Evans’s role is the one she played at defendant’s trial when

she was directly adversarial to defendant; she testified that he made statements admitting

to the robbery at issue, which were presented as substantive evidence of defendant’s

guilt, and the prosecution referred to her as “probably the most crucial” witness. Just like

in Estelle, regardless of her previous role in collecting defendant’s statement in the first

place, by providing such testimony, Evans’s “role changed and became essentially like

that of an agent of the State” recounting statements obtained in violation of Edwards.27

                                          II. WAIVER

           The Chief Justice joins the majority’s result on the basis that defendant waived his

Fifth Amendment right to counsel by initiating further communication with the police. I

respectfully disagree with his waiver argument for three reasons. First, I do not believe


25
     Id.
26
   This fact renders inapt the prosecution’s attempt to analogize the parole officer/parolee
relationship generally to the social worker/client relationship.
27
     Id.



                                                11
and I know of no authority to support, the proposition that Miranda can be circumvented

by an ex post facto waiver analysis when defendant, having asserted his right to counsel,

did not in fact initiate the subsequent conversation in which the incriminating statements

were made.28 It is undisputed that defendant did not initiate the interview with Evans.

Second, the prosecution never made a waiver argument, in this Court or in the lower

courts. Third, defendant’s alleged letter appears nowhere in the record and there is no

evidence the police ever actually received it, so I would not rely solely on Evans’s

testimony about defendant’s statement about sending a letter in order to find waiver here.

                                   III. CONCLUSION

       I respectfully dissent from the majority’s decision to reverse the judgment of the

Court of Appeals.     I would hold that the custodial environment established during

defendant’s initial police interview as well as his invocation of his right to counsel

remained in effect at the time Evans interviewed him. Because defendant did not initiate

the interview with Evans, the admission of Evans’s testimony regarding defendant’s

statements to her violated Edwards. Alternatively, I would hold that Evans’s questioning

28
    See Miranda, 384 US at 479 (“[The defendant] must be warned prior to any
questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires. Opportunity to exercise these rights must be afforded to him throughout
the interrogation. After such warnings have been given, and such opportunity afforded
him, the individual may knowingly and intelligently waive these rights and agree to
answer questions or make a statement. But unless and until such warnings and waiver
are demonstrated by the prosecution at trial, no evidence obtained as a result of
interrogation can be used against [the defendant].”) (emphasis added); see also Shatzer,
559 US at 111 n 7 (“Edwards establishes a presumption that a suspect’s waiver of
Miranda rights is involuntary.”).



                                             12
of defendant constituted its own custodial interrogation for Miranda purposes. The Court

of Appeals correctly concluded that defendant’s statements to Evans were inadmissible

and should have been suppressed.29 Accordingly, I would affirm the judgment of the

Court of Appeals remanding this case for a new trial.


                                                        Bridget M. McCormack
                                                        Michael F. Cavanagh




29
   Although the prosecution has not argued that the admission was harmless in this Court,
I agree with the Court of Appeals that the admission of defendant’s statements to Evans
was not harmless for the reasons stated in the Court of Appeals opinion.



                                           13
