                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     February 14, 2017
               Plaintiff-Appellant,

v                                                                    No. 333206
                                                                     Genesee Circuit Court
JOHN EDWARD BARRITT,                                                 LC No. 15-038224-FC

               Defendant-Appellee.


Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ.

GLEICHER, J. (concurring).

        I concur with the majority that defendant John Barritt was in custody during the time he
was questioned by the Calhoun County deputies. This case illustrates, however, that determining
whether a person is in custody can be challenging. Both the majority and the dissent raise
arguments consistent with the record. Both opinions cite valid caselaw. I write separately to
flesh out an additional analytical approach.

        Miranda instructs that “in all settings in which [a person’s] freedom of action is curtailed
in any significant way,” the police must warn the suspect of his right to remain silent and assure
him that an exercise of that right will be honored. Miranda v Arizona, 384 US 436, 467; 86 S Ct
1602; 16 L Ed 2d 694 (1966). This is so because “the coercion inherent in custodial
interrogation blurs the line between voluntary and involuntary statements[.]” Dickerson v United
States, 530 US 428, 435; 120 S Ct 2326; 147 L Ed 2d 405 (2000). Thus, the familiar warnings
are “an absolute prerequisite in overcoming the inherent pressures of the interrogation
atmosphere.” Miranda, 384 US at 468.

        Whether an “interrogation atmosphere” exists depends on whether the person being
questioned is actually in police custody. “ ‘[C]ustody’ is a term of art that specifies
circumstances that are thought generally to present a serious danger of coercion.” Howes v
Fields, 565 US 499, 508-509; 132 S Ct 1181; 182 L Ed 2d 17 (2012). We determine whether a
person is in custody by objectively evaluating “all of the circumstances surrounding the
interrogation.” Stansbury v California, 511 US 318, 322; 114 S Ct 1526; 128 L Ed 2d 293
(1994). Our goal is to determine “how a reasonable person in the position of the individual being
questioned would gauge the breadth of his or her ‘freedom of action.’ ” Id. at 325. In other
words, we ask: would a reasonable person in the suspect’s position have understood that he or
she was free to walk away from the police during the questioning?

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       Caselaw from other jurisdictions offers organizational structures that assist in
determining the presence or absence of custody for Miranda purposes. My application of those
approaches convinces me that Barritt was in police custody during the questioning.

         In Howes, 565 US at 509, the United States Supreme Court identified a handful of
“[r]elevant factors” that should guide a court’s custody inquiry: “the location of the questioning,
its duration, statements made during the interview, the presence or absence of physical restraints
. . ., and the release of the interviewee at the end of the questioning.” (Citations omitted.) The
Supreme Court assigned no particular weight to any of the factors; the factual considerations are
guides rather than rigid or immutable requirements. When applied to the facts of this case, these
factors compel the conclusion that Barritt was in custody while being questioned about Amy
Wienski’s disappearance.

        As to location, an interview that takes place in public, or in a suspect’s home, weighs
against a finding of custody. See Berkemer v McCarty, 468 US 420, 438; 104 S Ct 3138; 82 L
Ed 2d 317 (1984); Beckwith v United States, 425 US 341, 342, 347-348; 96 S Ct 1612; 48 L Ed
2d 1 (1976). On the other hand, a police station environment represents the quintessential
“police-dominated atmosphere” referenced in Miranda, 384 US at 445. The Howes Court put it
this way: “A person who is ‘cut off from his normal life and companions and abruptly
transported from the street into a ‘police-dominated atmosphere’ may feel coerced into
answering questions.” Howes, 565 US at 511 (citations omitted). Here, the station house
location of the questioning weighs in favor of a finding of custody. In my view, this is true
whether the door to the office in which Barritt was questioned was locked or unlocked. The
central thrust of this consideration is the general location of the questioning, not its distinct
features.

        The caselaw provides no bright-line rules regarding how long an interrogation must
proceed before its duration is more consistent with custody than not. Ninety minutes, the time
that elapsed before Barritt’s arrest, likely falls on the shorter end of the spectrum. But see
Yarborough v Alvarado, 541 US 652, 665; 124 S Ct 2140; 158 L Ed 2d 938 (2004) (a two-hour
interview pointed toward a finding of custody); United States v FNU LNU, 653 F3d 144, 155
(CA 2, 2011) (the interview “lasted for 90 minutes, substantially longer than most interviews that
we have deemed non-custodial in other contexts”). Here, the 90 minutes of questioning began at
approximately 7:40 p.m. Objectively, two hours of night-time questioning is more consistent
with a perception of custody than with a belief that one could simply get up and walk out of the
room.

       Statements made during an interview are also relevant to a custody determination. In
Yarborough, the Supreme Court observed that the failure of an interrogating officer to tell a
suspect that he could leave militated toward a finding of custody. Yarborough, 541 US at 665.
The Supreme Court of New Hampshire weights that fact heavily in its custody analysis:

              Here, the question is whether the restraint on the defendant’s movement
       was akin to a formal arrest. Consequently, whether the defendant was told that he
       was at liberty to terminate the interrogation provides strong evidence as to
       whether a reasonable person in the defendant’s position would feel free to leave.
       Thus, notwithstanding the fact that the defendant was told that he was not under

                                               -2-
       arrest, the lack of evidence that he was told he was free to terminate the
       interrogation supports a finding of custody at some point during the interrogation.
       [State v McKenna, 166 NH 671, 680; 103 A3d 756 (2013).]

See also People v Elmarr, 181 P3d 1157, 1163 (Colo, 2008) (finding it “important[]” that the
defendant “was never told he was not under arrest, or that he was free to leave”); State v Ortiz,
766 NW2d 244, 252 (Iowa, 2009) (finding that the defendant was in custody based in part on the
fact that “[e]ven though [the officer] never told Ortiz he was under arrest at the station, [the
officer] also never told Ortiz he was free to leave the station”); and Howes, 565 US at 515 (fact
that police told incarcerated suspect that he was free to return to his cell and end interview was
“[m]ost important” consideration in making custody determination).

        Barritt was never told that he could return home. And although an objective standard
governs our review, the testimony of detective Bryan Gandy supports that Barritt would not have
been permitted to leave the station had he asked to do so. Gandy admitted that when applying
for a search warrant of Wienski’s home, he averred that “the description of the subject who
burned Amy Winski’s [sic] rental car matches that of John Barritt.” Barritt was the prime
suspect in a criminal investigation. It stretches credulity that the deputies would have permitted
him to walk out of station. Objectively, the officers’ failure to advise Barritt of his right to do so
(since he was not under arrest at the time) weighs in favor of a custody finding.

        Furthermore, as the majority opinion elucidates, the nature of Barritt’s interrogation also
objectively demonstrates that Barritt was in the officers’ custody. The New Hampshire Supreme
Court observed in McKenna: “The accusatory nature of questioning is widely recognized as a
factor weighing in favor of a finding of police custody.” McKenna, 166 NH at 681. While the
officers’ personal opinions about the guilt of their subject are irrelevant to a custody analysis,
those beliefs “may bear upon the custody issue if they are conveyed, by word or deed, to the
individual being questioned.” Stansbury, 511 US at 325. The officers adopted an aggressive
tone during the interrogation. They repeatedly challenged Barritt’s claim that he did not know
where Wienski was, and had not driven her car. The tenor of the questioning was consistent with
confession-extraction and therefore with custody.

         The use of physical restraints is a fact that pushes the scale toward a custody finding.
Although handcuffing a suspect is not dispositive of custody, it goes a long way toward
establishing that an individual reasonably felt that he was not at liberty to terminate an
interrogation. White v United States, 68 A3d 271, 279-280 (DC Ct App, 2013). But “effective
restrictions on a defendant’s movement can be a product of verbal, psychological, or situational
restraint.” McKenna, 166 NH at 678. Here, Barritt was not handcuffed. Nevertheless, he was
driven to the police station in the back seat of a marked police vehicle and left there in the
company of two deputies, questioned in a room with the door closed in a locked building during
nonworking hours. In my view, these very real physical restraints on Barritt’s freedom tend to
demonstrate a custodial situation.1


1
  The dissent points out that Barritt “agreed to ride in a marked police car.” While this is true, it
ignores the surrounding circumstances. When Barritt pulled up at his home, he found a number
of deputies performing a search of the property. His pets had been taken into custody. He was
                                                -3-
        The final factor referenced in Howes, “the release of the interviewee at the end of the
questioning,” weighs in favor of a finding of custody. I readily concede that the Supreme
Court’s designation of this fact as relevant to a custody analysis seems somewhat anomalous, as
it does not touch on the events of the interrogation itself. For an in-depth discussion of this
factor, see Pettinato, The Custody Catch-22; Post-Interrogation Release as a Factor in
Determining Miranda Custody, 65 Ark L Rev 799, 818 (2012) (“One oddity that has resulted
from the general lack of clarity in Miranda custody jurisprudence is the consideration of post-
interrogation arrest or release in the totality-of-the-circumstances test.”).

       Applied in this case, the Howes custody factors weigh heavily in favor of a finding of
custody. Barritt was taken to the police station in the back seat of a marked car, was accusatorily
questioned in a police station by two armed deputies, was never told that he could leave or
terminate the questioning, and was arrested when the interview concluded despite not having
confessed to playing any part in Wienski’s disappearance.

       The factor approach suggested in Howes forces a court to maintain a wide-angle focus in
determining whether a reasonable person in a suspect’s position would have felt free to terminate
police questioning. The majority hews closely to this totality-of-the-circumstances mandate.
The facts surrounding Barritt’s interrogation, viewed through the Howes factors’ lens, strongly
support that a finding of custody. I join the majority in full.



                                                              /s/ Elizabeth L. Gleicher




immediately approached by an armed deputy who (in the deputy’s words) “had Mr. Barritt have
a seat in the back of my car.” According to that same deputy, Barritt “was escorted in” the
police department. These circumstances are far more consistent with a restriction of freedom
that with a voluntary cooperation.
        In McKenna, 166 NH at 684, the New Hampshire Supreme Court discussed a custody
factor relevant to the character of the interrogation: “the fact that the police initiated the contact
with the defendant.” When law enforcement authorities instigate a “confrontation between the
suspect and the criminal justice system . . . custody is more likely to exist.” Id. (quotation makrs
and citation omitted). Here, a number of officers arrived at the home Barritt shared with Wienski
and executed a search warrant. As in McKenna, this fact weighs in favor of a custody finding.
See also Ross v State, 45 So3d 403, 415 (Fla, 2010) (citation omitted) (in which the Florida
Supreme Court also relies on “the manner in which police summon the suspect for questioning”
as a factor of importance in ascertaining custody).

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