                           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.

K. F. KELLY, P.J. (dissenting).

       I respectfully dissent. Because defendant was not in custody at the time of his statement,
he was not entitled to a Miranda1 warning. I would reverse.

        In order to determine whether someone was “in custody” this Court must consider “the
totality of the circumstances, with the key question being whether the defendant reasonably
believed that he was not free to leave.” People v Mendez, 225 Mich App 381, 382-383; 571
NW2d 528 (1997). See also People v Steele, 292 Mich App 308, 316-317; 806 NW2d 753
(2011). When considering the totality of the circumstances, this Court must consider “the
objective circumstances of the interrogation, not [] the subjective views harbored by either the
interrogating officers or the person being questioned.” Stansbury v California, 511 US 318, 323;
114 S Ct 1526; 128 L Ed 2d 293 (1994). Specifically, the Court has held that Miranda warnings
need not be imposed “simply because the questioning takes place in the station house, or because
the questioned person is one whom the police suspect.” Oregon v Mathiason, 429 US 492, 495;
97 S Ct 711; 50 L Ed 2d 714 (1977). Rather, the Court in Miranda revealed that it was
concerned with an atmosphere that would “generate ‘inherently compelling pressures which
work to undermine the individual’s will to resist and to compel him to speak where he would not
otherwise do so freely.’ ” Illinois v Perkins, 496 US 292, 296; 110 S Ct 2394; 110 L Ed 2d 243
(1990), quoting Miranda, 384 US at 467. As mentioned, these circumstances have been limited
to where the objective facts of the interrogation reveal that a defendant would not feel free to end
the interrogation of his own free will and leave. See Steele, 292 Mich App at 316-317.



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



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        Given the factual circumstances surrounding the present case, defendant’s interview was
not a “custodial interrogation” requiring Miranda warnings for admissibility. Of specific
importance is that defendant agreed to voluntarily come to the police station to answer questions.
Furthermore, defendant agreed to ride in a marked police car. During the interview with the
police, defendant was placed in a room that was not locked or secured, and in which the various
officers in the building felt free to come and go at their own leisure. Defendant was offered a
beverage, officers came in the room to ask the other officers about pizza orders, and defendant
repeatedly indicated that he wanted to help the investigation as much as possible. Defendant was
not restrained in any manner during the interview and was never told he was under arrest or that
he was not free to leave. In fact, as conceded by defense counsel at oral argument, he was told
twice that he could “end this at any time” and that he was not under arrest. A reasonable person
presented with those circumstances would “reasonably believe[] that he was [] free to leave.”
Mendez, 225 Mich App at 382-383.

       Similarly, in Mathiason, the defendant came to the police station willingly, was told that
he was not under arrest, was taken to an office where the door was closed but not locked, and
questioned while sitting at a desk with a police officer. Under these circumstances, the Court
held that “there is no indication that the questioning took place in a context where [the
defendant’s] freedom to depart was restricted in any way.” Id. at 495. Defendant in the present
case was also at the police station willingly, taken to a room with the door closed but not locked,
and was questioned at a desk across from a police officer. Although the defendant in Mathiason
was specifically told that he was not under arrest at the start of the interrogation, and was
allowed to leave after the interrogation, while defendant here was not provided the same
courtesies, I do not find those factual differences to be determinative. Specifically, while
defendant may not have been told he was not under arrest or allowed to leave the interview
without being placed under arrest, he was subject to a casual environment that portrayed
defendant’s lack of arrest – he was not restrained and watched as the police officers interviewing
him engaged in casual conversation with the other officers in the building.

        In light of these circumstances, defendant’s interview would not “generate ‘inherently
compelling pressures which work to undermine the individual’s will to resist and to compel him
to speak where he would not otherwise do so freely.’ ” Perkins, 496 US at 296, quoting
Miranda, 384 US at 467. In other words, defendant had not “been taken into custody or
otherwise deprived of his freedom of action in any significant way.” Miranda, 384 US at 444.
As such, defendant was not in custody, and therefore, Miranda warnings were not required for
the interview. The trial court should have denied defendant’s motion to suppress defendant’s
statement.

                                                            /s/ Kirsten Frank Kelly




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