                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 28, 2017
                Plaintiff-Appellee,

v                                                                    No. 335272
                                                                     Ottawa Circuit Court
MAX THOMAS PRZYSUCHA,                                                LC No. 16-040340-FH

                Defendant-Appellant.


Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

       In this interlocutory appeal, defendant, Max Thomas Przysucha, appeals by leave
granted1 the trial court’s order denying defendant’s motion to suppress statements made during
police questioning. Because we conclude that defendant was in custody at the time of the
questioning, we reverse the trial court’s order.

        Defendant argues that he was “in custody” when he was interviewed at the police station,
and that the police were therefore required to give Miranda2 warnings. We note at the outset that
there is no dispute that defendant did not receive Miranda warnings. The sole issue on appeal is
whether defendant was “in custody” for purposes of Miranda.

        Defendant preserved this issue for appeal through his motion to suppress the statements
in the trial court. People v Henry (After Remand), 305 Mich App 127, 144; 854 NW2d 114
(2014).

        “On appeal, the issue whether a person is in custody for purposes of Miranda is a mixed
question of law and fact that must be answered independently after review de novo of the
record.” People v Zahn, 234 Mich App 438, 449; 594 NW2d 120 (1999). An appellate court
“review[s] a trial court’s factual findings in a ruling on a motion to suppress for clear error.”
People v Elliott, 494 Mich 292, 300; 833 NW2d 284 (2013). “A finding of historical fact is
clearly erroneous if, after a review of the entire record, an appellate court is left with a definite

1
 People v Przysucha, unpublished order of the Court of Appeals, entered November 28, 2016
(Docket No. 335272).
2
    Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).



                                                -1-
and firm conviction that a mistake has been made.” People v Mendez, 225 Mich App 381, 382;
571 NW2d 528 (1997). “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, the review is de novo.” Elliott, 494 Mich at 300-301. An appellate court “review[s] de
novo the trial court’s ultimate decision concerning a motion to suppress.” People v Cortez, 299
Mich App 679, 691; 832 NW2d 1 (2013).

       “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.’ ”3 Elliott, 494 Mich at 301, quoting
Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). In other words, if a
person is in custody, “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” before any questioning occurs. Miranda,
384 US at 444. “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.” Elliott, 494 Mich at 301.

        “It is well settled that Miranda warnings need be given only in situations involving a
custodial interrogation.” Zahn, 234 Mich App at 449. “Custodial interrogation” is
“ ‘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.’ ” Elliott, 494 Mich at 305,
quoting Miranda, 384 US at 444. “Custodial interrogation occurs during incommunicado
interrogation of individuals in a police-dominated atmosphere,” which is an atmosphere that
“generate[s] 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.” Elliott, 494 Mich
at 305 (quotation marks and citations omitted).

        We have explained that “[t]o determine whether a defendant was in custody at the time of
the interrogation, we look at the totality of the circumstances, with the key question being
whether the accused reasonably could have believed that he was not free to leave.” Zahn, 234
Mich App at 449; see also Howes v Fields, 565 US 499, ___; 132 S Ct 1181, 1189; 182 L Ed 2d
17 (2012) (quotation marks and citations omitted; alteration in the original) (“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.”). “[I]n order to determine how a suspect
would have gauge[d] his freedom of movement, courts must examine all of the circumstances
surrounding the interrogation.” Fields, 565 US at ___; 132 S Ct at 1189 (quotation marks and
citations omitted; second alteration in the original). “Relevant factors include the location of the
questioning, its duration, statements made during the interview, the presence or absence of

3
  Both the United States Constitution and the Michigan Constitution protect the right to be free
from 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 . . . .”).



                                                 -2-
physical restraints during the questioning, and the release of the interviewee at the end of the
questioning. Id. (quotation marks and citations omitted). “The determination of custody
depends on the objective circumstances of the interrogation rather than the subjective views
harbored by either the interrogating officers or the person being questioned.” Zahn, 234 Mich
App at 449. In addition to considering “whether an individual’s freedom of movement was
curtailed,” courts consider “whether the relevant environment presents 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.

        The Miranda requirement is not automatically triggered merely because the questioning
occurs at the police station or because the interviewee is a police suspect. See Oregon v
Mathiason, 429 US 492, 495; 97 S Ct 711; 50 L Ed 2d 714 (1977) (holding that the defendant
was not in custody where he went to the police station voluntarily, was immediately told that he
was not under arrest, and left the police station after the 30-minute interview); accord Mendez,
225 Mich App at 383, 384 (holding that the defendant was not in custody for Miranda purposes
where the defendant chose the time of the interview after receiving a police letter requesting an
interview, drove himself to the police station, was told at the beginning of the interview that he
was not under arrest, was interviewed for 1½ hours, was left alone in the interview room without
restraints, and was allowed to leave after giving written answers to some questions and being
told by the investigators that they did not believe his answers).

        In Zahn, 234 Mich App at 450, this Court concluded that the defendant was not in
custody when he was questioned, and that Miranda warnings were not required, because the
defendant selected the room where the interrogation occurred, the interrogation was “brief,”4 and
the defendant “was assured that he was not in custody or under arrest.” The length of the
interrogation is not the deciding factor. In Fields, the United States Supreme Court held that the
respondent was not in custody for Miranda purposes where the respondent was interviewed by
two armed deputies for five to seven hours in a separate room of the jail where he was
incarcerated, one of the deputies spoke to the respondent in “a very sharp tone,” the door was
sometimes open and sometimes shut, the respondent was free of physical restraints, and the
respondent was told multiple times that he could leave “whenever he wanted.” Fields, 565 US at
___; 132 S Ct at 1186-1187, 1193, 1194. Additionally, an interviewee is not automatically
considered to be in custody simply because the police did not inform the interviewee that he or
she could leave at any time. All of the circumstances of the interrogation must be considered.
See Elliott, 494 Mich at 308-309, 309 n 4, 322 (in holding that the defendant was not subjected
to custodial interrogation, the Court stated, “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.”).




4
 The Zahn Court noted that there was no finding by the trial court regarding the actual duration
of the interrogation, 234 Mich App at 450 n 6, so the definition of “brief” is unclear.



                                               -3-
        However, when police indicate that an interviewee will be free to leave at some future
time, it implies that the interviewee is currently in custody. In People v Roark, 214 Mich App
421, 423-424; 543 NW2d 23 (1995), this Court held that a defendant was in custody at the time
of interrogation, even though the defendant had been informed by the police officer that she
would be released after she posted bond. The defendant in Roark was involved in a traffic
accident, and the investigating officer at the scene discovered that there were outstanding
warrants for the defendant’s arrest. Id. at 422. The defendant approached the police cruiser as
the officer was confirming the validity of the warrants, and the officer asked the defendant to sit
in the back seat of the cruiser. Id. The officer informed the defendant of the outstanding
warrants and the requirement that she post a $330 bond. Id. After conducting a consent-based
search of the defendant’s vehicle while defendant was still in the cruiser, the officer informed the
defendant “that upon posting the bond she would be free to leave.” Id. at 423. Before the
defendant left the cruiser, the officer questioned her and she made an incriminating statement.
Id. The trial court had denied the defendant’s motion to suppress her statements, ruling that the
defendant was no longer in custody and Miranda warnings were not required “because defendant
had been advised that she would be free to leave upon posting the bond.” Id. at 422, 423. The
Roark Court noted that “it is the position of the prosecutor and the trial court that defendant was
not in custody because the officer had advised her that he would not be transporting her to jail,
but that she would have the opportunity to post a cash bond and be released.” Id. at 423.

       The Roark Court reversed the trial court’s ruling and held that the defendant was in
custody and that Miranda warnings were required, reasoning as follows:

               In sum, defendant had been requested to sit in the back of the police
       cruiser and was aware that there were outstanding warrants and that she would be
       required to post a bond as a condition of being released. Under the totality of the
       circumstances, we do not believe that a reasonable person would believe that he
       was free to leave until such time as bond was posted and the officer released him.
       The fact that defendant was aware that she would be released at some point in the
       future does not alter the fact that, until that release occurred, she was in custody.
       Furthermore, we are aware of no authority that stands for the proposition that
       there is an exception to the requirements of Miranda where a suspect is informed
       that he will eventually be released. In short, defendant remained in custody until
       released. Accordingly, Miranda warnings were required. [Id. at 424.]


        In the instant case, Lieutenant Joseph Boyle contacted defendant and asked him if he
would come to the police station to discuss a home invasion that had occurred on Grant Street
which was one of a series of such crimes in the area. Defendant drove himself to the police
station where he was interviewed by two armed police offers in plain clothes. Defendant was not
physically restrained during the interview and was never told that he was under arrest or directly
informed that he could not leave. However, defendant was told at the beginning of the interview,
“Before we get going, I want to let you know that no matter what you say to me, you’re free to
leave when everything’s done.” Throughout the interview, Lieutenant Boyle made similar
comments. He said, “Did I tell you today you’re going to be free to leave when you’re done?
Yes. You’re going, you’re going out of this office.” Lieutenant Boyle also stated, “I told you
you’re leaving here, and I’m a man of my word. I mean it. But I’m not going to let you go out


                                                -4-
there all depressed and worried about yourself [defendant].” He also stated, “I told you you’re
going to be able to leave here and that you’re not going to jail. I told you that. But [defendant], I
can’t let you sit by yourself at home.” These statements clearly focus on defendant’s future
liberty: he will be free to leave once the interview is concluded.

       Furthermore, Lieutenant Boyle made additional statements demonstrating that he, and not
defendant, was the one in control of determining when the interview would be “done.”
Lieutenant Boyle stated:

              Alright, so we’re going to get through this step by step. I want to, I want
       to be clear on Grant Street. We’re going to come back to the other people’s
       houses. What time did you go to the house on Grant Street?

Lieutenant Boyle also stated:

               So there’s some things that I don’t know. But that doesn’t negate the fact
       that you’ve been in at least 12 houses, some of which you don’t even know or are
       afraid to share at this point. But we’ll get through it. You’ll sit here and then all
       of a sudden you’ll think of a name and bring it up . . . .”


        Under the totality of the circumstances and considering the objective circumstances
rather than any subjective intent Lieutenant Boyle may have possessed, a reasonable person
would have assumed that Lieutenant Boyle would decide when the interview was over, and a
reasonable person would not have felt free to terminate the interrogation and leave before that
time came. Fields, 565 US at ___; 132 S Ct at 1189; Zahn, 234 Mich App at 449; Roark, 214
Mich App at 424. Lieutenant Boyle’s statements show his intent to keep defendant in the
interview room until he provided sufficient information about the home invasions. Lieutenant
Boyle pressed defendant for information about further home invasions to which defendant had
not yet confessed. When Lieutenant Boyle paused in questioning, Detective Tithof would
advance:

       We’re not getting anywhere. We know there are more, you just don’t remember
       them. Let’s just get past this, so we can lay it out for everybody. We can be done
       with the whole thing, by listing them all out.

Both the lieutenant and detective offered to drive defendant around the neighborhood so
defendant could point out the additional homes they believed were involved.

       There were other circumstances surrounding the interrogation that were indicia that
defendant’s liberty was significantly constrained. For example, when defendant was given a
bathroom break, he was frisked, he was asked if he had any box cutters or similar items, and he
emptied his pockets and left his car keys and possessions in the interview room. Defendant was
also escorted to and from the bathroom by both officers. In addition, when defendant asked
whether he could take a cigarette break, Lieutenant Boyle asked Detective Tithof if he could take
defendant outside, to which Detective Tithof responded, “Yes, we can stand outside.” Clearly,
defendant was not allowed to leave the interrogation room unescorted. Accordingly, defendant
could not have left the police station at that time if he had desired.


                                                -5-
        When defendant denied involvement in the home invasions, Lieutenant Boyle persisted in
telling defendant to be honest with him, and Lieutenant Boyle confronted defendant with
evidence of his involvement in the incidents. Moreover, Lieutenant Boyle’s statement, “I told
you you’re leaving here, and I’m a man of my word. I mean it.” shows his attempt to assure
defendant that he would in fact be released—an assurance that would be unnecessary if
defendant was not currently being prevented from leaving on his own volition. There were no
statements made to defendant during the interview indicating that defendant could actually stop
the interview at any time. In fact, Lieutenant Boyle stated that he would not allow defendant to
leave in defendant’s current mental state. (“I’m not going to let you go out there all depressed
and worried about yourself”). A promise of eventual release does not except an interrogation
from the Miranda requirements. Roark, 214 Mich App at 424. Therefore, under the totality of
the circumstances, defendant was in custody until Lieutenant Boyle determined that the
interview was “done” and that defendant was free to leave. Id. This defendant was subjected to
the same inherently coercive pressures that were at issue in Miranda. As the United States
Supreme Court has stated, “without proper safeguards the process of in-custody interrogation of
persons suspected or accused of crime contains 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. Furthermore, “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.” Minnesota v Murphy, 465 US 420,
433; 104 S Ct 1136; 79 L Ed 2d 409 (1984), reh den 466 US 945 (1984). Here, as previously
discussed, a reasonable person would have felt that he was required to remain in the interview
room until Lieutenant Boyle determined that the interview was over, and Lieutenant Boyle’s
statements implied that the interview would be “done” after they discussed the home invasions
“step by step” and defendant provided confessions related to the series of home invasions. Thus,
a reasonable person would have felt the coercive pressure that the interrogation would continue
until he confessed. Murphy, 465 US at 433.

      Therefore, the trial court erred by determining that defendant was not in custody for
Miranda purposes. Zahn, 234 Mich App at 449.

        Here, the parties do not dispute that defendant was subjected to interrogation; indeed the
record evidence clearly shows that defendant was questioned by the police about his involvement
in the series of home invasions and responded by making incriminating statements. Because
defendant was subjected to custodial interrogation, Miranda warnings were required; defendant’s
statements made during the interview may not be introduced into evidence because the
requirements of Miranda were not met. Elliott, 494 Mich at 301. The trial court erred by
denying defendant’s motion to suppress the statements. Cortez, 299 Mich App at 691.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.

                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Michael F. Gadola




                                               -6-
