People v Fenderson

Michigan Supreme Court Lansing, Michigan

Syllabus Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood

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. Kimberly K. Muschong

PEOPLE v FENDERSON

Docket No. 167391. Argued on application for leave to appeal March 12, 2026. Decided July 14, 2026.

Daren D. Fenderson was bound over to the Wayne Circuit Court on charges of first-degree premeditated murder, MCL 750.316(1)(a); felony-firearm, MCL 750.227b; and escape from lawful custody, MCL 750.197a. Defendant was arrested and jailed in connection with a fatal shooting. Police read defendant his rights under Miranda v Arizona, 384 US 436 (1966), but police were unable to interrogate defendant at that time because they believed that he was intoxicated. The following day, Detroit Police Sergeant Reginald Beasley and Detective Douglas Williams conducted a videorecorded interrogation. Beasley provided standard Miranda warnings, and defendant voluntarily signed an advice-of-rights form. After an hour of questioning, police told defendant that there were a lot of holes in his story and that they had conducted research, including watching surveillance videos and speaking with witnesses. Beasley further indicated that someone who looked at the evidence would ask themselves whether defendant was a callous killer; Beasley told defendant several times that pictures of the victim were “fucked up” and that police had a “video of it happening.” At this point, defendant invoked his right to counsel. Beasley asked if defendant had an attorney. Defendant indicated that he would need appointed counsel and asked how long that would take. Beasley said that he was not sure but that he would “make a couple phone calls.”

Beasley returned about 40 minutes after defendant’s invocation and told him that he was “trying to get that attorney.” Two hours and 45 minutes after defendant invoked his right to counsel, Beasley returned; he did not address defendant or provide him with information about efforts to locate an attorney. Beasley was accompanied by a uniformed officer who removed defendant’s handcuffs and then had defendant turn around so that he could handcuff defendant with his arms behind his back. Defendant then asked where his lawyer was. The audio of the interrogation video is difficult to decipher, but Beasley responded either “You don’t got one” or “You don’t get one.” Defendant expressed confusion, and Beasley told defendant that police tried to call a lawyer but nobody was available and defendant had no money. Defendant asked whether he could use the money he had in his possession when he was arrested, and Beasley said that he couldn’t use that money.  Defendant then asked, “So what’s going on?” Beasley stated that defendant had asked for an attorney and that he could not speak to defendant without one, “[s]o the story you got is the story we gon’ go with.” Defendant again expressed confusion, and Beasley asked defendant what he was confused about. Defendant responded that he didn’t know what was going on and that police hadn’t told him anything. Beasley stated that police would take defendant back to the Detroit Detention Center and submit a warrant that a prosecutor would review. Defendant told Beasley that he didn’t know what that meant, and Beasley responded that defendant had requested an attorney so he couldn’t speak to defendant about the case, but that if defendant wanted to talk, defendant had to say he wanted to talk without an attorney. Defendant then repeatedly said that he wanted “to get this over with,” and Beasley responded that he could go over defendant’s rights with him again if he agreed to talk without an attorney. Defendant agreed to talk without an attorney and again expressed that he wanted “to get this over with.” Beasley stated that he didn’t want defendant to feel compelled to talk to him, but that if defendant wanted to talk without an attorney present, Beasley would talk to defendant. Defendant said, “Yeah.” Beasley again stated that he didn’t want defendant to feel forced to do anything and asked, “Is that something you want to do?” Defendant said, “Yes.”

Beasley and the uniformed officers accompanying him left the interrogation room, and defendant started crying. Another sergeant, who was not connected with the investigation and who had not previously spoken to defendant, entered the room. Defendant said, “I don’t understand this.” The sergeant stated that his role was to reestablish defendant’s rights, and he read the standard Miranda warnings again. After each warning, the sergeant asked defendant if he understood his rights. Defendant responded with a mix of verbal agreement and nonverbal affirmative head nods. When the sergeant asked if anyone had forced, threatened, or coerced defendant to make a statement, defendant responded, “See, that’s what I . . . I don’t understand what’s going on.” The sergeant asked if defendant wanted to talk to police, and defendant agreed. Defendant initialed another advice-of-rights form, and the sergeant left. Beasley and Williams returned, and defendant made incriminating statements.

Defendant moved to suppress the incriminating statements in the trial court on the grounds that he did not voluntarily, knowingly, and intelligently waive his Miranda right to counsel. The court, Wanda A. Evans, J., granted defendant’s motion to suppress, concluding that police communications with defendant had frustrated the advice of rights required by Miranda. The trial court also concluded that police reinitiated the interrogation after defendant’s invocation by readministering Miranda warnings. The prosecution sought leave to appeal in the Court of Appeals, and the Court of Appeals, SWARTZLE, P.J., and SERVITTO, J. (GARRETT, J., dissenting), reversed the suppression of defendant’s statements in an unpublished per curiam opinion, issued June 6, 2024 (Docket No. 367926). Defendant sought leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral argument on the application. 516 Mich 934 (2025).

In an opinion by Justice THOMAS, joined by Chief Justice CAVANAGH and Justices BERNSTEIN, WELCH, BOLDEN, and HOOD, the Supreme Court, in lieu of granting leave to appeal, held:

Defendant’s Fifth Amendment rights under Miranda were violated. Under Edwards v Arizona, 451 US 477 (1981), statements following the invocation of counsel are admissible only if counsel is made available to the suspect for questioning or if the state shows that the suspect himself reinitiated the investigation. In this case, defendant initially waived his Miranda rights but later asserted his right to appointed counsel. However, defendant was not provided counsel and was told he did not have and could not obtain counsel. The statements police made in this case after defendant’s invocation of counsel can reasonably be understood as suggesting that defendant’s right to have an attorney present during questioning was dependent on his ability to retain counsel through his own funds; these statements are not consistent with Miranda’s assertions that suspects have a right to counsel and that, if they cannot afford counsel, counsel will be provided. Defendant’s confusion and lack of understanding was apparent from the record: defendant repeatedly told police that he was confused and didn’t understand, and defendant asked multiple clarifying questions. The police did not err because they failed to provide an attorney; the police here erred by suggesting that defendant could not be questioned with an attorney present because he did not have the money to hire one. This confusing and inaccurate information undermined the advice of rights previously read to defendant. By undermining the advice of rights and implying that the right to have an attorney present during questioning was predicated on the ability to pay for an attorney, police in this case violated defendant’s Fifth Amendment right to counsel under Miranda. Furthermore, the prosecution did not show that defendant reinitiated the investigation. Defendant’s question, “So what’s going on?” could not reasonably be considered an affirmative request to reinitiate the interrogation without an attorney. Defendant asked this question in the context of a discussion about whether, having invoked his right to counsel, he had an attorney and whether he could use the money he had for an attorney. As a result, the subsequent Miranda waiver and questioning did not overcome Edwards and the confusion created about defendant’s right to counsel.

Finally, police engaged in the functional equivalent of questioning when defendant asked what was going on. After defendant was told that he did not have an attorney and could not use his money for an attorney, police continued the same theme from prior to defendant’s invocation of counsel, where they suggested that defendant’s story had holes and did not make sense. Police told defendant that a waiver of his rights was the way to tell another story and that otherwise he would be stuck with the prior story. Accordingly, police undermined the advice of rights required by Miranda and impermissibly continued the interrogation after defendant invoked his right to counsel. Defendant’s statements subsequent to invocation of his right to counsel must be suppressed.

Court of Appeals’ judgment reversed; case remanded to the Wayne Circuit Court for further proceedings.

Justice ZAHRA, dissenting, would have affirmed the Court of Appeals’ judgment that defendant’s decision to waive his rights was made voluntarily, knowingly, and intelligently and that the officers did not violate defendant’s right to be free from self-incrimination under the Fifth Amendment of the United States Constitution or Article 1, § 17 of the 1963 Michigan Constitution. The police did everything they were constitutionally required to do in this case. They ceased questioning immediately once defendant requested an attorney; they attempted to locate an attorney for defendant; they informed defendant that they could not question defendant any further about the case because they could not find an attorney to counsel defendant during the interrogation; when asked, they explained to defendant what the next steps in the process would be; and when defendant stated that he wanted to talk without an attorney, they asked defendant to make sure that is what he wanted, repeatedly told him not to feel compelled to speak to them, and informed him of his rights again before accepting his waiver. This police conduct was not only constitutionally acceptable but required under the law.  Michigan Supreme Court Lansing, Michigan

OPINION Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood

FILED July 14, 2026

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 167391

DAREN DONELL FENDERSON,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

THOMAS, J. Defendant, Daren Fenderson, awaits trial on charges of first-degree premeditated

murder, felony-firearm, and escape from lawful custody. We heard oral argument to

determine whether the Court of Appeals erred by reversing the trial court’s decision to

grant defendant’s motion to suppress statements he made during a custodial interrogation.

We find that it did. In this instance, police provided Miranda warnings, and defendant

asserted his right to have an attorney present during questioning and his right to have counsel provided at the public’s expense. 1 After the invocation of these rights, police must

either provide counsel for a suspect or terminate the interrogation. 2 In this case, after

defendant invoked his right to counsel, police tried to obtain an attorney for him. They

returned empty-handed, over two and a half hours later, telling defendant that he did not

have an attorney and could not use the money taken from him during arrest to obtain one.

Thereafter, in response to defendant’s questions about what was going on, police resumed

the interrogation. We agree with the trial court that defendant’s Fifth Amendment rights

under Miranda were violated. 3 We therefore reverse the judgment of the Court of Appeals

and remand this case to the Wayne Circuit Court for further proceedings not inconsistent

with this opinion.

I. FACTS AND PROCEDURAL HISTORY

A. INTERROGATION

Defendant was arrested and jailed in connection with a fatal shooting. The victim

of the shooting was found pinned between a crashed vehicle and the front porch of a house.

After defendant was arrested, police read him his Miranda rights, but they were unable to

interrogate him at that time because they believed that he was intoxicated. The following

day, Detroit Police Sergeant Reginald Beasley and Detective Douglas Williams conducted

a videorecorded interrogation. Beasley provided standard Miranda warnings, and

1 Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). 2 Edwards v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981). 3 US Const, Am V; Const 1963, art 1, § 17; Miranda, 384 US at 444; see also People v Cipriano, 431 Mich 315, 330-331; 429 NW2d 781 (1988); Edwards, 451 US at 484-485; People v Paintman, 412 Mich 518, 524-526; 315 NW2d 418 (1982).

2 Fenderson voluntarily signed an advice-of-rights form. At that point, Fenderson indicated

a desire to continue the interrogation without counsel, stating that he did not need a lawyer

and that “[e]verything’ll be good.” He did, however, ask if it would be best to have a

lawyer present. Williams told him, “That is up to you, sir.” Fenderson then asked how

long it would take to get a lawyer. Williams said he had “no idea” and asked defendant if

he had a lawyer. Fenderson said he did not, but he referenced the advice-of-rights form

and noted where it indicated that a lawyer would be appointed. At that moment, Fenderson

did not invoke his right to counsel. He stated that he did not want to take up his

interrogators’ time or his own waiting for a lawyer.

During the initial portion of the interrogation, Fenderson described being with the

victim during an alleged carjacking. After an hour of questioning, the officers called into

question Fenderson’s statements. Beasley told defendant, “There’s a lot of—lot of holes

in your story, alright?” Among other things, Beasley also told defendant that prior to the

interrogation, he and Williams had conducted research—he said they watched surveillance

videos, spoke to people in the neighborhood, and talked to defendant’s mother—and that

he believed that some of what Fenderson was saying was not true and didn’t “make any

sense.”

Beasley then told defendant that he didn’t want defendant to “tell a story . . . that’s

not true,” implying that it wouldn’t fit with the evidence. Beasley indicated that someone

who did look at the evidence would ask themselves, “Man, is he a—a callous killer?”

Defendant insisted that he did not kill anyone. Both Beasley and Williams confronted

defendant with additional perceived inconsistencies in his story.

3  After more than an hour and a half of questioning, and after Williams had exited the

interrogation room, Beasley asked defendant if he would be willing to take a polygraph

exam. Defendant asked if his lawyer could be present for that. Beasley said that it would

be possible, and defendant agreed to be polygraphed. No polygraph exam was

administered. Beasley then told defendant several times that the pictures of the victim were

“fucked up,” that police had a “video of it happening,” 4 and that anyone who saw what

happened to the victim would say, “ ‘Oh shit, that’s fucked up.’ ”

The parties agree that defendant then invoked his right to counsel. Beasley asked if

defendant already had an attorney. Defendant indicated that he did not and that he would

need appointed counsel. He inquired how long that would take. Beasley said that he was

not sure but that he would “make a couple phone calls.”

Beasley then left defendant alone in the interrogation room. Fenderson was later

provided with a soda, and he declined an offer of chips. Beasley returned about 40 minutes

after Fenderson’s invocation and told him that he was “trying to get that attorney.”

Defendant requested to use the bathroom, was handcuffed with his arms in front, and was

escorted out of the interrogation room. He returned moments later and was left alone and

handcuffed.

4 Amicus curiae The Innocence Project argues that this was a false-evidence ploy and urges this Court to adopt a per se rule that statements made after such a ploy are inadmissible. Such a ruling would be premature; the record before this Court does not show whether video footage of the shooting does or does not exist. We note, however, that the use of false-evidence ploys can be considered in the voluntariness inquiry under existing caselaw. See People v Stewart, 512 Mich 472, 498-499; 999 NW2d 717 (2023) (concluding that officers’ lies about having an eyewitness placing defendant at the scene of a robbery and having home-surveillance video were exaggerations of the strength of the case against defendant, which weighed in favor of involuntariness).

4  Approximately two hours and 45 minutes after defendant invoked his right to

counsel, Beasley returned. Beasley did not address defendant or provide him with

information about efforts to locate an attorney. Beasley was accompanied by a uniformed

officer who removed defendant’s handcuffs and then had defendant turn around so that he

could handcuff defendant with his arms behind his back. This exchange followed:

Defendant: Where . . . where my lawyer?

Beasley: You don’t got one . . . so . . .[5]

Defendant: Wait . . . huh?

Beasley: You don’t have a lawyer. You got one?

Defendant: No . . . I . . . you said . . .

Beasley: We tried to get . . . we tried to call one. Ain’t nobody available and you ain’t got no money . . . so . . .

Defendant: Yeah I do. The money that I came in with. You can’t use . . . that?

Beasley: I can’t use that money.

Defendant: Aww come on.

5 The audio of the interrogation video is difficult to decipher at some points. Defendant states that Beasley said, “You don’t get one.” We believe that Beasley actually says, “You don’t got one,” and we base our analysis on that interpretation of the video. Judge GARRETT also quotes this interaction as “You don’t got one . . . .” People v Fenderson, unpublished per curiam opinion of the Court of Appeals, issued June 6, 2024 (Docket No. 367926) (GARRETT, J., dissenting), p 2. The trial court paraphrased this interaction in its oral opinion, stating that the police told defendant, “[W]e don’t have any, you don’t get one . . . .” Neither the Court of Appeals’ majority opinion nor the prosecution in its briefing quotes this interaction.

5  Beasley then said, “So.” Defendant replied, “So what’s going on?” Beasley stated

that defendant had asked for an attorney and that he could not speak to defendant without

one, “[s]o the story you got is the story we gon’ go with.”

Fenderson then said he was “confused,” and Beasley asked him what he was

confused about. The following series of exchanges then occurred, which ended with

defendant saying that he would be willing to talk to police without an attorney.

Defendant: The story . . . I . . . I don’t know what’s going on from this point. You ain’t told me nothin’.

Beasley: Ok. So what’s going to happen now. We’re gonna take you back to [the Detroit Detention Center (DDC)]. Then we gonna submit a warrant and the prosecutor will review it. Alright?

Defendant: That mean, I’m not sure what all that means.

Beasley: You requested an attorney. I can’t, I can’t talk to you any more about the case. . . . Now if you wanted to talk to me, you just say that you want, you want to talk without an attorney. I can talk to you. But you said you wanted an attorney. I’m not allowed to talk to you by law.

Defendant: I just want to get this over with. If you tryna talk we can talk. I just want to get this over with. That’s it. I just want to get this over with.

Beasley: Like I said, I can go over your rights again with you, if you agree to talk without an attorney.

Defendant: I agree to talk without an attorney. Y’all heard that. I agree. I just want to get this over with.

Beasley: I don’t want you to feel compelled to talk to me because you don’t want to go with them. That’s the thing. But if you reasonably want to talk to me without an attorney present, I—I’ll talk to you. But you understand that’s something that you want to do.

Defendant: Yeah.

Beasley: I don’t want you to feel like you’re forced to—

6  Defendant: Ok.

Beasley: —do anything. Is that something you want to do?

Defendant: Yes.

After these exchanges, Beasley and the uniformed officers accompanying him left

the interrogation room, and defendant started crying. Then another sergeant, who was not

connected with the investigation and who had not previously spoken to defendant, entered

the room. Defendant said, “I don’t understand this.” That sergeant stated his role was to

reestablish defendant’s rights, and he read the standard Miranda warnings again. After

each warning, the sergeant asked defendant if he understood his rights. Defendant

responded with a mix of verbal agreement and nonverbal affirmative head nods. When the

sergeant asked if anyone had forced, threatened, or coerced defendant to make a statement,

defendant responded, “See, that’s what I . . . I don’t understand what’s going on.” The

sergeant asked if defendant wanted to talk to police, and defendant agreed. Defendant

initialed another advice-of-rights form, and the sergeant left.

Beasley and Williams returned, and defendant made incriminating statements.

Defendant sought to suppress those statements in the trial court on the grounds that he did

not voluntarily, knowingly, and intelligently waive his Miranda right to counsel.

B. TRIAL COURT’S SUPPRESSION ORDER

The trial court granted defendant’s motion to suppress in a short bench ruling,

concluding that police communications with defendant had frustrated the advice of rights

required by Miranda. The trial judge had reviewed the interrogation video prior to issuing

a ruling. The court discussed Beasley’s statements about defendant’s lack of attorney and

inability to afford an attorney, including telling defendant, “ ‘You don’t have the money to

7 pay for one,’ ” and that defendant, then, didn’t have one. 6 This “really cause[d] some

conflict” for the trial court in light of Miranda’s protections concerning both the right to

have an attorney present during questioning and the right to have an attorney appointed if

the suspect could not afford one.

The trial court expressed concern that this put “extra pressure” on defendant, who

had been interrogated for hours, and found that police used the fact that no lawyer was

available as a “scare tactic” to get defendant “to start talking again.” The trial court also

found that police reinitiated the interrogation after defendant’s invocation by

readministering Miranda warnings.

C. COURT OF APPEALS’ REVERSAL

The Court of Appeals granted the prosecution’s application for leave to appeal and

reversed the suppression of defendant’s statements in an unpublished per curiam opinion

over the dissent of Judge GARRETT. People v Fenderson, unpublished per curiam opinion

of the Court of Appeals, issued June 6, 2024 (Docket No. 367926).

With regard to waiver, the majority first noted that “defendant signed multiple forms

that indicated that he understood his constitutional right to counsel” and that he “was fully

informed of his constitutional rights on three separate occasions, and he affirmed that he

understood his rights each time.” Id. at 3-4. With regard to police statements about

defendant’s inability to afford an attorney on which the trial court relied in suppressing

defendant’s statements, the majority characterized the exchange in the following terms:

“One of the officers explained to defendant that they could not find defendant an attorney,

6 In the trial court’s words, Beasley told defendant: “ ‘You don’t have the money to pay for one. You don’t have one. We don’t have any available, so you don’t get a lawyer.’ ”

8 and he did not have funds to hire his own attorney, so they were going to return him to the

detention center.” Id. at 2. In its statement of the law, the majority cited Edwards v

Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981), and acknowledged

that an interrogation must stop when a suspect invokes their right to counsel, Fenderson,

unpub op at 3, but in its analysis, the majority essentially conducted a standard totality-of-

the-circumstances inquiry into whether the waiver was knowing, intelligent, and voluntary,

id. at 3-4. Noting that defendant was 24 years old at the time of the interrogation, had

completed three years of high-school education, was not “intoxicated, drugged, or

otherwise incapacitated,” and “was not physically or psychologically abused or threatened

in any way,” the majority concluded that his waiver was valid. Id. at 3-5.

In dissent, Judge GARRETT noted possible irregularities with the process that police

followed to procure counsel for defendant. 7 Id. (GARRETT, J., dissenting) at 4-5. She

would have found defendant’s waiver invalid based on Beasley’s “incomplete and

contradictory statements” that “misled Fenderson into believing he would not be appointed

counsel.” Id. at 5. Judge GARRETT did not believe that rereading defendant the Miranda

rights cured this error, as it was clear that he was confused about his rights and “no one

questioned Fenderson to ascertain whether his confusion or lack of understanding had

resolved.” Id. at 6.

7 At oral argument, the panel questioned whether police followed protocol in their efforts to secure an attorney for defendant. As established at the preliminary examination, police attempted to call a line-up attorney rather than contacting a central department. They averred that they spent about 10 to 15 minutes trying to find an attorney but did not document those efforts or describe them with specificity in their testimony.

9  The Court of Appeals did not explicitly place the burden on the state to show that

after invocation of the right to counsel defendant reinitiated questioning and that his

subsequent waiver was knowing and intelligent. The panel did consider whether police

improperly reinitiated interrogation after defendant invoked his right to counsel. The

majority concluded that they did not and that by returning defendant to jail after they were

unable to find an attorney for him, they were properly ending contact with defendant. Id.

(opinion of the Court) at 4. The majority stated that “defendant was able to make a

voluntary, informed decision to reinitiate the conversation” and made “multiple

unequivocal requests to speak to the officers without an attorney present.” Id.

Judge GARRETT dissented on this point as well. She would have concluded that

defendant’s “decision to speak to the officers without counsel was a direct result of the

uniformed officer cuffing his hands behind his back and Sergeant Beasley’s confusing and

misleading statements that there was no attorney available to represent Fenderson and that

Fenderson could not afford to retain an attorney.” Id. (GARRETT, J., dissenting) at 5.

Rather than reinitiating, defendant was “backed into a corner and agreed to continue

without counsel as a result of the coercive atmosphere created by Sergeant Beasley.” Id.

This Court ordered oral argument on defendant’s application for leave to appeal.

People v Fenderson, 516 Mich 934 (2025).

10  II. LAW AND ANALYSIS

A. STANDARD OF REVIEW

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

clear error. People v Tanner, 496 Mich 199, 206; 853 NW2d 653 (2014). 8 To the extent

that the trial court’s ruling involves an interpretation of the law or the application of a

constitutional standard, review is de novo. Id.

B. CONSTITUTIONAL FRAMEWORK

Statements of an accused made during custodial interrogation are inadmissible

absent a voluntary, knowing, and intelligent waiver of the accused’s Fifth Amendment

rights. Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966); US

Const, Am V. 9 The suspect must be told 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

8 We note that many of the trial court’s findings of fact are based on review of the interrogation video. Jurisdictions are split on whether lower courts should be afforded deference where video evidence is concerned. Compare, for example, Robinson v State, 5 NE3d 362, 365 (Ind, 2014) (applying clear-error review to video evidence because “[w]hile technology marches on, the appellate standard of review remains constant”), with Commonwealth v Novo, 442 Mass 262, 266; 812 NE2d 1169 (2004) (applying de novo review because an appellate court is in the same position as the trial court judge in viewing the videotape). A per curiam Court of Appeals panel has previously stated that it “need not rely on the trial court’s conclusions as to what the video contains,” People v Kavanaugh, 320 Mich App 293, 298; 907 NW2d 845 (2017), a decision that this Court has previously left undisturbed due to lack of argument by the parties, Stewart, 512 Mich at 500 n 13. We do not address the issue here other than to note that it is an important question that should be addressed in a case in which it is raised and litigated by the parties. 9 “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” US Const, Am V.

11 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.” Miranda, 384 US at 479.

The Michigan Constitution also provides the right to be free from self-incrimination.

Const 1963, art 1, § 17. 10 Generally, the Michigan Constitution is at least as protective as

the United States Constitution, Oregon v Hass, 420 US 714, 719; 95 S Ct 1215; 43 L Ed

2d 570 (1975), and we “may interpret our constitution to afford greater protections than

those afforded by the Fifth Amendment” with respect to the right against self-

incrimination, Tanner, 496 Mich at 237.

Michigan has a common-law prohibition of the introduction of coerced confessions,

see, e.g., Flagg v People, 40 Mich 706, 709 (1879), and a long tradition of recognizing the

constitutional right to be free from compelled self-incrimination even prior to incorporation

of the Fifth Amendment against the states. 11 This Court has previously recognized that

10 “No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.” Const 1963, art 1, § 17. 11 See, e.g., People v Conte, 421 Mich 704, 721-724; 365 NW2d 648 (1984) (opinion by WILLIAMS, C.J.) (outlining the history of the state constitutional basis for suppressing involuntary confessions); People v Cavanaugh, 246 Mich 680, 686; 225 NW 501 (1929) (providing that “a confession, extorted by mental disquietude, induced by unlawfully holding an accused incommunicable, is condemned by every principle of fairness . . . [and] is forbidden by the constitutional guaranty of due process of law”); People v Clarke, 105 Mich 169, 176; 62 NW 1117 (1895) (“Confessions are inadmissible when induced by threats, or by a promise of favor, made by persons apparently acting by authority.”); People v Prestidge, 182 Mich 80, 85-86; 148 NW 347 (1914) (concluding that a confession was inadmissible on voluntariness grounds where officers’ “zeal clearly outran their duty” in “grilling” for two or three hours a man who was “very nervous and nearly crazy”).

12 Article 1, § 17 provides broader due-process protection than the federal Constitution 12 but

has also rejected arguments that the self-incrimination clause of Article 1, § 17 provides

broader protections relative to the federal Constitution in certain contexts. 13 We have not

considered whether our Constitution provides greater protection under the voluntariness

prong of the waiver analysis. 14

“[W]hen a suspect has been afforded Miranda warnings and affirmatively waives

his Miranda rights, subsequent incriminating statements may be used against him” if the

waiver was “ ‘voluntarily, knowingly, and intelligently’ ” made. Tanner, 496 Mich at 209,

quoting Miranda, 384 US at 444. The government bears a “heavy burden” to show that

the accused waived the privilege against self-incrimination and the right to counsel.

Miranda, 384 US at 475. The government must meet this burden by a preponderance of

12 See, e.g., AFT Mich v Michigan, 497 Mich 197, 245 n 28; 866 NW2d 782 (2015) (noting that this Court “has, on occasion, applied distinctive due process protections under Const 1963, art 1, § 17 broader than have been afforded under US Const, Am XIV”); In re Render, 145 Mich App 344, 348; 377 NW2d 421 (1985) (providing that Article 1, § 17 requires appointment of counsel at termination-of-parental-rights proceedings but that the Fourteenth Amendment does not); Delta Charter Twp v Dinolfo, 419 Mich 253, 265-266, 272-278; 351 NW2d 831 (1984) (concluding that the state Constitution provides more protection against arbitrary zoning regulations than the federal Due Process Clause). 13 See Tanner, 496 Mich at 244 (concluding that the state Constitution does not “require[] a greater showing that a Miranda waiver was made ‘knowingly’ than is required by the Fifth Amendment, given that this Court’s interpretation of Article 1, § 17 has indicated that it pertains solely to the voluntariness of a confession itself, not to whether a confession is made with full knowledge of its consequences”). 14 See People v Daoud, 462 Mich 621, 633-639; 614 NW2d 152 (2000) (noting that determining whether a waiver is voluntary or whether a waiver is knowing and intelligent are separate questions that courts must assess to determine whether a waiver is valid); see also Berghuis v Thompkins, 560 US 370, 382-383; 130 S Ct 2250; 176 L Ed 2d 1098 (2010) (noting that a waiver must be both voluntary and knowing).

13 the evidence. People v Cheatham, 453 Mich 1, 27; 551 NW2d 355 (1996) (opinion by

BOYLE, J.); Colorado v Connelly, 479 US 157, 168; 107 S Ct 515; 93 L Ed 2d 473 (1986).

C. QUESTIONING AFTER THE INVOCATION OF THE RIGHT TO COUNSEL

In this case, defendant initially waived his Miranda rights but later asserted his right

to appointed counsel. After invocation of the Fifth Amendment right to counsel,

questioning of a suspect must cease. Edwards, 451 US at 482; People v Paintman, 412

Mich 518, 527; 315 NW2d 418 (1982). In Edwards, the United States Supreme Court

created a prophylactic “presumption of involuntariness” following the invocation of the

right to counsel. Maryland v Shatzer, 559 US 98, 106; 130 S Ct 1213; 175 L Ed 2d 1045

(2010). Typically, a knowing and voluntary Miranda waiver, as described above, will be

sufficient at the time of questioning to allow the admission of a subsequent statement. Not

so under Edwards. The Edwards Court determined that the “traditional standard for waiver

was not sufficient to protect a suspect’s right to have counsel present at a subsequent

interrogation if he had previously requested counsel; ‘additional safeguards’ were

necessary.” Shatzer, 559 US at 104, quoting Edwards, 451 US at 484. The rationale of

Edwards is that “if a suspect believes that he is not capable of undergoing such questioning

without advice of counsel, then it is presumed that any subsequent waiver that has come at

the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the

‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.”

Arizona v Roberson, 486 US 675, 681; 108 S Ct 2093; 100 L Ed 2d 704 (1988), quoting

Miranda, 384 US at 467.

14  A valid waiver of that right “cannot be established by showing only that [the

accused] responded to further police-initiated custodial interrogation even if he has been

advised of his rights.” Edwards, 451 US at 484. Statements following the invocation of

counsel are admissible only if counsel is made available to the suspect for questioning or

if the state shows that the suspect himself reinitiated the investigation. Id. at 484-485. 15

The Edwards reinitiation rule is grounded in the concern that “a suspect may be coerced or

badgered into abandoning his earlier refusal to be questioned without counsel . . . .”

Shatzer, 559 US at 106.

1. DEFENDANT WAS NOT PROVIDED COUNSEL AND WAS TOLD HE DID NOT HAVE AND COULD NOT OBTAIN COUNSEL

Defendant was not provided with counsel. Instead, after having defendant wait two

and a half hours for an attorney, police engaged defendant in a conversation that the trial

court described as a “scare tactic” that undermined defendant’s assertion of the right to

counsel. We consider police statements “in their totality” when assessing “whether the

warnings reasonably convey to a suspect his rights as required by Miranda.” Duckworth v

Eagan, 492 US 195, 203, 205; 109 S Ct 2875; 106 L Ed 2d 166 (1989) (quotation marks,

citation, and brackets omitted). Independent of the Edwards presumption of

involuntariness, police who give “confusing and inaccurate” advice about the Miranda

warnings, even when the standard rights have been provided, do not “reasonably convey”

a suspect’s rights. Green v United States, 315 A3d 680, 685, 687 (DC, 2024); id. at 685

15 See also Shatzer, 559 US at 104. Though not at issue in this case, postinvocation statements are admissible if there is a sufficient “break in custody” between the invocation of rights and the subsequent statement. Id. at 111.

15 (concluding that police presented a “mixed picture” about whether the suspect could be

provided an attorney before and during interrogation); see also United States v San Juan-

Cruz, 314 F3d 384, 388 (CA 9, 2002) (holding that “confusing” and conflicting warnings

rendered the waiver invalid because the suspect “could not reasonably ascertain from the

warnings provided to him by the Government whether he could or could not retain the

services of an attorney for free”); State v Mayer, 184 Wash 2d 548, 562; 362 P3d 745

(2015) (stating that conflicting instructions can render Miranda invalid, and citing San

Juan-Cruz).

In the context of a suspect invoking the Miranda right to silence, the United States

Supreme Court has expressed concern about “police strateg[ies] adapted to undermine the

Miranda warnings,” particularly when it creates circumstances in which “a suspect would

hardly think he had a genuine right to remain silent . . . .” Missouri v Seibert, 542 US 600,

613, 616; 124 S Ct 2601; 159 L Ed 2d 643 (2004) (opinion by Souter, J.); see also id. at

613 (observing that when a suspect is read their rights after interrogation, the suspect would

likely feel “perplexity about the reason for discussing rights at that point” and noting that

such “bewilderment” is “an unpromising frame of mind for knowledgeable decision[-

making]”).

Instead of providing counsel, defendant was told: “You don’t got one,” “You don’t

have a lawyer,” and “We tried to call one. Ain’t nobody available and you ain’t got no

money.” These statements after the invocation of counsel can reasonably be understood,

as indicated by the trial court, as suggesting that defendant’s right to have an attorney

present during questioning was dependent on his ability to retain counsel through his own

16 funds. The statements are not consistent with Miranda’s assertions that suspects have a

right to counsel and that, if they cannot afford counsel, counsel will be provided.

Following this exchange, defendant’s confusion and lack of understanding is

apparent from the record. He repeatedly told his interrogators that he was “confused” and

“d[idn’t] understand.” Defendant’s response was understandable. Police spent hours

purportedly looking for an attorney, then returned to take him to jail without providing any

update on their efforts to secure counsel. When defendant asked where his lawyer was, he

was told that he did not have an attorney, that he did not have money for an attorney, and

that no other attorney was available. When told that a lawyer was not available, defendant

asked multiple clarifying questions and stated that he was confused. When police later

read defendant his rights again and asked if he had been coerced to make a statement,

defendant said that he did not understand.

Police did not err because they failed to provide an attorney. 16 After all, “Miranda

does not require that attorneys be producible on call,” but instead merely requires that a

suspect must be informed “that he has the right to an attorney before and during

questioning, and that an attorney would be appointed for him if he could not afford one.”

Duckworth, 492 US at 204. See also People v Lewis, 47 Mich App 450, 453; 209 NW2d

450 (1973) (“We are not unmindful that the police may have acted innocently by stating

that an attorney was not available at that time of the day. Nonetheless, the police were not

free to ignore the letter and spirit of Miranda, and the questioning should have ceased until

16 While there were questions in the Court of Appeals about the extent of the effort that police put into obtaining counsel and the procedure they used, we do not look to these in our analysis.

17 such time as counsel could have been secured on behalf of the defendant.”); People v

Myers, 158 Mich App 1, 12; 404 NW2d 677 (1987) (“On the other hand, where, as in

Lewis, . . . the police respond that counsel is not available, without making any indication

that counsel will be available in the immediate future, any additional statements by

defendant do not constitute a waiver.”). After invocation, police can end questioning and

allow a defendant to go through the standard arraignment process for the appointment of

counsel. 17 Instead, the police here erred by suggesting that defendant could not be

questioned with an attorney present because he did not have the money to hire one. 18 This

confusing and inaccurate information undermined the advice of rights previously read to

defendant. See State in re AS, 203 NJ 131, 151; 999 A2d 1136 (2010) (“ ‘A police officer

cannot directly contradict, out of one side of his mouth, the Miranda warnings just given

out of the other.’ ”), quoting State v Pillar, 359 NJ Super 249, 268; 820 A2d 1 (App Div,

2003). 19

17 Judge GARRETT highlighted in her dissent that a suspect wishing to continue the interrogation at that moment must be able to retain counsel because the typical practice in this jurisdiction to obtain counsel after invocation during a prearraignment interrogation is to return a suspect to their cell and secure an arrest warrant. Fenderson (GARRETT, J., dissenting), unpub op at 4. If promptly arraigned after his assertion of the right to counsel, defendant would then have had an attorney appointed for him. 18 The dissent argues that “the interaction between defendant and the police more reasonably indicates that the police informed defendant that they were taking him to detention because he did not presently have an attorney,” but the dissent does not contend with the responses police gave to defendant’s expressions of confusion and questions about using his own funds to hire an attorney and his inability to do so. These statements undermined the advice of rights and were not limited to defendant’s present position without counsel. 19 While officers can “accurately describe[]” the procedures for appointment of counsel, see Duckworth, 492 US at 204, several sister state courts have insisted that officers must take care in how they present this information, see Mayer, 184 Wash 2d at 559 (“[Officers]

18  The Court of Appeals majority suggested that defendant’s statements are admissible

because he was subsequently informed of Miranda again and, at that point, waived his

Miranda rights. Simply reading the standard Miranda rights again does not meet the state’s

burden to show that the statements are admissible. Defendant was already aware of his

rights. He referenced his right to an attorney multiple times throughout the interrogation.

He expressed no initial confusion about his ability to invoke that right. He clearly did

invoke that right after the tone of the interrogation had shifted. But defendant was given

no reason to believe that if he were to invoke his right again, the outcome would be any

different. He could ask for an attorney, but one would not be provided.

By undermining the advice of rights and implying that the right to have an attorney

present during questioning was predicated on the ability to pay for an attorney, police in

this case violated defendant’s Fifth Amendment right to counsel under Miranda.

2. DEFENDANT DID NOT REINITIATE CONTACT

“Once a suspect invokes his right to remain silent or requests counsel, police

questioning must cease unless the suspect affirmatively reinitiates contact.” Tanner, 496

Mich at 208, citing Miranda, 384 US at 473-474. Once a suspect has invoked his right to

cannot link the right to appointed counsel to future events that would occur, if ever, only after the interrogation[.]”); Commonwealth v Libby, 472 Mass 37, 54-55; 32 NE3d 890 (2015) (“[The officer’s] statements that the right to appointed counsel does not attach until arraignment, that lawyers ‘don’t just come running out and sit in an interview,’ and that the defendant would have to ‘call’ a lawyer puts into question whether, having no funds to hire counsel, the defendant believed speaking with an attorney before speaking to the police was an actual possibility.”); State v Climer, 400 SW3d 537, 566 (Tenn, 2013) (holding that a Miranda waiver was invalid when the officer answered the suspect’s question, “ ‘You mean I can have an uh an appointed lawyer right now?’ ” with “ ‘Well, not at this time’ ”).

19 counsel, the suspect must reinitiate the investigation in order for questioning to permissibly

continue. Edwards, 451 US at 484-485.

The prosecution contends that the Edwards presumption of involuntariness was

overcome because defendant reinitiated the interrogation. See Tanner, 496 Mich at 208-

209 (providing that Edwards is not violated where it can be shown that “ ‘the accused

himself initiate[d] further communication, exchanges, or conversations with the police’ ”),

quoting Edwards, 451 US at 484-485; Oregon v Bradshaw, 462 US 1039, 1045-1046; 103

S Ct 2830; 77 L Ed 2d 405 (1983) (opinion by Rehnquist, J.) (stating that Edwards does

not require suppression where a defendant initiates conversation that an officer could

reasonably interpret as relating generally to the investigation and where another valid

waiver of rights is given). Our Court has not squarely addressed a case involving

allegations of reinitiation after Miranda invocation prior to this one. 20

We conclude that the prosecution has not shown that defendant reinitiated the

interrogation under Edwards. We look to the statements that defendant made when police

returned from their effort to obtain counsel for him. The prosecution asserts that defendant

20 While subsequently overruled, the United States Supreme Court had previously extended the Edwards rule to Sixth Amendment cases. See Michigan v Jackson, 475 US 625; 106 S Ct 1404; 89 L Ed 2d 631 (1986), overruled by Montejo v Louisiana, 556 US 778 (2009). In People v McRae, 469 Mich 704, 707-708; 678 NW2d 425 (2004), we examined a Sixth Amendment case involving the questioning of an accused in jail by a deputy sheriff where there was a discussion of reinitiation. In that case, we concluded that the defendant did not reinitiate. Id. at 716-717. Our analysis is not changed by People v Kowalski, 230 Mich App 464; 584 NW2d 613 (1998), which is cited by the dissent. In Kowalski, the Court of Appeals applied 1976 law and noted that the defendant had to show that Edwards applied to his case. Id. at 477. Further, the facts in this case do not suggest, as the split Court of Appeals panel concluded when assuming that Edwards did apply, “a mere inquiry into whether an accused has changed his mind about wanting to speak without an attorney present . . . .” Id. at 479.

20 reinitiated when he asked Beasley, “So what’s going on?” after Beasley returned from an

extended absence that Beasley told defendant was for the purpose of trying to find an

attorney for him. 21

Defendant’s first question when Beasley returned after being absent for more than

two and a half hours, purportedly to find an attorney for defendant, was, “Where . . . where

my lawyer?” This inquiry was limited to effectuating defendant’s invoked right to counsel,

which Beasley had previously indicated he was attempting to arrange. Defendant’s next

question was, “Wait . . . huh?” in response to Beasley’s statement, “You don’t got one.”

Defendant’s “huh” was related to his lack of appointed counsel. Defendant then asked if

police could use the money that he had in his possession when he was arrested to procure

an attorney. Police told him that he could not use this money for an attorney to represent

him at his interrogation.

Then defendant asked, “So what’s going on?” In the context of a discussion about

whether, having invoked his right to counsel, he had an attorney and whether he could use

the money he had for an attorney, the question “So what’s going on?” cannot reasonably

be considered an affirmative request to reinitiate the interrogation without an attorney.

Perhaps in other settings these words might lead a reasonable police officer to believe that

21 The prosecution in the trial court asserted a different alleged reinitiation. At the preliminary examination, the prosecution argued that defendant reinitiated when he “popped his head out” of the interrogation room during the two-and-a-half-hour span when he was left alone. This argument did not succeed then, nor does it fare better now. A review of the interrogation video does not make clear when defendant allegedly popped his head out. What it does show is that the interactions during the time he was waiting for police to return were related to his bodily needs—asking for a cigarette and to use the bathroom.

21 defendant was initiating conversation that related generally to the investigation. Finding

so here would completely strip defendant’s question from the context in which it was

asked. 22 Defendant was still pursuing his constitutional right to have counsel at his

interrogation and appeared confused about why he was being returned to jail after he had

been told that police were attempting to find an attorney to be appointed for him. The trial

court record lacks any findings with respect to defendant’s reinitiation, and the prosecution

has not borne its burden to show that defendant reinitiated. Defendant’s questions about

22 The prosecution asks us to analogize this case to Bradshaw, 462 US at 1042, 1045-1046 (opinion by Rehnquist, J.), where a plurality of the United States Supreme Court concluded that the suspect reinitiated questioning when he asked an officer, “Well, what is going to happen to me now?” In Bradshaw, a plurality of the Court determined that this “ambiguous” statement “evinced a willingness and a desire for a generalized discussion about the investigation[.]” Id. at 1045-1046. After the suspect invoked his right to counsel, the interrogation ended and the suspect was transported from the police station to the county jail; either just before or during this trip, the suspect was with an officer other than his original interrogator when the suspect inquired about what would happen to him. Id. at 1041-1042. That officer immediately told the suspect that he did not have to talk without an attorney, and the officer did not otherwise indicate that an attorney would not be available. Id. at 1042. Accordingly, “[o]n these facts,” there was not an Edwards violation. Id. at 1046. As described above, defendant’s statements in this case do not “evince[] a willingness and a desire for a generalized discussion about the investigation[.]” Id. at 1045- 1046.

Moreover, the Bradshaw plurality recognized the distinction between asking generally about a case and asking questions specific to being detained. Id. at 1046 (providing that a suspect’s “necessary inquiry arising out of the incidents of the custodial relationship” is not voluntary initiation that allows officers to restart the interrogation); see also People v Sims, 5 Cal 4th 405, 441-442; 853 P2d 992 (1993) (holding that the “defendant’s remark in the present case—asking the police officers what was going to happen to him with reference to extradition—cannot, in itself, properly be construed as constituting a waiver of previously invoked rights”); McDougal v State, 277 Ga 493, 499- 500; 591 SE2d 788 (2004) (noting that a suspect in a holding cell who sends word that he would like to speak to officers, without more, would not indicate an intent to engage in generalized discussion about the investigation because the suspect could have intended to inquire about when he would be allowed to contact family members or an attorney).

22 the status of his attorney were in pursuit of his invocation of the right to counsel, not an

expression of willingness to talk generally about the investigation without counsel. See

Lewis, 47 Mich App at 452-453 (holding that after officers told the defendant that they

could not obtain counsel for him, the “defendant’s statement to ‘forget it’ did not constitute

a voluntary, knowing, and intelligent waiver of the right to counsel”). As a result, the

subsequent Miranda waiver and questioning do not overcome Edwards and the confusion

created about defendant’s right to counsel.

3. POLICE REINITIATED QUESTIONING

After defendant asked what was going on, police engaged in the functional

equivalent of questioning. This amounted to “words or actions on the part of the police

(other than those normally attendant to arrest and custody) that the police should know are

reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v

Innis, 446 US 291, 301; 100 S Ct 1682; 64 L Ed 2d 297 (1980); id. at 300-301 (“Miranda

safeguards come into play whenever a person in custody is subjected to either express

questioning or its functional equivalent.”). When determining whether police officers

should know that their words or actions are reasonably likely to elicit an incriminating

response, we focus our inquiry “primarily upon the perceptions of the suspect, rather than

the intent of the police.” Id. at 301.

After defendant was told that he did not have an attorney and could not use his

money for an attorney, police continued the same theme from prior to defendant’s

invocation of counsel, where they suggested that defendant’s story had holes and did not

make sense. Defendant was told that because he asked for an attorney, “the story you got

23 is the story we gon’ go with.” In their prior questioning, police had stated repeatedly that

this story was one-sided—that defendant’s story would, among other things, seem “fucked

up” and that the evidence would make defendant look like a “callous killer,” 23 a tactic that

had led to defendant’s request for counsel. The trial court also noted that right on the heels

of the concerning statements regarding the lack of counsel, police said, “ ‘Well, we’ll just

go with the statements that we have.’ ”

At that point, defendant said that he was confused, and when he asked what it meant

that police would “take [him] back to DDC” and submit a warrant, he was told that police

could not talk to him. Police told him that waiver of his rights was the way to tell another

story and that otherwise he would be stuck with the prior story. He was told: “Now if you

wanted to talk to me, you just say that you want, you want to talk without an attorney. I

can talk to you.” Instead of honoring the invocation of rights or providing defendant with

counsel, police engaged in further exchanges with defendant to prompt him to give a

different story. See Innis, 446 US at 301.

The Court of Appeals pointed to defendant’s subsequent waiver of Miranda after

this reinitiation by police. However, we need to determine whether that subsequent waiver

was voluntary and knowing, because a subsequent Miranda warning does not cure the

Edwards violation that already occurred. Shatzer, 559 US at 105 (“[A] voluntary Miranda

waiver is sufficient at the time of an initial attempted interrogation to protect a suspect’s

23 We let these words speak for themselves and respectfully disagree with the dissent’s suggestion that they “do[] not imply anything negative about the content of the ‘story’ that the police would be using.”

24 right to have counsel present, but it is not sufficient at the time of subsequent attempts if

the suspect initially requested the presence of counsel.”).

This is the questioning after the invocation of counsel that the Fifth Amendment and

Article 1, § 17 prohibit. Instead of either providing counsel or terminating the

interrogation, as required, police asserted that they were going to provide counsel but then

stated that defendant did not have counsel and implied that counsel would not be provided

because he did not have money. The prosecution cannot overcome the presumption that

defendant’s statements following his assertion of counsel were involuntary. Edwards, 451

US at 484. This constitutes a failure to scrupulously honor defendant’s invocation of his

right to counsel in violation of Miranda and Edwards. Miranda, 384 US at 480 (“ ‘In a

government of laws, existence of the government will be imperilled [sic] if it fails to

observe the law scrupulously.’ ”), quoting Olmstead v United States, 277 US 438, 485; 48

S Ct 564; 72 L Ed 944 (1928), overruled in part on other grounds by Katz v United States,

389 US 347 (1967). Accordingly, defendant’s statements subsequent to invocation of his

right to counsel must be suppressed.

III. CONCLUSION

The Court of Appeals erred in reversing the trial court’s order suppressing

defendant’s postinvocation statements. The trial court correctly concluded that defendant’s

waiver was invalid. Police undermined the advice of rights required by Miranda and

impermissibly continued the interrogation after defendant invoked his right to counsel.

Under both the federal and state Constitutions, suppression is required. Accordingly, we

25 reverse the judgment of the Court of Appeals and remand this case to the trial court for

further proceedings.

Kimberly A. Thomas Megan K. Cavanagh Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Noah P. Hood

26  STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 167391

DAREN DONELL FENDERSON,

Defendant-Appellant.

ZAHRA, J. (dissenting). A majority of this Court holds that the Court of Appeals erred in reversing the trial

court’s order suppressing defendant’s statements after invocation of his Miranda 1 rights. I

disagree. A review of the record firmly indicates that there were no violations of

defendant’s constitutional rights. To the contrary, the police did exactly what was required

of them under the Fifth Amendment and applicable caselaw. Police ceased questioning

defendant as soon as he requested an attorney; they attempted to locate an attorney for

defendant; they informed defendant that they could not locate an attorney, and therefore all

interrogation would cease; when asked, they explained to defendant what the next steps in

the process would be; when defendant stated that he wanted to talk without an attorney,

they asked defendant to make sure that is what he wanted, repeatedly telling him not to feel

compelled to speak to them; and before restarting their interrogation of defendant, they

again informed him of his Miranda rights to confirm that defendant was making a valid

1 Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). waiver of his right to be free from self-incrimination. Viewed as a whole, the conduct of

the Detroit Police Department exemplifies sound police work that was fully consistent with

constitutional principles. I agree with the Court of Appeals’ majority opinion that

defendant’s decision to waive his rights was made voluntarily, knowingly, and intelligently

and that the officers did not violate defendant’s right to be free from self-incrimination

under the Fifth Amendment of the United States Constitution or Article 1, § 17 of the 1963

Michigan Constitution. Accordingly, I would affirm the judgment of the Court of Appeals.

I. FACTS AND PROCEDURAL HISTORY

Defendant awaits trial on charges of first-degree premeditated murder, MCL

750.316(1)(a); felony-firearm, MCL 750.227b; and escape from lawful custody, MCL

750.197a. 2 These charges arise out of the death of William Allen in Detroit on August 1,

2022. Testimony presented at the preliminary examination established that officers found

the victim’s body pinned between a house and a red Dodge Journey registered to defendant.

An autopsy revealed multiple gunshot wounds as well as blunt force trauma consistent with

the victim’s having been run down by an automobile.

Police arrested defendant the next day and brought him to the Detroit Public Safety

Headquarters, where he was informed of his Miranda rights. Although defendant agreed

to waive his rights, the officers believed that he was too intoxicated to interrogate at that

time. Defendant was thus taken to the Detroit Detention Center (the DDC) where he spent

the night in custody.

2 The limited record before this Court does not disclose the basis for the escape charge.

2  The next day, police again transported defendant to the Detroit Public Safety

Headquarters where Detroit Police Sergeant Reginald Beasley advised defendant of his

Miranda rights by reading them aloud from a written form. Defendant initialed and signed

the form. He then stated: “I got a question. Is it best to have a lawyer here?” When told

that was up to him, defendant said: “I see the—the one where it say that one will be

appointed, but I don’t wanna take up ya’ll time . . . . I would rather just an—answer the

questions here and get this over with.” After police confirmed that defendant was willing

to talk without a lawyer, defendant spoke with Beasley and Detective Douglas Williams

for about an hour.

During this initial interrogation, defendant told the police officers that he was

carjacked on the night of the victim’s death and that the carjacker must have been driving

defendant’s vehicle when the victim was killed. The officers interrupted defendant,

however, and told him that they had surveillance-video footage that showed him driving

the vehicle. The officers also pointed out other inconsistences in defendant’s story.

Williams left the room, and defendant eventually told Beasley that he would tell him what

he “want[ed] to hear but can [he] have a lawyer first?” When Beasley asked if defendant

had a lawyer, defendant answered: “No. Y’all gonna appoint one right?” Beasley indicated

that he would make some calls and left defendant alone in the interrogation room for more

than two and a half hours, but defendant was given beverages and restroom breaks.

Beasley and another member of the Detroit Police Department, Sergeant Paul

Brown, separately called the control center in an attempt to get what they described as “a

show cause” or show-up attorney. Brown understood there to be an attorney on duty that

day, but that attorney was only available for lineups. The officers would later testify that

3 there were ongoing efforts to try to get an attorney after that, but they did not document

those efforts or specifically describe them in their testimony. In total, Brown estimated

that he spent roughly 10 to 15 minutes trying to find an attorney. The officers were not

able to locate an attorney to attend the interrogation.

After a few minutes alone in the interrogation room, defendant expressed concern

to himself that “they [are] trying to get me to confess” to something he did not do. After

about 40 minutes, Beasley returned to the interrogation room and told defendant that he

was still working on finding an attorney for him.

Roughly two hours later, Beasley returned to the interview room with a uniformed

officer. The uniformed officer undid defendant’s handcuffs and then asked defendant to

turn around so that he could handcuff defendant with his hands behind his back. Defendant

asked, “Where . . . where [is] my lawyer?” Beasley answered, “You don’t got one.”

Defendant again sought clarification, prompting Beasley to explain: “We tried to call one.

Ain’t nobody available and you ain’t got no money.” Defendant mentioned the money he

had in his possession when he was arrested, but Beasley told him that he could not use that

money. Defendant again sought clarification, asking, “So what’s going on?” Beasley

replied: “You said you wanted an attorney. I can’t talk to you no more without an attorney.

So the story you gave is the story we gon’ go with.” 3

3 The majority opinion states that Beasley said, “ ‘[S]o the story you got is the story we gon’ go with.’ ” (Emphasis added.) This portion of the interrogation video is a bit muffled and difficult to decipher, but I believe that Beasley said, “[T]he story you gave is the story we gon’ go with.” (Emphasis added.) This distinction makes no substantive difference to my analysis; I note this discrepancy only because I refer to this statement in my analysis.

4  As the uniformed officer was patting defendant down and Beasley was cleaning up

the interview room, defendant said, “I’m confused then.” Beasley asked defendant what

he was confused about, and defendant responded: “I don’t know what’s going on from this

point. You ain’t told me nothing.” Beasley replied: “What’s going to happen now, we’re

gonna take you back to [the] DDC. Then we gonna submit a warrant, and the prosecutor

will review it, all right?” Defendant responded, “I’m not sure what all that mean[s],” to

which Beasley replied: “You requested an attorney. I can’t, I can’t talk to you any more

about the case . . . . Now if you wanted to talk to me, you just say that you want, you want

to talk without an attorney. I can talk to you. But you said you wanted an attorney. I’m

not allowed to talk to you by law.”

After Beasley’s second explanation that he could not talk to defendant because

defendant requested an attorney, defendant stated: “I just want to get this over with. If you

tryna talk we can talk. I just want to get this over with. That’s it. I just want to get this

over with.” Beasley then informed defendant, “I can go over your rights again with you,

if you agree to talk without an attorney—” and defendant interrupted: “I agree to talk

without an attorney. Y’all heard that? I agree. I just want to get this over with.” Beasley

and defendant then had the following exchange:

Beasley: I don’t want you to feel compelled to talk to me because you don’t want to go with them. That’s the thing. But if you reasonably want to talk to me without an attorney present, I—I’ll talk to you. But you understand that’s something that you want to do.

Defendant: Yeah.

Beasley: I don’t want you to feel like you’re forced to—

Defendant: Ok.

5  Beasley: —do anything. Is that something you want to do?

Defendant: Yes.

Beasley then stepped out of the room, and Brown came in. Defendant said, “I don’t

understand this,” and Brown responded: “So, I’m independent from the investigation. I

have no knowledge of what’s going on.” Defendant interrupted and said: “This cannot be

right, this investigation is not goin’ right, everything is not going right, man. I’m trying to

see . . . .” Brown interrupted defendant and said: “Well, check this out. You’ll talk with

the detectives about that. I just gotta reestablish your rights so you can speak to ’em. Okay?

Because . . . you said you want to talk to ’em again.” Defendant responded, “Yes . . . I got

a problem.” Brown then asked defendant for his name and date of birth and read the

Miranda form out loud to defendant. After reading the rights, Brown asked, “No one has

forced you, threatened you, or coerced you to give a statement, right?” Defendant and

Brown then had the following exchange:

Defendant: See that’s what I . . . don’t understand what’s going on—

Brown: Now, I’m specifically talking about this [gesturing to the Miranda form].

Defendant: Uh . . . Yeah . . . .

Brown: You wanna . . . you wanna talk to them.

Defendant: Yes.

Brown: Okay, that’s all I’m asking. Okay. And . . . so, what you’re gonna do, so since you’ve reestablished those, you just put your initials there, and put your signature there.

After defendant initialed and signed the form, Brown asked, “And . . . you wanna talk to

them freely?” Defendant responded, “Yeah, I wanna talk to ’em.”

6  Beasley and Williams returned and resumed the interrogation. During the final

portion of the interrogation, both Beasley and Williams cursed and yelled at defendant.

Beasley then said: “This is what’s gonna happen. You’re gonna sit here and you’re gonna

roll the fuckin’ dice. We’re gonna take this big ass fuckin’ file, give it to the fuckin’

prosecutor, they’re gonna review it. Somebody who . . . they’re not from the hood. They

don’t understand this shit. They don’t understand the fuckin’ streets. All they’re gonna

see is you sittin’ in this fuckin’ room lying your fuckin’ ass off. And they’re going to say

he a fuckin’ stone cold fuckin’ killer.”

At this point, defendant leaned back in his chair and covered his face with his hands.

He started sobbing, which prompted Beasley to say, “Stop all that fuckin’ crying.”

Williams also yelled at defendant to stop crying and to stop playing games. Beasley asked,

“Are you a stone cold killer?” Defendant responded, “No.” Beasley said: “Then tell us

why the fuck it happened. That’s [what] we need to know.” Defendant then admitted that

he had fired at the victim and hit him with his car, claiming that he had done so in self-

defense.

The prosecution charged defendant with first-degree premeditated murder, felony-

firearm, and escape from lawful custody. After a two-day preliminary examination, the

district court bound defendant over for trial on all charges. Defendant subsequently moved

to suppress the inculpatory statements he made after invoking his right to counsel. The

trial court granted the motion, reasoning that Beasley’s communications with defendant

had frustrated the advice of rights required by Miranda. The trial court agreed to enter a

stay of proceedings to allow the prosecution to pursue an interlocutory appeal.

7  The prosecution applied for leave to appeal in the Court of Appeals, which granted

the application. The Court of Appeals then reversed the trial court’s suppression ruling in

a split, unpublished opinion, holding that the trial court erred by finding that the officers

coerced defendant into making the challenged statement. 4 Judge GARRETT dissented,

opining that Beasley impermissibly interrogated defendant after defendant’s invocation of

his right to have counsel present, such that defendant’s subsequent confession was obtained

in violation of Edwards v Arizona. 5 The dissent also believed that Beasley misled

defendant about his right to counsel, which prevented him from knowingly and voluntarily

waiving that right after initially invoking it.

Defendant sought leave to appeal in this Court. We ordered oral argument on the

application, asking the parties to address whether “the Court of Appeals erred by reversing

the trial court’s decision to grant the defendant’s motion to suppress statements.” 6 In

particular, we asked the parties to address

whether the defendant’s decision to waive his rights under Miranda v Arizona, 384 US 436[; 86 S Ct 1602; 16 L Ed 2d 694] (1966), was made “ ‘voluntarily, knowingly, and intelligently,’ ” People v Tanner, 496 Mich 199, 209[; 853 NW2d 653] (2014), quoting Miranda, 384 US at 444, and whether the interrogating officers’ statements and conduct violated defendant’s right to be free from self-incrimination under the Fifth

4 People v Fenderson, unpublished per curiam opinion of the Court of Appeals, issued June 6, 2024 (Docket No. 367926), pp 1, 3-4. 5 Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981). 6 People v Fenderson, 516 Mich 934, 935 (2025).

8  Amendment of the United States Constitution or Article 1, § 17 of the Michigan Constitution.[7]

II. STANDARD OF REVIEW

This Court reviews a trial court’s factual findings in a ruling on a motion to suppress

for clear error. 8 To the extent that the trial court’s ruling involves an interpretation of the

law or the application of a constitutional standard to uncontested facts, review is de novo. 9

III. LEGAL BACKGROUND

The Fifth Amendment of the United States Constitution provides that “[n]o

person . . . shall be compelled in any criminal case to be a witness against himself . . . .” 10

This federal constitutional guarantee was made applicable to the states through the

Fourteenth Amendment. 11

Statements of an accused made during custodial interrogation are inadmissible

absent a voluntary, knowing, and intelligent waiver of the accused’s Fifth Amendment

rights. 12 The United States Supreme Court held in Miranda v Arizona that the accused

7 Id. 8 Tanner, 496 Mich at 206. 9 Id. 10 US Const, Am V. See also Const 1963, art 1, § 17 (containing an identical self- incrimination clause). 11 Malloy v Hogan, 378 US 1, 3; 84 S Ct 1489; 12 L Ed 2d 653 (1964). 12 Miranda, 384 US at 444. The test of voluntariness is whether, considering the totality of the circumstances, “the confession is the product of an essentially free and unconstrained choice by its maker, or whether the accused’s will has been overborne and his capacity for self-determination critically impaired.” People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988) (citation modified). The following factors should be considered when determining the voluntariness of a statement:

9 must be given a series of warnings before being subjected to “custodial interrogation” in

order to protect his constitutional privilege against self-incrimination. 13 “The right to have

counsel present during custodial interrogation is, in the words of the United States Supreme

Court, a corollary of the right against compelled self-incrimination, because the presence

of counsel at this stage affords a way to ‘insure that statements made in the government-

established atmosphere are not the product of compulsion.’ ” 14 “Miranda does not require

that attorneys be producible on call, but only that the suspect be informed . . . that he has

the right to an attorney before and during questioning, and that an attorney would be

appointed for him if he could not afford one.” 15 If a suspect is not afforded Miranda

warnings before custodial interrogation, “no evidence obtained as a result of interrogation

the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse. [Id. at 334 (citations omitted).] 13 Miranda, 384 US at 444-445, 477-479. “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.” Id. at 444. 14 Tanner, 496 Mich at 207, quoting Miranda, 384 US at 466. 15 Duckworth v Eagan, 492 US 195, 204; 109 S Ct 2875; 106 L Ed 2d 166 (1989).

10 can be used against him.” 16 “[T]he term ‘interrogation’ under Miranda refers not only to

express questioning, but also to any words or actions on the part of the police (other than

those normally attendant to arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect.” 17

“Once a suspect invokes his right to remain silent or requests counsel, police

questioning must cease unless the suspect affirmatively reinitiates contact.” 18 In Edwards

v Arizona, the United States Supreme Court held that “when 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 [the accused] responded to further police-

initiated custodial interrogation even if he has been advised of his rights.” 19 Rather, it must

be shown that “the accused himself initiate[d] further communication, exchanges, or

conversations with the police.” 20

IV. ANALYSIS

I agree with the Court of Appeals’ majority that the trial court erred in suppressing

defendant’s confession, as a review of the record firmly indicates that there were no

violations of defendant’s constitutional rights. To the contrary, the police did exactly what

was required of them under the Fifth Amendment and applicable caselaw.

16 Miranda, 384 US at 479. 17 Rhode Island v Innis, 446 US 291, 301; 100 S Ct 1682; 64 L Ed 2d 297 (1980). 18 Tanner, 496 Mich at 208, citing Miranda, 384 US at 473-474. 19 Edwards, 451 US at 484. 20 Id. at 484-485.

11  After defendant invoked his right to counsel, the police immediately ceased the

interrogation and attempted to secure counsel for defendant. The police left defendant in

the interview room by himself for about two and a half hours before determining that no

counsel was available and returning to take defendant back to detention. During that time,

defendant was free to move around the room, and he was afforded drinks and the

opportunity to relieve himself. The police then told defendant that, because he had no

attorney, they could not talk to him. This prompted defendant to reinitiate the conversation.

Based on a careful review of what was said, I cannot conclude that the police pressured or

manipulated defendant into resuming the interrogation without counsel present or

otherwise engaged in conduct that would undermine the validity of his Miranda waiver.

Defendant raises two related Fifth Amendment challenges. First, defendant argues

that the police manipulated and coerced him into involuntarily waiving his right to counsel

by making him think that he would not receive an attorney. Second, defendant argues that,

contrary to the United States Supreme Court’s Edwards precedent, the police continued to

question defendant about the case after he had invoked his Fifth Amendment right to

counsel and without defendant’s having reinitiated the conversation. Both arguments are

devoid of merit.

A. DEFENDANT’S MIRANDA WAIVER WAS MADE VOLUNTARILY

The majority opinion concludes that, “[b]y undermining the advice of rights and

implying that the right to have an attorney present during questioning was predicated on

the ability to pay for an attorney, police in this case violated defendant’s Fifth Amendment

right to counsel under Miranda.” Specifically, the majority opines that “the police here

12 erred by suggesting that defendant could not be questioned with an attorney present

because he did not have the money to hire one. This confusing and inaccurate information

undermined the advice of rights previously read to defendant.” I disagree.

Defendant’s arguments on voluntariness rely on a combination of misrepresented

facts and misunderstood law. The voluntariness of a defendant’s waiver of Miranda rights

depends on the absence of police coercion; the defendant must waive his rights freely and

deliberately, rather than as the product of coercion. 21 The legal analysis for the

voluntariness of a Miranda waiver is essentially the same as that for the voluntariness of a

confession. 22 Watching the video of the interrogation in full, I detect no coercive behavior

on the part of the police officers.

Defendant’s evidence of police coercion largely turns on his incorrect depiction of

the facts. Defendant emphasizes that, when he asked where his attorney was, Beasley

responded, “You don’t get one.” Defendant asserts that, when he pressed for an

explanation, the officer told him that because he didn’t have any money, “[a]in’t nobody

coming.” But the video clearly shows that Beasley did not say, “You don’t get one.” He

said, “You don’t got one.” There is a subtle but significant difference in meaning between

these statements. “You don’t get one” plausibly implies that, not only does defendant not

currently have an attorney, but he will not be receiving one. According to defendant and

21 People v Daoud, 462 Mich 621, 635; 614 NW2d 152 (2000). See Colorado v Connelly, 479 US 157, 167; 107 S Ct 515; 93 L Ed 2d 473 (1986) (“[C]oercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.”). 22 People v Ryan, 295 Mich App 388, 397; 819 NW2d 55 (2012), citing Daoud, 462 Mich at 635.

13 the trial court, this is the meaning that caused defendant to conclude that asserting his rights

would be futile. “You don’t got one,” on the other hand, is a more limited statement. “Got”

implies that defendant does not have an attorney right now, but it does not carry the

forward-looking insinuation of “get.” Because Beasley said “got” and not “get,” this

crucial factual premise of defendant’s involuntary-waiver argument crumbles.

Similarly, defendant claims that Beasley said, “Ain’t nobody coming,” which,

again, carries a future-oriented connotation. It could suggest to defendant that nobody will

be coming to help him at all, not just that no attorney was currently available to assist him.

Here, too, defendant’s factual premise is incorrect. Although what Beasley said is less

clear here, the video indicates that Beasley said, “Ain’t nobody available.”

With these factual bases taken away, defendant’s assertion of police coercion and

intimidation has little to stand on. 23 A more accurate view of the facts is that Beasley told

defendant that he was unable to find an attorney currently available, that the law required

Beasley to end the questioning, and that defendant would therefore be returned to jail for

the time being. This is exactly what is required by the Fifth Amendment and the applicable

caselaw. The majority opinion glosses over Beasley’s repeated words of caution to

23 The majority opinion holds that the police erred by suggesting that defendant could not be questioned with an attorney present because he did not have the money to hire one. But for the reasons just discussed, I believe the interaction between defendant and the police more reasonably indicates that the police informed defendant that they were taking him to detention because he did not presently have an attorney, all of which is factually and legally accurate. After a review of the interrogation video, I do not believe the officers indicated that defendant would never be entitled to an attorney. As is discussed below, there is no authority for the proposition that, when a defendant asks to continue questioning but with counsel present, the police may not cease questioning entirely.

14 defendant—that defendant did not have to talk and should not feel compelled or forced to

speak with police. Indeed, Beasley explicitly stated that he did not want defendant to feel

compelled to talk to him and that he did not want defendant to feel “forced to do anything.”

As for defendant’s argument that being isolated and handcuffed in the interview

room for about two and a half hours after he asked for an attorney deprived him of

willpower, this does not withstand scrutiny. Although it was, no doubt, an unpleasant

experience for defendant, nothing he experienced was onerous, grueling, or plausibly

capable of undermining his voluntary decision-making. There is nothing extreme about

this situation. Defendant was free to move about the room, he had beverages, and he was

allowed to use the restroom. And two and a half hours in a room alone is hardly severe

treatment. While there was a period where defendant was crying and the police were

yelling at him, this constituted only a brief period of the interrogation. Aside from all this,

both Beasley and the officer who recorded defendant’s second Miranda waiver repeatedly

stressed that defendant did not have to talk and that he should not feel compelled or forced

to say anything.

After carefully reviewing the interrogation, I am left with the firm belief that the

police did not engage in coercive conduct, which is the touchstone of a Fifth Amendment

violation. 24 Nor did they say anything that would reasonably lead defendant to believe that

he did not have the right to an attorney. The police were ending the interrogation and

taking defendant back to jail when the exchange in question occurred. It is hard to see how

this could have caused defendant to believe that he had no choice but to waive his rights

24 Daoud, 462 Mich at 635.

15 and speak to the police. Even if the police had led defendant to think that he would not be

receiving a lawyer, there was still no coercion to talk to the police, which is exactly what

the Fifth Amendment protects against. Accordingly, there was no coercion to waive

defendant’s Miranda rights. To the contrary, the police telling a defendant that the

interview is over, that they cannot talk to him, and that they will be returning him to jail is,

if anything, the opposite of coercion to waive one’s rights and talk. It makes extremely

clear that there is an alternative to waiver. The police did exactly what they were required

to do.

In sum, defendant was fully informed of his constitutional rights on three separate

occasions, and he affirmed that he understood his rights each time. The record does not

indicate that there was any unnecessary delay in this process, and further, there were no

signs that defendant was intoxicated, drugged, or otherwise incapacitated during later

attempts to interrogate him. For all these reasons, and because I detect no coercive

behavior on the part of the officers, I disagree with the majority opinion that the officers

violated defendant’s Miranda rights.

B. THE POLICE DID NOT IMPROPERLY REINITIATE CONTACT WITH DEFENDANT IN VIOLATION OF EDWARDS v ARIZONA

Defendant alternatively invokes the rule from Edwards v Arizona that, after a

defendant has invoked his Fifth Amendment right to counsel, police must cease questioning

until either an attorney is present or the defendant has voluntarily reinitiated contact with

police and validly waived his Miranda rights. 25 Defendant argues that the police coerced

25 Edwards, 451 US at 484-485.

16 him into reinitiating the interview by telling him that he would not receive a lawyer, that

they were ending the interrogation, and that they would be applying for an arrest warrant

with the information they already had. The majority opinion holds that “[t]he trial court

record lacks any findings with respect to defendant’s reinitiation . . . . Defendant’s

questions about the status of his attorney were in pursuit of his invocation of the right to

counsel, not an expression of willingness to talk generally about the investigation without

counsel.” According to the majority, it was the police who reinitiated contact by

“engag[ing] in the functional equivalent of questioning” after defendant asked what was

going on. 26 I disagree. Although the police were unable to secure an attorney for defendant

and told him as much, they did not reinitiate contact with defendant or continue the

interrogation. Nor did the officers pressure defendant into reinitiating the interview.

Instead, it was defendant who reinitiated contact and went on to make incriminating

statements.

Defendant’s argument misunderstands the Fifth Amendment. Of course, the “right

to counsel” under the Fifth Amendment is not provided by the Constitution. Instead, it is

a judicially created safeguard intended to protect the constitutional right against self-

incrimination. 27 The same is true of the Edwards rule against police-initiated contact after

a defendant has invoked the right to counsel. 28 These safeguards must be understood not

26 The majority opinion cites Innis, 446 US at 300-301, to support its holding. 27 Michigan v Harvey, 494 US 344, 350; 110 S Ct 1176; 108 L Ed 2d 293 (1990). 28 Id.

17 as standing alone, but within the context of the Fifth Amendment right against self-

incrimination.

When no attorney was available, the police did exactly what they were supposed to

do to protect defendant’s right against self-incrimination: They told defendant that he did

not have an attorney, that they could not speak to him without an attorney, and that they

therefore were ending the interview. Critically, they did not initiate any questioning of

defendant. As the Court of Appeals’ majority noted, had defendant simply remained silent,

the officers would have taken him back to the detention center. At no point before

defendant stated that he wanted to speak with them again without an attorney did an officer

ask him questions about the offense. Without additional manipulative or coercive actions

by police, it is difficult to see how a safeguard that exists to protect the right against self-

incrimination—the requirement that police end an interview with a defendant if counsel is

not present—can itself be deemed a coercive tactic to make the defendant restart the

conversation.

The police had no obligation to talk to defendant about the case, with counsel or

otherwise. Indeed, at that point, the police were obligated not to talk to defendant about

the case. There is no authority for the proposition that, when a defendant asks to continue

questioning but with counsel present, the police may not cease questioning entirely. In a

sense, this would be the opposite of the right to maintain silence, which is the right that the

Fifth Amendment protects. That defendant apparently felt some pressure to share his side

of the story with police rather than end the interview entirely was, at worst, a side effect of

the prophylactic rule meant to protect his rights.

18  Defendant reinitiated the interview, and the police simply provided clarifying

information before defendant repeatedly stated that he wished to speak to them without an

attorney. Defendant asked, “So what’s going on?” When told he was to be transferred to

the detention center, he expressed confusion. When asked what he was confused about,

defendant responded: “I don’t know what’s going on from this point. You ain’t told me

nothing.” When the officer explained, “What’s going to happen now, we’re gonna take

you back to [the] DDC. Then we gonna submit a warrant, and the prosecutor will review

it, all right?” defendant responded, “I’m not sure what all that mean[s].” The officer

explained: “You requested an attorney. I can’t, I can’t talk to you any more about the

case . . . . Now if you wanted to talk to me, you just say that you want, you want to talk

without an attorney. I can talk to you. But you said you wanted an attorney. I’m not

allowed to talk to you by law.” Defendant then said: “I just want to get this over with. If

you tryna talk we can talk. I just want to get this over with. That’s it. I just want to get

this over with.” And when again told, “I can go over your rights again with you, if you

agree to talk without an attorney—” defendant interrupted: “I agree to talk without an

attorney. Y’all heard that? I agree. I just want to get this over with.” And then, when the

officer offered to go over defendant’s rights again, including whether defendant would

want to talk without an attorney, defendant unequivocally and emphatically said, “I agree

to talk without an attorney.” The officer cautioned defendant multiple times, saying that

he did not want defendant to feel compelled or forced to speak. 29 But defendant repeatedly

29 Indeed, Beasley said to defendant: “I don’t want you to feel compelled to talk to me because you don’t want to go with them. That’s the thing. Now if you reasonably want to talk to me without an attorney present, I—I’ll talk to you. But you understand that’s something that you want to do.” Beasley further said to defendant: “I don’t want you to

19 confirmed that he wanted to talk about the case, at which point the police secured a waiver

of his Miranda rights. The totality of the circumstances leaves no doubt that no Edwards

violation occurred in this case.

The majority opinion reasons that defendant did not reinitiate contact because he

was merely inquiring and expressing confusion as to the status of counsel’s whereabouts.

According to the majority, defendant’s question “So what’s going on?” “cannot reasonably

be considered an affirmative request to reinitiate the interrogation without an attorney.” It

is true that the question “So what’s going on?” would not itself constitute the reinitiation

of an interrogation by a defendant. But it does not follow that the officer’s response to this

question in turn constituted reinitiation of the interrogation. Defendant started the

conversation by asking what was happening, and the police simply answered defendant’s

questions as to what was happening and explained the next steps in the process, all of which

were legally accurate. 30 Phrased differently, while the police engaged in a conversation

with defendant, it was solely to answer the questions asked by defendant and clarify the

next steps in the process. Beasley’s reminder to defendant that he could not speak with

defendant absent an attorney is a completely accurate statement of the law. It was only

after Beasley made this statement of the law that defendant stated he would speak to them,

feel like you’re forced to . . . do anything. Is that something you want to do?” This can hardly be viewed as coercive police conduct. 30 See People v Adams, 245 Mich App 226, 236-239; 627 NW2d 623 (2001) (approving of an inquiry by police to clarify whether the defendant was reinitiating a discussion with them without the presence of a lawyer); People v Kowalski, 230 Mich App 464, 479; 584 NW2d 613 (1998) (“As a general principle, a mere inquiry into whether an accused has changed his mind about wanting to speak without an attorney present is not considered ‘interrogation’ within the meaning of Edwards.”), lv den 459 Mich 995 (1999).

20 thus reinitiating the interrogation. After exhaustively confirming that defendant wanted to

speak, the officers obtained another waiver, and it was only then that the officers asked

defendant anything about the underlying offense.

The only statement by the officer that could potentially fall into the coercive

category was: “You said you wanted an attorney. I can’t talk to you no more without an

attorney. So the story you gave is the story we gon’ go with.” Although this suggested

that the police would be moving forward without further questioning, it does not imply

anything negative about the content of the “story” that the police would be using. Indeed,

the officer’s use of “the story you gave” is significant and distinguishable from the trial

court’s paraphrases—“the statements that we have . . . the story that we have” and

especially “we’re gonna go with the story that we have that you’re a stone-cold killer.”

The officer’s statement merely implied that the police would be relating defendant’s story

as he had told it. The story that defendant had given at that point was that he had not been

in the car at all because his car had been stolen. Although defendant’s story seemingly

conflicted with video evidence, and defendant knew it, the statements he had made did not

themselves incriminate him.

Indeed, we would generally expect that the version of events that defendant had

already shared would be less incriminating than anything he might share later. After all,

he started with a version in which he had absolutely nothing to do with the killing and

changed his tune only after the police showed him evidence that his prior story was false.

Arguably, Beasley’s statement about “the story you gave” should have prompted defendant

to think that he was better off saying nothing rather than moving forward with more

questioning, even if there was an attorney present. The officer’s statement also did not

21 reasonably imply that defendant would never have an opportunity to share his (revised)

version of events—only that he would not be able to share it before the next stage in the

process, which, as the officer explained, was to apply for a warrant.

In sum, defendant’s Edwards argument seems to be that if a defendant invokes his

Fifth Amendment right to counsel but indicates a willingness to continue questioning with

counsel present, it is necessarily coercive if police then decline to continue the interview.

According to defendant, any statement by police that the interview would not be continuing

would be “reasonably likely to elicit an incriminating response” and thus the functional

equivalent of interrogation. 31 At that point, the defendant would not be able to reinitiate

the conversation without it being due to police coercion and manipulation. It would then

be impossible for the Edwards defendant-reinitiation scenario to occur. There is no

authority for this type of per se rule.

Beasley told defendant in straightforward language that no attorney was presently

available, that the law required them to end the interview, and that the police would be

using the statements that defendant had already given. The record is devoid of police

behavior that would render defendant’s decision to reinitiate the discussion involuntary or

that would qualify as the subsequent discussion being police-initiated. 32 Instead, the record

31 Innis, 446 US at 302. 32 The events here are less plausibly police-initiated than those in Kowalski, 230 Mich App at 477-484, where the Court of Appeals held that the defendant had reinitiated an interrogation and that Edwards was not violated. In Kowalski, the defendant was arrested on suspicion of a shooting. Id. at 467. He invoked his right to counsel under Miranda, and police ceased all questioning. Id. Simultaneously, police questioned and obtained a statement from a suspected coconspirator. Id. at 467-468. A detective went to the room where the defendant was located, told him that the coconspirator had given a statement,

22 confirms that defendant was able to make a voluntary, informed decision to reinitiate the

conversation. Defendant is not entitled to relief.

V. CONCLUSION

The police did everything they were constitutionally required to do in this case.

They ceased questioning immediately once defendant requested an attorney; they

attempted to locate an attorney for defendant; they informed defendant that they could not

question defendant any further about the case because they could not find an attorney to

counsel defendant during the interrogation; when asked, they explained to defendant what

the next steps in the process would be; and when defendant stated that he wanted to talk

without an attorney, they asked defendant to make sure that is what he wanted, repeatedly

told him not to feel compelled to speak to them, and informed him of his rights again before

accepting his waiver. This police conduct was not only constitutionally acceptable but

required under the law. I therefore agree with the Court of Appeals’ majority opinion that

said nothing about the content of the statement, and asked the defendant if he still wanted to talk to an attorney. Id. at 468. At that point, the defendant said that he did not need an attorney. Id. He waived his Miranda rights and confessed. Id. at 468-469.

The Court of Appeals in Kowalski held that this series of events did not violate Edwards because there was no police-initiated custodial interrogation. Id. at 478-479. The detective had asked the defendant nothing about the case and had not asked the defendant whether he wanted to talk about the case. The detective merely told the defendant that the other man had made a statement and asked whether the defendant still wanted to speak to an attorney. Only then did the defendant say that he wanted to talk about the case, initiating the subsequent interrogation. The Kowalski scenario of police telling a defendant that a co-suspect had made a statement and then asking him if he still wanted to talk to an attorney is undoubtedly a more suggestive and potentially manipulative situation than the one in this case. Yet the Court of Appeals in Kowalski found no violation of Edwards, and this Court denied leave to appeal.

23 defendant’s decision to waive his rights was made voluntarily, knowingly, and intelligently

and that the officers did not violate defendant’s right to be free from self-incrimination

under the Fifth Amendment of the United States Constitution or Article 1, § 17 of the 1963

Michigan Constitution. Accordingly, I would affirm the judgment of the Court of Appeals.

Brian K. Zahra

24