People of Michigan v. Kadeem Dennis White

• Court: Michigan Supreme Court
• Decided: February 13, 2013
• Docket: 144387
• Status: Published

Opinion

Michigan Supreme Court Lansing, Michigan Chief Justice: Justices:

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

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. John O. Juroszek

PEOPLE v WHITE

Docket No. 144387. Argued October 11, 2012 (Calendar No. 8). Decided February 13, 2013.

Kadeem Dennis White was charged in the Jackson Circuit Court with first-degree felony murder, MCL 750.316(1)(b), armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony, MCL 750.227b, in connection with the shooting death of Benjamin Willard. Before trial, defendant moved to suppress his inculpatory statements to the police. He argued that the statements should be suppressed because they were made after he had asserted his right to remain silent and in response to the statements of a police officer that constituted the functional equivalent of interrogation under Rhode Island v Innis, 446 US 291 (1980). The court, Thomas D. Wilson, J., granted the motion to suppress, finding that although the officer’s statements did not constitute express questioning, the officer’s statements were the functional equivalent of questioning. The prosecution appealed by delayed leave granted. The Court of Appeals, WILDER and MURRAY, JJ. (SHAPIRO, P.J., dissenting), reversed, concluding that the officer’s statements did not constitute the functional equivalent of questioning given that (1) before defendant made his inculpatory statements, the officer had advised defendant that he was not asking defendant a question, but was only telling him that he hoped the gun used in the charged offense was in a place where no one could find it and be hurt, (2) nothing in the record indicated that the officer was aware of any peculiar susceptibility of defendant, and (3) the officer had not made a lengthy speech. 294 Mich App 622 (2011). The Supreme Court granted defendant’s application for leave to appeal. 491 Mich 890 (2012).

In an opinion by Justice MARKMAN, joined by Chief Justice YOUNG and Justice ZAHRA, the Supreme Court held:

Defendant was not subjected to express questioning or its functional equivalent after he invoked his right to remain silent, and the Court of Appeals correctly reversed the trial court’s decision to suppress defendant’s voluntary statements.

1. Under the Fifth Amendment of the United States Constitution, no person shall be compelled in any criminal case to be a witness against himself or herself. The United States Supreme Court held in Miranda v Arizona, 384 US 436 (1966), that to protect that right, when the police continue to interrogate a suspect in custody after the suspect has invoked the right to remain silent and the suspect confesses as a result of the interrogation, the confession is inadmissible. The term “interrogation” 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.

2. In this case, defendant was in custody. He was not, however, subjected to express questioning. A question asks for or invites a response. The officer’s comment concerning the location of the gun did not ask for or invite a response, but was a mere expression of hope and concern. Nor did the addition of the words “okay” and “all right” at the end of the comment transform it into a question. The officer used the words repeatedly during the colloquy to indicate when he had finished a thought. Additionally, before making the comment, the officer informed defendant that he was not asking defendant questions. The officer’s statement in that regard made it less likely that the officer would have reasonably expected defendant to answer with an incriminating response. Further, defendant’s subsequent statement did not concern the gun’s location, reinforcing the conclusion that the officer’s comment was not a question. That conclusion is also reinforced by the fact that the officer seemed surprised by defendant’s inculpatory statements.

3. Nor was defendant subjected to the functional equivalent of questioning. There was nothing in the record to suggest that the officer was aware that defendant was peculiarly susceptible to an appeal to his conscience concerning the safety of others. The mere fact that defendant was 17 years old and inexperienced with the criminal justice system did not mean that defendant was peculiarly susceptible. The fact that the officer was speaking directly to the defendant was also not determinative given that the police did not carry on a lengthy harangue in defendant’s presence and given that the officer’s comment was not particularly evocative. Defendant was not interrogated in violation of Miranda, and his confession was admissible and had to be made fully available to the jury.

Affirmed.

Justice CAVANAGH, dissenting, would have reversed the judgment of the Court of Appeals and reinstated the trial court’s order suppressing defendant’s inculpatory statements. Assuming for the sake of argument that defendant was not subjected to express questioning, the officer’s statements amounted to the functional equivalent of express questioning. The majority focused too heavily on the similarities in the content of the statements in Innis and this case and failed to give proper consideration to the context in which the statements were made. The primary considerations of Innis are the suspect’s perception of the officer’s statements and whether the officer should have known that his or her comments were reasonably likely to elicit an incriminating response. In this case, unlike in Innis, the officer’s statements were made in a police interrogation room and were expressly directed to defendant, the only other person present. Regardless of whether the officer subjectively expected defendant to respond to his statements, defendant could have reasonably perceived that the officer was seeking a response, and the officer should have known that it was reasonably likely that defendant would respond. The use of psychological ploys by the police may also constitute interrogation. In this case, the officer’s statements had the characteristics of a psychological ploy that exerted a compelling influence on defendant because they played to the likelihood that defendant would feel compelled to protect others. Defendant’s youth and inexperience with the criminal justice system also increased the likelihood that he would feel compelled to respect and comply with the officer as an authority figure and would perceive the officer’s statements as requiring a response. As a result, defendant was improperly subjected to the functional equivalent of express questioning.

Justice MARY BETH KELLY, dissenting, would have reversed the judgment of the Court of Appeals and suppressed defendant’s statement because the officer engaged in the functional equivalent of express questioning by exploiting defendant’s youth, a characteristic that made him particularly susceptible to the officer’s compulsive techniques. The United States Supreme Court has spoken extensively about the unique characteristics of minors, explaining that they are generally wanting in maturity, are more susceptible to outside influences, and often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them. They are uniquely susceptible to police interrogative efforts and should reasonably be expected to respond to those efforts. Given these unique characteristics, minors have long been afforded a special regard in the law. In the custodial-interrogation context, these characteristics require courts to exercise special care in their scrutiny of the record. In this case, the officer should have recognized that defendant’s age made him especially susceptible to subtle compulsive efforts and that such conduct would likely elicit an incriminating response. Examined in their entirety, the officer’s remarks included a number of police tactics to which a youth would be readily susceptible. Accordingly, defendant was subjected to interrogation after he invoked his right to remain silent.

Justice MCCORMACK took no part in the decision of this case.

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

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

FILED FEBRUARY 13, 2013

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 144387

KADEEM DENNIS WHITE,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH (except MCCORMACK, J.)

MARKMAN, J.

The issue here is whether, in violation of Miranda v Arizona, 384 US 436; 86 S Ct

1602; 16 L Ed 2d 694 (1966), defendant was subjected to “interrogation” or, more

specifically, “express questioning or its functional equivalent,” Rhode Island v Innis, 446

US 291, 300-301; 100 S Ct 1682; 64 L Ed 2d 297 (1980), after he invoked his right to

remain silent. Because we agree with the Court of Appeals that defendant was not

subjected to such questioning after he invoked his right to remain silent, we affirm the judgment of the Court of Appeals, which correctly reversed the trial court’s decision to

suppress defendant’s voluntarily given confession.

I. FACTS AND PROCEDURAL HISTORY

Defendant allegedly turned a drug buy into an armed robbery by pulling out a gun

instead of proffering cash. He and the victim allegedly struggled over the gun, the gun

went off, and the victim was killed. Defendant was then taken into custody. After a

police officer read defendant his Miranda rights, the following colloquy, which was

recorded on a DVD, immediately ensued:

[Officer]: Okay. This is what they call the acknowledgement and waiver paragraph. I’m going to read this to you. If you wish to talk to me, I’m going to need you to sign and date [the] form. Even though you sign and date the form, you still have your rights to stop at any time you wish. Do you understand that?

[Defendant]: No. No thank you sir. I’m not going to sign it.

[Officer]: Okay. Okay. Sounds good.

[Defendant]: I don’t even want to speak.

[Officer]: I understand. I understand Kadeem. Okay then. The only thing I can tell you Kadeem, is good luck man. Okay. Don’t take this personal. It’s not personal between me and you, I think I may have had one contact with you on the street. Okay. I’ve got to do my job. And I understand you’ve got to do what you’ve got to do to protect your best interests. Okay. The only thing that I can tell you is this, and I’m not asking you questions, I’m just telling you. I hope that the gun is in a place where nobody can get a hold of it and nobody else can get hurt by it, okay. All right.

[Defendant]: I didn’t even mean for it to happen like that. It was a complete accident.

[Officer]: I understand. I understand. But like I said, you, uhh, you get your attorney, man. Hey, look dude, I don’t think you’re a monster, all

2 right. I don’t think that. You could have came down to me and turned yourself in and there ain’t no damn way I’d beat you up. Yeah. Okay, man? You all set, you straight with me? Who knows you’re here? Who knows of your family? Because I know a lot of your family in town now.

[Defendant]: I know that I didn’t mean to do it. I guarantee that, I know I didn’t mean to do it.

[Officer]: Does your dad know you’re down here?

[Defendant]: Yeah.

Defendant was charged with first-degree felony murder, MCL 750.316(1)(b),

armed robbery, MCL 750.529, and possession of a firearm during the commission of a

felony, MCL 750.227b. Before trial, defendant moved to suppress his statement to the

police officer. The trial court granted defendant’s motion, finding the officer’s

comment-- “I hope that the gun is in a place where nobody can get a hold of it and

nobody else can get hurt by it”-- to be the functional equivalent of express questioning,

which is prohibited after a defendant has invoked his right to remain silent. In a

published, and split, decision, the Court of Appeals reversed. People v White, 294 Mich

App 622; 823 NW2d 118 (2011). The majority held that the officer’s comment did not

constitute the functional equivalent of express questioning under Innis and thus that there

was no constitutional violation. The dissent would have suppressed the confession

because, with the word “okay” appended to his expression of concern regarding the

firearm, the officer’s comment constituted an express question. At the very least, the

dissent concluded, the officer’s comment constituted the functional equivalent of a

question and was thus prohibited. This Court granted defendant’s application for leave to

appeal. People v White, 491 Mich 890 (2012).

3 II. STANDARD OF REVIEW

Because the pertinent facts here are undisputed, we review de novo the trial

court’s decision regarding whether defendant was subjected to “interrogation” or, more

specifically, “express questioning or its functional equivalent.” Innis, 446 US at 300-301.

We agree with the Court of Appeals dissent that the majority erred by applying the “clear

error” standard of review in evaluating whether such questioning occurred. As the

dissent explained, given that the facts are undisputed, the de novo standard of review, not

review for clear error, is applicable. See People v Attebury, 463 Mich 662, 668; 624

NW2d 912 (2001) (“To the extent that a trial court’s ruling on a motion to suppress

involves an interpretation of the law or the application of a constitutional standard to

uncontested facts, our review is de novo.”). However, this error was harmless because

the majority held that “[e]ven under a de novo review of the evidence, . . . we conclude,

as did the trial court, that no express questioning occurred.” White, 294 Mich App at 633.

III. ANALYSIS

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 . . . .” US

Const, Am V. See also Const 1963, art 1, § 17. Notwithstanding the apparent textual

focus of the Fifth Amendment on whether a defendant’s confession was undertaken

voluntarily and without coercion,1 the United States Supreme Court has held since

1 Before Miranda, the admissibility of a confession depended on its voluntariness. See Bram v United States, 168 US 532, 542-543; 18 S Ct 183; 42 L Ed 568 (1897) (“‘[A] confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied

4 Miranda that in the context of a “custodial interrogation,” advising a defendant of his

Miranda rights2 is necessary to protect his constitutional privilege against self-

incrimination, and “[i]f the individual indicates in any manner, at any time prior to or

during questioning, that he wishes to remain silent, the interrogation must cease.”

Miranda, 384 US at 444, 473-474. If the police continue to “interrogate” the defendant

after he has invoked his right to remain silent, and the defendant confesses as a result of

that “interrogation,” the confession is inadmissible. Id. at 444-445. However, Miranda

also clarified that voluntarily given confessions that are not the result of impermissible

custodial interrogations remain admissible:

In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. [Id. at 478.]

promises, however slight, nor by the exertion of any improper influence.’”) (citation omitted); Hardy v United States, 186 US 224, 229; 22 S Ct 889; 46 L Ed 1137 (1902) (“[S]tatements which are obtained by coercion or threat or promise will be subject to objection.”); Malloy v Hogan, 378 US 1, 7; 84 S Ct 1489; 12 L Ed 2d 653 (1964) (“[T]he constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was ‘free and voluntary . . . .’”). 2 That is, “[p]rior 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.” Miranda, 384 US at 444.

5 In this case, there is no question that defendant was in “custody” and that after

defendant was read his Miranda rights, he invoked his right to remain silent. Thus, the

question here is whether, after defendant invoked his right to remain silent, he was then

subjected to “interrogation.”

In Innis, 446 US at 300-302, the United States Supreme Court explained the

circumstances under which a defendant is deemed to have been subjected to

“interrogation”:

[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the 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. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. [Emphasis in the original.]

The Court further explained, however, that the underlying intent of the police is not

irrelevant:

[I]t may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect. [Id. at 301 n 7.]

6 But again, as one academic commentator explained, the focus must be on the objective

manifestation of the officer’s words rather than on the officer’s subjective intentions in

speaking the words:

[T]he best reading of the Innis test is that it turns upon the objective purpose manifested by the police. Thus, an officer “should know” that his speech or conduct will be “reasonably likely to elicit an incriminating response” when he should realize that the speech or conduct will probably be viewed by the suspect as designed to achieve this purpose. To ensure that the inquiry is entirely objective, the proposed test could be framed as follows: if an objective observer (with the same knowledge of the suspect as the police officer) would, on the sole basis of hearing the officer’s remarks, infer that the remarks were designed to elicit an incriminating response, then the remarks should constitute “interrogation.” [2 LaFave, Criminal Procedure (3d ed), § 6.7(a), p 757, quoting White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 Mich L R 1209, 1231-1232 (1980) (emphasis in the original).]

On the basis of the foregoing principle, Innis concluded that the defendant was not

“interrogated” within the meaning of Miranda. The defendant had been suspected of

robbing and killing taxicab drivers with a sawed-off shotgun. When the police arrested

him, they repeatedly read him his Miranda rights, and the defendant invoked his right to

counsel. On the way to the police station, the defendant was in the backseat of a squad

car accompanied by three officers. The officers were having a conversation and one of

them stated that there were “a lot of handicapped children running around in this area”

because a school for handicapped children was located nearby, and “God forbid one of

them might find a weapon with shells and they might hurt themselves.” Innis, 446 US at

294-295. In the course of this conversation, the officers were interrupted by the

defendant, who directed them to turn the squad car around so that he could show them

where the gun was hidden.

7 The Court held that the defendant had not been “interrogated” in violation of

Miranda because he was neither subjected to “express questioning” nor its “functional

equivalent.” Regarding the latter, the Court noted that (1) “[t]here is nothing in the

record to suggest that the officers were aware that the respondent was peculiarly

susceptible to an appeal to his conscience concerning the safety of handicapped

children”; (2) “[n]or is there anything in the record to suggest that the police knew that

the respondent was unusually disoriented or upset at the time of his arrest”; (3) “the entire

conversation appears to have consisted of no more than a few offhand remarks”; (4)

“[t]his is not a case where the police carried on a lengthy harangue in the presence of the

suspect”; (5) “[n]or does the record support the respondent’s contention that, under the

circumstances, the officers’ comments were particularly ‘evocative.’” Id. at 302-303.

Finally, the Court held that the lower court had “erred . . . in equating ‘subtle compulsion’

with interrogation” because even when there is subtle compulsion, “[i]t must also be

established that a suspect’s incriminating response was the product of words or actions on

the part of the police that they should have known were reasonably likely to elicit an

incriminating response.” Id. at 303.

In the instant case, we agree with the Court of Appeals that defendant was not

subjected to “express questioning” after he invoked his right to remain silent. First, a

“question” asks for or invites a response. Id. at 302 (holding that the respondent was not

subjected to “express questioning” because “no response from the respondent was

invited”); Random House Webster’s College Dictionary (2001) (defining “question” as “a

sentence in an interrogative form addressed to someone in order to get information in

reply” or “the act of asking or inquiring”). The officer’s comment in this case-- “I hope

8 that the gun is in a place where nobody can get a hold of it and nobody else can get hurt

by it”-- was not a question because it did not ask for an answer or invite a response. It

was a mere expression of hope and concern.

Second, the officer’s addition of the words “okay” and “all right” at the end of his

comment did not transform a non-question into a question. This is especially obvious

when the conversation is considered in its entirety, as it must be, because the officer

repeatedly used the words “okay” and “all right” in a manner that failed to garner any

response from defendant. See Acosta v Artuz, 575 F3d 177, 191 (CA 2, 2009) (“Innis

calls upon courts to consider police conduct in light of the totality of the circumstances in

assessing whether the police ‘should have known’ that their actions ‘were reasonably

likely to elicit an incriminating response.’”), quoting Innis, 446 US at 303. We agree

with Justice CAVANAGH that

it is not unusual for people to use certain words or phrases repeatedly while speaking without intending for those words to have significant meaning. In fact, during the approximately five-minute-long colloquy between Stiles and defendant, Stiles repeatedly used the phrases “okay” and “all right” to punctuate statements, apparently without intending to extract a response from defendant. [Post at 4.]

Indeed, the officer used the word “okay” 17 times during the 5-minute conversation, and

yet defendant only “responded” 3 times, including the “response” that is at issue in this

case, and the other 2 “responses”-- if that is even a proper characterization of what

defendant’s statements amounted to-- were simply “yeah” and “okay.” Similarly, the

officer used the phrase “all right” 4 times during the 5-minute conversation and only in

this one instance did defendant again “respond,” and, as discussed later in this opinion,

that “response” was in no way responsive to the officer’s statement because defendant

9 said nothing about the gun-- the very matter that had been the subject of the officer’s

statement. Moreover, from our own review of the video of the interview, the officer’s

comment, at least in our judgment, does not at all sound like a question. That is, the

officer did not say the words “okay” and “all right” in a manner and with an emphasis

that would have made a reasonable person believe that a response was expected.

Instead, the use of these words reflected essentially a verbal tic on the officer’s part

meaning, “Okay, all right, I have finished my thought.”

Furthermore, immediately before the officer made the statement at issue, he said,

“I’m not asking you questions, I’m just telling you.” Although this is certainly not

dispositive of whether what follows constituted a “question,” it is nevertheless relevant

with regard to whether the officer reasonably should have expected an answer. The very

utterance itself made it less likely either that the officer would have reasonably expected

defendant to answer with an incriminating response or that defendant would have

proffered an incriminating response.3

Moreover, as previously noted, the fact that defendant’s “response” to the officer’s

comment concerning the location of the gun did not have anything at all to do with the

3 We generally agree with Justice CAVANAGH that although “such statements do not magically transform what would otherwise be an express question into a constitutionally benign comment,” “such qualifying statements might, in some situations, be relevant to a court’s consideration of the totality of the circumstances . . . .” Post at 3. Indeed, we believe that such prefatory language will almost always be of at least some relevance to the court’s “totality of circumstances” analysis in the sense that, whatever the subjective intentions of the officer, his disclaimer that no question is being asked, and thus that no answer is expected, can be assumed to have at least some deterrent effect on a defendant in answering the “question” on the assumption that the officer means what he says.

10 location of the gun also reinforces the conclusion that the officer’s comment here was not

a question. If it was a question, defendant certainly did not answer it. Instead, defendant

said: “I didn’t even mean for it to happen like that. It was a complete accident.” If

defendant was answering the officer’s “question,” one would think that he would have

said something about the location of the gun, but he did not, and this, in our judgment,

underscores that the officer’s comment was not a question to begin with.

In addition, the fact that the officer responded to defendant’s incriminating

statement by saying, “[Y]ou, uhh, you get your attorney, man,” and then asking defendant

if his family knew that he was there, suggests that the officer was not expecting or trying

to obtain an incriminating response from defendant. Instead, it seems that the officer was

taken somewhat by surprise by defendant’s incriminating statement, and he immediately

sought to veer the conversation away from any further incriminating statements. The fact

that the officer was caught off guard by defendant’s incriminating statement further

underscores that the officer’s comment was not “designed to elicit an incriminating

response . . . .” Innis, 446 US at 302 n 7.

Finally, to the extent that the officer’s statement can even be reasonably viewed as

a question, this particular question does not seem intended to generate an incriminating

response.4 Instead, if anything, the officer was simply trying to ensure that defendant

heard and understood him. As the Court of Appeals explained:

4 The Court of Appeals dissent stated that “it is difficult to conceive of another reason” for the officer to have said what he did other than to get defendant to make an incriminating statement. White, 294 Mich App at 639 (SHAPIRO, P.J., dissenting). However, perhaps the officer was simply genuinely concerned about somebody getting hold of the gun and injuring either themselves or somebody else. Just as

11 [W]e conclude, as did the trial court, that no express questioning occurred. After defendant invoked his right to remain silent, the detective informed defendant that he was not asking any more questions and was only going to make a statement. The brief statement was made, and though the detective stated “okay” and “alright” after the statement, the video makes clear that in context the detective was seeking affirmation that defendant heard the statement, not that he was seeking a response to the statement. And the detective’s response once defendant blurted out an incriminating statement shows he had not intended that there be any sort of substantive response to the statement. Consequently, there was no express questioning of defendant. [White, 294 Mich App at 633-634.]

We further agree with the Court of Appeals that defendant was not subjected to the

“functional equivalent” of express questioning after he invoked his right to remain silent.

Just as in Innis, there is nothing in the record to suggest that the officer was aware that

“in Innis, there is a basis for concluding that the officer’s remarks were made for some purpose other than that of obtaining evidence from the suspect” because an “objective listener could plausibly conclude that the policemen’s remarks in Innis were made solely to express their genuine concern about the danger posed by the hidden shotgun.” [2 LaFave at 757 n 20, quoting White, 78 Mich L R at 1234-1235 (emphasis in the original).]

See also Innis, 446 US at 303 n 9 (“[I]t was ‘entirely understandable that [the officers] would voice their concern [for the safety of the handicapped children] to each other.”) (alterations in the original). Furthermore, given that after the officer said something about the gun, he asked defendant if his family knew where he was, perhaps the officer was hoping that defendant might tell a family member where the gun was if it was not in a safe location so that a family member could ensure that the gun was moved to a safe location. Finally, “the mere fact that a police officer may be aware that there is a ‘possibility’ that a suspect may make an incriminating statement is insufficient to establish the functional equivalent of interrogation.” United States v Taylor, 985 F2d 3, 8 (CA 1, 1993), citing Arizona v Mauro, 481 US 520, 528-529; 107 S Ct 1931; 95 L Ed 2d 458 (1987) (“Officers do not interrogate a suspect simply by hoping that he will incriminate himself.”). Contrary to Justice CAVANAGH’s intimation, we fully recognize that the officer’s subjective intent is not dispositive. However, as Innis, 446 US at 301 n 7, explained, such intent is not “irrelevant” either, and it is especially not “irrelevant” when a dissenting Court of Appeals judge has specifically asserted that the officer must have subjectively intended to coerce defendant to respond to the officer’s comments.

12 defendant was “peculiarly susceptible to an appeal to his conscience” concerning the

safety of others. Innis, 446 US at 302. Justice CAVANAGH asserts that the officer’s

comment about the gun “played to the likelihood that defendant would respond to an

expression of concern for the safety of others.” Post at 17 (emphasis added). However,

we have a difficult time fathoming that the officer believed that defendant was

“peculiarly susceptible to an appeal to his conscience,” especially where defendant had

just been arrested for shooting another man to death for drugs. That is, under these

circumstances, and absent any evidence of defendant’s peculiar susceptibility, we are not

persuaded that the officer here should have known that “defendant would perceive the

[officer’s] comments as compelling a response in order to protect others . . . .” Post at

19.

Although Justice CAVANAGH states that “several of defendant’s individual

personal characteristics increased the likelihood that he would perceive Stiles’s

comments as requiring a response,” post at 21, he only articulates two such

characteristics: “defendant’s youth and inexperience with the criminal justice system,”

post at 20. However, the mere fact that defendant was 17 years old and inexperienced in

the criminal justice system does not mean that he was “peculiarly susceptible to an appeal

to his conscience” or “unusual[ly] susceptib[le] . . . to a particular form of

persuasion . . . .” Innis, 446 US 302.5 Indeed, not even defendant himself has argued that

5 In the case relied on heavily by Justice MARY BETH KELLY-- JDB v North Carolina, 564 US __; 131 S Ct 2394, 2398, 2406; 180 L Ed 2d 310 (2011), which, unlike the instant case, involved a 13-year-old boy-- the United States Supreme Court held that although “the age of a child subjected to police questioning is relevant to the custody

13 he possesses any personal characteristics that made it more likely that he would feel

compelled to respond to the officer’s comment about the gun. And indeed, as previously

discussed, defendant never did truly “respond” to the officer’s comment about the gun--

he never told the officer where the gun was. Therefore, the alleged importunings of the

officer with regard to the safety of other persons must not have moved defendant

excessively or weighed too heavily on his conscience.6

Also, just as in Innis, there is nothing in the record to suggest that the officer here

was aware that defendant was “unusually disoriented or upset at the time of his arrest.”

Innis, 446 US at 303. Furthermore, the officer only made a single remark about the gun.

“This is not a case where the police carried on a lengthy harangue in the presence of the

suspect.” Id. Nor was the officer’s remark “particularly ‘evocative.’” Id. Indeed, the

officer’s comment in the instant case was far less “evocative” than the officer’s comment

in Innis. In Innis, the officer said, “[T]here’s a lot of handicapped children running

analysis of Miranda,” “[t]his is not to say that a child’s age will be a determinative, or even a significant, factor in every case.” 6 Justice KELLY contends that we focus exclusively on the officer’s comment about the gun and ignore his “references to violence and attempts to earn defendant’s trust through expressions of understanding and references to defendant’s family.” Post at 7 n 20. The only purported “reference to violence” was the officer’s statement: “You could have came down to me and turned yourself in and there ain’t no damn way I’d beat you up.” That is, the officer said that he would not have beat defendant up. Accordingly, the officer’s statement is probably better understood as a reference to nonviolence than to violence. And while it is true that the officer did refer to defendant’s family and did render expressions of understanding, we hardly believe that these statements transformed a non-interrogation into an interrogation. Nor do we do not believe that police officers violate the United States Constitution by rendering expressions of understanding to suspects or by inquiring as to whether their families are aware that they are in custody.

14 around in this area, and God forbid one of them might find a weapon with shells and they

might hurt themselves.” Id. at 294-295. In the instant case, the officer said, “I hope that

the gun is in a place where nobody can get a hold of it and nobody else can get hurt by

it . . . .” Unlike the officer in Innis, the officer here did not invoke God or handicapped

children. And even if the officer’s remark could be considered “subtle compulsion,”

Innis held that “subtle compulsion” is not “interrogation.” Id.7

Justice CAVANAGH is correct that the instant case is factually distinguishable from

Innis in the sense that the officers in Innis were talking to themselves, and not directly to

the defendant, about the gun, whereas in the instant case, the officer was clearly talking

directly to defendant about the gun given that defendant was the only other person in the

room.8 However, we do not believe that this difference alone requires a different

7 Contrary to Justice CAVANAGH’s contention, Mauro did not hold that subjecting a suspect to “psychological ploys” constitutes “interrogation.” Post at 15-16. Mauro simply noted that the defendant in that case had not been subjected to “psychological ploys.” Mauro, 481 US at 529. This by no means indicates that “psychological ploys” necessarily constitute “interrogation.” Indeed, as previously discussed, Innis, 446 US at 303, expressly held that “subtle compulsion” does not constitute “interrogation.” See also Acosta, 575 F3d at 189 (stating that “police conduct would not qualify as interrogation simply because it ‘struck a responsive chord’ in a defendant”), quoting Innis, 446 US at 303. Furthermore, we do not view what happened here as a “psychological ploy” at all. Justice CAVANAGH contends that “the record is devoid of any support for the majority’s speculation regarding Stiles’s subjective intent in making the statements at issue.” Post at 12 n 2. However, the record is equally devoid of any contrary subjective intent, and why should an officer of the law expressing concern about the risk to others being posed by an abandoned firearm be presumed to be engaged in a “psychological ploy”? Why can’t it be presumed, absent more, that the expression of such a concern is sincere and genuine and an altogether legitimate aspect of the officer’s professional responsibilities? Indeed, it is difficult to imagine a more legitimate concern that an officer of the law might express. 8 Justice CAVANAGH relies heavily on In re EG, 482 A2d 1243 (DC, 1984), for the proposition that whether the officer was talking directly to the defendant is a significant

15 outcome.9 As the Court of Appeals explained, “federal courts have repeatedly held that

revealing evidence or other facts directly to the defendant does not constitute the

factor. In In re EG, the officer was told that a man wearing a beige hat and dark sunglasses had just committed an armed robbery. When the officer stopped the defendant and found a beige hat and dark sunglasses in the defendant’s pocket, the officer said: “Here is the sunglasses and the hat. I wonder where the gun and money is [sic].” Id. at 1245. The defendant responded, “I gave it to my partner.” Id. The District of Columbia Court of Appeals held that the officer’s statement constituted “interrogation” because “there was no understandable explanation for [the officer’s] rhetorical question other than to elicit a response from appellant.” Id. at 1248. In the instant case, however, as previously discussed, there is a reasonable explanation for the officer’s comment other than to elicit an incriminatory response from defendant-- a genuine and legitimate concern about the danger posed by the missing gun. In re EG is also distinguishable from the instant case because in that case, the defendant was never told that he had a right to remain silent, while in the instant case defendant was informed that he had a right to remain silent, he invoked that right, and before the officer made the comment about the gun he specifically told defendant that it was a statement, not a question. Finally, in In re EG, the officer made the comment while his service revolver was drawn and the defendant had his hands on the roof of the officer’s police cruiser, while here the officer made the comment during a completely civil conversation with defendant at the police station. Therefore, not only is In re EG, of course, not binding on this Court, but it is also distinguishable on significant grounds. 9 Contrary to Justice CAVANAGH’s contention, we do not “fail[] to give proper consideration to the context in which the statements were made.” Post at 9-10 (emphasis in the original). Instead, we are fully cognizant that the officer’s comments at issue here were made in a distinct context from those at issue in Innis, because while the officer in Innis was speaking to another officer, the officer here was speaking to the defendant himself. However, this appears to be the only contextual difference relied on by Justice CAVANAGH (other than that the defendant in Innis was in a police car, while the defendant here was in a police interrogation room, which we believe is a distinction without a meaningful difference), and for the reasons explained above, we do not believe that this distinction by itself, although certainly a distinction, compels a different result. And contrary to Justice CAVANAGH’s intimation, the fact that two of the dissenting justices in Innis opined that the officer’s “remarks ‘would obviously have constituted interrogation if they had been explicitly directed to respondent’” is of little relevance because they were dissenting. Post at 11, quoting Innis, 446 US at 305 (Marshall, J., dissenting). What is relevant is that the majority in Innis did not rely on the fact that the

16 functional equivalent of questioning, absent any of the other Innis criteria.” White, 294

Mich App at 635. For example, in Fleming v Metrish, 556 F3d 520, 523 (CA 6, 2009),

when an officer told the suspect after the suspect had invoked his right to remain silent

that “things did not look good for him and that ‘maybe he needed to do the right thing’”

and asked the suspect if he now wanted to talk to the lead detective, the court held that

this did not constitute “interrogation.” The court specifically rejected that there was a

significant distinction between the officers’ conversation in Innis and the comments

directed to the defendant:

We recognize that Innis is arguably distinguishable on the basis that the conversation in Innis occurred between two police officers, and was not directed toward the suspect himself. Officer Clayton’s brief remarks were, in contrast, clearly aimed at Fleming. Such a distinction might be significant if an officer’s brief remarks morphed into, for example, a “lengthy harangue” because, other things being equal, extended comments directed toward a suspect are more likely to elicit an incriminating response. But this court has previously rejected a constitutional challenge to cursory comments aimed at a suspect in an analogous context. See United States v. Hurst, 228 F.3d 751, 760 (6th Cir.2000) (holding that “the mere statement by [a law-enforcement official] that ‘we’ve got good information on you,’ viewed in context, contains no compulsive element suggesting a Fifth Amendment violation under the circumstances.”). [Id. at 527 (alteration in the original).]

Indeed, “courts have generally rejected claims . . . that disclosure of the results of a lineup

or other inculpatory evidence possessed by the police, without more, constitutes

‘interrogation’ under Innis.” Acosta, 575 F3d at 191. See, for example, Easley v Frey,

433 F3d 969, 974 (CA 7, 2006) (holding that informing the defendant that an eyewitness

officers were not talking directly to the defendant in its analysis of whether the officers subjected the defendant to the functional equivalent of express questioning.

17 was willing to testify against him and that if convicted he could be subject to the death

penalty did not constitute “interrogation”); United States v Payne, 954 F2d 199, 203 (CA

4, 1992) (holding that informing the defendant that a gun was found at his home did not

constitute “interrogation”); Shedelbower v Estelle, 885 F2d 570, 572-573 (CA 9, 1989)

(holding that informing the defendant that his accomplice had been arrested and that the

victim had identified him as one of her assailants after being shown his photograph did

not constitute “interrogation”); People v McCuaig, 126 Mich App 754, 760; 338 NW2d 4

(1983) (holding that “the statements made by the police officer, which merely advised

defendant of the crime with which he was charged and which described the events which

led to that charge, cannot be characterized as further interrogation by the officer or its

functional equivalent”); People v Kowalski, 230 Mich App 464, 467-469, 483; 584

NW2d 613 (1998) (holding that informing the defendant that his accomplice had given a

statement and inquiring whether the defendant still wanted an attorney did not constitute

“interrogation”).

Accordingly, direct statements to the defendant do not necessarily constitute

“interrogation.”10 Again, the dispositive question is whether the “suspect’s incriminating

response was the product of words or actions on the part of the police that they should

10 Although we recognize that none of the cited decisions fully addresses the specific circumstances at issue here-- few criminal cases are factually identical-- these decisions are nonetheless helpful in resolving the present question because they all stand in common for the proposition that direct statements to a defendant do not necessarily constitute “interrogation.” Therefore, the fact that the statement at issue here was a direct statement to defendant cannot, by itself, support Justice CAVANAGH’s conclusion that the officer’s statement constituted “interrogation.”

18 have known were reasonably likely to elicit an incriminating response.” Innis, 446 US at

303. And for the reasons set forth, we do not believe that defendant’s incriminating

response in this case can be characterized as such a product. As the Court of Appeals

explained:

[N]othing in the record suggests that the detective was aware of any peculiar susceptibility of defendant (or that he even had any). So, focusing on what defendant would have perceived from the statement in its context, we can only conclude that Detective Stiles should not have reasonably expected defendant to make an incriminating statement. After all, Detective Stiles had already told defendant both that he was not asking a question and that he understood defendant’s invocation of his right to remain silent. Amidst these other permissible comments—and absent any known sensitivities of defendant—it would not be reasonable to conclude that the one comment about the possibility of the gun being located and endangering others would result in a statement about the crime itself. Just as importantly, this “is not a case where the police carried on a lengthy harangue in the presence of” defendant, nor was Detective Stiles’s comment “evocative.” Innis, 446 US at 302-303. And these latter two points make any distinction between a direct remark made to defendant and a defendant overhearing remarks between police as in Innis insufficient to come to a different constitutional conclusion. [White, 294 Mich App at 632.]

IV. CONCLUSION

For these reasons, we agree with the Court of Appeals that defendant was not

“interrogated” in violation of Miranda. Therefore, we affirm the judgment of the Court

of Appeals, which reversed the trial court’s decision to suppress defendant’s voluntarily

given confession. Defendant’s confession must be made fully available to the jury in its

pursuit of the truth with regard to what occurred in this case.

Stephen J. Markman Robert P. Young, Jr. Brian K. Zahra

19 STATE OF MICHIGAN

CAVANAGH, J. (dissenting). This case raises the issue of whether defendant, who was 17 years old at the time,

was subjected to “interrogation” after invoking his Fifth Amendment right against

compelled self-incrimination, contrary to Miranda v Arizona, 384 US 436; 86 S Ct 1602;

16 L Ed 2d 694 (1966). In my view, defendant was improperly subjected to the

“functional equivalent” of interrogation under Rhode Island v Innis, 446 US 291; 100 S

Ct 1682; 64 L Ed 2d 297 (1980); thus, I would reverse the judgment of the Court of

Appeals, reinstate the trial court’s order suppressing defendant’s incriminating

statements, and remand this case to the trial court for proceedings consistent with this

opinion.

The United States and Michigan Constitutions guarantee the right against

compelled self-incrimination. US Const, Am V; Const 1963, art 1, § 17. The United

States Supreme Court has explained that “the prosecution may not use statements,

whether exculpatory or inculpatory, stemming from custodial interrogation of the

defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda, 384 US at 444. The necessary

“procedural safeguards” are embodied in the now familiar Miranda warnings. Innis, 446

US at 297; Colorado v Spring, 479 US 564, 572; 107 S Ct 851; 93 L Ed 2d 954 (1987).

The United States Supreme Court has “consistently . . . accorded a liberal

construction” to the privilege against self-incrimination, Miranda, 384 US at 461, while

still recognizing that “[c]onfessions remain a proper element in law enforcement” and

“[v]olunteered statements of any kind are not barred by the Fifth Amendment,” id. at 478.

Indeed, not all statements obtained by the police after a person has been taken into

custody are automatically considered the product of interrogation. Innis, 446 US at 299.

Rather, interrogation “must reflect a measure of compulsion above and beyond that

inherent in custody itself.” Id. at 300. However, if at any time “the individual indicates

in any manner . . . that he wishes to remain silent, the interrogation must cease.”

Miranda, 384 US at 473-474.

In this case, it is undisputed that defendant was in custody, was given Miranda

warnings, and had invoked his right to remain silent before he made incriminating

statements. Thus, the primary issue in this case is whether defendant was subjected to

custodial interrogation after invoking his right to remain silent. The United States

Supreme Court has explained that interrogation includes “questioning initiated by law

enforcement officers after a person has been taken into custody or otherwise deprived of

his freedom of action in any significant way,” id. at 444; see, also, Yarborough v

Alvarado, 541 US 652, 661; 124 S Ct 2140; 158 L Ed 2d 938 (2004), but, in subsequent

opinions, the Court has further explained that “interrogation” is not limited only to

express questioning. Rather, certain “techniques of persuasion” may also amount to

2 interrogation. Innis, 446 US at 299. Accordingly, “interrogation” includes either

“express questioning or its functional equivalent.” Id. at 300-301.

Although caselaw provides little guidance regarding how to determine whether

specific statements by the police amount to express questioning, Innis explained that if a

police officer’s statement does not invite a response from the suspect, the statement does

not amount to express questioning. Id. at 302. Although a communication asking

someone for an answer obviously amounts to express questioning because it is a clear

example of a remark that invites a response, Innis should not be interpreted to mean that

only explicit or direct questions can amount to express questioning because other types of

statements may also invite a response. Accordingly, police officers cannot remove their

comments from the realm of express questioning merely by prefacing the comments with

limiting phrases such as “I’m not asking you questions” or “I’m just telling you,” as

Detective Brett Stiles did in this case. Although such qualifying statements might, in

some situations, be relevant to a court’s consideration of the totality of the circumstances,

in my view merely prefacing a statement with “I’m not asking a question,” “I’m just

telling you,” or other similar phrases should not be given significant weight because such

statements do not magically transform what would otherwise be an express question into

a constitutionally benign comment. For example, the statement “I’m not asking you a

question, I’m just telling you I want to know why you killed those people” would clearly

be an express question under Miranda and Innis because it invites a response, regardless

of the interrogator’s use of a lead-in statement. See Innis, 446 US at 302.

Turning to the unique details of the statements at issue in this case, several

characteristics of Stiles’s statements indicate that he was asking an express question of

3 defendant. First, defendant and Stiles were the only two people in the interrogation room

when Stiles made the statements. Thus, Stiles was obviously directing his statements to

defendant. Second, when considered in context, the phrases “okay” and “all right” seem

to invite defendant to respond by, at a minimum, acknowledging that he heard what Stiles

had said. Third, after punctuating his statements with “okay,” Stiles paused for several

seconds, as if waiting for a response from defendant. When defendant did not respond,

Stiles followed up by stating, “All right?” which, again, could be interpreted as inviting a

response from defendant.

On the other hand, I agree with the majority that other characteristics of Stiles’s

statements weigh against the conclusion that the statements amounted to express

questioning. Most notably, it is not unusual for people to use certain words or phrases

repeatedly while speaking without intending for those words to have significant meaning.

In fact, during the approximately five-minute-long colloquy between Stiles and

defendant, Stiles repeatedly used the phrases “okay” and “all right” to punctuate

statements, apparently without intending to extract a response from defendant.

As the preceding discussion reveals, the totality of the circumstances surrounding

Stiles’s statements allows for persuasive arguments in support of differing conclusions

regarding whether Stiles subjected defendant to express questioning. However, I will

assume arguendo, for purposes of this appeal only, that defendant was not subjected to

express questioning because I believe that even if Stiles’s comments were not “express

questions,” the comments nevertheless amounted to the “functional equivalent” of

express questioning for the reasons discussed later in this opinion.

4 The “functional equivalent” of express questioning encompasses “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.” Innis, 446 US at 301. An “incriminating response” is “any

response—whether inculpatory or exculpatory—that the prosecution may seek to

introduce at trial.” Id. at 301 n 5. Innis further explained that the requirement that the

words or action be reasonably likely to elicit an incriminating response

focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. [Id. at 301.]

However, the police “cannot be held accountable for the unforeseeable results of

their words or actions . . . .” Id. at 302. Accordingly, “the definition of interrogation can

extend only to words or actions on the part of police officers that they should have known

were reasonably likely to elicit an incriminating response.” Id.

The Innis Court made two additional important points regarding the definition of

“interrogation.” First, the Court stated that although the suspect’s perception is the

primary focus of the inquiry, the intent of the police is also relevant because “it may well

have a bearing on whether the police should have known that their words or actions were

reasonably likely to evoke an incriminating response.” Id. at 301 n 7. Indeed, “where a

police practice is designed to elicit an incriminating response from the accused, it is

5 unlikely that the practice will not also be one which the police should have known was

reasonably likely to have that effect.” Id.

Second, in determining whether the police should have known that their words or

actions were reasonably likely to elicit an incriminating response, “[a]ny knowledge the

police may have had concerning the unusual susceptibility of a defendant to a particular

form of persuasion might be an important factor . . . .” Id. at 302 n 8.

Several opinions provide some examples that assist in establishing the boundaries

of “interrogation” under the “functional equivalent” analysis for Miranda purposes. For

example, in United States v Payne, 954 F2d 199, 202 (CA 4, 1992), the court concluded

that “mere declaratory descriptions of incriminating evidence do not invariably constitute

interrogation for Miranda purposes.” Likewise, Acosta v Artuz, 575 F3d 177, 191-192

(CA 2, 2009), cited several cases supporting the premise that, generally, disclosure of the

results of a lineup or other inculpatory evidence possessed by the police, without more,

does not constitute interrogation under Innis. See, also, United States v Moreno-Flores,

33 F3d 1164, 1169 (CA 9, 1994) (holding that the defendant was not interrogated when

police informed him that drugs had been seized and that he “was in serious trouble”),

People v McCuaig, 126 Mich App 754, 760; 338 NW2d 4 (1983) (finding no

interrogation when an officer advised the defendant of the charges he was facing and

described the events that resulted in the charge), and Fleming v Metrish, 556 F3d 520,

533 (CA 6, 2009) (permitting comments explaining the inculpatory evidence possessed

by the police so that the suspect could “reassess his situation” and “make informed and

intelligent assessments of [his] interests”) (quotation marks and citation omitted)

(alteration in original).

6 The common thread running through these cases is that the police generally do not

interrogate a suspect for purposes of Miranda if the comments merely provide the

suspect with additional information about the course of the investigation and allow the

suspect to reconsider his or her decision to invoke the right to remain silent. I agree with

the majority that these cases are helpful to the extent that they show that some limited

communication with the suspect regarding the case after the invocation of the Fifth

Amendment right to remain silent may be permissible under Miranda. However, the

general principle established by these cases does not, alone, resolve this case because

Stiles’s expression of concern regarding the gun’s location “did not provide defendant

with information about the charges against him, about inculpatory evidence the police

possessed, or about witness statements.” White, 294 Mich App at 638 n 5 (SHAPIRO, J.,

dissenting). Nor did his comments “offer any new information that could provide a basis

for an intelligent reassessment of the defendant’s decision to remain silent.” Id.

Accordingly, applying this line of cases to conclude that Stiles’s comments were not the

functional equivalent of interrogation would erroneously expand the analysis beyond its

intended scope of applicability.

Although Stiles’s comments do not fall into the categories of statements that are

generally outside the scope of interrogation, I agree with the majority that this fact alone

is not sufficient to label the comments “interrogation” under Innis. Rather, it is necessary

to consider the Innis definition of “interrogation” in greater detail. Particularly important

to deciding this case is (1) whether Stiles should have known that his comments were

reasonably likely to elicit an incriminating response from defendant and (2) how

7 defendant perceived the comments, regardless of Stiles’s intent. See Innis, 446 US at

301; see, also, Stewart v United States, 668 A2d 857, 866 (DC, 1995) (explaining that

applying Innis requires a court to “look[] at the facts from the point of view of what the

police should have known would be the impact of the statements and, most importantly,

how the suspect perceived them”).

The defendant in Innis was suspected of a murder committed with a gun, which

had not been recovered. The defendant, who was under arrest and had been given

Miranda warnings, was riding in a police car with three officers when one officer

commented to another officer that there were many handicapped children in the area

where the defendant was arrested. The officer further commented that he hoped that

none of the children found the gun and hurt themselves. The second officer expressed

his agreement. The defendant overheard the officers’ conversation and told the officers

to turn the car around so that he could lead them to the gun. The Court concluded that

the officers’ conversation did not amount to the functional equivalent of interrogation,

explaining that the officers’ comments occurred in the context of a “brief conversation”

that “consisted of no more than a few offhand remarks.” Innis, 446 US at 303. The Innis

Court also noted that the officers’ comments did not constitute a “lengthy harangue in the

presence of the suspect,” nor were the comments “particularly ‘evocative.’” Id.

Accordingly, Innis held that the suspect “was not subjected by the police to words or

actions that the police should have known were reasonably likely to elicit an

incriminating response from him.” Id.

8 In this case, the majority relies on its conclusion that the content of Stiles’s

comments was similar to the content of the officers’ conversation in Innis to support

reversing the trial court’s suppression of defendant’s incriminating statements. The

majority emphasizes that, in Innis and in this case, the officers expressed concern

regarding the whereabouts of a gun and the potential danger that it posed to others, and it

notes that neither Innis nor this case presents a situation in which the officers engaged in

a “lengthy harangue.”

While the majority is correct that there are some similarities between the officers’

statements in Innis and Stiles’s comments in this case, those similarities are not

determinative. Rather, those similarities are only some of the facts that must be

considered in order to determine how defendant perceived Stiles’s statements and

whether Stiles should have known that his comments were reasonably likely to elicit an

incriminating response. See United States v Allen, 247 F3d 741, 765 (CA 8, 2001)

(“Determining whether particular statements or practices amount to interrogation

depends on the circumstances of each case, particularly whether the statements are

objectively and reasonably likely to result in incriminating responses by the suspect, as

well as the nature of the police statements and the context in which they are given.”),

vacated on other grounds 536 US 953 (2002). Thus, the mere fact that the statements

have some similar content is not determinative: all the circumstances of each case must

be considered when applying the principles enunciated in Innis.

The majority’s singular focus on the similarities in the content of the statements in

Innis and this case fails to give proper consideration to the context in which the

9 statements were made. And, in failing to consider the import of the context in which

Stiles made the statements at issue, the majority all but ignores the primary

considerations of the Innis case: the suspect’s perception of the officer’s statements and

whether the officer should have known that his comments were reasonably likely to elicit

an incriminating response. Specifically, it is critical to recognize that, unlike the

comments in Innis, Stiles’s comments were made in a police interrogation room and were

expressly directed to defendant, who was the only other person present when the

statements were made. See Allen, 247 F3d at 765 (emphasizing the context in which the

statements are made). This factor is significant in determining whether Stiles should

have reasonably expected that defendant would make an incriminating response. Indeed,

in In re EG, 482 A2d 1243, 1245 (DC, 1984), the court considered a situation in which

an officer who was investigating an armed robbery arrested the defendant and, when no

other officers were present, stated, “I wonder where the gun and money is.” In re EG

compared the officer’s statements to the officers’ statements in Innis and concluded

“without reservation that [the officer] should have known that his statement was

reasonably likely to elicit an incriminating response . . . .” Id. at 1248. In re EG

differentiated the officer’s statements from the Innis officers’ statements by noting that

“no other person was present” and that “there was no understandable explanation for [the

officer’s] rhetorical question other than to elicit a response from [the suspect].” Id. In re

EG reached this conclusion despite the officer’s testimony that he did not expect a

response to his statement, explaining that “the definition of interrogation ‘focuses

primarily upon the perceptions of the suspect, rather than the intent of the police.’” Id. at

10 1248 n 6, quoting Innis, 446 US at 301. Accordingly, regardless of whether Stiles

subjectively expected defendant to respond to his comments, defendant could have

reasonably perceived that, given the content and context of the comments, Stiles was

seeking a response.

Similarly, two of the dissenting justices in Innis, who were “substantially in

agreement with the Court’s definition of ‘interrogation,’” Innis, 446 US at 305 (Marshall,

J., dissenting), concluded that the Innis officers’ remarks “would obviously have

constituted interrogation if they had been explicitly directed to respondent,” id. at 306.1

This is true because the difference between overhearing a conversation and being the

intended recipient of a comment is significant. Specifically, one who overhears a

conversation in which he or she is not involved is unlikely to perceive that conversation

as seeking his or her input. Conversely, when a comment is expressly directed at

someone, the person to whom the comment is directed is reasonably likely to perceive

that comment as seeking a response. Conversation does not, however, necessarily

require that each participant in the conversation pose an explicit question in order for a

response to be reasonably expected.

1 I disagree with the majority that Justice Marshall’s Innis dissent is irrelevant. See ante at 16 n 9. Because Justice Marshall’s dissent substantially agreed with the majority’s definition of “interrogation,” Innis, 446 US at 305 (Marshall, J., dissenting), both opinions applied the same legal framework and simply reached differing conclusions regarding the specific facts at hand. Thus, I believe that Justice Marshall’s opinion, while not binding, is relevant and worthy of some consideration as this Court weighs the totality of the circumstances in this case.

11 Rather than considering how the context affected defendant’s perception of

Stiles’s statements and whether Stiles should have known that his comments were

reasonably likely to elicit an incriminating response, the majority prefers to speculate

regarding Stiles’s subjective intent in making the statements and concludes that the

statements merely reflected a “concern about the danger posed by the missing gun.” Ante

at 16 n 8. See, also, ante at 12 n 4 (speculating that Stiles intended for his comments to

spur defendant to inform defendant’s family of the gun’s whereabouts).2 The majority’s

analysis, however, fails to give proper weight to the primary principles of law established

in Innis: “the Miranda safeguards were designed to vest a suspect in custody with an

added measure of protection against coercive police practices, without regard to

objective proof of the underlying intent of the police.” Innis, 446 US at 301 (emphasis

added).3

Likewise, the majority engages in a monumental effort to minimize the coercive

atmosphere that defendant faced. For example, in attempting to distinguish this case

2 Notably, the record is devoid of any support for the majority’s speculation regarding Stiles’s subjective intent in making the statements at issue. 3 Although Innis recognized that the officer’s intent “may well have a bearing” on the analysis, it also explained that the officer’s intent is most relevant “where a police practice is designed to elicit an incriminating response from the accused [because] it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.” Innis, 446 US at 301 n 7 (emphasis added). Thus, the majority’s speculative conclusion that Stiles did not intend to elicit an incriminating response is of little relevance because Stiles nevertheless should have known that his statement was reasonably likely to elicit an incriminating response. See In re EG, 482 A2d at 1248 n 6 (concluding that the officer’s statement amounted to interrogation even though the officer testified that he did not expect a response to his statement).

12 from In re EG, the majority speculates that Stiles made the statements at issue out of “a

genuine and legitimate concern about the danger posed by the missing gun,” whereas the

officer in In re EG had no similar motive for his statements. Ante at 16 n 8. However,

the officer in In re EG was in the process of arresting a person who was suspected of

using a gun to commit a crime with a partner. Because the officer in In re EG did not

immediately find a gun, it was possible that the defendant’s partner had the gun and the

officer’s personal safety was in immediate danger. Thus, the officer arguably had an

even more pressing and objectively verifiable “concern about the danger posed by the

missing gun” than did Stiles. Nevertheless, In re EG held that the officer’s statements

amounted to interrogation under Innis. Accordingly, I find unpersuasive the majority’s

attempt to distinguish In re EG on this basis.4

More importantly, however, the majority’s parsing of the factual circumstances to

distinguish In re EG from this case is irrelevant because the court in that case did not rely

on any of the circumstances noted by the majority here in support of its conclusion that

the officer’s statements amounted to the functional equivalent of interrogation. What is

relevant is that the court in In re EG stated that the situation was “[u]nlike the situation in

Innis” because “no other person was present” when the officer made the comments. In re

4 The majority’s conclusion that Stiles made the statements at issue “during a completely civil conversation with defendant,” ante at 16 n 8, is equally unpersuasive because that conclusion fails to recognize the reality of defendant’s circumstances. I believe that it is far more realistic and reasonable to conclude that most people would not perceive a one- on-one “discussion” with a homicide detective in a windowless police interrogation room to be a completely civil conversation.

13 EG, 482 A2d at 1248. In re EG concluded on the basis of that fact that the officer’s

comments were “precisely [the] type of tactic . . . [that] is prohibited by Miranda” and,

thus, the functional equivalent of interrogation under Innis. Id.

In re EG’s application of Innis is correct because, despite the majority’s

unwillingness to consider it, the primary focus of an Innis analysis must be “upon the

perceptions of the suspect, rather than the intent of the police.” Innis, 446 US at 301

(emphasis added). Thus, no matter how noble the officer’s intent, if the officer should

have known that it was reasonably likely that the suspect would perceive the statements

as seeking a response that requires the suspect to divulge incriminating information, the

officer’s statements are the functional equivalent of interrogation.

Similarly, the majority concludes that Stiles’s comments were, at most, “subtle

compulsion” because the comments were less “evocative” than the officers’ comments in

Innis. In support of this conclusion, the majority relies on the fact that Stiles made no

mention of handicapped children or God. Again, this view of Stiles’s statements ignores

the context in which they were made; specifically, that the comments were

unquestionably directed to defendant. As previously explained, depending on the

context, a statement clearly directed to a specific person is reasonably likely to elicit a

response from that person. Thus, while the content of Stiles’s statement may not have

been particularly “evocative,” Stiles should have known that, given the context in which

the statement was made, it was reasonably likely that defendant would perceive the

statement as seeking to evoke a response.

14 Additionally, Stiles did not simply express his desire that no one else be harmed

by the gun and then leave the room. Rather, Stiles pressed defendant by adding “okay”

and, after a pause, further adding “all right.” Although it is conceivable that these words

did not amount to express questions for the reasons previously discussed, defendant

could reasonably have perceived the words, along with the pause between them, as

seeking a response on his part. The majority apparently rejects this possibility and

instead assumes that Stiles was merely ensuring that defendant heard and understood his

comments regarding the danger that the gun posed. See ante at 11. The majority fails to

consider the next logical step in its analysis, however. Specifically, if Stiles was

ensuring that defendant heard his statement, one must ask why Stiles made that effort.

The most likely answer is that Stiles hoped that defendant would respond by divulging

the gun’s location. Thus, even if Stiles’s motivation was purely altruistic as the majority

speculates, he should have nevertheless known that his statement was reasonably likely

to elicit an incriminating response from defendant. Accordingly, the statement satisfies

the definition of the functional equivalent of interrogation from Innis because a

suspect’s constitutionally protected rights cannot be cast aside simply because the

questioning officer’s subjective intent may have been laudable.

The nature of Stiles’s comments is also relevant to determining how defendant

perceived the comments and whether Stiles should have known that his comments were

reasonably likely to elicit an incriminating response from defendant. For example,

Arizona v Mauro, 481 US 520, 529; 107 S Ct 1931; 95 L Ed 2d 458 (1987), noted that

Miranda and Innis held that subjecting a suspect to “compelling influences” or

15 “psychological ploys” were techniques of persuasion that amount to interrogation when

used in a custodial setting. Mauro also emphasized that

[i]n deciding whether particular police conduct is interrogation, we must remember the purpose behind our decisions in Miranda and Edwards [v Arizona, 451 US 477; 101 S Ct 1880; 68 L Ed 2d 378 (1981)]: preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment. [Id. at 529-530.]

Mauro’s analysis was based on Innis, which stated that “Miranda also included

in its survey of interrogation practices the use of psychological ploys, such as to ‘posi[t]’

‘the guilt of the subject,’ to ‘minimize the moral seriousness of the offense,’ and ‘to cast

blame on the victim or on society.’” Innis, 446 US at 299, quoting Miranda, 384 US at

450 (emphasis added) (alteration in original). Also, the Mauro Court explained that

Innis

reviewed the police practices that had evoked the Miranda Court’s concern about the coerciveness of the interrogation environment. The questioned practices included . . . a variety of psychological ploys . . . . None of these techniques involves express questioning, and yet the Court found that any of them, coupled with the interrogation environment, was likely to subjugate the individual to the will of his examiner and thereby undermine the privilege against compulsory self-incrimination. [Mauro, 481 US at 526 (quotation marks and citations omitted; emphasis added).]

Thus, the majority is incorrect that “Mauro simply noted that the defendant in that

case had not been subjected to ‘psychological ploys.’” Ante at 15 n 7. Rather, Mauro

held that the defendant had not been interrogated precisely because the defendant was not

subjected to psychological ploys. See Mauro, 481 US at 529 (stating that the defendant

was not subjected to psychological ploys and concluding, “[t]hus, [the defendant’s]

volunteered statements cannot properly be considered the result of police interrogation”).

16 Indeed, other jurisdictions have interpreted Miranda, Innis, and Mauro as holding that

psychological ploys may constitute interrogation, depending on the circumstances of the

case. See, e.g., Commonwealth v Larkin, 429 Mass 426, 431 n 4; 708 NE2d 674 (1999)

(noting that the functional equivalent of express questioning has been construed as

“including ‘psychological ploys’ likely to elicit [an incriminating] response”), citing

Mauro, 481 US at 526.5

In this case, Stiles’s statements, which were expressly directed to defendant,

played to the likelihood that defendant would respond to an expression of concern for the

safety of others. Thus, the nature of Stiles’s statements had the characteristics of a

psychological ploy that exerted a compelling influence on defendant because the

comments implied that defendant was the only person who knew where the gun was

located and, thus, implied that defendant had a responsibility to make that information

known so that others would not be harmed.6 The only way that defendant could make

5 See, also, State v Northern, 262 SW3d 741, 753 (Tenn, 2008) (“[I]n a custodial setting, certain psychological ploys . . . are ‘techniques of persuasion, no less than express questioning’ which ‘amount to interrogation.’”), quoting Innis, 446 US at 299, and citing Miranda, 384 US at 450; Edmonds v State, 955 So 2d 787, 807 (Miss, 2007) (Diaz, P.J., concurring) (concluding that the police conduct at issue was “‘precisely the kind of psychological ploy that Innis’s definition of interrogation was designed to prohibit’”), quoting Nelson v Fulcomer, 911 F2d 928, 935 (CA 3, 1990) (citations omitted); People v Rivas, 13 P3d 315, 319 (Colo, 2000) (“Practices identified as the functional equivalents of interrogation generally employ compelling influences or psychological ploys in tandem with police custody to obtain confessions.”); and State v Lockhart, 298 Conn 537, 590; 4 A3d 1176 (2010) (Palmer, J., concurring) (“[I]nterrogation methods used by the police . . . often include sophisticated psychological ploys and techniques . . . .”), citing Garrett, The substance of false confessions, 62 Stan L Rev 1051, 1060 (2010). 6 The majority argues that my interpretation of this psychological ploy is too attenuated to

17 that information known, however, was to give an incriminating statement in response to

Stiles’s statements. Thus, Stiles’s statements used what Miranda identified as one of the

hallmarks of interrogation: “[t]he aura of confidence in [defendant’s] guilt [that]

undermines [defendant’s] will to resist.” Miranda, 384 US at 455. Indeed, because the

comments were expressly directed to defendant, Stiles placed defendant in a situation in

which defendant “merely confirm[ed] the preconceived story the police [sought] to have

him describe,” i.e., that defendant knew the location of the gun because he had used the

gun to commit the murder.7 Id. Accordingly, Stiles should have known that his

rise to the level of interrogation under Innis, see ante at 13; however, all psychological forms of interrogation rely on a human trait that is common to most people but not necessarily exhibited by all people. For example, Miranda, 384 US at 450, concluded that police tactics that “minimize the moral seriousness of the offense” or “cast blame on the victim or on society” are psychological ploys that may constitute interrogation practices depending on the circumstances. Surely, not all suspects would respond to such tactics, but the tactics nevertheless may constitute interrogation because they play to traits that are common to many, but not all, people. In my view, because concern for the safety of others is also a common human trait, the same is true of Stiles’s comment. And when the compelling influence of Stiles’s statement is combined with the custodial setting and other factors discussed throughout this opinion, I believe that defendant was subjected to the functional equivalent of questioning because the totality of the custodial circumstances caused defendant to make an incriminating statement “that would not [have been] given in an unrestrained environment.” Mauro, 481 US at 530. 7 This aspect of Stiles’s statements illustrates another significant difference between this case and Innis. Because the officers in Innis were merely conversing amongst themselves regarding their concern about the whereabouts of the gun, the Innis defendant was not placed in a situation in which he merely needed to confirm the officers’ preconceived belief that he was guilty. Rather, as the Innis Court held, the officers’ comments did not compel any response from the defendant. Conversely, in this case, not only could Stiles’s statement have been reasonably perceived by defendant as seeking a response given that the statement was expressly directed to him, the statement could also have exerted a compelling influence on defendant to merely confirm Stiles’s preconceived conclusion that defendant had committed the crime.

18 comments were reasonably likely to elicit an incriminating response because it was

reasonably likely that defendant would perceive the comments as compelling a response

in order to protect others, particularly because Stiles expressly directed his statements to

defendant.8 Finally, other courts have recognized that a defendant’s personal

characteristics or relationship with the questioning officer might influence how that

defendant perceives a police officer’s statements. For example, in Stewart, 668 A2d at

866, the defendant invoked his right to remain silent and, several hours later, a detective

who had attended the same church as the defendant for many years took the defendant to

a jail cell. The detective told the defendant not to feel bad about the situation and that the

other members of the church would not judge him and would be a support group for him.

Several hours after the detective made the religion-themed statements to the defendant,

the detective again visited the defendant and the defendant confessed. Stewart held that

8 Contrary to the majority’s interpretation of my opinion, this portion of my analysis does not conclude that defendant exhibited an “unusual” or “peculiar” susceptibility to a certain form of persuasion. As previously explained, like many psychological interrogation techniques that rely on a human trait that is common to most people, Stiles’s comments appealed to a common characteristic: concern for others. Rather than consider this possibility as part of a complete consideration of totality of the circumstances, the majority prefers to employ broad stereotypes, such as its belief that all suspects charged with homicide are cold-blooded killers. The majority’s approach is erroneous because, if this were true, Stiles would not have bothered to make the statement at issue. Indeed, if Stiles had no reason to “fathom[]” that defendant harbored any concern for the safety of others given that “defendant had just been arrested for shooting another man to death for drugs,” ante at 13, why would Stiles bother to make the statement? The majority fails to consider that, as defendant’s incriminating statement suggests, he made an extremely poor decision to perpetrate a robbery, but the shooting was not the intended result. A poor decision that led to a deadly, but unintended, result does not automatically sap defendant of his humanity. Thus, the majority’s analysis fails to consider the important factual intricacies of this case.

19 the religion-themed statements amounted to unlawful interrogation and rejected the

prosecution’s argument that the detective’s statements were spontaneous, casual, and

purely of a personal nature. Id. The Stewart court explained that the detective was “an

experienced homicide detective . . . capable of exploiting an opportunity.” Id.

Accordingly, “[n]o conversation concerning a criminal investigation between such a

detective and a suspect can be said to be ‘purely personal.’” Id. Rather, the Stewart

court determined that the “conversation can only be characterized as the first preparatory

step of someone experienced in conducting interrogations.” Id. Similarly, In re EG, 482

A2d at 1248 n 6, noted the defendant’s youthfulness as one of the circumstances

supporting the conclusion that the officer should have known that his statements were

reasonably likely to elicit a response, and United States v Rivera-Ruiz, unpublished

opinion of the United States District Court for the District of Minnesota, issued May 14,

2002 (Docket No. CR 02-57 ADMRLE), held that “[t]he [d]efendant’s foreign status and

likely unfamiliarity with U.S. constitutional rights” were relevant to determining how the

defendant perceived the officer’s statements.

In this case, defendant was 17 years old when he was arrested, and he had no prior

criminal convictions. Although any person in police custody might view the questioning

officer as an authority figure and thus feel compelled to respond to the officer’s

statements, defendant’s youth and inexperience with the criminal justice system are

relevant factors in determining how defendant perceived Stiles’s comments. Because

these factors, combined with the fact that Stiles’s comments implied that defendant had a

responsibility to protect others, increased the likelihood that defendant would feel

20 compelled to respect and comply with Stiles as an authority figure, I would conclude that

Stiles should have known that his comments were reasonably likely to elicit an

incriminating response.

In summary, despite the similarities between the content of Stiles’s comments in

this case and the Innis officers’ statements, I believe that several important factors

distinguish this case from Innis. First, Stiles expressly directed his statements to

defendant; thus, it was more likely that defendant would perceive the statements as

seeking a response. Likewise, Stiles should have known that by expressly directing the

comments to defendant, it was reasonably likely that defendant would respond. Second,

Stiles’s statements had the characteristics of a “psychological ploy” that exerted a

“compelling influence” on defendant because the statements played to the likelihood that

defendant would feel compelled to protect others. Third, several of defendant’s

individual personal characteristics increased the likelihood that he would perceive

Stiles’s comments as requiring a response.

Accordingly, from the totality of the circumstances, I would conclude that it was

not “unforeseeable” that Stiles’s comments would result in an incriminating response

from defendant. Innis, 446 US at 302. Rather, defendant could have reasonably

perceived that Stiles expected a response, and Stiles should have known that his

comments were “reasonably likely to elicit an incriminating response from [defendant].”

Id. at 301. As a result, I believe that defendant was improperly subjected to the

functional equivalent of interrogation after invoking his Fifth Amendment right against

compelled self-incrimination. Accordingly, I would reverse the judgment of the Court of

21 Appeals and reinstate the trial court’s order suppressing defendant’s incriminating

statements.

Michael F. Cavanagh

22 STATE OF MICHIGAN

MARY BETH KELLY, J. (dissenting). I respectfully dissent. I believe that Detective Brett Stiles engaged in the

“functional equivalent” of express questioning by exploiting defendant’s youth, a

characteristic that made him particularly susceptible to Stiles’s compulsive techniques.

Because this constituted “interrogation” and defendant had invoked his right to remain

silent, I would reverse the judgment of the Court of Appeals and suppress defendant’s

statement.

It is a violation of the principles announced in Miranda v Arizona to interrogate a

suspect after he or she invokes the right to remain silent.1 An “interrogation” occurs

when an individual in custody is subjected to either “express questioning” or its

“functional equivalent.”2 As either express questioning or its functional equivalent,

“interrogation” requires “a measure of compulsion above and beyond that inherent in

1 Miranda v Arizona, 384 US 436, 473-474; 86 S Ct 1602; 16 L Ed 2d 694 (1966). 2 Rhode Island v Innis, 446 US 291, 300-301; 100 S Ct 1682; 64 L Ed 2d 297 (1980). custody itself,” and it generally must consist of more than mere “subtle compulsion.”3

Rhode Island v Innis explained that the “functional equivalent” prong of interrogation

involves “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.”4 In determining whether police words or

actions amount to the functional equivalent of express questioning, we focus on the

perceptions of the suspect, rather than the intent of the police.5 However, any knowledge

that the police may have concerning a defendant’s unusual susceptibility to a particular

form of persuasion may be an important factor in determining whether the police should

have known their conduct would elicit an incriminating response.6

In circumstances such as those presented here, a defendant’s youth might make

him or her particularly vulnerable to police interrogation tactics and constitute the type of

unusual susceptibility contemplated in Innis. The United States Supreme Court has

spoken extensively about the unique characteristics of minors, recognizing that they are

generally wanting in maturity, more susceptible to outside influences, and “‘often

lack[ing] the experience, perspective, and judgment to recognize and avoid choices that

3 Id. at 300, 303 (quotation marks and citation omitted). 4 Id. at 301 (emphasis added). 5 Id. The intent of the police is relevant only insofar as it bears “on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response.” Id. at 301 n 7. 6 Id. at 302 n 8.

2 could be detrimental to them . . . .’”7 These characteristics describe minors generally as a

class and are readily apparent, indeed “self-evident,” to all adult observers.8 Moreover,

these commonsense observations about the nature of adolescents have been corroborated

by developments in psychology and brain science.9 Given the unique characteristics of

minors, they have long been afforded a special regard in the law, subjected to unique

standards in areas such as contract enforcement, the ability to marry, and even the ability

to vote and to serve on juries.10

In the custodial-interrogation context, the unique attributes of minors require

courts to exercise “special care” in their scrutiny of the record.11 Courts should be

mindful that, as compared to an adult, a juvenile suspect faces a more acute risk of

succumbing to the inherent pressures of custodial interrogation such that the juvenile

7 JDB v North Carolina, 564 US___, ___; 131 S Ct 2394, 2403; 180 L Ed 2d 310 (2011), quoting Bellotti v Baird, 443 US 622, 635; 99 S Ct 3035; 61 L Ed 2d 797 (1979); see also Eddings v Oklahoma, 455 US 104, 115; 102 S Ct 869; 71 L Ed 2d 1 (1982) (recognizing youth as a “time and condition of life when a person may be most susceptible to influence and to psychological damage”). 8 JDB, 564 US at ___; 131 S Ct at 2403; see also Roper v Simmons, 543 US 551, 569; 125 S Ct 1183; 161 L Ed 2d 1 (2005). 9 Graham v Florida, 560 US ___, ___; 130 S Ct 2011, 2026; 176 L Ed 2d 825 (2010) (“[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.”). 10 JDB, 564 US at ___; 131 S Ct at 2403-2404; Roper, 543 US at 569. 11 Haley v Ohio, 332 US 596, 599; 68 S Ct 302; 92 L Ed 224 (1948); see also Gallegos v Colorado, 370 US 49, 54; 82 S Ct 1209; 8 L Ed 2d 325 (1962) (recognizing that a teenager, “no matter how sophisticated,” may not be “compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions”).

3 might “‘speak where he would not otherwise do so freely.’”12 A suspect’s age may shape

the suspect’s reasonable perception of whether he or she is in police “custody”13 and

affect the suspect’s response to police questioning and conduct.14

Because juveniles often lack the wherewithal to resist police pressures, they thus

become uniquely susceptible to police interrogative efforts, including subtly compulsive

techniques, and should reasonably be expected to respond to those efforts. Police officers

interacting with a minor suspect must be charged with knowledge of the particular

vulnerabilities of minors because youthful characteristics are “self-evident to anyone who

was a child once himself, including any police officer or judge.”15 To allow the police to

exploit the susceptibilities of minors who have invoked the right to remain silent, i.e., to

allow the interrogation of a suspect after he or she invokes his right to remain silent,

would run afoul of both Innis and Miranda.16 As such, when a custodial interrogation

involved a minor suspect who asserted his or her right to remain silent, courts considering

whether the minor was subjected to the functional equivalent of interrogation must be

12 JDB, 564 US at ___; 131 S Ct at 2401, quoting Miranda, 384 US at 467. 13 See JDB, 564 US at ___; 131 S Ct at 2403 (“[A] reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go.”). 14 Haley, 332 US at 599 (concluding police conduct “which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens”). 15 JDB, 564 US at ___; 131 S Ct at 2403. 16 Innis, 446 US at 300-302; Miranda, 384 US at 473-474 (“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”).

4 especially mindful of the unique susceptibility that results from youth and the role that

the defendant’s age played in the defendant’s perception of the circumstances.

In this case, Stiles should have recognized that defendant’s age made him

especially susceptible to subtle compulsive efforts and that such conduct would likely

elicit an incriminating response. Given defendant’s age of 17 years17 and lack of any

criminal record, it would have been readily apparent that defendant lacked the experience

and perspective to make decisions in his best interests or to avoid succumbing to police

pressure. Rather than “scrupulously honor[]” defendant’s unequivocal invocation of his

right to remain silent,18 Stiles subjected the minor suspect to continued police pressure,

which included references to violence, attempts to earn defendant’s trust, and appeals to

defendant’s conscience:

[Stiles]: Okay. [T]his is what they call the acknowledgment and waiver paragraph [and] I’m going to read this to you. If you wish to talk to me, I’m going to need you to sign and date [the] form. Even though you sign and date the form, you still have your rights to stop at any time you wish. Do you understand that?

[Stiles]: Okay. Okay. Sounds good.

17 The majority emphasizes that JDB, 564 US at ___; 131 S Ct at 2399, involved a 13- year-old defendant, suggesting that the unique attributes of adolescents recognized by the United States Supreme Court do not apply to 17-year-old minors. Contrary to the majority’s suggestion, the Supreme Court also discussed many of the distinguishing characteristics of adolescents in Roper, 543 US at 556, a case involving a defendant who committed murder when he was 17-years-old. Given the continued vulnerability of older teenagers, it can reasonably be supposed that the protections afforded minors as a result of their unique characteristics apply to 17-year-olds such as defendant. 18 Miranda, 384 US at 479.

5 [Defendant]: I don’t even want to speak.

[Stiles]: I understand. I understand Kadeem.

Okay then. The only thing I can tell you Kadeem, is good luck man.

Okay. Don’t take this personal. It’s not personal between me and you, I think I may have had one contact with you on the street. Okay. I’ve got to do my job. And I understand you’ve got to [do] what you’ve got to do to protect your best interests. Okay.

The only thing that I can tell you is this, and I’m not asking you questions, I’m just telling you. I hope that the gun is in a place where nobody can get a hold of it and nobody else can get hurt by it, okay?

All right?

[Defendant]: I didn’t even mean for it to happen like that. It was a complete accident.

[Stiles]: I understand. I understand.

But like I said, you, uhh, you get your attorney, man.

Hey, look dude, I don’t think you’re a monster, all right? I don’t think that. You could have came down to me and turned yourself in and there ain’t no damn way I’d beat you up.

[Stiles]: Okay, man?

You all set, you straight with me?

Who knows you’re here? Who knows of your family? Because I know a lot of your family in town now.

[Defendant]: ([U]nintelligible reply).

I know that I didn’t mean to do it. I guarantee that, I know I didn’t mean to do it.[19]

19 The interrogation was recorded on a DVD. Defendant included a transcript of the interrogation in his motion to suppress his statements. Given that the prosecution

6 Considering the entirety of the exchange, several comments appear designed to foster an

atmosphere in which defendant would be reasonably likely to make an incriminating

response.20 Particularly, Stiles initially attempted to put defendant at ease, to portray

himself as a neutral party rather than an adversary in an interrogation. He wished

defendant “good luck” and told him: “Don’t take this personal. It’s not personal between

me and you . . . .” He also assured defendant that “I understand you’ve got to [do] what

you’ve got to do to protect your best interests.” Having presented himself as reasonable

and understanding, Stiles invited defendant to make an incriminating response, telling

defendant, “I hope that the gun is in a place where nobody can get a hold of it and nobody

else can get hurt by it, okay?” Examining the remarks from the viewpoint of a teenager

facing an authority figure in an interrogation room, I believe it reasonably foreseeable

that the type of subtle coercive techniques Stiles used would prompt defendant to provide

an incriminating response. As would be expected, defendant incriminated himself by

stating, “I didn’t even mean for it to happen like that. It was a complete accident.”

“[a]greed to the transcript” in its response to the motion, I quote defendant’s transcription here, including his use of punctuation. 20 In analyzing the exchange, the majority focuses exclusively on the significance of the Innis-like reference to the gun’s location and Stiles’s related expression of concern for the safety of others, ignoring the larger context in which this statement occurred. Believing that the only relevant portion of the exchange involves Stiles’s reference to the gun’s location, the majority disputes whether a 17-year-old is more susceptible to an appeal to his or her conscience. But the colloquy must be regarded in its entirety. In its entirety, the appeal to defendant’s conscience was coupled with references to violence and attempts to earn defendant’s trust through expressions of understanding and references to defendant’s family. It was to that entire exchange that the youthful defendant succumbed, not merely the isolated appeal to his conscience through the single question with regard to the location of the gun.

7 Even after defendant demonstrated his youthful vulnerability to subtle compulsion,

Stiles continued the interview, again presenting himself as a reasonable individual in

whom defendant could confide, telling defendant, “I understand. I understand,” and

assuring defendant that he did not view him as “a monster.” The detective then

interjected a reference to violence into the conversation, telling defendant: “Hey, look

dude, I don’t think you’re a monster, all right? I don’t think that. You could have came

down to me and turned yourself in and there ain’t no damn way I’d beat you up.” Such

references to violence in the isolation of an interrogation room would reasonably increase

the anxiety experienced by a youthful suspect. At the same time, Stiles also sought to

establish ties with defendant, professing a familiarity with defendant’s family members in

town and asking defendant: “Who knows you’re here? Who knows of your family?

Because I know a lot of your family in town now.” Not surprisingly, the overwhelmed

adolescent again responded with an incriminating statement, telling Stiles: “I know that I

didn’t mean to do it. I guarantee that, I know I didn’t mean to do it.”

When examined in their entirety, Stiles’s remarks included a number of police

tactics to which a vulnerable youth would be readily susceptible. The colloquy involved

efforts to establish a rapport with defendant, including references to his family, while in

the same conversation, Stiles also managed to heighten the inherent stress of a custodial

situation by referring to violence. It was in this context that Stiles made the most obvious

overture to elicit an incriminating response from defendant: the remark about the gun’s

location. While Stiles’s remarks might not be reasonably likely to elicit an incriminating

response from an adult, all these comments considered together, and in context, made it

reasonably likely that the minor defendant in this case would respond in an incriminating

8 manner. Consequently, because defendant’s youthful susceptibility to compulsion would

have been readily apparent and Stiles should have known that his remarks were

reasonably likely to elicit an incriminating response, I would hold that defendant was

subjected to interrogation after he invoked his right to remain silent and I would suppress

his statement.

Mary Beth Kelly

MCCORMACK, J., took no part in the decision of this case.