People v. Bender

551 N.W.2d 71, 452 Mich. 594

• Court: Michigan Supreme Court
• Decided: July 23, 1996
• Docket: 102520, Calendar No. 7
• Status: Published

Opinions

Cavanagh, J.

In this case, we are asked to consider whether, under Michigan law, a suspect’s waiver of his rights to remain silent and to counsel is valid when the police fail to inform him, before he gives a statement, that a specific, retained attorney is immediately available to consult with him. We hold that Const 1963, art 1, § 17 requires the police to inform the suspect that a retained attorney is immediately available to consult with him, and failure to so inform him before he confesses per se precludes a knowing and intelligent waiver of his rights to remain silent and to counsel.¹

I. FACTS AND PROCEDURAL HISTORY

During the early morning hours of August 2, 1991, bicycles were taken from two separate residences, and a sink was removed from a house that was under construction. Bloomfield Township Police Officer Steven Currie arrived at one of the locations at 3:33 A.M. A canine unit arrived, and at approximately 4:00 A.M. defendant Jamieson Bender was arrested by a canine handler. He was placed in a holding cell at approximately 4:30 A.M.

Officer Currie and Sergeant DeWolfe went to defendant Scott Zeigler’s house between 7:00 and 8:00 A.M. Zeigler let the officers into the house and told them that he had loaned his car to Bender, that he knew where his car was located, that he and Bender had taken a couple of bicycles, and that they had taken a sink from a house that was under construction. Zeigler was arrested and then showed Officer Currie where the stolen property was located.

Officer Currie testified that he arrested Zeigler about 8:00 or 8:30 A.M. However, Zeigler’s mother, Ruth, who was at the house at the time that Zeigler was arrested, stated that she had called attorney Allan Goldfine at 6:45 A.M. Mr. Goldfine agreed to represent Zeigler and told her to go to the police station and tell Zeigler not to talk to anyone until Zeigler first talked to him. Thus, she went to the police station at 7:15 A.M., talked to Officer Currie, and asked to see her son.² When he refused, she told Officer Currie that she had a message for her son from his attorney. Officer Currie, however, told Ruth that she could not see her son, that she could not get a message to him, and that she could not stay and talk to the detective. ³

A police officer called Bender’s mother, Kathleen, about 5:30 A.M. to inform her of her son’s arrest. She then contacted Bender’s father, Phillip, who was residing out of state. Phillip called the police station at 7:00 A.M. and asked to speak with his son. When the officer refused, Phillip told him that he was going to get counsel for his son immediately. He then called attorney Elizabeth Pezzetti who agreed to represent Bender.

Ms. Pezzetti called the police station at approximately 9:00 A.M. and asked to speak with Bender and the detective in charge as soon as possible. The officer who answered the telephone told Ms. Pezzetti that Bender was being held, but that his paperwork had not been completed and that she would tell the detective that Ms. Pezzetti wished to speak with him and Bender. The detective did not return her call, so Ms. Pezzetti called the station again at 10:00 A.M., and was also unsuccessful. Detective Genereaux finally returned Ms. Pezzetti’s call between 11:00 and 11:30 A.M. He stated that he had talked to both defendants, that they had been cooperative, and that they would be released without bond to their parents. Ms. Pez-zetti stated that had she been given the opportunity to speak with Bender, she would have told him not to talk to anyone and that she would be at the station.

Without informing either defendant of his attorney’s attempted contacts, Detective Genereaux interrogated both defendants. Zeigler was interrogated first. He read aloud and signed a Miranda⁴-warnings form at 9:08 A.M., and gave his statement during the subsequent thirty- to forty-minute interview. Next, Bender was interviewed and also read aloud and signed a Miranda-warnings form at 9:50 A.M. His interview also lasted between thirty and forty minutes.

Each defendant testified regarding his statement. Zeigler was twenty years old, had no prior contacts with the police, and was a college student. On the night in question, he had been drinking beer, although Detective Genereaux stated that he saw no signs of intoxication. Zeigler stated that he was not given the opportunity to make a telephone call. He was not offered food or water, and he had not slept for about twenty-six hours.

Bender was also twenty years old, had no prior contacts with the police, and was attending college. He had also been drinking that night. He was not given food or water and had not slept for about twenty-five hours. When he was being fingerprinted, he asked to make a telephone call, but he was told that he could make a telephone call later. He was never given that opportunity. Bender testified that he thought he would have to remain in a holding cell if he requested an attorney.

It is undisputed that Bender was never informed by the police that Ms. Pezzetti had attempted to call him and had been retained for him. It is also undisputed that Zeigler’s mother was not permitted to see her son and that no message was given to Zeigler that she had retained an attorney for him. Both defendants stated that they understood the Miranda-wanmxgs form, and neither requested counsel before or during the interviews.

On the basis of the evidence given at the Walker hearing, the trial court ruled that the conduct of the police had not been reprehensible and that each defendant had made a voluntary statement with full knowledge of his Miranda rights. However, the trial court ruled that the postarrest statements had to be suppressed because the defendants were not informed that counsel had been retained for them before the statements were given and that the statements were, therefore, made without a knowing waiver of the right to counsel. The trial court made this ruling on the basis of People v Wright, 441 Mich 140; 490 NW2d 351 (1992).

On appeal, the Court of Appeals affirmed. 208 Mich App 221, 232; 527 NW2d 66 (1994). The Court of Appeals stated:

[W]e extend the rights afforded under Const 1963, art 1, § 17 to include information of retained counsel's efforts to contact a suspect. We believe that such a protection is necessary to allow suspects in custody to make a knowing, intelligent, and voluntary waiver of their right to counsel and right to remain silent Therefore, the trial court did not err in suppressing defendants’ postarrest statements where the police failed to inform them that counsel had been retained and of counsel’s attempts to contact them.

We agree with the analysis of the Court of Appeals and, therefore, affirm its holding that the suppression of both defendants’ statements was proper.

n. WAIVER OF RIGHT TO COUNSEL

The Fifth and Fourteenth Amendments of the United States Constitution protect a defendant’s federal rights to remain silent and to counsel.⁵ Additionally, the Michigan Constitution protects a defendant’s corresponding state rights. Const 1963, art 1, § 17. ⁶

In Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966), the United States Supreme Court held 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.’’ While the Court in Miranda required procedural safeguards, it also recognized that the defendant may waive his rights to remain silent and to counsel. Thus, it also required that the waiver be made voluntarily, knowingly, and intelligently. Id., citing Escobedo v Illinois, 378 US 478, 490, n 14; 84 S Ct 1758; 12 L Ed 2d 977 (1964), and Johnson v Zerbst, 304 US 458; 58 S Ct 1019; 82 L Ed 1461; 146 ALR 357 (1938). See also People v Paintman, 412 Mich 518; 315 NW2d 418 (1982).

Whether the waiver is valid involves a two-part inquiry. First, the waiver must be a “product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran v Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986). Second, “the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id7

In the instant cases, neither defendant claims that procedural safeguards were not heeded. In fact, both defendants signed a Miranda waiver form.⁸ Because there was no evidence of police coercion, we agree with the trial court that neither defendant’s statement was involuntary, and thus need not be suppressed for that reason. People v Reed, 393 Mich 342; 224 NW2d 867 (1975).⁹ However, the defendants contend that their statements must be suppressed because the police failed to inform them of their attorneys’ attempts to contact them, which deprived them of the information necessary to make a knowing and intelligent waiver of their rights to remain silent and to counsel under Const 1963, art 1, § 17.

m. RELEVANT CASE LAW

A. FEDERAL

Although today we base our decision solely on independent state grounds, we recognize that the United States Supreme Court decided a similar issue in Moran, wherein defendant asserted a violation of his federal rights. In Moran, the defendant was arrested by police for his alleged participation in a local burglary. Shortly before his arrest, a confidential informant gave the local police information that led them to believe that the defendant had committed a murder in another city several months earlier. The local police attempted to persuade the defendant to execute a written waiver form, but he refused. The officers then questioned the codefendants about the burglary, and they further implicated the defendant in the murder. The local police then contacted the police from the jurisdiction where the murder occurred, and within an hour officers arrived to question him regarding the murder.

When the defendant’s sister learned that her brother had been arrested on suspicion of burglary, she contacted the public defender’s office and requested representation for her brother. An attorney assigned to represent the defendant immediately contacted the local police and requested to speak to her client before he was questioned or placed in a lineup. The officer who answered her call assured her that they were through with the defendant for the evening. The defendant’s attorney was not informed that the defendant was also under suspicion for murder and that another jurisdiction’s police officers were at the local station to question him regarding that matter.

In fact, later that evening the police questioned the defendant regarding the murder. He signed written waiver forms and fully confessed to the murder in three separate statements. The defendant was not informed, before he confessed, that his sister had secured counsel for him or that his attorney had contacted the local police department seeking to speak with him.

In a six to three decision, the Court held that the federal constitution did not require the exclusion of the three inculpatory statements. Id. at 434. The Court reasoned that “[e] vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Id. at 422. The Court further reasoned:

Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. [Id. at 422-423.]

The Court concluded that because the defendant voluntarily confessed with full awareness and comprehension of his Miranda rights, the waivers were valid.

While the Court based its holding on its interpretation of the federal constitution, it explicitly recognized that “[n]othing we say today disables the States from adopting different requirements for the conduct of its employees and officials as a matter of state law.”¹⁰ Id. at 428.

B. OTHER STATES

In fact, many states that have considered this issue have held that, as a matter of state law, the police must inform the suspect that his attorney is immediately available to consult with him. ¹¹ And, although the states have provided different rationales for imposition of this duty, “they agree on one supervening principle: the atmosphere of custodial interrogation is inherently coercive and protecting the right against self-incrimination entails counteracting that coercion.” State v Reed, 133 NJ 237, 255; 627 A2d 630 (1993).

For example, in State v Stoddard, 206 Conn 157; 537 A2d 446 (1988), the Supreme Court of Connecticut determined, on facts similar to the instant case, that the defendant’s statement must be suppressed. In Stoddard, the defendant was arrested on suspicion of murder. Immediately following the defendant’s arrest, his girlfriend contacted an attorney who agreed to represent the defendant. On the day of the arrest, the attorney contacted the police department three times, requesting to speak with the defendant, but was incorrectly told each time that the defendant was not there. Early the next morning, the attorney called the station for a fourth time and was again told that the defendant was not there. Later that morning, the defendant confessed to the murder, still unaware that his attorney had repeatedly attempted to contact him.

The court, adopting a totality-of-the-circumstances test, held that “the state has not met its burden of proving by a preponderance of the evidence that the efforts of counsel, if properly communicated, would not have altered the defendant’s appraisal and understanding of the circumstances.” Id. at 176-177. Thus, the trial court had erred in failing to suppress the confession. The court reasoned that the duty to inform only requires the police to act as a neutral conduit for the pertinent and timely requests by the attorney to speak with a custodial suspect. In addition, the court found that the attorney’s attempts to communicate with the suspect were constitutionally significant with regard to whether the suspect’s waiver was knowingly and intelligently made.

In another case with similar facts, the Supreme Court of New Jersey determined that the trial court had erroneously admitted the defendant’s confession. In Reed, the defendant confessed to murder and criminal sexual contact, which became evidence crucial in the case against him. However, the police had refused before and during the defendant’s interrogation to inform him that his friend had hired an attorney to represent him, and that the attorney had been present at police headquarters and had attempted to speak with the defendant before he confessed.

The court held that, under New Jersey law,

when, to the knowledge of law-enforcement officers, an attorney has been retained on behalf of a person in custody on suspicion of crime and is present or readily available to assist that person, the communication of that information to the suspect is essential to making a knowing waiver of the privilege against self-incrimination, and withholding that information renders invalid the suspect’s waiver of the privilege against self-incrimination. [Id. at 269 (emphasis added).]

The court reasoned that its holding was essential to effectuate the defendant’s right to counsel, which in turn effectuates the right to remain silent.¹² While acknowledging that its decision placed a further burden on police when dealing with criminal suspects, the court reasoned that the duty to inform is narrow and specific. It only arises when the attorney who has been retained to represent the suspect in custody communicates his presence or immediate availability and desire to speak with the suspect to an agent of the police department.

Similarly, in People v McCauley, 163 Ill 2d 414; 645 NE2d 923 (1994), the Supreme Court of Illinois affirmed the trial court’s order suppressing the defendant’s statement and the lineup identification on the basis of state law. In McCauley, the defendant was questioned regarding his possible involvement in a homicide. He denied involvement and provided an alibi. After police officers left the station to investigate his alibi, the defendant’s family hired an attorney to represent him. The attorney proceeded to the station where the defendant was being held, but the officer told the attorney that he could not speak with the defendant, and that the officer would not tell the defendant that his lawyer was present in the station. Later, the defendant was identified in a lineup.

The court held that the trial court properly suppressed the defendant’s statement and lineup identification because it resulted from a violation of state constitutional protections, where the police denied the attorney access to the defendant and failed to inform him that the attorney was present, available, and seeking to consult with him. The court reasoned that “ [i]f a defendant is entitled to the benefit of an attorney’s assistance and presence during custodial interrogation and this right is guarded, certainly fundamental fairness requires that immediately available assistance and presence not be denied by police authorities.” Id. at 444. The court also concluded that, on the basis of state law the police conduct violated the defendant’s right to remain silent.

IV. THE MICHIGAN RULE

In Wright, this Court held that the Michigan Constitution imposes a stricter requirement for a valid waiver of the rights to remain silent and to counsel than imposed by the federal constitution.¹³ Wright at 147 (Mallett, J.), id. at 155 (Cavanagh, C.J., concurring),¹⁴ id. at 170 (Brickley, J., concurring).¹⁵ Under federal law, a waiver is knowingly and intentionally made where no police coercion was involved and where the defendant understands that he has the right to remain silent and that the state intends to use what he says to secure a conviction. Moran at 422-423. We agree that those circumstances are a minimal prerequisite to a valid waiver; however, in Michigan, more is required before the trial court may find a knowing and intelligent waiver.¹⁶ We believe that in order for a defendant to fully comprehend the nature of the right being abandoned and the consequences of his decision to abandon it, he must first be informed that counsel, who could explain the consequences of a waiver decision, has been retained to represent him.¹⁷

In the instant case, the police failed to inform both defendants that counsel had been retained for them and that their respective attorneys attempted to contact them before making a statement. Thus, we hold that, on the basis of Const 1963, art 1, § 17, neither defendant Bender nor defendant Zeigler made a knowing and intelligent waiver of his rights to remain silent and to counsel, because the police failed to so inform them before they confessed. In so holding, we reiterate that our state constitution affords defendants a greater degree of protection in this regard than does the federal constitution.¹⁸

If we were to hold otherwise, we would encourage the police to do everything possible, short of a due process violation, to prevent an attorney from contacting his client before or during interrogation.¹⁹ Once the suspect signed the waiver form, police could interrogate the suspect in isolation, without the assistance of his own lawyer, even if that lawyer is making an actual effort to consult with the suspect.²⁰ To encourage this type of police behavior would undermine the safeguards we have established to protect the rights to remain silent and to counsel.²¹ If these rights are to mean anything, surely we must be adamant in our protection of them.

Additionally, we decline to adopt a totality-of-the-circumstances test in this situation, but instead adopt a per se rule. As the Supreme Court of Delaware stated in Bryan v State, 571 A2d 170, 176 (Del, 1990),

In evaluating the totality of the circumstances, a court makes a two-part inquiry. First, the waiver must have been voluntary — it must have been “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Second, the waiver must have been made upon “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” However, a purported waiver can never satisfy a totality of the circumstances analysis when police do not even inform a suspect that his attorney seeks to render legal advice. [Citations omitted; emphasis added.]

“To hold otherwise would be to condone ‘affirmative police interference in a communication between an attorney and suspect.’ ” Id., citing Moran at 456, n 42 (Stevens, J., dissenting). “When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity.” State v Haynes, 288 Or 59, 75; 602 P2d 272 (1979). The right to counsel becomes meaningless if a suspect cannot communicate with his attorney or can only speak with him after the suspect has given a statement.²² Thus, the inherently coercive nature of incommunicado interrogation requires a per se rule that can be implemented with ease and practicality to protect a suspect’s rights to remain silent and to counsel.²³

Further, we do not limit this rule by requiring the attorney’s physical presence at the police station.²⁴ We agree that “[a] suspect has a right to know that his attorney wishes to see him whether that request comes over the police station counter, over the telephone, or via messenger.” People v Houston, 42 Cal 3d 595, 615; 230 Cal Rptr 141; 724 P2d 1166 (1986) (Bird, C.J., concurring in part and dissenting in part).²⁵ Further, we agree that

an attorney’s diligence can manifest itself in ways other than showing up at the police station. In many situations, a phone call or messenger may well be the most efficient, effective — and most diligent — means of transmitting a message to a client. This is true, for example, when an attorney is (1) engaged in trial, (2) handling an urgent matter for another client, (3) located far from where the suspect is being detained, or (4) delayed by traffic or weather conditions. It is unreasonable to suggest that failing to appear in person indicates a lack of diligence on the attorney’s part. [Id. at 616.]

We recognize that the rule we announce today may decrease the likelihood that interrogating officers will secure a confession.²⁶ However, this duty to inform is as necessary as other safeguards we have developed to protect a suspect’s rights to remain silent and to counsel.²⁷ As the United States Supreme Court stated in Escobedo:

No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. [Id. at 490.][²⁸]

V. CONCLUSION

On the basis of the foregoing principles, we find that both defendants’ statements were taken in violation of their Michigan constitutional rights to remain silent and to counsel. The police failed in their duty to inform them that their attorneys attempted to contact them before they made their statements, information crucial to their making a knowing and intelligent waiver. When the police fail in their duty to inform a suspect of his counsel’s attempts to consult with him before he makes a statement, this Court will not speculate what the defendant might or might not have chosen to do after he had the opportunity to consult with his counsel.

We affirm the trial court’s suppression of both defendants’ statements taken after the police failed to inform them that counsel had been retained for them and of counsels’ attempts to contact them. Both types of attempted contact, through telephone calls or through a messenger, satisfy the rule that we adopt today. We remand this case to the trial court for further proceedings.

Levin and Mallett, JJ., concurred with Cavanagh, J.

1 Contrary to the demagogic opinion of the dissent, our goal is not to eliminate “confessions from the arsenal of society’s weapons against crime.” Post at 624. Nor will our rule necessarily result in the reversal of convictions as the dissent alleges. Rather, we believe that confessions are not only a valid, but also an essential part of law enforcement. However, we would go one step beyond the dissent and also concern ourselves with how law enforcement obtained the confession. More importantly, if law enforcement officers adhere to the rule we announce today, there will be no reversal of convictions on the basis of failure by officers to inform the suspect that his counsel wished to speak with him before he made a confession. Thus, if law enforcement does not follow this rule, it will be a government agent, and not this Court, that is responsible for thwarting and hampering cases of urgent social concern as referenced in the dissent’s n 3.

Additionally, the dissent’s argument that our rule will thwart or substantially hamper prosecution in certain cases has no merit:

"This argument is not supported by any reference to the experience in the states that have adopted this rule.” [Moran v Burbine, 475 US 412, 460; 106 S Ct 1135; 89 L Ed 2d 410 (1986) (Stevens, J., dissenting).] Prior to Moran, a majority of states followed a rule similar to the one we enunciate today, without any apparent dimin-ishment in the effectiveness of their law-enforcement agencies. In the states, since 1986, that have rejected Moran (e.g., Connecticut, Delaware, Florida, Oregon), no evidence exists that the police have been seriously hindered in their efforts to uphold the law. [State v Reed, 133 NJ 237, 265; 627 A2d 630 (1993).]

2 The transcripts of the Walker (People v Walker [On Rehearing], 374 Mich 331; 132 NW2d 87 [1965]) hearing of February 4, 1993, indicate what occurred at the time defendant Zeigler’s mother went to the station to relay the attorney’s message. The questions are by Mr. Goldfine, defendant Zeigler’s attorney, and the answers were given by defendant Zeigler’s mother.

Q. And then what did you do?

A. I went in and when I went to the police station, the woman went and got the officer that had arrested Scott. And I think his name is Currie. . . . And I asked him if I could see Scott.

Anyway, and he said no, that I couldn’t see him. And I stood there awhile longer, and I said, “Well, I have a message for him from our lawyer, and he said it was important that I talk to him before he was questioned.”

And he said, “No,” he said, “You’ll have to wait.” He said, “The detectives aren’t even in yet.”

And I asked if I could wait until the detective came in and talked to the detective and he said no.

And he told me that I could go and get Scott’s car because Scott’s car was still over in the neighborhood.

So we went and got Scott’s car. He wrote down the detective’s phone number and name for me so that I could call him about 10:30 or 11.

Q. So let me be sure I’m clear. He said that you could not stay and wait to talk to the detective?

A. Right, and that I couldn’t see Scott.

Q. And that you could not get a message to him?

A. Right.

Q. And what was the message that you wanted to deliver to him?

A. To not talk until he had had a chance to talk to you.

3 Officer Currie recalled that he spoke to an older woman in the station and that she identified herself as the mother of one of the defendants. However, in contrast to Ruth’s testimony, Officer Currie stated that Ruth wanted to see her son, but he told her that her son was with the detectives and she could see him when they were finished. Because the trial court suppressed defendant Zeigler’s statement, the trial court implicitly found that Ruth was more credible than Officer Currie in her testimony given in this regard. As a reviewing court, we give deference to the trial court’s ability to view evidence, and we will not reverse findings unless they are clearly erroneous. People v Johnson, 202 Mich App 281; 508 (1993); People v Etheridge, 196 Mich App 43; 492 NW2d 490 (1992).

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

5 We acknowledge that the right to remain silent and to counsel are not found in the actual text of either the Fifth or Fourteenth Amendments. However, in Miranda, the United States Supreme Court created a set of warnings, which included a right to remain silent and a right to counsel during interrogation, which ensure protection of a defendant’s right against compulsory self-incrimination. Exercising a right to remain silent is the most basic way for a defendant to assert his constitutional right to be free from compelled self-incrimination. Thus, if officers extract a confession from a defendant in violation of Miranda, and in the process he incriminates himself, the basis for the suppression of the statement is the Fifth Amendment applied to the states through the Fourteenth Amendment. It is in this context that we conclude that these amendments protect a defendant’s federal rights to remain silent and to counsel.

6 Const 1963, art 1, § 17 provides:

No person shall be compelled in any criminal case to be a witness against himself ....

The right to counsel before and during interrogation is an ancillary right to the privilege against compelled self-incrimination.

7 In Miranda at 476, the Court emphasized:

[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.

8 The form contains a list of the Miranda warnings. Additionally, it contains a “Consent to Speak” section, which states:

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me; no pressure or coercion of any land has been used against me.

Defendant Zeigler’s form was signed and dated August 2, 1991, at 9:08 am. Defendant Bender’s form was likewise signed and dated August 2, 1991, at 9:50 am.

9 A confession is voluntary if it is the product of a free choice. People v Marshall, 204 Mich App 584; 517 NW2d 554 (1994); People v Cipriano, 431 Mich 315; 429 NW2d 781 (1988). The voluntariness of a confession is a question for the trial court. Marshall, supra. However, the appellate court examines the entire record and makes an independent determination of voluntariness. People v Etheridge, n 3 supra. We give deference to the trial court’s ability to view the evidence and will not reverse findings unless they are clearly erroneous. Johnson and Etheridge, n 3 supra. Here, we agree with the findings made by the trial court, and similarly conclude that the defendants’ statements were voluntary.

10 In light of this statement by the Court, Justice Boyle’s assertion that “[t]he Court could not and did not address the authority of state supreme courts to interpret their own governing law” is inexplicable. Post at 640.

11 Further, as noted by the Moran dissent, the rule that the majority created, and the instant dissent advocates, “quite clearly violates the American Bar Association’s Standards for Criminal Justice . . . .” See Moran at 440-441 and n 11.

12 Further, the court cited with approval a case interpreting Miranda, which had explained:

“The rule in Miranda, however, was based on this Court’s perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation.

“Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts.” [Id. at 262, quoting Fare v Michael C, 442 US 707, 719; 99 S Ct 2560; 61 L Ed 2d 197 (1979).]

13 I wholeheartedly disagree with the dissent’s assertion that “Wright[ ] only examined whether failure to inform a suspect that an attorney wished to contact him rendered the confession involuntary, but said nothing about the knowing and intelligent prong of the waiver requirement.” Post at 652, n 19.

We emphasize that all the cases that this Court approvingly cited in Wright discussed the knowing and intelligent prong. Although that prong was considered throughout the opinion, the best example of its consideration can be found in our conclusion in Wright.

Because we believe that Mr. Wright should have been informed of counsel’s in-person attempts to contact him in order to knowingly and voluntarily waive his Fifth Amendment rights, we reverse the Court of Appeals decision, and order a new trial at which defendant’s statements to the police are to be suppressed. We find that Mr. Wright’s confession, made without this knowledge, violated the rights afforded under the Michigan Constitution. Statements made under such circumstances are neither voluntarily nor knowingly made, and therefore cannot be used against a defendant. Deliberate subterfuge by the police to prevent counsel from contacting a suspect is reprehensible and unconstitutional. Mr. Wright, under this state’s constitution, was entitled to such knowledge in order to make an informed decision regarding his rights. [Id. at 155 (emphasis added).]

Although only three justices endorsed the knowing and intelligent prong analysis in Wright, to say that it says nothing about that prong is a definite mischaracterization of Wright and is clearly unsupportable.

14 In Wright, I agreed with Justice Mallett that Const 1963, art 1, § 17 should be interpreted more broadly than the United States Supreme Court interpreted the Fifth Amendment in Moran. However, there I wrote separately to express my view that Const 1963, art 1, § 20, corresponding to the Sixth Amendment right to counsel, more clearly supported suppression of the defendant’s statement. Wright at 155-156 (Cavanagh, C.J., concurring). Because today a majority agrees that § 17 requires suppression of the defendants’ statements, we need not decide whether § 20 would also require suppression. That question is left open for another day.

15 In Wright, Justice Brickley stated:

Incommunicado interrogation . . . poses serious dangers to the voluntariness of an accused’s waiver of the right to remain silent. No issue of incommunicado interrogation can arise where the police inform a suspect that a retained attorney is present and immediately available. An accused, fully informed of his right to remain silent and to have counsel present, in the exercise of his judgment may choose to proceed with or without counsel. In that circumstance, the choice belongs to and is made by the accused and not the police. Thus, the careful balance of the interests of legitimate law enforcement and the interest of individuals embodied in the Michigan Constitution remains intact. [Id. (emphasis added).]

16 As support for this conclusion, we adopt the reasoning of the New Jersey Supreme Court in Reed.

[I]nforming a suspect of the right to the presence of an attorney is qualitatively different from informing a suspect of both the right to the presence of an attorney and that the attorney is already in the stationhouse. In the first instance, the suspect may reject the offer out of fear that the police will interpret the request for an attorney as an acknowledgment of guilt, or the suspect may view with skepticism the offer by police to provide an unknown attorney. But if the attorney is already present, the same suspect may conclude that consultation with the attorney outweighs any risk of antagonizing the police, particularly if the suspect has had a prior relationship with the attorney or if friends or family have retained the attorney. Thus, the presence and availability of a retained attorney is critical information that qualitatively affects the exercise by a suspect of the right to consult with counsel. When that information is withheld, the suspect’s waiver of the right to counsel and to remain silent is more abstract than real, becoming, in effect, a waiver of a theoretical right that is uninformed by the material knowledge that retained counsel, present and available to assist the suspect in the full exercise of his or her rights, is just outside the door. That the suspect may ultimately reject the offer and waive his or her right is irrelevant to whether the uninformed waiver is knowing and intelligent. [Reed at 274 (citations omitted).]

In addition, we also adopt the reasoning of the Connecticut Supreme Court in Stoddard.

We are unwilling ... to dismiss counsel’s effort to communicate as constitutionally insignificant to the capacity of the suspect to make a knowing and intelligent choice whether he or she will invoke the right to counsel. Miranda warnings refer only to an abstract right to counsel. That a suspect validly waives the presence of counsel “only means that for the moment the suspect is foregoing the exercise of that conceptual privilege.” Faced with a concrete offer of assistance, however, a suspect may well decide to reclaim his or her continuing right to legal assistance. “To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second.” We cannot therefore conclude that a decision to forego the abstract offer contained in Miranda embodies an implied rejection of a specific opportunity to confer with a known lawyer. Accordingly, the lack of authority of counsel to invoke the personal right of the suspect is no bar to the imposition of a duty to inform a suspect of counsel’s efforts. [Stod-dard at 168 (citations omitted).]

17 The dissent asserts that Const 1963, art 1, § 17 provides no greater protection than the Fifth Amendment. However, this statement, as a general rule for this Court to follow, is clearly unsupportable.

In People v Nash, 418 Mich 196; 341 NW2d 439 (1983), this Court considered the history of the drafting of Const 1963, art 1, § 11 (the Mchigan analogue to the Fourth Amendment), and concluded that it was drafted in direct response to Mapp v Ohio, 367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961). Thus, a majority of this Court reasoned that because of this direct connection to federal law, we should not interpret art 1, § 11 more broadly than the United States Supreme Court interpreted the Fourth Amendment, unless there is a compelling reason to do so.

However, when interpreting art 1, § 17, there is an absence of a direct link to federal interpretation of the Fifth Amendment. Thus, it does not logically follow that in interpreting ait 1, § 17, we must find compelling reasons to interpret our constitution more liberally than the federal constitution.

A majority of this Court clearly stated this position in Sitz v Dep’t of State Police, 443 Mich 744; 506 NW2d 209 (1993):

“[Cjompelling reason” should not be understood as establishing a conclusive presumption artificially linking state constitutional interpretation to federal law. As illustrated by the question presented today, a literal application of the term would force us to ignore the jurisprudential history of this Court in favor of the analysis of the United States Supreme Court announced in Sitz. Properly understood, the Nash rule compels neither the acceptance of federal interpretation nor its rejection. In each instance, what is required of this Court is a searching examination to discover what law “the people have made. ”

The judiciary of this state is not free to simply engraft onto art 1, § 11 more “enlightened” rights than the framers intended. By the same token, we may not disregard the guarantees that our constitution confei's on Michigan citizens merely because the United States Supreme Court has withdrawn or not extended such protection. [Id. at 758-759 (emphasis added) (citations omitted).]

Thus, in the instant case, we refuse to abdicate our duty to interpret our constitution as our people have made it. We vehemently refuse to restrict ourselves to the federal interpretation announced in Moran, and to that which the dissent advocates.

18 The dissent opines that our holding “might also raise serious equal protection concerns.” Post at 650. However, we believe that suspects in the instant defendants’ position should not be kept from their own lawyers just because other suspects do not yet have attorneys at the time of custodial interrogations. The doctrine of equal protection is society’s safeguard against discriminatory treatment by governmental agents, and is not a doctrine that officers may rely on to deprive a suspect of his counsel’s assistance.

19 As the Court quoted in Miranda:

“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” [Id. at 479-480, quoting Olmstead v United States, 277 US 438, 485; 48 S Ct 564; 72 L Ed 944 (1928) (Brandéis, J., dissenting).]

20 In n 14, the dissent criticizes our use of the term the defendants’ “own lawyer,” stating that there was no attorney-client relationship in either case. Post at 645. However, in both cases the attorney was hired by the defendant’s family. Thus, in no way can the scenario here be “the picture of a desperate lawyer attempting to contact a potential client.” Id. Because both attorneys were already retained before attempting to contact the defendants, both defendants were “clients” at that point, and not just mere “potential clients.” We agree with the New Jersey Supreme Court “that an attorney-client relationship should be deemed to exist under such circumstances between the suspect and an attorney when the suspect’s family or friends have retained the attorney or where the attorney has represented or is representing the suspect on another matter.” Reed at 261.

21 We agree with the Reed court that “[o]ur holding is essential to give effect to the right to counsel that, in turn, effectuates the privilege against seff-incrimination. Moreover, our holding is supported in large measure by the special and essential role lawyers play in realizing the purpose of the right against self-incrimination.” Id. at 262. See also n 9. Thus, we reject the dissent’s assertion that our holding creates a safeguard for a safeguard, is absurd, and is not required by the Michigan Constitution.

22 In Moran, the dissent stated:

“If the State may arrest on suspicion and interrogate without counsel, there is no denying the fact that it largely negates the benefits of the constitutional guaranty of the right to assistance of counsel.” [Moran at 437, n 5 (Stevens, J., dissenting), quoting Watts v Indiana, 338 US 49, 59; 69 S Ct 1357; 93 L Ed 1801 (1949) (Jackson, J., concurring in the result).]

23 As stated in the Moran dissent:

Like the failure to give warnings and like police initiation of interrogation after a request for counsel, police deception of a suspect through omission of information regarding attorney communications greatly exacerbates the inherent problems of incommunicado interrogation and requires a clear principle to safeguard the presumption against the waiver of constitutional rights. As in those situations, the police deception should render a subsequent waiver invalid. [Moran at 452 (Stevens, J., dissenting).]

24 The dissent criticizes our opinion, stating that our duty to inform “raises the specter of ‘virtual’ lawyers, who call, FAX, or E-mail police stations with their desire to contact incarcerated suspects; of clerks, whose job it is to log the moment the communication was received and transmit it promptly; and of judicial hearings to determine whether a given statement was obtained before or after communication.” Post at 625. However, the dissent’s criticism of our rule is not well-founded because the police, as an entity, have the fundamental responsibility to establish and maintain adequate procedures that will allow an attorney to communicate with a suspect and the interrogating officers without unreasonable delay. See Stoddard at 170 and State v Haynes, 288 Or 59, 65-66; 602 P2d 272 (1979).

25 See People v Ledesma, 204 Cal App 3d 682; 251 Cal Rptr 417 (1988) (superseding Houston on the basis of legislative action that required that California law could not provide greater protections than the federal protections).

26 We note that defendant Bender’s arresting officer recognized this. When Bender’s father told the officer that he was going to immediately call and secure counsel for his son, the officer replied, “Well, why would you want to do that?”

27 Chief Justice Brickley implied exactly this in his question to the prosecutor at oral argument. He inquired whether the duty to inform that we announce here is too much to ask for, as a matter of policy, when we do so much to ensure the right to, and availability of, counsel.

28 Further, as stated in Miranda at 480-481:

In this connection, one of our country’s distinguished jurists has pointed out: “The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal law.”

If the individual desires to exercise his privilege, he has the right to do so. This is not for the authorities to decide. An attorney may advise his client not to talk to police until he has had an opportunity to investigate the case, or he may wish to be present with his client during any police questioning. In doing so an attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath — to protect to the extent of his ability the rights of his client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.

In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions.