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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant, FOR PUBLICATION February 14, 2017

v No. 333206
Genesee Circuit Court JOHN EDWARD BARRITT, LC No. 15-038224-FC

Defendant-Appellee.

Before: K. F. K ELLY , P.J., and G LEICHER and S HAPIRO , JJ.

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

I respectfully dissent. Because defendant was not in custody at the time of his statement,
he was not entitled to a Miranda 1 warning. I would reverse.

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

1 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-2- Given the factual circumstances surrounding the present case, defendant’s interview was not a “custodial interrogation” requiring Miranda warnings for admissibility. Of specific importance is that defendant agreed to voluntarily come to the police station to answer questions. Furthermore, defendant agreed to ride in a marked police car. During the interview with the police, defendant was placed in a room that was not locked or s ecured, and in which the various officers in the building felt free to come and go at their own leisure. Defendant was offered a beverage, officers came in the room to ask the other officers a bout pizza orders, and defendant repeatedly indicated that he wan ted to help the investigation a s much as possible. Defendant was not restrained in any manner duri ng the interview and was never told he was under arrest or that he was not free to leave. In fact, as conceded by defense coun sel at oral argument, he was told twice that he could “end this at any time” and that he was not under arrest. A reasonable person presented with those circumstances would “reasonably believe[] that he was [] free to leave.”
Mendez , 225 Mich App at 382-383.

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

In light of these circumstances, defendant’s interview would n ot “generate ‘inherently compelling pressures which work to undermine the individual’s w ill to resist and to compel him to speak where he would not o therwise do so freely.’ ” Perkins , 496 US at 296, quoting

Miranda , 384 US at 467. In other words, defendant had not “been taken into custody or otherwise deprived of his free dom of action in any significant way.” Miranda , 384 US at 444. As such, defendant was not in custody, and therefore, Miranda warnings were not required for
the interview. The trial court s hould have denied defendant’s motion to suppress defendant’s

statement.

/s/ Kirsten Frank Kelly