Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack,

 Chief Justice

Brian K. Zahra

David F. Viviano

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh

Elizabeth M. Welch,

Justices

Order 

February 26, 2021

160436

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v SC: 160436

COA: 346775

Oakland CC: 2017-265355-FJ

MUHAMMAD ALTANTAWI,

Defendant-Appellant.

_________________________________________/

On April 21, 2020, the Court ordered oral argument on the application for leave to 

appeal the September 5, 2019 judgment of the Court of Appeals. On order of the Court, 

the application is again considered. Pursuant to MCR 7.305(H)(1) and in light of the 

prosecutor’s concession that the juvenile defendant was subjected to a “custodial 

interrogation” without being advised of his rights pursuant to Miranda v Arizona, 384 US 

436, 444 (1966), we VACATE our order dated April 21, 2020. In lieu of granting leave 

to appeal, we VACATE Part III.B. of the judgment of the Court of Appeals addressing 

the Miranda issue, and we VACATE that part of the November 20, 2018 order of the 

Oakland Circuit Court that denied the defendant’s motion to suppress his statements to 

the police. In all other respects, leave to appeal is DENIED, because we are not 

persuaded that the remaining question presented should be reviewed by this Court.

We do not retain jurisdiction.

VIVIANO, J. (dissenting). 

The Court’s order today vacates the lower court judgments simply “in light of the 

prosecutor’s concession” that defendant was in custody for the purposes of Miranda v 

Arizona, 384 US 436, 444 (1966). As a result of the concession, the prosecutor submits 

that the statements defendant made during his interrogation without being advised of his 

Miranda warnings should not be used against him at trial. However, the order does not 

purport to determine whether that the concession is legally correct and, instead, it simply 

wipes the proverbial slate clean for future proceedings. I write to explain why I believe 

that, in resolving the case in this manner, the Court has relinquished its responsibility to 

independently evaluate and adjudicate this case in light of the alleged error now raised on 

appeal. And it has chosen a poor vehicle for doing so, as I do not believe that there was 

any plausible error below. Instead, I would request supplemental briefing on whether the 

case has become moot and whether the lower court judgments should be vacated.
2

As the United States Supreme Court has noted, a prosecutor’s confession of error 

“does not relieve this Court of the performance of the judicial function,” and while the 

opinion of the prosecutor is entitled to some weight, “our judicial obligations compel us 

to examine independently the errors confessed.” Young v United States, 315 US 257, 

258-259 (1942). The public interest in the “proper administration of the criminal law 

cannot be left merely to the stipulation of parties.” Id. at 259. See also Sibron v New 

York, 392 US 40, 58 (1968) (“Confessions of error are, of course, entitled to and given 

great weight, but they do not relieve this Court of the performance of the judicial 

function. It is the uniform practice of this Court to conduct its own examination of the 

record in all cases where the Federal Government or a State confesses that a conviction 

has been erroneously obtained.”) (quotation marks and citation omitted). 

Nonetheless, the Supreme Court has engaged in a “now well entrenched” practice 

of summarily disposing of such cases by what is known as a “GVR”: the Court grants 

certiorari, vacates the lower court judgment, and remands. Lawrence v Chater, 516 US 

163, 183 (1996) (Scalia, J., dissenting). The Court has asserted the authority to order 

such relief under 28 USC 2106, which “appears” to give the Supreme Court the “broad 

power” to vacate and remand any judgment for further proceedings. Lawrence, 516 US 

at 166 (opinion of the Court).1 A GVR does not require a finding that error occurred and 

therefore does not create any precedent. See id. at 171 (recognizing the established 

practice of GVRing a case “without determining the merits”); Casey v United States, 343 

US 808, 808 (1952) (“To accept in this case [the Solicitor General’s] confession of error 

would not involve the establishment of any precedent.”). But, to reconcile these orders 

with the obligation to independently consider the legal issue, the Supreme Court accepts 

only legally “plausible confessions of error . . . .” Lawrence, 516 US at 171.

Justice Scalia and other members of the Supreme Court have criticized the GVR 

process. See Nunez v United States, 554 US 911, 912 (2008) (Scalia, J., joined by 

Roberts, C.J., and Thomas, J., dissenting) (“In my view we have no power to set aside 

(vacate) another court’s judgment unless we find it to be in error.”). They contend that 

the “facially unlimited statutory text” of 28 USC 2106 remains “subject to the implicit 

limitations imposed by traditional practice and by the nature of the appellate system 

created by the Constitution and laws of the United States.” Lawrence, 516 US at 178 

(Scalia, J., joined by Thomas, J., dissenting). The lower courts, “staffed by judges whose 

 

1 28 USC 2106 states in full:

The Supreme Court or any other court of appellate jurisdiction may 

affirm, modify, vacate, set aside or reverse any judgment, decree, or order 

of a court lawfully brought before it for review, and may remand the cause 

and direct the entry of such appropriate judgment, decree, or order, or 

require such further proceedings to be had as may be just under the 

circumstances.
3

manner of appointment and tenure of office are the same as our own,” are “not the 

creatures and agents of this body,” unlike “masters, whose work we may reject and send 

back for redoing at our own pleasure.” Id. at 178-179. Moreover, according to this line 

of thought, the routine acceptance of confessions fits poorly within our adversary system, 

can smack of gamesmanship, and provides dubious value in determining the existence of 

legal errors in complicated areas of law.2

I agree with this critique and find it applicable to confessions made in our Court.3 

MCR 7.305(H)(1) provides that the Court may “grant or deny the application for leave to 

appeal, enter a final decision, direct argument on the application, or issue a peremptory 

order.” As with 28 USC 2106, this court rule is subject to the implicit limitations of the 

appellate system created by our Constitution. As in the federal court system, judges 

across Michigan’s judiciary are appointed and elected in the same manner as justices of 

this Court. Compare Const 1963, art 6, §§ 2, 8, 12, 16, and 23. More generally, we have 

forcefully rejected the notion that the parties’ stipulations of law bind the Court, as this 

result would be contrary to the judicial obligation “to determine the applicable law in 

each case.” In re Finlay Estate, 430 Mich 590, 595 (1988). I believe that this obligation 

flows to cases involving confessions of error—automatic acceptance of confessions 

would be tantamount to allowing the parties to stipulate the law, even if the resolution 

does not create binding precedent going forward. For these reasons, I believe that our 

Court also has the duty to “examine independently the errors confessed” and make a 

determination on the merits of an error in order to avoid leaving the “proper 

administration of the criminal law . . . to the stipulation of parties.” Young, 315 US at 

258-259. 

 

2 See Mariscal v United States, 449 US 405, 407 (1981) (Rehnquist, J., dissenting) (“I 

harbor serious doubt that our adversary system of justice is well served by this Court’s 

practice of routinely vacating judgments which the Solicitor General questions without 

any independent examination of the merits on our own.”); Hicks v United States, 582 US 

___, ___; 137 S Ct 2000, 2001 (2017) (Gorsuch, J., concurring) (noting agreement with 

“much in Justice Scalia’s dissent” in Nunez, including the admonishment against GVRing 

a case when “we cannot with ease determine the existence of an error of federal law” or 

when the “confession bears the marks of gamesmanship”).

3 Although our experience with confessions of error is not extensive, we have similarly 

reversed, vacated, and remanded while professing to avoid the merits and thereby 

prevent the establishment of precedent. See People v Foster, 377 Mich 233, 235 

(1966) (reversing and remanding without comment on the merits in response to 

confession); People v Miles, 376 Mich 165, 166 (1965) (“I would purposely refrain 

from determining the merit of defendant’s presented claim of error, there being no 

need for such determination considering the prosecutor’s confession.”). 
4

In the present case, I respectfully submit that the majority has abdicated this 

responsibility by simply vacating the lower court judgments and remanding without any 

analysis of the legal issue at stake. The Court’s action falls short of even the GVR 

standard, as there is no pretense that the confession is plausible. I would not undo the 

judgment of the Court of Appeals without either resolving the merits or explaining why 

some other applicable legal principle (such as mootness) requires vacatur. 

Even if I were inclined to acquiesce in this general GVR practice, I would refrain 

from it here because I am not convinced there was any plausible error in the Court of 

Appeals’ judgment that defendant was not in custody.4 See Lawrence, 516 US at 171 

(requiring the error to be plausible in order to GVR). To determine whether a defendant 

was in custody at the time of an interview, the Court must determine whether a 

“reasonable person [would] have felt he or she was not at liberty to terminate the 

interrogation and leave” and then whether “the relevant environment presents the same 

inherently coercive pressures as the type of station house questioning at issue in 

Miranda.” Howes v Fields, 565 US 499, 509 (2012) (quotation marks and citation 

omitted; alteration in original). In making this assessment, the court must examine “all of 

the circumstances surrounding the interrogation.” Id. (quotation marks and citation 

omitted). Relevant factors include “the location of the questioning, its duration, 

statements made during the interview, the presence or absence of physical restraints 

during the questioning, and the release of the interviewee at the end of the questioning.” 

Id. (citations omitted). If the defendant is a juvenile, the child’s age is also a relevant 

factor in the custody analysis. JDB v North Carolina, 564 US 261, 271-272 (2011). 

For the reasons stated by the Court of Appeals’ majority, nearly all the non-agerelated factors favor a finding that a reasonable person in defendant’s position would 

have felt free to leave the interview. The interview took place in an open, familiar 

location in defendant’s home—the dining room table.5 The interview did not last long, 

 

4 Notwithstanding his criticism, Justice Scalia did eventually acquiesce to this practice 

given its well-entrenched nature. See Lawrence, 516 US at 191-192 (Scalia, J., 

dissenting); see also Nunez, 554 US at 911 (Scalia, J., dissenting) (recognizing that, even 

though he did not believe the Court had the authority to vacate a judgment absent a 

finding of error, “I have reluctantly acquiesced in our dubious yet well-entrenched habit 

of entering a GVR order without an independent examination of the merits when the 

Government, as respondent, confesses error in the judgment below”).

5 See Beckwith v United States, 425 US 341, 342, 347 (1976) (recognizing that an 

interview in a private home weighs against a finding of custody); United States v Faux, 

828 F3d 130, 138 (CA 2, 2016) (concluding that the defendant was not in custody 

because she was “questioned in the familiar surroundings of her home” and was “seated 

at her own dining room table”). 
5

only 38 minutes.6 While the officers did not tell defendant that he was free to leave, they 

did ask permission from defendant’s father to interview defendant.7 They also did not 

threaten defendant but generally talked in a conversational tone and implored him to tell 

the truth.8 Defendant was not physically restrained in any way, and he was released after 

questioning.9 Finally, in considering defendant’s age, it is true that defendant was a 16-

year-old minor at the time of questioning. However, defendant was close to the age of 

majority at the time of the interview and, like other courts that are less willing to give 

substantial weight to this factor the closer a defendant is to 18, I would also decline to 

conclude that his age weighs so strongly in favor of a finding of custody as to outweigh 

all the other factors.10 The Court of Appeals majority could have more thoroughly 

 

6 Compare Oregon v Mathiason, 429 US 492, 495 (1977) (holding that a 30-minute 

interview was noncustodial), with Yarborough v Alvarado, 541 US 652, 665 (2004) 

(noting that a two-hour interview would weigh in favor of a finding of custody).

7 See California v Beheler, 463 US 1121, 1122, 1125 (1983) (noting that when a 

defendant “agree[s] to talk to police,” even at the station house, that weighs against 

custody); United States v Lowen, 647 F3d 863, 868 (CA 8, 2011) (holding that an 

interview in a defendant’s home, where the suspect consented to the interview and the 

police told him that his “vehicle and physical description matched that” of the prime 

suspect, was noncustodial).

8 See Yarborough, 541 US at 664 (noting that an officer’s appeal to a defendant’s 

“interest in telling the truth” without making threats weighs against a finding of custody); 

Beckwith, 425 US at 343, 348 (concluding that an interview described as a 

“conversation” that was “friendly” and “relaxed” was “free of coercion”) (quotation 

marks and citation omitted). 

9 See Yarborough, 541 US at 665, and Mathiason, 429 US at 495 (each noting that a 

suspect’s ability to get up and leave weighs against a finding of custody). Though the 

officers knew that they would not have let defendant leave the house, they did not 

communicate this to defendant. This means that it has no bearing on the custody 

analysis. See Berkemer v McCarty, 468 US 420, 442 (1984) (“A policeman’s 

unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a 

particular time; the only relevant inquiry is how a reasonable man in the suspect’s 

position would have understood his situation.”).

10 See JDB, 564 US at 277 (noting the potential for a deferential standard when a 

defendant “was almost 18 years old at the time of his interview” or that “teenagers 

nearing the age of majority are likely to react to an interrogation as would a typical 18-

year-old in similar circumstances”) (quotation marks and citations omitted). See also 

State v Jones, 55 A3d 432 (2012) (holding that a 17-year-old was not in custody);

Marcus, The Miranda Custody Requirement and Juveniles, 85 Tenn L Rev 251, 283 

(2017) (“Precedent dictates that the cut off seems to be about thirteen-years-old. Below 
6

analyzed the role that defendant’s age played in the custody analysis; however, its failure 

to do so did not result in an erroneous judgment given the relatively minor impact that 

defendant’s age had on the custody analysis in this case.11 Therefore, I do not believe the 

Court of Appeals committed a plausible error by determining that defendant was not in 

custody. Because I do not believe there was a plausible error below, this would not be an 

appropriate case to GVR even if GVRs were ever warranted. 

The only other rationale for vacating the decision below is if we found that the 

confession of error mooted the case and justified vacatur. The prosecutor has presented a 

cursory argument to this effect, noting in her confession that she will not present the 

challenged evidence from defendant’s interview at trial. A “ ‘moot case is one which 

seeks to get a judgment on a pretended controversy, when in reality there is none, or a 

decision in advance about a right before it has been actually asserted and contested, or a 

judgment upon some matter which, when rendered, for any reason, cannot have any 

practical legal effect upon a then existing controversy.’ ” League of Women Voters of 

Mich v Secretary of State, ___ Mich ___ (2020) (Docket Nos. 160907 and 160908); slip 

op at 11, quoting Anway v Grand Rapids R Co, 211 Mich 592, 610 (1920). If a case is 

moot, the normal practice is to vacate the lower court decisions, but the inquiry turns on 

the “conditions and circumstances of the particular case.” Id. at ___; slip op at 20 

(quotation marks and citations omitted). 

While we have not expressly addressed whether a confession of error can render a 

case moot, a few federal courts have rejected the argument that it can. See, e.g., United 

States v Brainer, 691 F2d 691, 693 (CA 4, 1982) (“[W]e think it clear that the 

government’s subsequent change of position neither mooted the case nor otherwise 

transformed it into something less than a case or controversy.”).12 Moreover, in the 

seemingly analogous context in which the parties to a case on appeal settle,

 

that age, the courts are highly skeptical; much above that age and the courts are more 

inclined to defer to law enforcement.”).

11 See People v Altantawi, unpublished per curiam opinion of the Court of Appeals, 

issued September 5, 2019 (Docket No. 346775), p 10 n 3 (noting JDB but summarily 

concluding that “[i]n the instant case, taking into account all the evidence of record, 

including the age of defendant, we believe defendant was not in a custodial environment 

when he met with law enforcement officers in the dining room of his home”). 

Defendant’s surname also appears in court documents as “Al-Tantawi.”

12 See also United States v Wilson, 169 F3d 418, 427 n 9 (CA 7, 1999) (agreeing with 

Brainer that a confession of error does not moot the issue). In Foster, 377 Mich at 235, 

we did express the view that a confession rendered the case moot, but we did not cite any 

authority or provide any analysis of the issue. See note 3 of this statement.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 

February 26, 2021

t0223

7

Clerk

vacatur is not necessarily justified. See US Bancorp Mtg Co v Bonner Mall Partnership, 

513 US 18, 29 (1994) (holding that “mootness by reason of settlement does not justify 

vacatur of a judgment under review” while noting that “the determination is an equitable 

one, and exceptional circumstances may conceivably counsel in favor of such a course”). 

And although the prosecutor now states that she will not present the challenged evidence 

on remand, the parties have not made that commitment concrete by, for example, 

stipulating in the trial court to the evidence’s inadmissibility. By vacating the Court of 

Appeals judgment without such an agreement, or something comparable, in place, the 

Court opens the door to allowing the prosecutor to change her mind on remand and seek 

introduction of the evidence. This possibility is why the United States Supreme Court 

has stated that a party’s voluntary conduct moots a case only if “subsequent events made 

it absolutely clear that the allegedly wrongful behavior could not reasonably be expected 

to recur.” Friends of the Earth, Inc v Laidlaw Environmental Services (TOC), Inc, 528 

US 167, 189 (2000) (quotation marks and citation omitted). 

Because the issues of mootness and vacatur in the context of this case involve 

questions of first impression, I would do as we have in the past and order supplemental 

briefing on these matters. See, e.g., League of Women Voters of Mich, ___ Mich at ___; 

slip op at 5 (noting the Court sought supplemental briefing on whether the case was moot 

and whether vacatur of the lower court judgment was appropriate).13 Only with these 

questions resolved can we decide the case. If the prosecutor’s current position somehow 

rendered the case moot and warranted vacatur, we could decide the case on those 

grounds. If the case is not moot, then I see no alternative but to reach the merits. Either 

way, we would have clear and transparent grounds for our decision. Unfortunately, the 

majority today chooses a different path, neither reaching the merits nor articulating a 

sound legal basis for reversing the Court of Appeals judgment. For these reasons, I 

dissent. 

ZAHRA, J., joins the statement of VIVIANO, J. 

 

13 See also Smith v Dep’t of Human Servs, 828 NW2d 18 (2013) (vacating a Court of 

Appeals judgment after the parties were directed to file supplemental briefs but instead 

filed a joint motion to vacate); Progress Mich v Attorney General, 504 Mich 966 (2019) 

(directing the parties to file supplemental briefing on the issue of vacatur); Bonner Mall, 

513 US at 20 (noting that the Court directed additional briefing on vacatur when the 

parties settled).