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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED July 31, 2018

v No. 338792

Kalamazoo Circuit Court JASON BRIAN DALTON, LC No. 2016

- 000287

- FC

Defendant

- Appellant.

Before: H OEKSTRA

, P .J., and M URPHY and M ARKEY , JJ.

P ER C URIAM

.

Defendant appeals as on leave granted 1 the trial court ’ s partial denial of his motion to suppress statements made to law enforcement officers during two interviews after his arrest. Because the trial court should have suppressed all of defendant ’ s statements made during both

the first and second i nterrogations , w e reverse the partial denial of defendant ’ s motion and

remand for further proceedings

.

Defendant stands charged with six counts of open murder in violation of MCL 750.316, two counts of assault with intent to murder in violation of MCL 750.83, and eight counts of carrying a firearm during the commission of a felony ( felony

- firearm ) in violation of MCL

750.227b . The charges arise from shootings at three separate locations in Kalamazoo County, Michigan on the evening of February 20, 2016. The shootings occurred at an apartment complex, a car dealership, and a restau rant. Defendant was arrested in the early morning hours

of Feb ruary 21, 2016 and transported to the Kalamazoo Department of Public Safety (KDPS).

After his arrest, defendant was interrogated at KDPS for more than 3 hours, beginning at approximately 1:00 a.m. on February 21, 2016 . Following th is first interrogation, defendant was transported to the Kalamazoo County Jail. L ater that same day, in the afternoon, defendant was interrogated a second time at the Kalamazoo County Sheriff ’ s Department by a detec tive of the Michigan State Police

. Defendant made incriminating statements during both interrogations.

In the trial court, defendant moved to suppress the incriminating statements he made to law enforcement during both interviews. The trial court granted defendant ’ s motion to suppress

1 People v Dalton , 501 Mich 1025 (2018).- 2

- in part and denied it in part. Specifically, the trial court suppressed the majority of defendant ’ s statements made during the first interview because the police failed to scrupulously honor

defendant ’ s invocation of his right to remain silent ; however , the trial court denied defendant ’ s motion with regard to certain statements made during the first interview that the trial court concluded were elicited under the public safety exception to Miranda

. 2 With regard to th e second interview, the trial court concluded that defendant ’ s statements during the second interview were admissible because, although defendant invoked his right to an attorney and initially declined to waive his Miranda rig hts, defendant changed his min d, initiated a discussion with police , and thereafter voluntarily waived his rights

.

Th e case is now before us on an interlocutory basis for consideration as on leave granted. On appeal, defendant contends that the trial court should have suppressed al l of his incriminating statements made during the first and second interrogations.

I. S TANDARDS OF REVIEW

When reviewing a decision on a motion to suppress, w e review for clear error a trial

court ’ s findings of fact. People v Elliott , 494 Mich 292, 300; 833 NW2d 284 (2013). “ 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. ” People

v Tanner , 496 Mich 199, 206; 853 NW2d 653 (2014) (quotation marks and citation omitted).

We review de novo a trial court ’ s determination that a waiver of Fifth Amendment rights was voluntary, knowing, and intelligent. People v Gipson , 287 Mich App 261, 264; 787 NW2d 126 (2010). W e review de novo a trial court ’ s ultimate decision on a motion to suppress. People v Lapworth , 273 Mich App 424, 426; 730 NW2d 258 (2006).

I I. THE FIRST INTERV IEW

On appeal, defendant argues that the public safety exception does not a pply to the first interview, meaning that the trial court erred by admitting any of defendant ’ s statements from the

first interview based on the public safety exception. Instead, defendant contends that all of his statements during the first interview mus t be suppressed because defendant invoked his right to remain silent and the p olice failed to scrupulously honor this right

. We agree.

A. FACTUAL BACKGROUND

A

t approximately 1:00 a.m. on February 21, 2016

, defendant was brought in to an
interview room at KDSP. Upon entering the room with Detectives William Moorian and Cory Ghiringhelli, defendant was searched, his handcuffs were removed, he was allowed to take of f

his coat and remove a bullet proof vest, and he was offered food, drink, and the use of a

b athroom. The detectives left defendant alone for a minute or so, and when they returned, they reintroduced themselves to defendant and gave defendant a Coke . After the introductions we re made, Detective Moorian state d :

2 Miranda v Arizona , 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).- 3

- I don ’ t know anything about you. I ’ ll be honest with you, I just learned your name just a few moments ago when we were downstairs. So we don ’ t know anything about nothing. I can tell you this much, we both have been doing this a long time and I don ’ t know your involvement with the police at all. Have you

ever had

- - well, I ’ m not going to ask you that. But it ’ s just

- - obviously things happen for a reason and everybody does something for a reason, and I think that we would like to know kind of why some certain things have happened and

what ’ s going on

- - and what ’ s going on in your life, you know. That ’ s something

that we ’ re interested in. Does that sound good?

Defendant agree d , and after informing defendant that he was not free to leave, Detective

Moorian then advise d defendant of h is Miranda rights.

At the conclusion of the Miranda warnings, Detective Moorian ask ed defendant whether

it was “ okay if we talk? ” Defendant respond ed that he would “ kind of prefer not to talk. ” The following exchange then t ook place:

Det. Moorian : Oka y. All right. You ’ d prefer not to talk. How about let me ask you this, like I said, everything happens for a reason and only you can explain to us what was going on with you today. Do you know what I mean?

[ Defendant ]: Yeah.

Det. Moorian : Only you can. Nobody else. And I don ’ t think you want anybody else talking for you. Do you know what I mean?

[ Defendant ]: Yeah.

Det. Moorian : Only

—

[ Defendant ]: I would prefer not to say anything.

Det. Moorian : Okay. Any reason?

[ Defendant ]: It just wo uld be better to not say nothing.

Det. Moorian : Really? Okay.

(Unintelligible.)

Det. Ghiringhelli : Yeah.

Det. Moorian : Do you feel

— let me ask you this, can you answer one question right now? Do you feel bad for what happened tonight to all these people?

[ Defendant ]: I ’ d like to just not say anything.

Det. Moorian : Okay.- 4

- Although defendant plainly stated that he wanted to “ not say anything, ” the interrogation

continued. During the ensuing three hours of questioning

, approximately 40 times, defendant

communicated to the police that he would “ prefer not to say anything, ” that he “ really [didn ’ t] want to talk about anything, ” that he was “ not interested in talking about anything, ” that he

would “ like to just not talk, ” that he wanted to “ keep [his] mouth shut, ” and that he wanted to

“ plead the Fifth. ” 3

Yet, the detectives undisputedly interrogate d defendant. In the course of the interrogation, among other topics, police questioned defendant about the shootings, his

motivation for th e shootings, the victims who had been killed in the shootings, whether he felt

“ bad ” for the shootings as well as topics relating to defendant ’ s family, his hobbies, his dog, and his job

. They repeatedly urged defendant to explain his actions, emphasizing the community ’ s

n eed for “ closure ” and “ answers. ” Although the interview began with Detectives Moorian and Ghiringhelli, Detective Ghiringhelli wa s later repla ced by Sergeant Don McGhee of the

Kalamazoo Sheriff ’ s Department, who was personally acquainted with defendant. Sergeant McGhee and Detective Moorian questioned defendant for over an hour. After Sergeant McGhee left, defendant was again questioned by Detectives Moorian and Ghiringhelli. During the course of the interrogation, defendant implicate d himself in the shooting at the restaurant, though he

maintain ed that his body was being controlled by “ an artificial intelligence. ” Defendant stated

that he d id not recall the shootings at the other two locations.

Notably, after defendant had been read his Miranda rights and after he informed police that he did not want to talk, in the course of their other questions, the detectives raised subjects relating to t he possibility of other unknown victims or other unidentified crime scenes. First,

a

pproximat ely 11 minutes into the interrogation, police asked defendant if he knew of anyone

else who might need medical attention, and defendant answered “ no. ” Second, o ver an hour into the interview, police asked defendant several questions about the number of sh ooting locations, whether they might be missing a location, and whether it was possible there was “ somebody laying in a ditch somewhere ” in need of medical attention. In response to these questions,

defendant state d that he want ed to “ plead the Fifth, ” but he also ma de a potentially incriminating statement by indicating that he kn ew “ for a fact ” that no one was in a ditch in need of help. Third, and finally, more than three hours into the interview, after defendant had implicated

himself in the restaur ant shooting , police asked whether they should drive by a certain road

— where defendant stated that he saw people dressed in black

— to make sure that no one in the area

was hurt, and defendant respond ed “ Yeah, ” though earlier defendant said that he knew he h ad

3 Defendan t suggests on appeal that his attempt to “plead the Fifth” should be read to indicate an invocation of his right to remain silent as well as an invocation of his right to counsel. While defendant’s expression of his desire to “plead the Fifth” unequivocal ly conveyed his invocation of his right to remain silent, cf. Anderson v Terhune , 516 F3d 781, 784 (CA 9, 2008) (en banc), this statement cannot reasonably be construed as an unequivocal expression of defendant’s desire for the assistance of an attorney. See generally People v Adams , 245 Mich App 226, 237; 627 NW2d 623 (2001). With regard to the first interview, defendant invoked only his right to remain

silent.- 5

- not shot th e people in question

. After more than three hours, the i nterrogation finally conclude d

at approximately 4:10 a.m. Defendant was then transported to the Kalamazoo County Jail.

B. ANALYSIS

“ The United States Constitution and the Michigan Co nstitution both prohibit ‘ compelled ’

self

- incrimination. ” Elliott , 494 Mich at 301 n 4

, quoting US Const, Am V; Const 1963, art 1, §

17. Before a suspect is subject to custodial interrogation, the suspect must be given the now

familiar Miranda warnings; specifically, the suspect must be informed “ (1) that he has the right to remain silent, (2) that anything he says can and will be used against him in court, (3) that he has a right to the presence of an attorney during any questioning, and (4) t hat if he cannot afford an attorney one will be appointed for him. ” People v Daoud , 462 Mich 621, 625 n 1; 614 NW2d 152 (2000). “ When a suspect has been afforded Miranda warnings and affirmatively waives his

Miranda rights, subsequent incriminating state ments may be used against him, ” provided that the waiver of rights is voluntary, knowing, and intelligent. Tanner , 496 Mich at 209

.

In comparison, “ the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored. ” Michigan v Mosley , 423 US 96, 104; 96 S Ct 321; 46 L Ed 2d 313 (1975) (quotation marks omitted). The right to remain silent and to cut off police questioning are

conside red critical safeguards again st compelled self

- incr imination, and an accused may exercise these rights at any time by unequivocally asserting that he or she wishes to remain silent. People v Henry (After Remand) , 305 Mich App 127, 145; 854 NW2d 114 (2014). “ W hen a defendant invokes his or her right to remain silent, the police must ‘ scrupulously honor ’ the defendant ’ s request. ” Id

. , quoting Mosley , 423 US at 103

- 104

. “ The police fail to scrupulously honor a

de fendant ’ s invocation of the Fifth Amendment right by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. ” Henry , 305 Mich App at 145 (quotation marks and cit ation omitted).

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. At this point he has shown that he intends to exercise his Fifth Amendment privilege; a ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in

- custody interrogation operates on the individual to

overcome free ch oice in producing a statement after the privilege has been once invoked. [ Mosley , 423 US at 100

- 101, quoting Miranda v Arizona , 384 US 436,

473

- 474; 86 S Ct 1602; 16 L Ed 2d 694 (1966).]

Consequently, “ [i] f 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. ” People v White , 493 Mich 187, 194; 828 NW2d 329 (2013).

In this case, during the first inter view, defendant was undisputedly “ in custody ” for purposes of Miranda , see People v Cortez (On Remand) , 299 Mich App 679, 691

- 692; 832 NW2d 1 (2013), and the detectives did in fact advise defendant of his Miranda r ights at the

outset of the interview. How ever, r ather than waive his rights, defendant unequivocally, and- 6

- repeatedly, asserted his right to remain silent. Yet, i n the antithesis of scrupulously honoring

defendant ’ s right to remain silent, the detectives flagrantly disregarded defendant ’ s request to cut off questioning and instead interrogated him for over three hours. 4 Defendant ’ s incriminating statements, obtained during a custodial interrogation after defendant invoked his right to remain silent, are inadmissible. See White , 493 Mich at 194.

On appeal, t he prosecutor concedes that defendant unambiguously invoked his right to

remain silent during the first interview , but the prosecutor asserts that the detectives ’ continued interrogation of defendant was permissible under the public safety exc eption, and the prosecutor

contends that the trial court did not err by admitting defendant ’ s statements elicited by questions relating to public safety concerns. This argument is without merit. Under the public safety exception to Miranda , law enforceme nt officers may question an accused person without advising him of his Miranda rights when public safety concerns exist. New York v Quarles , 467 US 649, 655

- 657; 104 S Ct 2626; 81 L Ed 2d 550 (1984). However, for this exception “ to apply, the police inqu iry must have been an objectively reasonable question necessary to protect the police or the public from an immediate danger. ” People v Attebury , 463 Mich 662, 671

- 672; 624 NW2d 912 (2001). In other words, the public safety exception is a narrow exceptio n that only applies in cases involving “ exigency requiring immediate action by the officers beyond the normal need expeditiously to solve a serious crime. ” Quarles , 467 US at 658

- 659 & n 8. Indeed, Quarles “ drew a specific distinction between questions objectively necessary to secure the public safety and those with an investigatory purpose, explaining that only the former can trigger application of the public safety exception. ” Attebury , 463 Mich at 670

.

As an example of the application of the publi c safety exception, in Quarles , while “ in the very act of apprehending a suspect, ” the police “ were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from hi s empty holster and discarded in the supermarket. ” Quarles , 467 US at 657.

So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice migh t make use of it, a customer or employee might later come upon it. [ Id .]

Faced with this exigency, the police officer “ asked only the question necessary to locate the missing gun before advising respondent of his rights. ” Quarles , 467 US at 659 (emphasis added). In these circumstances, the Supreme Court concluded that the officer ’ s failure to inform the suspect of his Miranda rights before asking the question about the gun was justified in the interests of public safety. Id . at 657

- 659. Similarly, in A ttebury , 463 Mich at 674, the Michigan Supreme Court applied the public safety exception to police questions about the location of a gun at the time of the suspect ’ s arrest because the questions asked by the police “ related solely to

4 Interrogation occurs when a defendant “ ‘is subjected to either express questioning or its

f unctional equivalent.’ ” White , 493 Mich at 195, quoting Rhode Island v Innis , 446 US 291,

300

- 301; 100 S Ct 1682; 64 L Ed 2d 297 (1980). It is undisputed that defendant was subjected to interrogation during the first interview.- 7

- neutralizing ” the immediate danger posed by the gun. In applying the exception, the Court distinguished investigatory questions from public safety questions, emphasizing that “ [t]he

officers only asked about the whereabouts of the gun and not other broader questions relat ing to investigation of the crime. ” Id . (emphasis added).

In contrast to Quarles and Attebury , i n this case, the detectives ’ disregard of defendant ’ s invocation of his right to remain silent, and their three hour interrogation of defendant while

defendan t was in custody at the police station, is not justified based on the public safety exception. Quite simply, t he detectives ’ questions to defendant clearly served an investigatory

purpose and their questions cannot be categorized as objectively necessary to secure the public safety

. The interrogation took place after defendant ’ s arrest, in an interview room at KDSP where defendant posed no immediate danger to the officers or the public. In conducting the interview, t he detectives plainly saw no exigency requiring immediate police action. See Quarles , 467 US at 658

- 659 & n 8 . If there were any exigency requiring immediate police action, one would expect

— as happened in Quarles and Attebury

— that the police would hasten

to ask pertinent questions relating to an imminent identifiable threat. Instead, the police took five minutes to introduce themselves, get defendant a Coke, remove his handcuffs, and let him remove clothing to get more comfortable. The police then took the time to Mirandize defendant, 5 and Detective Moorian began the interview by making plain the investigatory nature of the interrogation, stating that “ thing happens for a reason ” and they wanted to know “ why ” defendant had done certain things. During the course of the interview, the police then asked defendant a variety of questions about the shootings. Viewed objectively, the interrogation served an investigatory purpose, and it was not prompted by public safety concerns.

It is true that, during the three hour interview, the police occas ionally touched on matters relating to the possibility of unidentified shooting locations and unknown injured persons who might be in need of medical assistance. The trial court concluded, and the prosecutor argues on appeal, that defendant ’ s answers to t hese specific questions may be extracted from the larger interview and admitted at trial based on the public safety exception. But, the prosecutor provides no authority for the proposition that questions touching on public safety concerns can be

extracted piecemeal from a three hour investigatory interrogation and justified under the public

5 Defendant argues on a ppeal that Quarles ’s public safety exception only excuses an officer’s failure to give Miranda warnings before asking a question, meaning that the public safety exception could never apply after a suspect has been given Miranda warnings. We are not aware of a Michigan case to apply the public safety exception after a suspect has been read the Miranda warnings. Other courts have concluded that, in certain circumstances, the public safety exception may apply after a suspect has been read the Miranda rights and invoked those rights. See, e.g., Trice v United States , 662 A2d 891, 895 (DC, 1995); United States v Mobley , 40 F3d 688, 692 (CA 4, 1994); United States v DeSantis , 870 F2d 536, 541 (CA 9, 1989). See also State

v Melendez , 423 NJ Super 1, 25; 30 A3d 320 (2011) (compiling cases). However, we need not decide whether the public safety exception only excuses the giving of Miranda warnings, or whether it may also apply post

- Miranda , because an extension of the public safety exception to
post

- Miran da questioning is certainly not justified on the facts of this case.- 8

- safety exception. To the contrary, the public safety exception ’ s application is limited to

situations when the only questions asked relate solely to neutralizing an im mediate danger. See Quarles , 467 US at 659; Attebury , 463 Mich at 674. The fact that numerous broader questions relating to the investigation of the shootings we re also asked in this case is a clear indication that the public safety exception does not apply. Cf. Quarles , 467 US at 659; Attebury , 463 Mich at

674. Indeed, considering the three hour interview, the vast majority of questions had nothing to do with public safety, and in the context of the interrogation at a whole, it is plain that the

purp orted public safety questions

— m ost of which came late in the interview

— were simply

another means of interrogation , i.e., another means of eliciting incriminating statements from

defendant. 6 Overall, the prosecution ’ s reliance on the public safety exceptio n is untenable. T he public safety exception does not apply to the first interrogation, and the trial court erred by admitting any of defendant ’ s statements from the first interrogation.

II I

. THE SECOND INTERVIEW

Defendant also asserts that his statements during the second interrogation with Detective Sergeant Kyle Gorham of the Michigan State Police should have been suppressed because authorities did not honor his invocation of his rights. In particular, defendan t emphasizes that he invoked his right to remain silent during the first interrogation

, and he contends that because his invocation was not scrupulously honored, his purported waiver of his Miranda rights during the second interview cannot be considered valid in light of the first interview. Moreover, defendant argues that the police only compounded their failure to honor his invocation of his rights during

the first interview by failing to honor h is unambiguous invocation of his right to counsel at the beginning of the second interview. Emphasizing that Detective Gorham continued conversing

with defendant and did not leave the interview room when defendant invoked his right to

counsel , defendant c ontends that he was at all times subject ed to custodial interrogation during

the second interview and that, because the interrogation never ceased, it cannot be concluded that

defendant initiated a discussion of the case with Detective Gorham. In these ci rcumstances,

6 As a comparison, in both Quarles and Attebury , the Courts distinguished the brief questioning in those cases, which related directly to an immediate danger, from the facts in Orozco v Texas

, 394 US 324; 89 S Ct 1095; 22 L Ed 2d 311 (1969) . Specifically, the Quarles Court noted that the police questioning in Orozco involved questions that related “in part” to the “whereabouts of a gun.” Quarles , 467 US at 659 n 8. However, more genera lly, the police “vigorously” interrogated the suspect “about whether he had been present at the scene of the shooting and whether he owned a gun.” Id . The Supreme Court suppressed all of the suspect’s statements in

Orozco , and in Quarles , the Court remar ked that “the questions about the gun were clearly investigatory; they did not in any way relate to an objectively reasonable need to protect the police or the public from an immediate danger associated with the weapon.” Id . Or, as explained by the Michi gan Supreme Court, the questioning in Orozco was not justified by the public safety exception because it “included general investigation.” Attebury , 463 Mich at 674. The present case is like Orozco in that, even if there were some questions potentially b earing on matters of public safety, the interrogation as a whole involved “general investigation.” Id . As in

Orozco , all of defendant’s statements during this improper interrogation must be suppressed.- 9

- defendant argues that his alleged waiver of his Miranda rights during the second interview was presumptively involuntary and inherently invalid. We agree.

A. FACTUAL BACKGROUND

Following the first interrogation, which concluded at appro ximately 4:10 a.m. on February 21, 2016, defendant was transported to the Kalamazoo County Jail. Later that same day, beginning at approximately 2:25 p.m., while still in custody, defendant was interviewed a

second time , this time by Detective Gorham of t he Michigan State Police. The second interrogation took place in an interview room at the Kalamazoo County Sheriff ’ s Department.

A few minutes into h is conversation with defendant

— after asking how defendant was being treated, correcting defendant ’ s mista ken assumption that he was defendant ’ s lawyer, providing defendant with a Coke , asking if defendant was a “ religious man, ” and obtaining basic background information about defendant

— Detective Gorham began to Mirandize defendant. As Detective Gorham went through the Miranda rights, defendant acknowledged that he understood each of the rights , though he stated that he was “ surprised ” by “ the questions and stuff. ” The

discussion continued as follows:

Det. Gorham : If you waive your ri ght to have a lawyer present and later change your mind the questions will stop until you talk with a lawyer.

[ Defendant ]: Yeah.

Det. Gorham : Okay.

[ Defendant ]: I think I probably need to talk to a lawyer.

Det. Gorham : Okay. So you want to talk to an attorney before you speak with me about anything?

[ Defendant ]: Yeah. It ’ d probably be nice, yes.

Det. Gorham : Okay. All right. Do you understand that

—

[ Defendant ]: I

— I trust you, but there ’ s things that are different now.

Det. Gorham : Oh, I do n ’ t disagree with you, Jason. You know, I want

you to

— I ’ ll be honest with you, from a person

— from man to man here, we have a lot of things to consider here, okay? And I ’ m glad that you at least acknowledge me trying to do the right thing here.

[ Defendan t ]: Yeah.

Det. Gorham : Okay. The thing that I ’ ll share with you is sometimes there

is a

— obviously there ’ s always a lot of unanswered questions, but in your situation, sir, you ’ re just like me. You ’ re just an average Joe trying to make it through life.- 10

- [ Defendant ]: Yeah.

Det. Gorham : And, unfortunately, you have responsibilities at home, you

know.

[ Defendant ]: Yeah.

Det. Gorham : And you have

— those folks have some questions.

[ Defendant ]: Yeah.

Det. Gorham : And probably shedding a lot of tears that dad didn ’ t come home today.

[ Defendant ]: I would imagine so.

Det. Gorham : You know what I mean?

[ Defendant ]: Yeah.

Det. Gorham : So, I mean, you can

— I ’ m not here to convince you one way or the other. If you want to wish like you just said that you want to speak with an attorney first can I

— there ’ s two more lines on this thing. Can I read those to you and you can just tell me what you want to do from there?

[ Defendant ]: Right.

Det. Gorham : Is that fair?

[ Defendant ]: That ’ s fair.

Det. Gorham : Okay. Do you understand each of the rights that I ’ ve explained to you today, sir?

[ Defendant ]: Yes.

Det. Gorham : Okay. And I ’ ll just simply ask you this last statement and you can do what you want to do. Are you willing to give up these rig hts and answer my questions at this time?

[ Defendant ]: No.

Det. Gorham : Okay. All right. That is no problem. I ’ m just going to stay here and have a Coke with you.

[ Defendant ]: All right.

Det. Gorham : And then I ’ ll have them come take you back to your cell.

So I ’ m not talking about anything like that. You okay to talk about stuff?- 11

- [ Defendant ]: Yeah, we can talk about stuff.

Det. Gorham : Okay. What do you like to do?

[ Defendant ]: I like to

— I like to go to the dog park a lot.

Detective Gorham then engaged defendant in an approximately 10 minute conversation regarding dogs

— training dogs, breeding dogs, tracking with dogs

, Detective Gorham ’ s own experiences with dogs, defendant ’ s German Shepherd, and defendant ’ s relationship with his dog.

Toward the end of this discu ssion about dogs, the following exchange took place:

Det. Gorham : Yeah, it ’ s good though. You know, the hardest thing is obviously they pass on and it ’ s just like losing a family member, you know?

[ Defendant ]: Right.

Det . Gorham : It ’ s just devastating, you know.

[ Defendant ]: Sure.

Det. Gorham : So

— well, before

—

[ Defendant ]: What kind of questions did you want to ask me? If you just

want to ask me.

Det. Gorham : I had

— I have a gamut of stuff that I want to

— because I want to understand. I am a person

— I ’ ll tell you what I do. I talk to people all day long. You know, that ’ s primarily what I do.

[ Defendant ]: Yeah.

Det. Gorham : You know, and that ’ s

— I ’ m not out on the street. I ’ m in an office. Everybody usually co mes to me and talks to me in my office.

[ Defendant ]: Right.

Det. Gorham : But, you know, in terms of any types of questions, you know, like I said, I got

— if I said I only had one type of question I ’ d be lying to you. I have a herd

— a boat load of question s.

[ Defendant ]: Sure. Sure.

Det. Gorham : Stuff I just want to understand and try to understand you, you know.

[ Defendant ]: Right.

D etective Gorham made a several more general remarks relat ing to “ people beside professionals ” wanting to understand what happened, being metaphorically “ kicked d own in the cellar ” and trying to get out with God ’ s help, and the v alue of acknowledging problems and reflect ing on- 12

- past events. Detective Gorham also stated that he wished he could have met defendant 24

- hours

before and that he felt bad for the victims, for defendant, and for defendant ’ s family. After defendant again confirmed that he was being treated “ okay, ” the following exchange took place:

Det. Gorham : Good. Well, those guys f rom the (unintelligible) there. Those guys in the sheriff ’ s department uniform. Well, Jason, I have to make a quick phone call. And I ’ m just being honest with you, okay, because initially you said that you don ’ t want to talk to me.

[ Defendant ]: Yeah, but I do.

Det. Gorham : Okay. You know, I have to

—

[ Defendant ]: I do, but

—

Det. Gorham : Okay. Let me just call and see how they

— how they would feel about that. Maybe it ’ s something if I have to go back over your rights again.

[ Defendant ]: Would you do that for me, sir?

Det. Gorham : Absolutely. I ’ m not in no hurry here today. So

— I ’ d appreciate it if we could talk.

[ Defendant ]: I would

— I would like that very much.

Det. Gorham : Okay. Let me

— just stay seated. I got to step out. I ’ ll

make a phone call and come back and let you know, okay?

Detective Gorham left defendant alone in the room for a few minutes. When Detective Gorham returned, he again advised defendant of his Miranda rights

, and defendant indicated that he understood those right s. This time, when asked if he was willing to give up these rights and answer questions, defendant responded “ yes. ” During the interrogation that followed, defendant implicated himself in the shootings at all three locations in Kalamazoo County , though h e again

indicated that his body had been taken over . In total, the second interrogation lasted approximately four hours.

B. ANALYSIS

Considering the facts of this case, we conclude that the trial court erred by refusing to suppress defendant ’ s statement s during the second interview. First, in our view, by initiating the second interrogation despite the repeated violation of defendant ’ s right to remain silent during the first interview, law enforcement failed to scrupulously honor defendant ’ s invocation of his right to remain silent, and defendant ’ s statements during the second interview must therefore be suppressed. Second, even supposing that Detective Gorham could approach defendant for a second interview, the record shows that defendant unequivocally invoked his right to counsel and again unequivocally invoked his right to remain s ilent. Yet, Detective Gorham ignored

defendant ’ s invocation of his rights and continued to interrogate defendant, meaning that

defendant ’ s statements during the second inte rview must also be suppressed on this basis.- 13

- i

. INITIATING A SECOND INTERROGATION AFTER DEFENDANT INVOKED HI S

RIGHT TO REMAIN SILE NT DURING THE FIRST INTERROGATION

G iven defendant ’ s unequivocal invocation of his right to remain silent during the first

interview and the authorities ’ total disregard for this invocation , we agree with defendant ’ s assertion that the second interrogation was improper from its inception. As noted, under Mosley

, once a suspect in custody has invoked the right to remain silent

, the interrogation must cease and the admissibility of any statements made after an in

- custody suspect invokes the right to remain silent depends on whether the police “ scrup ulously honor ed ” the suspect ’ s decision to cut off questioning. Mosley , 423 US a t 100

- 101, 104. However, the Mosley Court was also clear that the right to cut off questioning under Miranda does not “ create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person i n custody has indicated a desire to remain silent. ” Id

. at 102

- 103. Instead

, when a suspect invokes the right to remain silent, “ the police must cease all questioning at that interview but can then initiate a subsequent interrogation if law enforcement officials ‘ scrupulously ’ honor the

defendant ’ s assertion of the right to remain silent. ” People v Crusoe , 433 Mich 666, 683 n 25 ; 449 NW2d 641 (1989) (emphasis added)

.

The scrupulously honored standard does not involve “ black

- and

- white l ine drawing; ” rather, w hether questioning can be properly reinitiated after a suspect invokes the right to remain

silen t depends on the circumstances of each particular case. People v Slocum (On Remand) , 219 Mich App 695, 701; 558 NW2d 4 (1996). Although not intended as an exhaustive list of factors,

the Mosley Court identified several circumstances relevant to a determination of whether authorities initiating a s econd interrogation after a suspect invokes his or her right to remain silent have scrupulous ly honored the suspect ’ s assertion of his or her right to remain silent. See

id . at 701

- 702. Specifically, in finding that the police had scrupulously honored the defendant ’ s rights in Mosley , the Court emphasized that (1) the police “ immediately ceased the [original] interrogation and did not try either to resume the questi oning or in any way to persuad [the suspect] to reconsider his positio n, ” (2) the police waited for a significant interval of “ more than

two hours ” before approaching the suspect a second time , (3) the suspect was again given the

Miranda warnings at the start of the second interview, and (4) the second interrogation related to

a different crime than the first interview and the second interview was conducted by a different police o fficer. Mosley , 423 US at 105. Summarizing the se circumstances, the Mosley Court

concluded:

This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the

in

terrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after

the passage of a si gnificant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation. [ Id . at 105

- 106.]

The present case bears little resemblance to Mosley . Mo st significantly, unlike Mosley

, the police in this case did not “ immediately ” cease the original interrogation. To the contrary, as discussed, they continued to question defendant for a prolonged period of time and the y actively- 14

- tried to persuade defendant to reconsider his decision to invoke his right to remain silent. 7

Indeed, t he police ’ s deliberate disregard of defendant ’ s invocation of his right to remain silent during the first interview cannot be overstated. Approximately 40 times, defenda nt stated tha t he wished to remain silent. Nevertheless, i n the fac e of this invocation, Detectives Moorian and Ghiringhelli interrogated defendant. D efendant was then interrogated by Detective Moorian and Sergeant McGhee

. After Sergeant McGhee left the interview room , Detectives Moorian and Ghiringhelli again interrogated defendant. This was not a “ brief period of initial questioning. ”

Cf. Mosley , 423 US at 106

- 107. In total, despite his repeated invocation of his right to remain silent, defendant wa s interviewed for over three hours , and in the face of this custodial interrogation, defendant did in fact in criminate himself. In short, u nlike Mosley , 423 US at 105, this is clearly a case “ where the police failed to honor a decision of a person in cust ody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. ”

In our view, given the police ’ s complete disregard of defendant ’ s invocation of his right to remain silent, Detective Gorham ’ s second interrogation on the afternoon of July 21, 2016 cannot be justified under Mosely . It is true that the second interrogation began approximately 10 hours after the first interrogation con cluded, which is a significant amount of time under Mosley

, and the second interrogation involved a different police officer and a re

- reading of defendant ’ s Miranda right s. However, unlike Mosley , Detective Gorham ’ s interview related to the same subject m atter as the first interrogation and, as discussed, unlike Mosley , the police did not immediately cease the original interview but instead ignored defendant ’ s repeated request to cut off questioning and attempted to persuade him to change his mind , giving defendant every reason to believe that the police had no intention of honoring his rights. Cf. Slocum , 219 Mich App at 704

- 705

. Against this backdrop

, on the afternoon of February 21, 2016, defendant was once again placed in an interrogation room with a police officer who , as discussed in more detail infra

, sought to have defendant change his mind, waive his rights, and answer question s about the shootings

. While no one factor is dispositive under Mosley

, see Slocum , 219 Mich App at

701

- 702, considering all of the circumstances, the police ’ s blatant

— and prolonged

— refusal to

honor defendant ’ s invocation of his right to r emain silent during the first interrogation is so completely antithetical to Miranda and the right to remain silent that

, despite the passage of

several hours and the re

- reading of defendant ’ s Miranda warnings

, 8 Detective Gorham ’ s

7 During the first interrogation, the police asked defendant for the “reason” he was invoking his right to remain silent . The authorities insisted that defendant owed it to his family, the victims’ families, and the community to provide “answers” and “clos ure.” They urged him not to let someone else tell his story and to instead tell his side of the story so that he did not look like a “monster.” They suggested that talking would do some “good,” that it would “help” defendant to talk, and that it would ma ke defendant “feel better” to talk.

8 “[P]olice cannot, as if by alchemy, negate [a suspect’s] invocation of his right to remain silent by mantra

- like recitation of Miranda warning.” United States v Lafferty , 503 F3d 293, 307 (CA 3, 2007) (quotation marks and citation omitted). “In fact, [t]he more times police inform a suspect of his rights in the face of his repeated invocation of one of those rights .

. . the clearer it- 15

- subsequent initiation of an interrogation cannot meet the scrupulously honored standard under Mosley

. Instead, on the facts of this case, Detectiv e Gorham ’ s interrogation of defendant was just another round in the authorities ’ persistent efforts to wear down defendant ’ s resistance and

undermine his will . See Mosley , 423 US at 102; Slocum , 219 Mich App at 704

- 705. B ecause the

authorities did not sc rupulously honor defendant ’ s invocation of his right to remain silent, his statements during the second interrogation must also be suppressed. 9 See Mosley , 423 US at

100 , 104 ; Henry , 305 Mich App at 148.

ii

. INVOCATION OF RIGHTS DURING THE SECOND INTERROGATION

Even assuming that Detective Gorham ’ s subsequent interrogation on the afternoon of February 21, 2016 could satisfy the scrupulously honored standard under Mosley , we would nevertheless conclude that the trial court erred by failing to suppress defendant ’ s state ments in

the second interview because defendant invoked both his right s to counsel and to remain silent, and Detective Gorham continued to interrogate defendant rather than honor these requests

.

As noted, b efore a suspect is subj ect to custodial interrogation, the suspect must be given

the Miranda warnings. Daoud , 462 Mich at 625 n 1. “ When a suspect has been afforded

Miranda warnings and affirmatively waives his Miranda rights, subsequent incriminating statements may be used ag ainst him, ” provided that the waiver of rights is voluntary, knowing, and intelligent. Tanner , 496 Mich at 209. However

, a s discussed, when a suspect invokes the right to remain silent, “ the police must cease all questioning at that interview but can the n initiate

becomes that the police must not mean what they say. This is exactly the type of s ubtle coercive pressure which the Miranda opinion condemned.” Id. (quotation marks and citation omitted).

9 Citing Oregon v Elstad , 470 US 298; 105 S Ct 1285; 84 L Ed 2d 222 (1985), the prosecutor asserts on appeal that “statements made in a voluntary con fession after an interrogation in

violation of the Miranda rules are not subject to suppression as fruit of a poisonous tree in the same way physical evidence is excluded under the Fourth Amendment.” This argument, made without any further explanation or analysis of the significance of Elstad on the facts of this case,

is abandoned. See People v Henry , 315 Mich App 130, 148; 889 NW2d 1 (2016). Nevertheless, we note briefly that Elstad involved two statements by a defendant, the first a voluntary

statemen t made before the defendant had been given Miranda warnings and the second a statement given after the defendant had been Mirandized. In these circumstances, the Court concluded that, while the first statement must be suppressed under Miranda , the second statement could be admissible, provided that the second statement was voluntary. Elstad , 470 US at 309, 314, 317

- 318. In contrast, in the present case, defendant was given Miranda warnings during the first interrogation and he invoked his ri ght to remain silent. The prosecutor provides no authority for the proposition that Elstad applies to a second interrogation that follows an invocation of the right to remain silent. Instead, when Miranda warnings have been given and the right to remain silent has been invoked during the first interrogation, the initial question with regard to a second interrogation is whether the second interrogation can meet Mosley ’s scrupulously honored requirement . See United States v Tyler , 164 F3d 150, 158 & n 13 ( CA 3, 1998). The second interrogation in this case does not meet this standard.- 16

- a subsequent interrogation if law enforcement officials ‘ scrupulously ’ honor the defendant ’ s assertion of the right to remain silent. ” Crusoe , 433 Mich at 683 n 25.

In comparison to the Mosley rule that allows police to re

- approach a suspect who has invoked the right to remain silent

, a suspect in custody who has expresse d “ h is desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, u nless the accused himself initiates further communication, exchanges, or conversations with the police. ” Edwards v Arizona , 451 US 477,

484

- 485; 101 S Ct 1880; 68 L Ed 2d 378 (1981). “ In the absence of such a bright

- line prohibition, the authorities thro ugh badger[ing] or overreaching

— explicit or subtle, deliberate or

unintentional

— might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel ’ s assistance. ” Smith v Illinois , 469 US 91, 98;

1 05 S Ct 490; 83 L Ed 2d 488 (1984) (quotation marks and citation omitted). Consequently

, “ if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked. ” Id . at 95

.

An accused “ initiates ” further communication with law enforcement when he makes a

statement that evinces a “ willingness and a desire for a generalized discussion about the investigation ” that could “ reasonably have been interpreted by the officer as relating generally to the investigation. ” Oregon v Bradshaw , 462 US 1039, 1045

- 1046; 103 S Ct 2830; 77 L Ed 2d 405 (1983). However, statements that are merely “ a nece ssary inquiry arising out of the incidents of the custodial relationship ” do not amount to an initiation of further communication with police for purposes of restarting interrogation. Id . at 1046 . Moreover, to conclude that a suspect has initiated furthe r communication with police about the investigation , there must of

course have been a break in the i nterrogation. See Christopher v F lorida , 824 F2d 836, 845 n 22 (CA 11, 1987) ( noting that police cannot “ continue a custodial interrogation despite a request to stop in the hope that the suspect will eventually ask a question ” )

.

“ For purposes of Miranda, interrogation refers to express questioning or its ‘ functional equivalent. ’ ” People v Kowalski , 230 Mich App 464, 479; 584 NW2d 613 (1998), quoting

Rhode Island v Innis , 446 US 291, 300

- 301; 100 S Ct 1682; 64 L Ed 2d 297 (1980). “ The functional equivalent of interrogation includes any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the polic e should know are reasonably likely to elicit an incriminating response from the suspect. ” Kowalski , 230 Mich App

at 479 (quotation marks and citation omitted)

. Thus, not all communications between police and a suspect constitute custodial interrogation. Id

. at 480.

Communications between police and a suspect in custody are commonplace. It is useful to contrast the circumstances of this case with typical, and permissible, custodial communications between police and a suspect who has asked for counsel. For example, police do not impermissibly “ initiate ” renewed interrogation by engaging in routine conversations with suspects about unrelated

matters. And police legitimately may inquire whether a suspect has changed his mind about speaking to them without an attorney. [ Id. (quotation marks and

citation omitted ; emphasis in Kowalski ).]- 17

- Depen ding on the circumstances, “ casual conversation ” or “ small talk ” also may not constitute interrogation or its functional equivalent. See, e.g., Mickey v Ayers , 606 F3d 1223, 1235 (CA 9, 2010); United States v Goist , 59 Fed App ’ x 757, 763 (CA 6, 2003).

In this case, Detective Gorham asked defendant whether he wanted to talk to an attorney before speaking “ about anything, ” and it is undisputed that defendant unequivocally invoked his right to counsel by responding “ Yeah. It ’ d be probably be nice, yes. ” Despite this invocat ion,

Detective Gorham did not end the interview. Instead, he discussed defendant ’ s “ responsibilities at home, ” the “ folks ” who have questions, and defendant ’ s children “ shedding a lot of tears that

dad didn ’ t come home today. ” W hile i t is a bright

- line rule that all questioning must cease after an accused requests counsel, Detective Gorham then asked whether he could finish reading the

Miranda warnings so that defendant could tell him what he wanted to do from there. Cf. Smith

, 469 US at 93, 98. After finishing the Miranda rights, Detective Gorham asked if defendant was willing to give up his rights and answer questions. Defendant responded “ no, ” thereby also invoking his right to remain silent. See Henry , 305 Mich App at 147.

Alth ough defendant had made clear that he did not want to talk about anything without an attorney, and despite defendant ’ s invocation of his right to remain silent, Detective Gorham

remained in the interview room to “ have a Coke ” with defendant, and he again a sked defendant to talk, asking defendant whether it would be “ okay to talk about stuff? ” Detective Gorham then began to question defendant about “ stuff ” by asking what defendant liked to do, and defendant responded that he liked to go to the dog park. Fo llowing this reference to the dog park, Detective Gorham engaged defendant in a 10 minute discussion of dogs, asking defendant various questions about his German Shepard and sharing his own experiences with dogs.

According to the prosecutor, there was a break in the interrogation because th e discussion of dogs amounted to nothing more than small talk

, and thus the prosecutor contends that defendant initiated further communication with Detective Gorham when , toward the end of the dog conversation, he asked Detective Gorham what kind of questions he wanted to ask and stated

“ [i]f you just want to ask me. ” Contrary to the prosecutor ’ s argument, we are persuaded that the interrogation never ceased. From the o utset of the second interrogation, Detective Gorham had made plain that he wanted answers about the shootings. When defendant invoked his rights and refused to answer questions, Detective Gorham did not end the interrogation and he did not give

defendant time to consult an attorney. Instead, Detective Gorham and defendant remained in the interrogation room, and Detective Gorham seamlessly kept the conversation moving. Detective

Gorham ’ s continued conversations with defendant certainly cannot be described as a “ bare inquiry ” about “ routine ” matters, such as an offer of water or to use a telephone. See Bradshaw

, 462 US at 1045. It is true that Detective Gorham eventually focused his questions on dogs, and

in other circumstances

, this conversation about do gs might be considered small talk that would

not rise to the level of interrogation. See Mickey , 606 F3d at 1235; Goist , 59 Fed App ’ x at 763. But, in this case, Detective Gorham specifically acknowledged at the suppression hearing that attempting to form a bond with a suspect was a common interrogation technique to get the- 18

- person to “ open . . . up. ” 10 Significantly, defendant had in fact been subjected to this interrogation technique earlier that same day during the first interrogation when the detectives

asked defendant numerous rapport

- building type questions about his dog, his family, his hobbies,

etc. I n other words, th e dog conversation initiated by Detective Gorham in the confines of an interrogation room after defendant invoked his rights cannot be excused as casual conversation

. Ra ther, particularly in light of the first interrogation, an objective observer would clearly

conclude that defendant was once again being subjected to the police’s efforts to wear down

defendant and to persuade defendant to incriminate himself despite his invocation of his rights.

See Smith , 469 US at 98

. These words and actions, which Detective Gorham should have kno wn were reasonably likely to elicit an incriminating response from defendant, constituted interrogation. See White , 493 Mich at 195

- 196. Because the custodial interrogation never ceased, def endant cannot be said to have initiated further communication wi th Detective

Gorham

. Cf. Christopher , 824 F2d at 845. Consequently, defendant ’ s incriminating statements during the second interview, made after he invoked his right to counsel and his right to remain silent, must also be suppressed. See Smith , 469 US a t 98; Mosley , 423 US at 104.

We reverse the trial court’s partial denial of defendant’s motion to suppress and remand to the trial court for entry of an order granting defendant ’ s motion to suppress the statements he made in both interviews conducted by law enforcement. We do not retain jurisdiction.

/s/ Joel P. Hoekstra /s/ William B. Murphy /s/ Jane E. Markey

10 When considering whether a suspect has been subjected to interrogation, “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.” White , 493 Mich at 196. Nevertheless, the police officer’s subjective intent may be relevant because “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 . (quotation marks and citation omitted).