-1-

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UNPUBLISHED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: HOEKSTRA, P.J., and MURPHY and MARKEY, JJ.

PER CURIAM.

Defendant appeals as on leave granted1 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 interrogations, we 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 restaurant. Defendant was arrested in the early morning hours 

of February 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 this first interrogation, defendant was 

transported to the Kalamazoo County Jail. Later that same day, in the afternoon, defendant was 

interrogated a second time at the Kalamazoo County Sheriff’s Department by a detective 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 the 

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 rights, defendant changed his mind, initiated a discussion 

with police, and thereafter voluntarily waived his rights. 

The 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 all of his incriminating 

statements made during the first and second interrogations. 

I. STANDARDS OF REVIEW

When reviewing a decision on a motion to suppress, we 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). We 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).

II. THE FIRST INTERVIEW

On appeal, defendant argues that the public safety exception does not apply 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 must be suppressed because defendant invoked his right to 

remain silent and the police failed to scrupulously honor this right. We agree.

A. FACTUAL BACKGROUND

At approximately 1:00 a.m. on February 21, 2016, defendant was brought into 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 off

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

bathroom. 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 were 

made, Detective Moorian stated:

 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 agreed, and after informing defendant that he was not free to leave, Detective 

Moorian then advised defendant of his Miranda rights.

At the conclusion of the Miranda warnings, Detective Moorian asked defendant whether 

it was “okay if we talk?” Defendant responded that he would “kind of prefer not to talk.” The 

following exchange then took place:

Det. Moorian: Okay. 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 would 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 interrogated defendant. In the course of the 

interrogation, among other topics, police questioned defendant about the shootings, his 

motivation for the 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 

need for “closure” and “answers.” Although the interview began with Detectives Moorian and 

Ghiringhelli, Detective Ghiringhelli was later replaced 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 implicated himself in the shooting at the restaurant, though he 

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

that he did 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 the possibility of other unknown victims or other unidentified crime scenes. First, 

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

else who might need medical attention, and defendant answered “no.” Second, over an hour into 

the interview, police asked defendant several questions about the number of shooting 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 stated that he wanted to “plead the Fifth,” but he also made a potentially incriminating 

statement by indicating that he knew “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 restaurant 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 responded “Yeah,” though earlier defendant said that he knew he had 

 3 Defendant 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” unequivocally 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 the people in question. After more than three hours, the interrogation finally concluded 

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

B. ANALYSIS

“The United States Constitution and the Michigan Constitution 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 nowfamiliar 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) that 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 statements 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 

considered critical safeguards against compelled self-incrimination, 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). “When 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 

defendant’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 citation 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; any 

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 choice 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 interview, 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 rights at the 

outset of the interview. However, rather than waive his rights, defendant unequivocally, and 
-6-

repeatedly, asserted his right to remain silent. Yet, in 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, the 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 exception, 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 enforcement 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 inquiry 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 exception 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 public 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 his 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 might 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 Attebury, 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 

functional 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 relating to 

investigation of the crime.” Id. (emphasis added).

In contrast to Quarles and Attebury, in this case, the detectives’ disregard of defendant’s 

invocation of his right to remain silent, and their three hour interrogation of defendant while 

defendant was in custody at the police station, is not justified based on the public safety 

exception. Quite simply, the 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, the 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 occasionally 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 these 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 appeal 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-Miranda 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 immediate 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 were 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 

purported public safety questions—most 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 exception is untenable. The 

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.

III. 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, defendant 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 his 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 contends that he was at all times subjected 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 circumstances, 

 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 generally, 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 remarked 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 Michigan 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 bearing 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 approximately 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 the Michigan State Police. The second 

interrogation took place in an interview room at the Kalamazoo County Sheriff’s Department.

A few minutes into his conversation with defendant—after asking how defendant was 

being treated, correcting defendant’s mistaken 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 right 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 don’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.

[Defendant]: 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 rights 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 discussion 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 comes 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 questions.

[Defendant]: Sure. Sure.

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

you know.

[Defendant]: Right.

Detective Gorham made a several more general remarks relating to “people beside professionals”

wanting to understand what happened, being metaphorically “kicked down in the cellar” and 

trying to get out with God’s help, and the value of acknowledging problems and reflecting 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 from 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 rights. 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 he 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 statements 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 silent. Yet, Detective Gorham ignored 

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

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

i. INITIATING A SECOND INTERROGATION AFTER DEFENDANT INVOKED HIS 

RIGHT TO REMAIN SILENT DURING THE FIRST INTERROGATION

Given 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 “scrupulously honored” the suspect’s decision to cut off 

questioning. Mosley, 423 US at 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 in 

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 line drawing;”

rather, whether questioning can be properly reinitiated after a suspect invokes the right to remain 

silent 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 second interrogation after a suspect invokes his or her right to remain 

silent have scrupulously 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 questioning or in any way to persuad [the 

suspect] to reconsider his position,” (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 officer. Mosley, 423 US at 105. Summarizing these 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 

interrogation 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 significant 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. Most 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 they actively
-14-

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

Indeed, the police’s deliberate disregard of defendant’s invocation of his right to remain silent 

during the first interview cannot be overstated. Approximately 40 times, defendant stated that he 

wished to remain silent. Nevertheless, in the face of this invocation, Detectives Moorian and 

Ghiringhelli interrogated defendant. Defendant 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 was interviewed for over three hours, and in the face of this custodial

interrogation, defendant did in fact incriminate himself. In short, unlike Mosley, 423 US at 105, 

this is clearly a case “where the police failed to honor a decision of a person in custody 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 concluded, 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 rights. However, unlike Mosley, Detective Gorham’s interview related to the same 

subject matter 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 questions 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 remain 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 “closure.” 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 make 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, Detective 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. Because the 

authorities did not scrupulously 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 statements in 

the second interview because defendant invoked both his rights to counsel and to remain silent, 

and Detective Gorham continued to interrogate defendant rather than honor these requests.

As noted, before a suspect is subject 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 against him,” provided that the waiver of rights is voluntary, knowing, 

and intelligent. Tanner, 496 Mich at 209. However, as discussed, when a suspect invokes the 

right to remain silent, “the police must cease all questioning at that interview but can then initiate 

 

becomes that the police must not mean what they say. This is exactly the type of subtle 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 confession 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 

statement 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 right 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 expressed “his 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, unless 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 through 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; 

105 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 necessary 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 further communication with police about the investigation, there must of 

course have been a break in the interrogation. See Christopher v Florida, 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 police 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-

Depending 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 invocation, 

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.” While it 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.

Although 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 asked 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. Following 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 the 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 outset 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 dogs 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. In other words, the dog conversation initiated by Detective Gorham in the confines of an 

interrogation room after defendant invoked his rights cannot be excused as casual conversation.

Rather, 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 known 

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, defendant cannot be said to have initiated further communication with 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 at 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).