MSC: Police ‘Impermissibly’ Kept Questioning Defendant After Right To Counsel Was Invoked

The trial court properly granted a criminal defendant’s motion to suppress statements he made to police after he invoked his right to counsel, the Michigan Supreme Court has ruled.

In People v Fenderson (Docket No. 167391), the high court held that Detroit police violated the defendant’s Fifth Amendment right to counsel by 1) continuing to question him after he invoked his right to an attorney and 2) misleading him about whether an appointed lawyer was available. Accordingly, the justices reversed the Michigan Court of Appeals decision in the case (Docket No. 367926), which had overturned the trial court’s suppression order.

“In this instance, police provided Miranda v Arizona, 384 US 436 (1966),] warnings, and defendant asserted his right to have an attorney present during questioning and his right to have counsel provided at the public’s expense,” the Michigan Supreme Court wrote. “After the invocation of these rights, police must either provide counsel for a suspect or terminate the interrogation.”

When the defendant first invoked his right to counsel, “police tried to obtain an attorney for him,” the high court explained. “They returned empty-handed, over two and a half hours later, telling defendant that he did not have an attorney and could not use the money taken from him during arrest to obtain one. Thereafter, in response to defendant’s questions about what was going on, police resumed the interrogation.”

Based on all the circumstances, “[w]e agree with the trial court that defendant’s Fifth Amendment rights under Miranda were violated,” the justices held. “We therefore reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings ….”

Justice Kimberly A. Thomas wrote the 26-page opinion, joined by Chief Justice Megan K. Cavanagh and Justices Richard H. Bernstein, Elizabeth M. Welch, Kyra H. Bolden and Noah P. Hood.

Justice Brian K. Zahra dissented. “After carefully reviewing the interrogation, I am left with the firm belief that the police did not engage in coercive conduct, which is the touchstone of a Fifth Amendment violation,” he stated. “Nor did they say anything that would reasonably lead defendant to believe that he did not have the right to an attorney.”

When viewed in its entirety, “the conduct of the Detroit Police Department exemplifies sound police work that was fully consistent with constitutional principles,” Justice Zahra said. “I agree with the Court of Appeals’ majority opinion that defendant’s decision to waive his rights was made voluntarily, knowingly, and intelligently and that the officers did not violate defendant’s right to be free from self-incrimination under the Fifth Amendment ….”

Custodial Interrogation

The defendant, Daren D. Fenderson, was arrested and jailed in connection with a fatal shooting. He was charged with first-degree premeditated murder (MCL 750.316(1)(a)), felony-firearm (MCL 750.227b) and escape from lawful custody (MCL 750.197a). Detroit police read the defendant his rights under Miranda but did not interrogate him at the time of his arrest because they believed he was intoxicated.

The next day, Detroit Police Sergeant Reginald Beasley again provided the defendant his Miranda warnings and the defendant voluntarily signed an advice-of-rights form. After about an hour of questioning, police told the defendant that “there were a lot of holes in his story.” The defendant invoked his right to counsel at this point. He indicated that he needed appointed counsel and asked how long it would take. Beasley told the defendant that he would “make a couple phone calls.”

After returning some two hours and 45 minutes after the defendant invoked his right to counsel, Beasley did not provide the defendant with information about efforts to find an attorney. Another officer who had accompanied Beasley then removed the defendant’s handcuffs, turned the defendant around and cuffed him with his arms behind his back. The defendant then asked where his lawyer was. The audio on the interrogation video was unclear, but Beasley responded either “You don’t got one” or “You don’t get one.”

At this time, the defendant appeared confused. Beasley told the defendant that police tried to call a lawyer but no one was available and the defendant had no money. Thereafter, the defendant asked whether he could use the money he had in his possession when he was arrested to hire an attorney, and Beasley said that he could not. The defendant then asked, “So what’s going on?” Beasley answered that the defendant had asked for an attorney and that he could not speak to the defendant without one, “[s]o the story you got is the story we gon’ go with.”

The defendant remained confused and when Beasley asked the defendant why he was confused, he responded that he did not know what was going on and that police had not told him anything. Beasley again stated that the defendant had requested an attorney and, therefore, he could not speak to the defendant about the case. Beasley also said that, if the defendant wanted to talk, he had to say he wanted to talk without an attorney. The defendant repeatedly said that he wanted “to get this over with,” to which Beasley responded that he could go over the defendant’s rights with him again, if he agreed to talk without an attorney.

The defendant agreed to talk without an attorney and emphasized that he wanted “to get this over with.” Beasley indicated that he did not want the defendant to feel compelled to talk to him, but that if the defendant wanted to talk without an attorney present, Beasley would talk to the defendant. To this, the defendant said “Yeah.” Beasley again stated that he did not want the defendant to feel forced and asked, “Is that something you want to do?” The defendant answered, “Yes.”

The defendant started crying when Beasley left the interrogation room. When another sergeant who had not previously spoken to the defendant came into the room, the defendant said, “I don’t understand this.” The sergeant explained that he was there to reestablish the defendant’s rights and so he read the Miranda warnings again. After each warning, the sergeant asked the defendant if he understood his rights, to which the defendant responded, “with a mix of verbal agreement and nonverbal affirmative head nods.” When the sergeant asked if anyone had forced, threatened or coerced the defendant to make a statement, he responded, “See, that’s what I … I don’t understand what’s going on.” The sergeant asked if the defendant wanted to talk to police and the defendant agreed to do so. The defendant initialed another advice-of-rights form and the sergeant left. Beasley and Detective Douglas Williams returned to the room, at which time the defendant made incriminating statements.

At trial in Wayne County Circuit Court, the defendant moved to suppress the incriminating statements on the grounds that he did not voluntarily, knowingly and intelligently waive his Miranda right to counsel. The trial court granted the defendant’s motion to suppress, ruling that police communications with the defendant had frustrated the advice of rights required by Miranda. The trial court further held that police reinitiated the interrogation after the defendant’s invocation by readministering Miranda warnings.

On appeal, the Court of Appeals reversed the suppression of the defendant’s statements in a split opinion. In its analysis, the majority “essentially conducted a standard totality-of the-circumstances inquiry into whether the waiver was knowing, intelligent, and voluntary ….” Pointing out the defendant “was 24 years old at the time of the interrogation, had completed three years of high-school education, was not ‘intoxicated, drugged, or otherwise incapacitated’ and ‘was not physically or psychologically abused or threatened in any way,’ the majority concluded that his waiver was valid.” But according to the sole dissenting judge, the defendant “was ‘backed into a corner and agreed to continue without counsel as a result of the coercive atmosphere created by Sergeant Beasley.’”

The defendant appealed to the Michigan Supreme Court, which ordered and heard oral argument.

‘Scare Tactic’

In its analysis, the Michigan Supreme Court pointed out the defendant initially waived his Miranda rights but subsequently asserted his right to appointed counsel.

“After invocation of the Fifth Amendment right to counsel, questioning of a suspect must cease,” the justices said, citing Edwards v Arizona, 451 US 477 (1981). “A valid waiver of that right ‘cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation even if he has been advised of his rights.’ … Statements following the invocation of counsel are admissible only if counsel is made available to the suspect for questioning or if the state shows that the suspect himself reinitiated the investigation. … The Edwards reinitiation rule is grounded in the concern that ‘a suspect may be coerced or badgered into abandoning his earlier refusal to be questioned without counsel ….’”

Here, the defendant “was not provided with counsel,” the high court said. “Instead, after having defendant wait two and a half hours for an attorney, police engaged defendant in a conversation that the trial court described as a ‘scare tactic’ that undermined defendant’s assertion of the right to counsel. … Independent of the Edwards presumption of involuntariness, police who give ‘confusing and inaccurate’ advice about the Miranda warnings, even when the standard rights have been provided, do not ‘reasonably convey’ a suspect’s rights.”

Rather than providing him an attorney, the defendant was told “You don’t got one,” “You don’t have a lawyer,” and “We tried to call one. Ain’t nobody available and you ain’t got no money,” the Michigan Supreme Court observed. “These statements after the invocation of counsel can reasonably be understood, as indicated by the trial court, as suggesting that defendant’s right to have an attorney present during questioning was dependent on his ability to retain counsel through his own funds. The statements are not consistent with Miranda’s assertions that suspects have a right to counsel and that, if they cannot afford counsel, counsel will be provided.”

The defendant “repeatedly told his interrogators that he was ‘confused’ and ‘d[idn’t] understand,’” the justices explained. “Defendant’s response was understandable. Police spent hours purportedly looking for an attorney, then returned to take him to jail without providing any update on their efforts to secure counsel. When defendant asked where his lawyer was, he was told that he did not have an attorney, that he did not have money for an attorney, and that no other attorney was available. When told that a lawyer was not available, defendant asked multiple clarifying questions and stated that he was confused. When police later read defendant his rights again and asked if he had been coerced to make a statement, defendant said that he did not understand.”

No ‘Reinitiation’ Of Interrogation

Next, the Michigan Supreme Court emphasized that police “did not err because they failed to provide an attorney.” Rather, police erred “by suggesting that defendant could not be questioned with an attorney present because he did not have the money to hire one. This confusing and inaccurate information undermined the advice of rights previously read to defendant.”

Accordingly, “[b]y undermining the advice of rights and implying that the right to have an attorney present during questioning was predicated on the ability to pay for an attorney, police in this case violated defendant’s Fifth Amendment right to counsel under Miranda,” the high court said.

Moreover, “[o]nce a suspect has invoked his right to counsel, the suspect must reinitiate the [interrogation] in order for questioning to permissibly continue,” the justices explained. “The prosecution contends that the Edwards presumption of involuntariness was overcome because defendant reinitiated the interrogation. Our Court has not squarely addressed a case involving allegations of reinitiation after Miranda invocation prior to this one.”

Looking to statements the defendant made after police tried to get a lawyer for him, the Michigan Supreme Court concluded the prosecution did not show the defendant reinitiated the interrogation under Edwards. “The prosecution asserts that defendant reinitiated when he asked Beasley, ‘So what’s going on?’ after Beasley returned from an extended absence ….”

However, in the context of a discussion about whether – after having invoked his right to counsel – the defendant had an attorney and whether he could use the money he had for an attorney, “the question ‘So what’s going on?’ cannot reasonably be considered an affirmative request to reinitiate the interrogation without an attorney,” the high court observed. “Perhaps in other settings these words might lead a reasonable police officer to believe that defendant was initiating conversation that related generally to the investigation. Finding so here would completely strip defendant’s question from the context in which it was asked. Defendant was still pursuing his constitutional right to have counsel at his interrogation and appeared confused about why he was being returned to jail after he had been told that police were attempting to find an attorney to be appointed for him.”

The trial court record “lacks any findings with respect to defendant’s reinitiation, and the prosecution has not borne its burden to show that defendant reinitiated,” the justices explained. “Defendant’s questions about the status of his attorney were in pursuit of his invocation of the right to counsel, not an expression of willingness to talk generally about the investigation without counsel. As a result, the subsequent Miranda waiver and questioning do not overcome Edwards and the confusion created about defendant’s right to counsel.”

The Michigan Supreme Court continued by noting that after the defendant was told he did not have an attorney and could not use his own money for an attorney, “police continued the same theme from prior to defendant’s invocation of counsel, where they suggested that defendant’s story had holes and did not make sense. … Police told him that waiver of his rights was the way to tell another story and that otherwise he would be stuck with the prior story. … Instead of honoring the invocation of rights or providing defendant with counsel, police engaged in further exchanges with defendant to prompt him to give a different story.”

According to the justices, “This is the questioning after the invocation of counsel that the Fifth Amendment and Article 1, § 17 prohibit. Instead of either providing counsel or terminating the interrogation, as required, police asserted that they were going to provide counsel but then stated that defendant did not have counsel and implied that counsel would not be provided because he did not have money. The prosecution cannot overcome the presumption that defendant’s statements following his assertion of counsel were involuntary. … This constitutes a failure to scrupulously honor defendant’s invocation of his right to counsel in violation of Miranda and Edwards.”

In conclusion, the high court held: “The Court of Appeals erred in reversing the trial court’s order suppressing defendant’s postinvocation statements. The trial court correctly concluded that defendant’s waiver was invalid. Police undermined the advice of rights required by Miranda and impermissibly continued the interrogation after defendant invoked his right to counsel. Under both the federal and state Constitutions, suppression is required. Accordingly, we reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings.”