
    People v Raymond Davis,
    No. 138225;
   Court of Appeals No. 282886.

Markman, J.

(dissenting). Defendant was charged with possession of ecstasy, being a felon in possession of a firearm, possession with intent to deliver marijuana, and possession of a firearm during the commission of a felony. The trial court suppressed evidence of defendant’s incriminating statement to the police on the ground that he was interrogated without first being advised of his Miranda rights after he was arrested, Miranda v Arizona, 384 US 436 (1966). The Court of Appeals affirmed. People v Davis, unpublished opinion per curiam of the Court of Appeals, issued December 18, 2008 (Docket No. 282886).

While the police were executing a search warrant at a house, defendant jumped out of a bedroom window. He was brought back into the house and asked whether he lived there. Defendant indicated that he was living at the house. After narcotics were found in the house, defendant was arrested and advised of his Miranda rights. Defendant again indicated that he lived at the house.

A defendant must be made aware of his Miranda rights prior to a custodial interrogation. A “custodial interrogation” is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Yarborough v Alvarado, 541 US 652, 661 (2004). “[Cjustody must be determined based on how a reasonable person in the suspect’s situation would perceive his circumstances.” Id. at 662. I agree with the trial court that defendant was in custody. He tried to leave the house, the police prevented him from doing so, brought him back into the house, and handcuffed him. A reasonable person in defendant’s situation would have believed himself to have been in custody.

I also agree with the trial court that defendant was subjected to interrogation. “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v Innis, 446 US 291, 301 (1980). Here, the police asked defendant if he lived at the house that they had reason to believe contained drugs. Thus, they should have known that they were likely to elicit an incriminating response. Accordingly, the statement made before defendant was advised of his Miranda rights was made during a custodial interrogation, and, thus, would seem to be inadmissible.

The more difficult issue here is whether the subsequent statement made after defendant was advised of his Miranda rights is also inadmissible. In Missouri v Seibert, 542 US 600 (2004) (a plurality opinion), the United States Supreme Court held that the police cannot deliberately wait to advise a defendant of his Miranda rights until after a station-house interrogation produces a confession and then admit the statement made after Miranda rights are given. However, the Seibert Court also held that Oregon v Elstad, 470 US 298 (1985), remained good law. In Elstad, the Court held that if the failure to warn before the initial statement constituted an oversight, and the initial statement was made at the suspect’s home and the subsequent statement was made after the suspect was advised of his rights and after a station-house interrogation, the subsequent statement is admissible because “any causal connection between the first and second responses to the police was ‘speculative and attenuated.’ ” Seibert, 542 US at 615, quoting Elstad, 470 US at 313. The pertinent question is “Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture?” Seibert, 452 US at 612. “Could they reasonably convey that he could choose to stop talking even if he had talked earlier?” Id. The Court articulated several factors to evaluate when determining whether “Miranda warnings delivered midstream could be effective enough to accomplish their objective: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” Id. at 615.

This case is similar to Elstad in several important respects — the failure to advise defendant of his Miranda rights appears to have been an oversight and the custodial interrogation was not carried out in a station-house environment. However, in other respects, this case is similar to Seibert — the questions and answers were the same on two occasions and they occurred relatively closely in time. I would grant leave to appeal.

Corrigan, J. I join Justice Markman’s statement insofar as he sees a jurisprudentially significant issue in defendant’s post-Miranda statement. I would additionally grant leave to appeal on the issue whether the police officer’s questions regarding defendant’s address truly constituted custodial interrogation under Rhode Island v Innis, 446 US 291 (1980), or amounted to routine booking questions.

Young, J. I join the statement of Justice Markman. 
      
      
        Miranda v Arizona, 384 US 436 (1966).
     