
    PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Laricca Seminta MATHEWS, Defendant-Appellee.
    No. 339079
    Court of Appeals of Michigan.
    Submitted May 9, 2018, at Detroit. Decided May 22, 2018, at 9:10 a.m.
    Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Matthew A. Fillmore, Assistant Prosecuting Attorney, for the people.
    Law Offices of Joseph A. Lavigne (by Joseph A. Lavigne ) for defendant.
    Before: O'Connell, P.J., and Hoekstra and K. F. Kelly, JJ.
   Hoekstra, J.

Defendant has been charged with open murder, MCL 750.316, discharge of a firearm in a building, MCL 750.234b, and two counts of possession of a firearm during the commission of a felony, MCL 750.227b. Before trial, defendant filed a motion to suppress statements she made to police based on the contention that the police failed to adequately advise her of her rights as required by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). The trial court granted defendant's motion. The prosecution filed an interlocutory application for leave to appeal in this Court, which we denied. The prosecution then filed an application for leave to appeal in the Michigan Supreme Court, and in lieu of granting leave, the Supreme Court remanded to this Court for consideration as on leave granted, specifically instructing this Court "to consider whether either of the bases for suppression advanced by the defendant in the trial court rendered the warnings in this case deficient" under Miranda . People v. Mathews , 501 Mich. 950, 950, 904 N.W.2d 865 (2018). On remand, we find no merit to defendant's assertion that the police were required to inform her that she could cut off questioning at any time during the interrogation. However, because generally advising defendant that she had "a right to a lawyer" did not sufficiently convey her right to consult with an attorney and to have an attorney present during the interrogation, we conclude that the Miranda warnings in this case were defective and affirm the trial court's suppression of defendant's statement.

This case arises from the shooting death of defendant's boyfriend, Gabriel Dumas, who was killed in defendant's apartment on August 12, 2016. After the shooting, defendant called 911 and told the dispatcher that she had shot Dumas. Police responded to the scene, and defendant was taken into custody and transported to the Wixom Police Department. At the police station, defendant was interviewed twice. Detective Brian Stowinsky conducted the first interview. During the first interview, Stowinsky presented defendant with a written advice-of-rights form, which stated:

Before any questions are asked of you, you should know: (1) you have a right to remain silent; (2) anything you say may be used against you; (3) you have a right to a lawyer, and (4) if you cannot afford a lawyer, one will be provided free.
I understand what my rights are and am willing to talk.

Stowinsky also orally reviewed the statements on the advice-of-rights form with defendant. Specifically, the following exchange took place:

[Detective Stowinsky]: Ok, um, I'm going to review these, ok?
[Defendant]: Uh hmm.
[Detective Stowinsky]: I'm going to read these to you.
[Defendant]: Uh hmm.
[Detective Stowinsky]: Um, before I question, start asking you, you should know that you have a right to remain silent.
[Defendant]: Uh hmm.
[Detective Stowinsky]: Anything you say maybe [sic] used against you. You have a right to a lawyer, if you cannot afford a lawyer, one will be provided for free. Do you understand your rights?
[Defendant]: Yes.

Defendant agreed to talk with Stowinsky, and she signed the advice-of-rights form. During the questioning that followed, defendant told Stowinsky that she quarreled with Dumas, that Dumas attacked her, and that she shot him.

Later the same day, defendant was interviewed a second time by Sergeant Michael DesRosiers. At the beginning of that second interview, the following exchange took place between defendant and DesRosiers:

[Sergeant DesRosiers]: Alright, so um, Detective Stowinsky, remember he talked about your rights and everything?
[Defendant]: Uh hmm.
[Sergeant DesRosiers]: Same thing applies. Um, you don't, you don't have to even talk to me if you don't want to. You can get an attorney um, if you can't afford one, we'll make sure you get one.
[Defendant]: Ok.
[Sergeant DesRosiers]: So, um, we're just continuing the interview that you started with him.

DesRosiers then proceeded to question defendant about inconsistencies between her previous statements and the physical evidence, including the location of Dumas's fatal bullet wound. Defendant again admitted shooting Dumas, and she attempted to explain the location of the bullet wound by suggesting that the bullet may have ricocheted. She also suggested that the shooting may have been an accident insofar as her finger may have "slipped" while on the trigger because it was "so hot and muggy."

Following a preliminary examination, defendant was bound over for trial in the circuit court. In the circuit court, defendant moved to suppress her statements to the police, asserting that the Miranda warnings given before her interviews were inadequate because (1) the police failed to advise her that she could terminate the interrogation at any point and (2) the police did not inform her that she had the right to consult with an attorney before the interview and to have an attorney present during the interrogation. The trial court did not address whether the police were required to inform defendant that she had an ongoing right to cut off questioning at any point. Nevertheless, the trial court granted defendant's motion to suppress, reasoning that the Miranda warnings were defective because the police failed to inform defendant that she had the right to have an attorney present before and during the interrogation. The prosecution filed an interlocutory application for leave to appeal, and the case is now before us on remand from the Michigan Supreme Court for consideration as on leave granted.

On appeal, the prosecution argues that the warnings given to defendant complied with Miranda and that the trial court erred by suppressing defendant's statements to police. First, with regard to a suspect's right to cut off questioning, the prosecution asserts that Miranda does not require police to give an explicit warning that a suspect may terminate the interrogation at any time. Second, in terms of a suspect's right to the presence of counsel, the prosecution argues that, although the warnings given to defendant did not expressly advise her of her right to the presence of counsel during the interrogation, the warnings given before defendant's interrogations were sufficient because they advised defendant that she had the right to a lawyer. According to the prosecution, Miranda does not require the police to provide a suspect with more specific information regarding the right to the presence of an attorney before and during questioning.

When reviewing a decision on a motion to suppress, we review a trial court's factual findings for clear error. People v. Tanner , 496 Mich. 199, 206, 853 N.W.2d 653 (2014). "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." id. (quotation marks and citation omitted). "We review de novo a trial court's ultimate decision on a motion to suppress." People v. Beuschlein , 245 Mich. App. 744, 748, 630 N.W.2d 921 (2001).

"Both the state and federal constitutions guarantee that no person shall be compelled to be a witness against himself or herself." People v. Cortez (On Remand) , 299 Mich. App. 679, 691, 832 N.W.2d 1 (2013)

(opinion by METER , J.). To protect this constitutional guarantee against compelled self-incrimination, before any custodial interrogation, the police must give a suspect the now-familiar Miranda warnings. People v. Daoud , 462 Mich. 621, 624 n. 1, 614 N.W.2d 152 (2000). In particular, under Miranda , a suspect must be provided four essential warnings as follows:

"[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." [ Florida v. Powell , 559 U.S. 50, 59-60, 130 S.Ct. 1195, 175 L.Ed. 2d 1009 (2010), quoting Miranda , 384 U.S. at 479, 86 S.Ct. 1602 (alterations by the Powell Court).]

"The four warnings Miranda requires are invariable, but [the United States Supreme Court] has not dictated the words in which the essential information must be conveyed." Powell , 559 U.S. at 60, 130 S.Ct. 1195. In other words, "[a] verbatim recital of the words of the Miranda opinion is not required." People v. Hoffman , 205 Mich. App. 1, 14, 518 N.W.2d 817 (1994). "Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures." California v. Prysock , 453 U.S. 355, 359, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). Rather, when the "exact form" set out in Miranda is not used, "a fully effective equivalent" will suffice. Duckworth v. Eagan , 492 U.S. 195, 202, 109 S.Ct. 2875, 106 L.Ed. 2d 166 (1989) (quotation marks and emphasis omitted). "Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement." id. at 203, 109 S.Ct. 2875. "The inquiry is simply whether the warnings reasonably 'conve[y] to [a suspect] his rights as required by Miranda .' " id. , quoting Prysock , 453 U.S. at 361, 101 S.Ct. 2806 (alterations by the Duckworth Court). Ultimately, "[i]f the custodial interrogation is not preceded by an adequate warning, statements made during the custodial interrogation may not be introduced into evidence at the accused's criminal trial." People v. Elliott , 494 Mich. 292, 301, 833 N.W.2d 284 (2013).

I. RIGHT TO CUT OFF QUESTIONING

In the trial court, defendant challenged the adequacy of the Miranda warnings on two grounds. First, defendant argued that the right to cut off questioning is a "critical safeguard" under Miranda and that the police were thus required to warn defendant that she could cease answering questions at any point. Although the police informed defendant of her right to remain silent, she asserts that her statement must be suppressed because she was not more specifically informed that she could terminate the interrogation at any time. This argument is without merit.

As noted, Miranda requires the police to provide a suspect with four-and only four-essential warnings: "[1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Powell , 559 U.S. at 59-60, 130 S.Ct. 1195 (quotation marks and citation omitted; alterations by the Powell Court). See also United States v. Crumpton , 824 F.3d 593, 611 (C.A. 6, 2016). From a simple review of these warnings, it is clear that the right to cut off questioning is not among the specific enumerated warnings that must be given. See United States v. Ellis , 125 F. Appx. 691, 699 (C.A. 6, 2005) ("[A] statement instructing [a suspect] that he has the right to stop answering questions at any point after questioning has begun, is not a phrase that the Supreme Court in Miranda suggested should be read to criminal suspects before interrogation."). It is true that, as emphasized by defendant, "a 'critical safeguard' identified in Miranda was a person's right to cut off questioning." People v. Adams , 245 Mich. App. 226, 230, 627 N.W.2d 623 (2001), quoting Michigan v. Mosley , 423 U.S. 96, 103, 96 S.Ct. 321, 46 L.Ed. 2d 313 (1975). As explained in Miranda :

Once warnings have been given, the subsequent procedure is clear . 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. [ Miranda , 384 U.S. at 473-474, 86 S.Ct. 1602 (emphasis added).]

However, contrary to defendant's arguments, this "subsequent procedure" to cut off questioning as described in Miranda does not establish a "special warning requirement" regarding the right to terminate an interrogation. People v. Tubbs , 22 Mich. App. 549, 555-556, 177 N.W.2d 622 (1970). Instead, this right to end the interrogation is merely a means of exercising the right to remain silent. See id. ; United States v. Alba , 732 F.Supp. 306, 310 (D. Conn., 1990) ("[T]he right to cut off questioning is not one of the essential Fifth Amendment rights"; rather, it is "a way in which [a suspect] might have manifested his wish to invoke his right to remain silent.") (quotation marks omitted). An individual who has been informed in "clear and unequivocal terms" at the outset of the interrogation that "he has the right to remain silent" will understand "that his interrogators are prepared to recognize his privilege should he choose to exercise it." Miranda , 384 U.S. at 467-468, 86 S.Ct. 1602. See also Colorado v. Spring , 479 U.S. 564, 574, 107 S.Ct. 851, 93 L.Ed. 2d 954 (1987) (recognizing that a suspect advised of his Miranda warnings "knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time"). Consequently, when a defendant has been advised of his or her right to remain silent as required by Miranda , the police need not also expressly inform the defendant that this right to remain silent may be exercised to cut off questioning at any point during the interrogation. See Tubbs , 22 Mich. App. at 555-556, 177 N.W.2d 622 ; see also Crumpton , 824 F.3d at 611 ("[A] defendant need not be informed of a right to stop questioning after it has begun.") (quotation marks and citation omitted); United States v. Lares-Valdez , 939 F.2d 688, 690 (C.A. 9, 1991) (" Miranda requires that [the suspect] understood the right to remain silent; when and how he then chose to exercise that right is up to him."). Because defendant was advised of her right to remain silent, the Miranda warnings were not defective merely because she was not more specifically advised that she could exercise this right at any point during the interrogation.

II. RIGHT TO THE PRESENCE OF AN ATTORNEY

In the lower court, defendant argued, and the trial court agreed, that a general warning regarding the "right to a lawyer" did not adequately inform defendant of her right to have an attorney present before and during the interrogation. Although there is conflicting authority on this issue, we agree with the trial court and we hold that a general warning regarding a "right to a lawyer" does not comply with the dictates of Miranda . Consequently, we affirm the trial court's suppression of defendant's statements.

We begin our analysis by again noting what is required by Miranda . As explained by the United States Supreme Court:

"[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." [ Powell , 559 U.S. at 59-60, 130 S.Ct. 1195, quoting Miranda , 384 U.S. at 479, 86 S.Ct. 1602 (alterations by the Powell Court).]

It is the third warning-the "right to the presence of an attorney"-that is at issue in this case. Under Miranda , in the context of custodial interrogation, the right to the presence of counsel was recognized as "indispensable to the protection of the Fifth Amendment privilege ...." Miranda , 384 U.S. at 469, 86 S.Ct. 1602. As "a corollary of the right against compelled self-incrimination," the right to the presence of counsel "affords a way to 'insure that statements made in the government-established atmosphere are not the product of compulsion.' " Tanner , 496 Mich. at 207, 853 N.W.2d 653, quoting Miranda , 384 U.S. at 466, 86 S.Ct. 1602. Notably, this "need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires." Miranda , 384 U.S. at 470, 86 S.Ct. 1602. Thus, "as 'an absolute prerequisite to interrogation,' " the United States Supreme Court has held that "an individual held for questioning 'must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.' " Powell , 559 U.S. at 60, 130 S.Ct. 1195, quoting Miranda , 384 U.S. at 471, 86 S.Ct. 1602.

Recognizing that Miranda mandates advice regarding the right to the presence of counsel, while also acknowledging that a talismanic incantation of the Miranda warnings is not required, Prysock , 453 U.S. at 359, 101 S.Ct. 2806, the question before us in this case is whether a general warning before an interrogation advising the suspect that he or she has a "right to a lawyer," reasonably conveys to a suspect that she has the right to consult with a lawyer before questioning and to have a lawyer present during the interrogation. We are not aware of any binding caselaw resolving this issue. On appeal, the prosecutor asserts that specific information regarding the right to the presence of counsel during interrogation is unnecessary in light of controlling United States Supreme Court precedent-namely, Powell , 559 U.S. 50, 130 S.Ct. 1195 ; Duckworth , 492 U.S. 195, 109 S.Ct. 2875 ; and Prysock , 453 U.S. 355, 101 S.Ct. 2806. Certainly, as discussed, these cases stand for the proposition that no exact, talismanic incantation of the Miranda warnings is required. See Powell , 559 U.S. at 60, 130 S.Ct. 1195 ; Duckworth , 492 U.S. at 202, 109 S.Ct. 2875 ; Prysock , 453 U.S. at 359, 101 S.Ct. 2806. But, none of these cases involved a barebones warning that the suspect had "a right to an attorney." To the contrary, Prysock and Duckworth both involved situations in which the suspect was undoubtedly told of the right to consult with an attorney and to have an attorney present during questioning, and the Miranda challenge related to whether information, or lack of information, regarding when counsel would be appointed rendered the warnings deficient. See Duckworth , 492 U.S. at 203, 109 S.Ct. 2875 (reviewing a warning in which the suspect was told, in part, that "he had the right to speak to an attorney before and during questioning" and that he had the "right to the advice and presence of a lawyer even if [he could] not afford to hire one") (quotation marks omitted; alteration by the Duckworth Court); Prysock , 453 U.S. at 356, 101 S.Ct. 2806 (involving a warning in which the suspect was told that he had "the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning"). Powell is perhaps the closest factual situation to the present case, but it, too, is distinguishable. In Powell , the suspect was told, in relevant part:

"You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."
[ Powell , 559 U.S. at 54, 130 S.Ct. 1195.]

The purported deficiency in the warnings in Powell was that informing the suspect that he had a right to talk to a lawyer before answering questions would mislead a suspect by suggesting that the right to consult an attorney did not also exist during the interrogation. Id. at 55, 130 S.Ct. 1195. In rejecting this argument, the Court read the warning as a whole and concluded that the warning communicated that the suspect could consult with a lawyer "before" answering questions and that, because this right could also be used at any time "during" the interview, it also conveyed the suspect's right to have an attorney present at all times. Id. at 62, 130 S.Ct. 1195. The warning in Powell thus plainly conveyed the critical information about a suspect's right to counsel-i.e., "the right to consult with a lawyer and to have the lawyer with him during interrogation." id. at 60, 130 S.Ct. 1195, quoting Miranda , 384 U.S. at 471, 86 S.Ct. 1602 (quotation marks omitted). See also Powell , 559 U.S. at 62 n. 5, 130 S.Ct. 1195. In short, none of the Supreme Court cases cited by the prosecution involved warnings comparable to those in this case, and none of these cases resolved the issue now before us. Ultimately, we are not aware of any binding caselaw addressing the precise issue before us.

Although there is no binding authority, the issue whether a general warning of the "right to an attorney" satisfies Miranda 's strictures has been considered by numerous courts, including this Court. In several decisions from this Court issued soon after Miranda was decided, this Court concluded that general warnings, such as informing a suspect that he was "entitled to an attorney," did not comply with Miranda because such warnings did not sufficiently convey a suspect's right to the presence of an attorney during questioning. People v. Whisenant , 11 Mich. App. 432, 434, 437, 161 N.W.2d 425 (1968). See also People v. Hopper , 21 Mich. App. 276, 279, 175 N.W.2d 889 (1970) ; People v. Jourdan , 14 Mich. App. 743, 744, 165 N.W.2d 890 (1968). While nonbinding under MCR 7.215(J)(1), this Court's opinions indicate that to comply with Miranda , the police must impart more than a broad warning regarding the right to counsel; that is, the warning must somehow convey the right to have counsel present during the interrogation. See People v. Johnson , 90 Mich. App. 415, 419-420, 282 N.W.2d 340 (1979) (distinguishing cases with warnings regarding the right "to an attorney" from those involving the right to have an attorney "present"). Similarly, numerous courts from other jurisdictions have interpreted Miranda as requiring the police to explicitly inform a suspect of the right to the presence of counsel before and during the interrogation. See, e.g., Bridgers v. Dretke , 431 F.3d 853, 860 n. 6 (C.A. 5, 2005) ("[A] suspect must be explicitly warned that he has the right to counsel during interrogation."); United States v. Tillman , 963 F.2d 137, 141 (C.A. 6, 1992) ("[T]he police failed to convey to defendant that he had the right to an attorney both before, during and after questioning."); Smith v. Rhay , 419 F.2d 160, 163 (C.A. 9, 1969) ("Although [the suspect] was told that he had the right to an attorney, he was not ... told, as required by Miranda , that he had the right to the presence of an attorney...."); State v. McNeely , 162 Idaho 413, 416, 398 P.3d 146 (2017) (concluding that a warning regarding " 'the right to an attorney ... [to] help you with-stuff' " did not adequately convey the right to the presence of counsel before and during questioning); Coffey v. State , 435 S.W.3d 834, 841-842 (Tex App, 2014) (holding that a preinterrogation warning that the defendant had "the right to an attorney" did not comply with Miranda ).

Courts requiring an explicit warning regarding the right to the presence of counsel during the interrogation-as opposed to simply the right to an attorney-have "stressed the importance of informing defendants that they have the right to the actual physical presence of an attorney," United States v. Noti , 731 F.2d 610, 615 (C.A. 9, 1984), and emphasized the significance of advising defendants of the temporal immediacy of the right to counsel, see, e.g., State v. Williams , 144 So.3d 56, 59, 2013-1300 (La.App. 4 Cir. 6/14/14) (recognizing that Miranda does not require a verbatim recitation but concluding that the "temporal requirement that the right to the lawyer attaches before and during any interrogation is key") (quotation marks and citation omitted); United States v. Takai , 943 F.Supp.2d 1315, 1326 (D Utah, 2013) (concluding that the "warning was defective because it omitted reference to Defendant's right to have an attorney present during questioning, i.e. at the present time"). See also State v. Carlson , 228 Ariz. 343, 346, 266 P.3d 369 (App., 2011) (distinguishing "mere eventual representation by an attorney" from the right to the presence of an attorney that "applied before, and continued during, any questioning"). Likewise, as noted, this Court has previously acknowledged that Miranda warnings must provide a suspect with temporal information regarding the immediate right to the presence of counsel during questioning. See Whisenant , 11 Mich. App. at 437, 161 N.W.2d 425. For example, in Johnson , 90 Mich. App. at 420, 282 N.W.2d 340, we found a warning that the defendant " 'had the right to have an attorney present' " sufficient to convey the essential information required by Miranda because the right to have an attorney present "cannot reasonably be understood otherwise than as informing defendant of his right to counsel during interrogation and not merely at some subsequent trial." While no specific language is required, these cases persuasively recognize, based on Miranda 's requirements, that the advice regarding counsel must convey "the immediacy of the right in the sense that it exists both before and during interrogation." 2 LaFave et al., Criminal Procedure (4th ed.), § 6.8(a), pp. 886-887.

While there is authority recognizing the necessity of an explicit warning regarding the presence of counsel during the interrogation, courts are by no means uniform in reaching this conclusion. See Bridgers , 431 F.3d at 859 (describing the split among federal circuit courts as to whether Miranda warnings must explicitly provide that a suspect is entitled to the presence of counsel during an interrogation). Unlike courts concluding that Miranda warnings must contain information regarding the right to the presence of counsel during an interrogation, numerous other courts reason that Miranda does not require "highly particularized warnings" regarding "all possible circumstances in which Miranda rights might apply." United States v. Frankson , 83 F.3d 79, 82 (C.A. 4, 1996). Consequently, these cases conclude that when the police provide a generalized warning regarding the "right to an attorney"-without any temporal qualifications or limitations on that right-the police have complied with Miranda because a reasonable person would understand that an unqualified right to an attorney begins immediately and continues forward in time without qualification. id. See also United States v. Warren , 642 F.3d 182, 185 (C.A. 3, 2011) ("[I]t cannot be said that the Miranda court regarded an express reference to the temporal durability of [the right to an attorney] as elemental to a valid warning."); United States v. Caldwell , 954 F.2d 496, 502 (C.A. 8, 1992) (concluding, under plain-error review, that warning of the "right to an attorney" was not deficient because there was nothing "suggesting a false limitation" on the right to counsel and thus the suspect was not "actively misled"); United States v. Lamia , 429 F.2d 373, 376-377 (C.A. 2, 1970) (holding that failure to inform the defendant that he had the right to the "presence" of an attorney did not render warnings deficient when he had been told "without qualification that he had the right to an attorney"); Carter v. People , 398 P.3d 124, 128, 2017 CO 59M (Colo., 2017), as mod. on denial of reh. (July 31, 2017) ("[I]t would be highly counterintuitive for a reasonable suspect in a custodial setting, who has just been informed that the police cannot talk to him until after they advise him of his rights to remain silent and to have an attorney, to understand that an interrogation may then proceed without permitting him to exercise either of those rights."); People v. Walton , 199 Ill. App.3d 341, 344-345, 145 Ill.Dec. 274, 556 N.E.2d 892 (1990) ("While the better practice would be for the police to make explicit that defendant's right to consult with a lawyer may be both before and during any police interrogation, we hold that the language used in this case [that the defendant had a right to consult with a lawyer] was sufficient to imply the right to counsel's presence during questioning" because "no restrictions were stated by the police in the present case as to how, when, or where defendant might exercise his right 'to consult with a lawyer.' "). Under these cases, provided that no improper or misleading limitations on the right to counsel are expressly communicated, a general warning regarding the "right to counsel" is sufficient to comply with Miranda 's requirements.

Considering the conflicting persuasive authority, we conclude that the essential information required by Miranda includes a temporally related warning regarding the right to consult an attorney and to have an attorney present during the interrogation, not merely general information regarding the "right to an attorney." Consequently, we reaffirm our decision in Whisenant , 11 Mich. App. at 437, 161 N.W.2d 425, and we hold that a warning preceding a custodial interrogation is deficient when the warning contains only a broad reference to the "right to an attorney" that does not, when the warning is read in its entirety, reasonably convey the suspect's right to consult with an attorney and to have an attorney present during the interrogation. See Powell , 559 U.S. at 60, 130 S.Ct. 1195 ; Miranda , 384 U.S. at 471, 86 S.Ct. 1602. In reaching this conclusion, we fully acknowledge that there is a certain logic in the proposition that an unqualified general warning about a "right to an attorney" encompasses all facets of the right to counsel such that a broad warning before interrogation regarding the "right to an attorney" impliedly informs a suspect of the right to consult an attorney and to have an attorney present during the interrogation. See Warren , 642 F.3d at 186-187 ; Frankson , 83 F.3d at 82 ; Walton , 199 Ill. App.3d at 344-345, 145 Ill.Dec. 274, 556 N.E.2d 892. But, in our view, this conclusion is disingenuous in light of Miranda 's mandate for clear and unambiguous warnings, and it assumes-contrary to Miranda -that all suspects, regardless of their backgrounds, have a working knowledge of everything implied by a reference to their "right to an attorney."

In this regard, as noted, Miranda was focused on the right to counsel as a corollary to the right against compelled self-incrimination, i.e., the right to counsel that exists during custodial interrogation to "protect an accused's Fifth Amendment privilege in the face of interrogation." Miranda , 384 U.S. at 471, 86 S.Ct. 1602. This is a specific right, and it is this right to counsel in connection with custodial interrogation that must be overtly conveyed to a suspect under Miranda . See id. In this context, basic temporal information is key to ensuring that a defendant understands what the right to counsel entails, i.e., that it applies before and during the interrogation as opposed to some future point. In contrast to decisions like Frankson , 83 F.3d at 82, we are simply not persuaded by the conclusion that a reasonable person facing custodial interrogation, regardless of the person's background, would understand from a general reference to "right to an attorney" that this right includes the right to consult an attorney and to have an attorney present during the interrogation. Undoubtedly, such an inference can reasonably be drawn by individuals with a preexisting understanding of the right to an attorney, including the fact that this right exists during custodial interrogation. But, "[c]onstitutional rights of an accused at the preliminary stage of the in-custody interrogation process is not common placed," and absent information regarding the immediacy of this right to counsel, the right to counsel could be "interpreted by an accused, in an atmosphere of pressure from the glare of the law enforcer and his authority, to refer to an impending trial or some time or event other than the moment the advice was given and the interrogation following." Atwell v. United States , 398 F.2d 507, 510 (C.A. 5, 1968).

Rather than assume people are capable of inferring their constitutional rights, Miranda provides specific, clear-cut warnings that must be given regardless of "age, education, intelligence, or prior contact with authorities ...." Miranda , 384 U.S. at 468-469, 86 S.Ct. 1602. With regard to the right to counsel, Miranda and its progeny categorically provide that, "as 'an absolute prerequisite to interrogation,' ... an individual held for questioning 'must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.' " Powell , 559 U.S. at 60, 130 S.Ct. 1195, quoting Miranda , 384 U.S. at 471, 86 S.Ct. 1602. "Only through such a warning is there ascertainable assurance that the accused was aware of this right." Miranda , 384 U.S. at 472, 86 S.Ct. 1602. In the face of Miranda 's clear dictates, we fail to see how a warning lacking this essential information regarding the right to consult an attorney and have an attorney present during an interrogation can be considered adequate. See Powell , 559 U.S. at 60, 130 S.Ct. 1195, quoting Miranda , 384 U.S. at 471, 86 S.Ct. 1602.

In this case, neither Stowinsky nor DesRosiers explained to defendant that she had the right to the presence of counsel. Although defendant was generally advised that she had a right to an attorney, this broad warning failed to reasonably convey to defendant that she could consult an attorney before she was questioned and during her interrogation. Because defendant was not adequately advised of her right to the presence of counsel, her subsequent statements are inadmissible at trial. Miranda , 384 U.S. at 470, 86 S.Ct. 1602 ; Elliott , 494 Mich. at 301, 833 N.W.2d 284. Accordingly, the trial court did not err by granting defendant's motion to suppress her statements.

Affirmed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

K. F. KELLY, J., concurred with HOEKSTRA, J.

O'Connell, P.J. (concurring in part and dissenting in part).

At 11:33 a.m., on August 12, 2016, defendant called the Wixom Police Department and informed the police that she had shot her boyfriend, Gabriel Dumas. The police were immediately dispatched to defendant's home. Defendant was arrested and transported to the Wixom Police Department.

At the police station, defendant was interviewed by Detective Brian Stowinsky and Sergeant Michael DeRosiers. Detective Stowinsky first told defendant that he was going to question her about happened. Before he began questioning defendant, he gave her the following warnings:

[B]efore I question, start asking you, you should know that you have a right to remain silent.
* * *
Anything you say may be used against you. You have a right to a lawyer[.] [I]f you cannot afford a lawyer, one will be provided for free. Do you understand your rights?

Defendant answered, "[y]es." Importantly, in addition to the oral Miranda rights, defendant signed a written advice of rights, which read:

Before any questions are asked of you, you should know: (1) you have a right to remain silent; (2) anything you say may be used against you; (3) you have a right to a lawyer, and (4) if you cannot afford a lawyer, one will be provided free.
I understand what my rights are and am willing to talk.

Defendant's interview lasted approximately 61 minutes.

At the beginning of defendant's second interview later that day, Sergeant DeRosiers said to defendant:

Detective Stowinsky, remember he talked about your rights and everything?
* * *
Same thing applies. ... [Y]ou don't have to even talk to me if you don't want to. You can get an attorney .... [I]f you can't afford one, we'll make sure you get one.

Defendant indicated that she understood and answered Sergeant DeRosiers's questions.

It is clear from these warnings that defendant's right to a lawyer related to the forthcoming questioning by both Detective Stowinsky and Sergeant DeRosiers. The lower court record is devoid of any coercion, compulsion, or wrongful conduct by the police. Also, there is no indication that defendant did not or was not capable of understanding that she was entitled to have a free attorney before, during, or after questioning.

Moreover, the ordinary layperson understands that the right to an attorney before questioning extends to the duration of questioning. There is no meaningful difference between a right to a lawyer before questioning and during questioning. In addition, by the time Sergeant DeRosiers interviewed her, defendant had already been interviewed once. Sergeant DeRosiers's reminder about defendant's rights reinforced her right to an attorney even though she had already been questioned by Detective Stowinsky. For these reasons, I concur with those cases cited in the majority opinion holding that a generalized warning that the suspect has the right to counsel, without specifying when, satisfies the Miranda requirements.

I conclude that defendant was adequately informed of her Miranda rights. I would reverse the decision of the trial court and remand for further proceedings consistent with this opinion.

I concur with the balance of the majority opinion. 
      
      People v. Mathews , unpublished order of the Court of Appeals, entered August 23, 2017 (Docket No. 339079).
     
      
      "Lower federal court decisions are not binding on this Court, but may be considered on the basis of their persuasive analysis." People v. Fomby , 300 Mich. App. 46, 50 n. 1, 831 N.W.2d 887 (2013).
     
      
      It is apparently not uncommon for law enforcement officials to include some type of "fifth prong" or "catch-all" provision in the recitation of Miranda warnings, advising suspects that their rights may be asserted at any point during the interrogation. See Rogers et al., The Language of Miranda Warnings in American Jurisdictions: A Replication and Vocabulary Analysis , 32 Law & Hum. Behav. 124, 131 (2008) (reporting that over 80% of jurisdictions include a "fifth prong"). See, e.g., Powell , 559 U.S. at 55, 130 S.Ct. 1195 (involving a catch-all addition to the Miranda warnings in which the suspect was told that he had "the right to use any of these rights at any time you want during this interview") (quotation marks omitted). But the fact remains that Miranda itself did not include such a warning.
     
      
      Although published decisions of this Court issued before November 1, 1990, are not precedentially binding, MCR 7.215(J)(1), they may be considered as persuasive authority. People v. Barbarich , 291 Mich. App. 468, 476 n. 2, 807 N.W.2d 56 (2011).
     
      
      The dissent emphasizes that the warnings given to defendant in this case were prefaced with the word "before," and the dissent concludes that this was sufficient to convey to defendant her right to an attorney before questioning as well as during questioning. This reliance on the word "before" is unpersuasive for two reasons. First, the word "before" is not used in the warnings as an indication of when defendant's right to counsel exists. That is, she was not told that she had a right to an attorney before questioning; rather, she was told that before any questions were asked, she should know that she has a right to an attorney. Second, even if the use of "before" is read to have informed defendant of her right to counsel before questioning, contrary to the dissent's conclusion, there is a meaningful difference between the right to consult a lawyer before questioning and the right to have a lawyer present during questioning. Indeed, the warning in Powell was found adequate because it conveyed the right to counsel, "not only at the outset of interrogation, but at all times" during the interrogation. Powell , 559 U.S. at 62, 130 S.Ct. 1195. If anything, the argument could be made that the use of the term "before," without any indication that the right also applied during the interrogation, functioned as an improper temporal limitation, suggesting that the right to counsel existed before any questions were asked, but not during questioning.
     
      
      Numerous decisions from the Michigan Supreme Court have similarly quoted formulations of the Miranda warnings that convey the right to the "presence of an attorney" or more specifically the right to "the presence of an attorney during any questioning." See, e.g., Tanner , 496 Mich. at 207 n. 3, 853 N.W.2d 653 ; Elliott , 494 Mich. at 301, 833 N.W.2d 284 ; Daoud , 462 Mich. at 624 n. 1, 614 N.W.2d 152.
     
      
      In support of the conclusion that general warnings are sufficient, some of these cases also note that Miranda discussed, with apparent approval, the warnings given by the Federal Bureau of Investigation (FBI) at the time Miranda was decided. See, e.g., Warren , 642 F.3d at 184-185 ; Lamia , 429 F.2d at 376. As set forth in Miranda , at that time the FBI's practice was to warn a suspect that "he is not required to make a statement, that any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice and, more recently, that he has a right to free counsel if he is unable to pay."Miranda , 384 U.S. at 483, 86 S.Ct. 1602. Because the FBI warnings discussed in Miranda did not contain a temporal reference to a suspect's right to the presence of counsel during the interrogation, cases such as Warren and Lamia reason-and the prosecutor argues on appeal-that Miranda does not contain such a requirement. Admittedly, there is tension between what Miranda , 384 U.S. at 479, 86 S.Ct. 1602, demanded and what the FBI warnings discussed in Miranda conveyed. Indeed, in dissenting opinions to Miranda , Justice Clark and Justice Harlan both opined that the FBI warnings in question did not satisfy the strictures laid down by the Miranda majority. See id. at 500 n. 3, 86 S.Ct. 1602 ( Clark , J., dissenting); id. at 521, 86 S.Ct. 1602 ( Harlan , J., dissenting). It does not appear that the Supreme Court has resolved this tension. See Powell , 559 U.S. at 73 n. 8, 130 S.Ct. 1195 ( Stevens , J., dissenting) (expressing doubt as to whether "warning a suspect of his 'right to counsel,' without more, reasonably conveys a suspect's full rights under Miranda "). Moreover, we note that the discussion of FBI practices in the Miranda majority was immediately followed by a discussion of the then-current practices in England, Scotland, India, Ceylon, and the United States military courts in the larger context of responding to concerns that preinterrogation warnings would place an undue burden on investigators and detrimentally affect criminal law enforcement. See Miranda , 384 U.S. at 481-489, 86 S.Ct. 1602. Given the context in which the Miranda Court expressed approval of the FBI's warnings and the difference of opinion that currently exists among the various courts regarding the necessity of warning a suspect about the right to the presence of counsel during interrogation, it is not clear to us that Miranda 's discussion of the FBI practices compels the conclusion that advising a suspect of the right to counsel is sufficient to convey the right to the presence of counsel during an interrogation.
     
      
      In comparison to the right to counsel during custodial interrogation incident to the Fifth Amendment, the Sixth Amendment right to counsel attaches at, or after, the initiation of adversary judicial proceedings and extends to all critical stages of the proceedings. See People v. Buie (On Remand) , 298 Mich. App. 50, 61, 825 N.W.2d 361 (2012) ; People v. Williams , 244 Mich. App. 533, 538, 624 N.W.2d 575 (2001). Obviously, the police do not have to provide suspects with a constitutional exegesis on the right to counsel. But for Miranda warnings to be meaningful, there needs to be an overt expression of the immediacy of the right to counsel-that it "exists both before and during interrogation." 2 LaFave et al., Criminal Procedure (4th ed.), § 6.8(a), pp. 886-887. See also Noti , 731 F.2d at 615 ("The right to have counsel present during questioning is meaningful. Advisement of this right is not left to the option of the police....").
     
      
      See also Carlson , 228 Ariz. at 346, 266 P.3d 369 (discussing the fact that the suspect was unaware "that he had a right to the presence of an attorney (as distinguished from mere eventual representation by an attorney), and that the right applied before, and continued during, any questioning"); Roberts v. State , 874 So.2d 1225, 1226 (Fla.App. 2004) (noting that the suspect believed he could only have a lawyer " 'in the courtroom' "). Indeed, even among cases concluding that general warnings may suffice, those courts have acknowledged that generality in the warnings may potentially lead to ambiguity, Caldwell , 954 F.2d at 502, and that general warnings merely "imply" the right to counsel during the interrogation, Walton , 199 Ill. App.3d at 344-345, 145 Ill.Dec. 274, 556 N.E.2d 892.
     
      
      "The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given." Miranda , 384 U.S. at 468, 86 S.Ct. 1602.
     
      
      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed. 2d 694 (1966).
     
      
      Only lawyers are capable of dissecting words and phrases so finely as to confuse the meaning of the Miranda warnings. The ordinary layperson clearly understands the right to have an attorney before, during, and after questioning. When the police warn a suspect before the start of questioning that the suspect has the right to counsel, for what other purpose than questioning-the entire duration of questioning-would a suspect be entitled to a lawyer?
     