People of Michigan v. Mitchell S Mergel ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 17, 2023
Plaintiff-Appellee,
v No. 364962
Oakland Circuit Court
MITCHELL S. MERGEL, LC No. 2021-277875-FH
Defendant-Appellant.
Before: REDFORD, P.J., and K. F. KELLY and RICK, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted1 the trial court’s order denying his motion to
suppress various evidence in this case. On appeal, defendant contends that the challenged evidence
should have been suppressed because investigating police officers violated his Miranda2 rights
during his arrest, booking, and police station interview. For the reasons stated in this opinion we
reverse and remand for further proceedings.
I. BACKGROUND
This case arises from an alleged incident of domestic violence in February 2021 between
defendant and his then-girlfriend. After interviewing the girlfriend at her home, officers went to
defendant’s home, arriving around 2:40 a.m., and employed various efforts to get defendant to
come outside and speak with them. This included shining lights inside defendant’s home, loudly
knocking on defendant’s front and back doors, announcing the police presence outside, and
ordering defendant to come outside. After about 20 minutes, defendant came outside, officers
questioned him for about 5 minutes on the porch, and then arrested him. At the police station,
officers questioned defendant further during the booking process and at a later police station
interview. An officer also administered defendant a Breathalyzer test during booking. An officer
1
See People v Mergel, unpublished order of the Court of Appeals, entered April 12, 2023 (Docket
No. 364962).
2
See Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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read defendant a Miranda warning at his police station interview, well after the initial arrest and
booking.
Defendant was charged with one count of assault with intent to do great bodily harm less
than murder and/or by strangulation or suffocation, MCL 750.84. Defendant moved to suppress
all his statements to police after he exited his home, including those from the police station
interrogation, arguing that police obtained this evidence in violation of Miranda v Arizona, 384
US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Defendant claimed that police effectively
placed him in custody when they “forced” him from his home in the middle of the night, during
winter, and then questioned him on the porch to obtain incriminating information without ever
providing Miranda warnings. Further, defendant asserted that his later statements while
interrogated at the police station were tainted by the initial Miranda violation at defendant’s home
and a “rushed” reading of defendant’s Miranda rights at the police station, thus rendering these
statements involuntary.
Following an evidentiary hearing, defendant filed a supplemental memorandum in support
of his motion to suppress. Defendant maintained that he was in custody and thus improperly
questioned without Miranda warnings on the porch. Next, defendant argued that officers again
violated his Miranda rights during the booking process by asking nontypical questions concerning
his intoxication and defensive wounds, especially with defendant in custody at the time and
following the earlier Miranda violation at defendant’s house. Relatedly, defendant asserted that
his Breathalyzer test taken during booking constituted an illegal search because officers “forced”
him to take the test without a warrant, while in custody, and following the earlier Miranda violation
at defendant’s house. According to defendant, this search violated Miranda and/or the Fourth
Amendment to the United States Constitution. Lastly, defendant reiterated, with some elaboration,
that his statements when being interrogated at the police station were tainted by the initial Miranda
violations at defendant’s home and during booking, and an inadequate waiver of defendant’s
Miranda rights at the police station. Defendant, therefore, requested that the trial court suppress
(1) all his prearrest statements to police on the porch, (2) all his statements during booking related
to intoxication or defensive wounds, (3) the Breathalyzer test results and any mention thereof, and
(4) all his statements during the entirety of his police station interview.
The trial court denied defendant’s motion to suppress. Regarding the questioning of
defendant on his porch, the court reasoned as follows:
Current caselaw does not support [defendant]’s assertion that he was in
custody at the time he provided his pre-arrest statements to the police. The
interview occurred on the porch of his home; the interview occurred in public;
[defendant] freely and willfully stepped onto his porch to speak with officers (albeit
following a direction from an officer); no officers used restraints on [defendant] or
even made unconsented physical contact with him; only one officer ever
unholstered his weapon, never pointed it or displayed it to [defendant], and
holstered it as soon as officers were safe; the questions lasted only a total of five
minutes. He was not told he could not leave; he was not told he was under arrest;
he was not in handcuffs.
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As for Defendant’s arguments that the officers, knowing they were going to
arrest him, “conspired and collaborated together to figure out a way to get him to
come out of his house, so that they could ask him incriminating questions without
advising him of Miranda”, the court, on this record, cannot find that this occurred.
The “in custody” requirement is not satisfied merely because the police interviewed
a person who was the “focus” of a criminal investigation.
For these reasons, the court finds that Defendant’s right against self-
incrimination as established by Miranda was not violated in the period of time
before his arrest.
The trial court also rejected defendant’s argument regarding the challenged evidence
solicited during booking. The court agreed with the prosecution that the booking process here and
officers’ actions at the time properly related to the department’s administrative procedures and
constitutional obligations while a person is in custody, particularly in light of defendant’s earlier
statements regarding his intoxication and injuries. Finally, the trial court rejected defendant’s
argument that his statements during his police station interview must be suppressed, reasoning that
defendant’s argument on this point necessarily failed because officers did not violate Miranda
during the prearrest questioning or defendant’s booking.
Defendant moved for reconsideration, which the trial court denied. The trial court
ultimately stayed these proceedings pending this Court’s decision on defendant’s application for
leave to appeal in this Court. As stated, this Court granted defendant’s delayed application for
leave to appeal.
II. STANDARD OF REVIEW
“This Court reviews for clear error a trial court’s factual findings in a ruling on a motion
to suppress evidence.” People v Clark, 330 Mich App 392, 415; 948 NW2d 604 (2019) (citation
omitted). “A trial court’s factual findings are clearly erroneous when this Court is left with a
definite and firm conviction that the trial court made a mistake.” Id. (citation omitted). “The
decision whether to admit evidence is within a trial court’s discretion. This Court reverses it only
where there has been an abuse of discretion.” Id. (quotation marks and citation omitted). “A trial
court abuses its discretion when it selects an outcome that falls outside the range of reasonable and
principled outcomes.” Id. (citation omitted). “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,” this Court’s review is de novo. Id. (quotation marks and citation omitted).
“When the record contains a video recording of the events in question, however, this Court need
not rely on the trial court’s conclusions as to what the video contains.” People v Campbell, 329
Mich App 185, 193; 942 NW2d 51 (2019) (quotation marks and citation omitted).
III. ANALYSIS
Defendant argues that the trial court erred by failing to suppress (1) his statements during
the police questioning on his porch, (2) his statements at booking responding to officers’
incriminatory questions, (3) his Breathalyzer test from booking, and (4) all his statements to
Detective Keith Bierenga at the police station interview. Because we conclude that the video
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evidence of the police officers’ questioning of defendant on his porch indicates that the officers
did not treat defendant as free to go but conducted a custodial investigation without providing
defendant a Miranda warning, the trial court erred by not granting defendant’s motion to suppress
the porch interview evidence.
The Fifth Amendment states that “[n]o person . . . shall be compelled in any criminal case
to be a witness against himself . . . .” US Const, Am V. “To protect this right, police officers must
advise a defendant of certain rights before a custodial interrogation.” Campbell, 329 Mich App
at 202, citing Miranda, 384 US at 444. “Miranda warnings are required when a person is in
custody or otherwise deprived of freedom of action in any significant manner.” Id. (quotation
marks and citation omitted). “Whether a defendant is in custody for purposes of Miranda at the
time of an interrogation is determined by looking at the totality of the circumstances, with the key
question being whether the accused reasonably could have believed that he or she was free to
leave.” Id. “The determination of custody depends on the objective circumstances of the
interrogation rather than the subjective views harbored by either the interrogating officers or the
person being questioned.” People v Cortez, 299 Mich App 679, 691-692; 832 NW2d 1 (2013)
(quotation marks and citation omitted). “If 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.” Campbell, 329 Mich App at 202 (quotation marks and
citation omitted).
To determine custody, there are a number of factors courts should consider, including: “(1)
the location of the questioning; (2) the duration of the questioning; (3) statements made during the
interview; (4) the presence or absence of physical restraints during the questioning; and (5) the
release of the interviewee at the end of the questioning.” People v Barritt, 325 Mich App 556,
562-563; 926 NW2d 811 (2018) (citations omitted). “[N]o one circumstance is controlling; rather,
a reviewing Court must consider the totality of the circumstances when deciding whether an
individual was subjected to custodial interrogation under Miranda.” Id. at 563 (citation omitted).
Further, for the purposes of Miranda, “interrogation refers to express questioning and 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.” People v Anderson, 209 Mich App 527, 532-533; 531
NW2d 780 (1995) (citation omitted); see also People v White, 493 Mich 187, 195-196; 828 NW2d
329 (2013).
Defendant argues that, while the custody analysis “does not start with the officers’
subjective intentions, it is important to understand” that officers intended to arrest defendant no
matter what occurred during their investigation and “collaborated together” to find a way to
question him outside without the benefit of Miranda. Moreover, according to defendant and given
the totality of the officers’ actions, he was objectively not free to leave during the porch
questioning. Defendant asserts that he was in custody when questioned on the porch and because
he was never provided any Miranda warnings at the time, all his prearrest statements should be
suppressed. We agree.
Officers’ statements to one another before and their subjective intent during questioning
are irrelevant in determining custody for the purposes of Miranda. See Cortez, 299 Mich App
at 691-692; see also Stansbury v California, 511 US 318, 323-324; 114 S Ct 1526; 128 L Ed 2d
293 (1994) (“[a] policeman’s unarticulated plan has no bearing on the question whether a suspect
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was ‘in custody’ at a particular time; rather, the only relevant inquiry is how a reasonable man in
the suspect’s position would have understood the situation.”) (alteration in original; quotation
marks and citation omitted). Here, officers never conveyed to defendant any intention to arrest
him until actually doing so after their questioning. The officers’ intention to arrest defendant is
not dispositive.
Objective analysis of the totality of the circumstances and consideration of the factors
articulated in Barritt, we conclude that defendant was not free to leave during the officers’
questioning. The video evidence of the officers’ intervention at defendant’s home indicates that
the police restrained defendant’s movement. The officers’ bodycam videos establish that, around
2:30 a.m., the police went onto defendant’s property, posted officers at the doors, directed their
flashlights into the home, pounded on the front door repeatedly, and verbally directed defendant
to come to the door because “we have to chat with ya.” Officers directed the spotlights from their
police vehicles at the area of defendant’s house illuminating the front porch and activated one of
the vehicle’s flashing lights. Police continued to bang on defendant’s front door identifying
themselves as the police department. One officer shouted, “Police department, hey you have to
come talk with us.” The bodycam video of the officer at the house’s rear sliding glass doors
indicates that defendant appeared at that door and looked outside, whereupon the officer ordered
him to go to the front door. Following this, defendant went to his front door, and an officer told
him to come out. Defendant stepped out onto his porch—which had snow on it—in shorts, a long-
sleeved shirt, and in bare feet. An officer stood to the rear of defendant on the porch near
defendant’s front door. An officer asked defendant about the night’s events to which defendant
began to provide an explanation. That officer asked if he could frisk defendant. Defendant
consented.
A discussion between defendant and an officer about whether he had shoes or boots inside
the house took place. Defendant said he did. An officer standing near defendant’s front door went
into defendant’s house with defendant’s permission to retrieve some boots. The other officer
continued asking defendant to explain what happened. After defendant put on his boots, the officer
asking defendant questions directed defendant to show him his hands and proceeded to inspect
them. The officer standing near the door remarked that the reason they asked was because
defendant’s girlfriend had been “beaten up pretty bad.” That officer asked defendant several
questions including whether defendant put his hands on his girlfriend’s neck at any time and asked
for details about what happened. Defendant offered an explanation. The officer to defendant’s
rear asked how she got a black eye. Defendant denied touching his girlfriend. Four officers were
present, two on the porch—one at the door and one facing defendant—and two stood at the base
of the porch steps. The police placed defendant under arrest and placed handcuffs on him.
Defendant was not permitted to get his wallet, and an officer entered the house and retrieved
defendant’s phone and wallet, checked and locked the doors.
At all times, defendant appeared agreeable and cooperative. The officers were polite but
direct in their interactions with defendant. The police questioned defendant for over five minutes
on the porch. Defendant told the officers his version of the events of the evening and repeated
aspects of it because of the officers’ questioning. Some of defendant’s statements in response to
the police questioning could be considered incriminating. No officer physically restrained
defendant during the questioning. The record, however, reflects that one officer closed defendant’s
front door after he exited his house and that officer stood in proximity to the door in a posture that
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suggested that defendant was not free to cut off the questioning and return inside. The evidence
does not indicate that defendant was free to return indoors at any point during his interaction with
the police on his front porch. Under these circumstances, a reasonable person would not have felt
free to terminate the officers’ questioning and return inside. The totality of the circumstances
indicates that the police subjected defendant to custodial interrogation on his front porch without
providing him a Miranda warning. Therefore, the trial court erred by denying defendant’s motion
to suppress the evidence related to the front porch police custodial interrogation. Accordingly, we
reverse the trial court’s ruling.
We decline to consider defendant’s other arguments regarding the trial court’s denial of his
motion to suppress the evidence obtained by police during his booking and later police interview
at the police station. We remand to the trial court to reconsider its rulings regarding those claims
of error so that the court can consider the issues in light of our judgment that the court erred in not
suppressing the porch interrogation.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ James Robert Redford
/s/ Kirsten Frank Kelly
/s/ Michelle M. Rick
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