PEOPLE
v.
HILL
Docket No. 87540.
Michigan Court of Appeals.
Decided June 3, 1986.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Deputy Chief, Civil and Appeals, for the people.
*375 Eric V. Smith, for defendant.
Before: CYNAR, P.J., and WAHLS and E.E. BORRADAILE,[*] JJ.
PER CURIAM.
The people appeal by leave granted from an order suppressing the use of certain statements which had been made by defendant without the benefit of Miranda warnings. The parties agree that, when he made the statements, defendant was not in custody but was the focus of a gas fraud investigation. The people contend on appeal that it is custody, and not "focus," that triggers the duty to give Miranda warnings.
Miranda v Arizona, 384 U.S. 436, 444; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1968), applies to "custodial interrogation," of which the United States Supreme Court said,
By custodial interrogation we mean 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.[4]
[4] This is what we meant in Escobedo v Illinois, 378 U.S. 478; 84 S. Ct. 1758; 12 L. Ed. 2d 977 (1964) when we spoke of an investigation which had focused on an accused.
In People v Reed, 393 Mich. 342; 224 NW2d 867 (1975), cert den 442 U.S. 1044; 95 S. Ct. 2660; 45 L. Ed. 2d 696 (1975), the Michigan Supreme Court addressed the issue of whether the defendant was in custody for Miranda purposes. The Court observed that Professor Kamisar had suggested guidelines for determining whether an investigation is custodial, one of which was whether the accused had been the focus of the investigation. Reed, supra, p 357 n 6. While Professor Kamisar *376 maintained that the controlling approach should be whether a person subject to such investigation would reasonably believe that his freedom was significantly impaired, the Supreme Court approved the "focus" test as stated by this Court in People v Wasson, 31 Mich. App. 638, 642; 188 NW2d 55 (1971):
The deciding factor, in each case, is determined by examining the specificity of the investigation, i.e., whether the investigation has focused on one suspect.
The Supreme Court added that this test was to be employed by examining the totality of the circumstances.
In People v Ridley, 396 Mich. 603, 606 n 1; 242 NW2d 402 (1976), Justice COLEMAN, writing for a unanimous Court, followed Reed as the law under the doctrine of stare decisis but noted her personal disagreement with the "focus only" test. In People v Brannan, 406 Mich. 104; 276 NW2d 14 (1979), the Supreme Court again followed Reed.
The difficulty in this case arises because the United States Supreme Court clearly rejected the "focus" test in Beckwith v United States, 425 U.S. 341; 96 S. Ct. 1612; 48 L. Ed. 2d 1 (1976), and Oregon v Mathiason, 429 U.S. 492; 97 S. Ct. 711; 50 L. Ed. 2d 714 (1977). See also Berkemer v McCarty, 468 U.S. ___; 104 S. Ct. 3138; 82 L. Ed. 2d 317 (1984). Since Beckwith and Mathiason, this Court has been divided over what standard to apply.
In People v Martin, 78 Mich. App. 518; 260 NW2d 869 (1977), and People v Konke, 83 Mich. App. 356; 268 NW2d 42 (1978), panels viewed the issue as solely one of federal law and followed Beckwith and Mathiason. However, in People v Wallach, 110 Mich. App. 37, 48-50; 312 NW2d 38 (1981), vacated *377 on other grounds 417 Mich. 937 (1983), a panel of this Court decided that the Michigan Supreme Court's use of the focus test in Brannan, well after the United States Supreme Court had rejected the test, militated in favor of a conclusion that the focus test was a requirement of state constitutional law. The Wallach analysis was rejected in People v Belanger, 120 Mich. App. 752; 327 NW2d 554 (1982).
Other panels have addressed the issue without lengthy discussion. The panel in People v Robinson, 79 Mich. App. 145, 152-153; 261 NW2d 544 (1977), lv den 403 Mich. 814 (1978), followed Reed but noted that it was unnecessary to decide the effect of Beckwith. In People v Hangsleben, 86 Mich. App. 718, 724-725; 273 NW2d 539 (1978), the panel found it unnecessary to resolve the controversy. Martin, supra, was followed in People v Schram, 98 Mich. App. 292, 306-307; 296 NW2d 840 (1980). Reed, supra, was followed in People v Benjamin, 101 Mich. App. 637, 647, n 2; 300 NW2d 661 (1980) (defendant was clearly in custody, though); People v Snell, 118 Mich. App. 750, 764; 325 NW2d 563 (1982) (any error, however, was harmless); People v D'Avanzo, 125 Mich. App. 129, 133; 336 NW2d 238 (1983) (defendant was an inmate and clearly in custody).[1]
In Paramount Pictures Corp v Miskinis, 418 Mich. 708, 726; 344 NW2d 788 (1984), the Supreme Court stated,
Having examined prior decisions of this Court, we find nothing which requires an interpretation of our constitutional privilege against self-incrimination different from that of the United States *378 Constitution. "The provision in each Constitution is the same." In re Moser, 138 Mich. 302, 305; 101 N.W. 588 (1904).
While there is no indication that the Court considered the controversy presented in this case, its stated conclusion lends support to the decisions of this Court in Martin, supra, and Belanger, supra. We are persuaded to follow the United States Supreme Court's rejection of the focus test.[2]
Accordingly, we conclude that the trial court erred in suppressing the use of defendant's statements on the basis of the Reed focus test. We reverse and remand for further proceedings not inconsistent with this opinion.
Reversed and remanded.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] In People v Marbury, 151 Mich. App. 159; ___ NW2d ___ (1986), a decision released for publication after this opinion was drafted, two judges of this Court announced a change in their positions from the "focus" to the "custody" test.
[2] Judge CYNAR, who signed the Wallach, Benjamin and Snell opinions, is now persuaded that the "custody test" is the proper test to be applied to determine whether Miranda warnings must be given.