i
I respectfully dissent in these cases for two primary reasons. First, I believe that the time has come for us to reevaluate our retroactivity jurisprudence and align it with the current federal model. Second, I believe that the majority’s retroactivity analysis is in error for two reasons: retroactivity may not even be an issue in this case because the rule set forth in People v Bender, 452 Mich 594; 551 NW2d 71 (1996), was clearly foreshadowed by People v Wright, 441 Mich 140; 490 NW2d 351 (1992), and even if I agreed with the majority regarding the applicable case law, I disa*70gree with its analysis and conclusion regarding whether the Bender rule should be applied retroactively.
n
The majority articulates two grounds for its apparent disinclination to apply current United States Supreme Court precedent regarding retroactivity. First, it asserts that the rule set forth in Bender does not have constitutional implications, and, second, federal retroactivity precedent only applies to rules of criminal procedure emanating from the federal constitution.
The majority implies throughout its analysis that the rule set forth in Bender has no basis in our constitution. While the Bender rule is prophylactic in nature like Miranda,1 that fact does not detract from its constitutional underpinnings. Its very purpose is to protect a suspect’s right to counsel and the privilege against self-incrimination. To deny the constitutional import of this rule is to ignore the plain language set forth in Bender.
The right to counsel and the right to be free of compulsory self-incrimination are part of the bedrock of constitutional civil liberties that have been zealously protected and in some cases expanded over the years. Given the focus and protection that these particular constitutional provisions have received, it is difficult to accept and constitutionally justify a rule of law that accepts that law enforcement investigators, as part of a custodial interrogation, can conceal from suspects that counsel has been made available to them and is at their disposal. If it is deemed to be important that the accused be informed that he is enti*71tied to counsel, it is certainly important that he be informed that he has counsel. [Id. at 621 (emphasis added).]
In my view, the rule we adopt today requiring police to inform suspects that counsel has been retained for them insures that our system of criminal justice remains accusatorial and not inquisitorial in nature. Perhaps more importantly, it demonstrates that eocperience has taught us that the good will of state agents is often insufficient to guarantee a suspect’s constitutional rights. [Id. at 623 (emphasis added).]
The constitutional undeipinnings of Bender are obvious.
The majority asserts that it “assume[s] that the Bender majority employed the term ‘prophylactic’ as it is used in Miranda, that is, ‘procedural safeguards’ that are not themselves constitutionally based.” Ante, p 62, n 44. Contrary to the majority’s assumption, I assume that the Bender majority meant precisely what it stated:
As Justice Souter explained in Withrow v Williams, 507 US 680, 691; 113 S Ct 1745; 123 L Ed 2d 407 (1993): “ ‘Prophylactic’ though it may be, in protecting a defendant’s Fifth Amendment privilege against self-incrimination Miranda safeguards ‘a fundamental trial right.’ ” [Id. at 621.]
In addition, the majority contends that “the Bender-rule is not relevant to the ascertainment of guilt or innocence and does not implicate the integrity of the fact-finding process.” Ante, p 62. Again, the plain language set forth by the Bender majority indicates otherwise:
“Nor does the Fifth Amendment ‘trial right’ protected by Miranda serve some value necessarily divorced from the *72correct ascertainment of guilt. ‘ “[A] system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses” than a system relying on independent investigation.’ Michigan v Tucker [417 US] [433] 448, n 23 [94 S Ct 2357; 41 L Ed 2d 182 (1974)] (quoting Escobedo v Illinois, 378 US 478, 488-489 [84 S Ct 1758; 12 L Ed 2d 977] [1964]). [Some citations omitted.]” [Id. at 622.]
By its adoption of the Bender rule, this Court clearly sought to protect a “fundamental trial right” rooted in the privilege against self-incrimination and the right to counsel. Accordingly, the majority’s conclusion that “[b]ecause the doctrinal foundation for the Bender rule is prophylactic and aimed at preventing police misconduct that does not affect the truth-finding process, it is amenable to prospective application” is unsupported by the foundation laid for the rule set forth in Bender. Ante, p 63. By deeming Bender prospective only, the majority fails to heed its own counsel that “the good will of state agents is often insufficient to guarantee a suspect’s constitutional rights.” Bender at 623. Thus, I find the majority’s conclusion that Bender does not implicate a defendant’s constitutional rights wrong and without any viable legal support.
As an additional matter, I am not persuaded that merely because the underpinnings of Bender are grounded in the Michigan Constitution and do not emanate from the federal constitution that we should summarily dismiss a body of law that has undergone decades of cautious and in-depth examination, culminating in the rule set forth in Griffith v Kentucky, 479 *73US 314; 107 S Ct 708; 93 L Ed 2d 649 (1987).2 The Supreme Court has carefully analyzed the public policy involved in retroactive application of new rules of criminal procedure, producing a rule that protects both the constitutional rights of defendants and the state’s interest in the finality of judgments. This rule is set forth in Griffith, which holds that newly declared constitutional rules must be applied retroactively to all cases pending on direct review with no exception for cases in which the new rule is a “ ‘clear break’ with the past.” Id. at 328. The failure to do so “violates basic norms of constitutional adjudication.” Id. at 322. Moreover, the “integrity of judicial review requires that we apply that rule to all similar cases pending on direct review” and the failure to do so “violates the principle of treating similarly situated defendants the same.” Id. at 323. The failure to give the appropriate measure of consideration to these important concerns and the resulting decision not to accord the Bender rule retroactive effect also violates the “basic norms of constitutional adjudication” and the “integrity of judicial review.”
The majority also fails to give appropriate consideration to the analysis set forth in Shea v Louisiana, 470 US 51; 105 S Ct 1065; 84 L Ed 2d 38 (1985), in which the Supreme Court held that the rule of Edwards v Arizona, 451 US 477; 101 S Ct 1880; 68 L *74Ed 2d 378 (1981), would be applied retroactively to cases not yet final, that is, those cases pending on direct review.3 In Edwards, the Supreme Court held that once an accused has asserted the right to counsel, “the interrogation must cease until an attorney is present.” Id. at 485. The protection set forth in Edwards is clearly rooted in Miranda-.
[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. [Id. at 484]
Likewise, Bender is also rooted in Miranda-like protections and should be afforded retroactive effect just as was Edwards. Even if the majority was correct in its assessment that the Bender rule is not rooted in the protection of constitutional rights, the same rule of retroactivity applies where a “prophylactic” rule is at issue.
The analyses set forth in Shea and Griffith are based on United States v Johnson, 457 US 537; 102 S Ct 2579; 73 L Ed 2d 202 (1982), which examined the difficulties and inconsistencies in the long evolution of retroactivity jurisprudence. The majority relies heavily on our decision in People v Hampton, 384 Mich 669; 187 NW2d 404 (1971), which is based on Linkletter v Walker, 381 US 618; 85 S Ct 1731; 14 L Ed 2d 601 (1965), and also on the analysis set forth in Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d *751199 (1967). However, the Supreme Court noted in Johnson:
Because the balance of the three Stovall factors inevitably has shifted from case to case, it is hardly surprising that, for some, “the subsequent course of Linkletter became almost as difficult to follow as the tracks made by a beast of prey in search of its intended victim.” [Id. at 544.]
These factors have also been “attacked as being both difficult to apply and easy to manipulate to reach a desired result.” Moody, Retroactive application of law-changing decisions in Michigan, 28 Wayne L R 439, 455 (1982). The reliance factor “merits little protection when, as is the case where the retroactivity of constitutional procedural rights is at issue, a criminal defendant’s life or liberty is at stake.” Id. Finally, the administration of justice factor has also been labeled as “easily subject to misuse and distortion so as to justify a court’s predetermined non-retroactivity result.” Id. The factors utilized by the majority have been called into question again and again. I believe that the time has come for us to reexamine retroactivity.
After examining the numerous opinions authored by Justice Harlan on the issue of retroactivity, the Supreme Court agreed that “ ‘[r]etroactivity’ must be rethought.” Johnson at 548. The Court concluded, in accordance with Justice Harlan’s view, that a decision from it construing the Fourth Amendment is to be applied to all convictions not yet final at the time the decision was rendered. Id. at 562.
The Court looked approvingly on two statements of Justice Harlan in particular:
*76“We do not release a criminal from jail because we like to do so, or because we think it wise to do so, but only because the government has offended constitutional principle in the conduct of his case. And when another similarly situated defendant comes before us, we must grant the same relief or give a principled reason for acting differently.” Desist v United States, 394 US [244, 258; 89 S Ct 1030; 22 L Ed 2d 248 (1969)] (dissenting opinion). Applying Payton [v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980)] to convictions that were not yet final when Pay-ton issued would accomplish the first step toward “turning our backs on the ad hoc approach that has so far characterized our decisions in the retroactivity field and proceeding to administer the doctrine on principle.” Jenkins v Delaware, 395 US [213, 224; 89 S Ct 1677; 23 L Ed 2d 253 (1969)] (Harlan, J., dissenting). [Id. at 561-562.]
I agree with Justice Harlan’s assessments regarding retroactivity. Not only does fairness require that similarly situated defendants be treated the same, but the majority offers no “principled reason” for doing otherwise. We, too, should take this opportunity to “turn our backs on the ad hoc” and inconsistent retroactivity jurisprudence and to mind Justice Moody’s observation:
Selective application of the benefit, and perhaps also the burden, of the change to one party and not to others similarly situated is difficult to justify in view of the fact that it is often pure happenstance that leads a court to select one case rather than another as a vehicle for an overruling or first-impression decision. [Moody, supra at 446.]
The test employed by the majority “fails to consider the ‘hardship and inequity suffered by those who are denied the benefit of the new rule and compelled to bear the burden of what is now admittedly recognized as an unjust rule.’ ” Id. at 456.
*77More important, this Court has already examined and adopted the more recent retroactivity analysis set forth by the Supreme Court. Contrary to the majority’s analysis, we have previously utilized federal retroactivity analysis post-Linkletter, and our own jurisprudence did not stagnate with the Hampton decision. Not only is there a failure to undertake the task of determining whether we should apply current federal retroactivity precedent in this case, there is a disregard of other decisions of this Court doing so.4
The fact that we did not cease utilizing federal retroactivity precedent after the adoption of Linkletter in Hampton is evidenced by several decisions from this Court. In People v Gay, 407 Mich 681, 705; 289 NW2d 651 (1980), we noted our adoption of Linkletter; however, we proceeded to state that “the United States Supreme Court has since determined that the question whether a double jeopardy holding should be given retroactive effect is ‘not readily susceptible of analysis under the Linkletter line of cases.’ ” Citing Robinson v Neil, 409 US 505, 508; 93 S Ct 876; 35 L Ed 2d 29 (1973).
The issue presented in Gay was the retroactive application of People v Cooper, 398 Mich 450, 460-461; 247 NW2d 866 (1976), in which we held that limitations existed under the Michigan Constitution on the state’s ability to prosecute a defendant in a state court following a conviction in federal court for crimes arising out of the same acts. Gay still used the *78Linkletter factors in its analysis in accordance with Supreme Court dictates. However, the Gay Court noted that “many of the decisions of the United States Supreme Court in recent years demonstrate a growing limitation upon the concept of dual prosecution originally approved [by it].” Id. at 707. Thus, previous reliance on the dual sovereignty concept was recognized as “dubious.” Id. at 708. We concluded that “retrospective application of the Cooper rule is required to assure the fair distribution of a fundamental right.” Id. at 709.
As noted above, the majority characterized the Bender rule as safeguarding “a fundamental trial right” in spite of its prophylactic nature. Bender at 621. As in Gay, Bender involves a fundamental right mandating retroactive application and the fact that Bender, like Gay, is grounded in the protection of state constitutional rights does not control whether we should apply the current federal retroactivity model.
Next, in People v Woods, 416 Mich 581; 331 NW2d 707 (1982), we decided whether our decision in People v Wright, 408 Mich 1; 289 NW2d 1 (1980), based on Sandstrom v Montana, 442 US 510; 99 S Ct 2450; 61 L Ed 2d 39 (1979), was retroactive. Wright and Sandstrom held that due process is violated when the jury is instructed that the law presumes that a person intends the ordinary consequences of his voluntary acts where a reasonable juror would inteipret the presumption as conclusive or as shifting the burden of persuasion to the defendant on the issue of intent. Woods at 612. In deciding whether to apply these cases retroactively, we utilized the analysis set forth in Johnson, supra, “the Supreme Court’s most recent *79opinion on retroactivity,” in spite of that decision’s express limitation of its analysis to Fourth Amendment violations. Woods at 616.5
Still utilizing the Linkletter factors, we first concluded that, given the reliance by lower courts on unreversed cases approving these jury instructions, “the effect full retroactivity would have on Michigan’s system of justice is unacceptable. Since this Court long approved of such instructions, the number of cases where this instruction was used is surely enormous. Taking this into consideration with the purpose of the Sandstrom rule, we feel full retroactivity is unwarranted.” Woods at 621. However, we went on to hold:
[R]etroactive application to those defendants whose cases were pending on direct appeal when Sandstrom was decided is required if the issue was properly raised and preserved. United States v Johnson, supra, which allowed retroactive application of Payton, supra, to cases pending on direct appeal, was specifically limited to decisions involving the Fourth Amendment. However, it clearly manifested a preference for limited retroactivity since it is consonant with the Court’s original understanding of retroactivity in Linkletter, does justice to “each litigant on the merits of his own case,” and furthers the goal of giving similar treatment to defendants similarly situated. We find these reasons equally applicable to this case. [Id. at 621-622 (citations omitted; emphasis added).]
*80We essentially applied the same rule set forth by the Supreme Court in Johnson, Shea, and Griffith, that is, a new rule applied retroactively to all cases pending on direct appeal at the time of decision where the issue was properly raised.6 Unlike the present situation, the decision in Woods was applied retroactively, despite the fact that this Court had “long approved” such instructions. As will be discussed in more detail below, the police conduct denounced in Bender has not been “long approved” by this Court, at the very least not since our decision in Wright.
m
A
I find that the majority erred in its retroactivity analysis for two reasons. First, although it engaged in a “foreshadowing” analysis in the context of the second and third factors of Hampton, the majority misapprehends one of the primary purposes of this type of analysis. The majority acknowledges that judicial decisions are to be given complete retroactive effect. People v Doyle, 451 Mich 93, 104; 545 NW2d 627 (1996). However, it fails to note that “ ‘[c]omplete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law.’ ” Id., quoting Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 240; 393 NW2d 847 (1986). Moreover, only if the decision is “unexpected” or “indefensible” in light of the law in place at the time *81of the conduct in question does retroactive application of the new decision even become problematic. Id.
Thus, before any question of the retroactive application of a decision arises, “it must be clear that the decision announces a new principle of law.” People v Phillips, 416 Mich 63, 68; 330 NW2d 366 (1982). A rule of law is “new” for purposes of retroactivity analysis “either when an established precedent is overruled or when an issue of first impression is decided which was not adumbrated by any earlier appellate decision.” Id.7 Albeit for different reasons, four members of this Court, in Wright, found the police officers’ failure to inform a suspect of an attorney’s presence to be impermissible police conduct. I cannot conclude that after Wright, the police did not have reason to be aware that withholding information regarding the presence of an attorney from a suspect was impermissible. Therefore, Bender is not a “new rule” within the meaning of Phillips.
Simply because Wright did not create an exclusionary rule per se does not lead to the conclusion that it did not foreshadow Bender. The majority evidently equates foreshadowing with the principle of stare *82decisis. However, had Wright created the exclusionary rule per se that the majority seems to think was necessary,8 not only would retroactivity of the Bender rule not be an issue, it need not have been decided at all (because Wright already would have done so). Therefore, equating foreshadowing with stare decisis renders the foreshadowing analysis pointless.
Presumably, the majority would conclude that the police are not sufficiently aware of the impermissibility of engaging in any relevant factor utilized in the totality-of-the-circumstances test for vohmtariness simply because the violation of any one factor might not result in an exclusion of evidence per se. However, official awareness of an exclusionary rule per se is not the same as official awareness that certain conduct is simply not allowed. Police misconduct is police misconduct, regardless of the consequences. The majority overlooks such misconduct simply because the police were unaware that the fruit of their misconduct would be absolutely inadmissible at trial. I submit that conduct so clearly contrary to Wright should not be rewarded.
Accordingly, I cannot agree with the majority’s conclusion that Bender was not clearly foreshadowed by Wright, and, thus, Bender cannot be properly characterized as a “new rule.” The majority’s foreshadowing analysis is quite similar to the government’s argument soundly rejected in Johnson:
*83[T]he only Fourth Amendment rulings worthy of retroactive application are those in which the arresting officer violated pre-existing guidelines clearly established by prior cases. But as we have seen above, cases involving simple application of clear, pre-existing Fourth Amendment guidelines raise no real questions of retroactivity at all. Literally read, the Government’s theory would automatically eliminate all Fourth Amendment rulings from consideration for retroactive application. [Id. at 560 (emphasis added).]
This is precisely what the majority seeks to do here: Unless settled principles are applied, the decision should not be retroactive. In doing so, the majority distorts retroactivity jurisprudence and effectively renders engaging m retroactivity analysis in the future an exercise in futility by disallowing retroactive application of any rule that could possibly be characterized as “unsettled” in any infinitesimal way.
B
The majority’s second error lies in its analysis of the Hampton/Linkletter factors.9 The three factors applied by the majority are set out in Hampton and *84analyze: (1) the purpose of the new rule, (2) the general reliance on the old rule, and (3) the effect of retroactive application of the new rule on the administration of justice. Contrary to the majority’s assertions10 regarding the purpose of the Bender rule, the Bender majority found the Bender rule necessary to protect “a fundamental trial right” that serves a value not “necessarily divorced from the correct ascertainment of guilt.” Bender at 620-621.* 11 Thus, the Bender rule is fully amenable to retroactive application, even under the law as so narrowly viewed by the majority.12
The majority’s assertions that the “police acted in full compliance with the law as it existed at the time” and that “the purpose of preventing police misconduct will in no way be served by retroactive applica*85tion” axe inconsistent with the plain import of Wright and with its admission that the Court of Appeals, subsequent to Wright, “correctly employed a traditional totality-of-the-circumstances analysis in determining whether the defendant’s statements were voluntary.” Ante, p 67.
First, if Wright had established such a rule, Bender not only would have been an unnecessary decision, it could not possibly implicate retroactivity. Second, if failure to inform a suspect that an attorney was waiting to speak with him is an appropriate factor to be utilized in the test for vohmtariness, then how could the police possibly be unaware that such behavior was inappropriate? Third, the violation of any factor utilized in the totahty-of-the-circumstances test simply cannot be characterized as “full compliance with the law.”13 Fourth, the prevention of police misconduct certainly will be furthered by retroactive application of Bender because no legitimate reason existed for the police to ignore Wright and any reliance placed elsewhere is simply unjustified.
*86In applying the third Hampton factor, the majority asserts that if Bender was applied retroactively, “[c]onvictions would be called into question and evidence excluded that was obtained in full compliance with the law extant at the time the statement was given.” Ante, p 67. There is no burden on the administration of justice where we require the police to follow the rules set forth by this Court that are designed to protect fundamental constitutional rights, i.e., Wright. Again, the majority’s decision permits the police to ignore the plain significance of our decision in Wright simply because Wright did not adopt an exclusionary rule per se. It is this ultimate conclusion that I find illogical, legally unjustifiable, and constitutionally offensive.
IV
In sum, I believe we should take the significant step of adopting the consistent, simple, and clear approach to retroactivity utilized by the federal courts. In addition, the majority’s retroactivity analysis is in error for two reasons: Bender is not a “new rule” of law because it was foreshadowed by Wright, and application of the Hampton/Linkletter factors mandates retroactive application of Bender. Accordingly, I conclude that retroactive application of Bender is appropriate, no matter the test applied.
Cavanagh and Kelly, JJ., concurred with Brickley, J.Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
The majority observes that the “conclusion that Griffith mandates retroactive application only with respect to rules that emanate from the federal constitution is in accord with the approach adopted in both federal and state courts.” See ante, pp 55-56. I agree; it is a fairly basic principle of law that United States Supreme Court precedent does not control decisions based on state law, constitutional or otherwise. The issue presented in this case is not whether we must apply Griffith, but whether we should.
Edwards was not applied retroactively to cases pending on collateral review. See Solem v Stumes, 465 US 638; 104 S Ct 1338; 79 L Ed 2d 579 (1984). This comports with the distinction outlined in Griffith between those cases pending on direct review and those on collateral review.
While I do not believe that we should blindly apply federal retroactivity precedent to cases involving principles of state law, I also do not believe that we should blindly ignore it. We have a tradition of reviewing federal courts for guidance in this area. Undertaking an analysis of the current applicable federal retroactivity precedent is appropriate and consistent with our own jurisprudence.
Apparently we took notice of Justice Moody’s observation that the “simplicity and clarity of the limited retroactivity rule adopted by the Johnson Court stands in stark contrast to the relative inconsistency, in analysis and result, in Michigan retroactivity decisions. More importantly, however, the United States Supreme Court’s agreement with Justice Harlan’s statement in Desist that retroactivity needs to be rethought will, hopefully, provide further impetus for such rethinking in Michigan.” Moody at 509, n 359. Unfortunately, the majority retreats from our foray into simplicity, clarity, and consistency.
For purposes of “limited retroactivity,” the phrase “pending on appeal” is construed to include only those cases pending on timely direct appeal from the trial court to the Court of Appeals or on timely application to the Michigan Supreme Court from the Court of Appeals. Moody at 470.
The majority refers to the definition of “new rule” found in Teague v Lane, 489 US 288, 301; 109 S Ct 1060; 103 L Ed 2d 334 (1989). See ante, p 61, n 42. However, this Court currently uses the definition articulated in Phillips, supra. If it is the desire of the majority to overrule Phillips, it may certainly do so. In this vein, much of the disagreement between the majority and the dissent in this case lies in the answer to the question when should we apply federal precedent. Both could endlessly throw stones about which position is most true to federal jurisprudence for every nuance of every issue presented in this case, and both may even be right. However, the underlying premise of my view is that, with regard to the issue of retroactivity, we should follow federal precedent instead of continuing to apply the confusing, heavily criticized, and easily manipulated test utilized by the majority.
“Given that the majority in Wright did not agree that failure to allow retained counsel access to the client-mandated exclusion of the statements as a matter per se it cannot be said that Wright foreshadowed Bender." Ante, p 65.
I find the majority’s retroactivity analysis analogous to the retroactivity test found to be an “absurdity” by the Supreme Court in Johnson. Long before the decision regarding arrests without warrants, whose retroactive application was at issue in Johnson, the Court had “questioned the constitutionality of warrantless home arrests.” Id. at 560. The Court, in rejecting the government’s argument that only settled Fourth Amendment issues should be applied retroactively, stated:
Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question. Failure to accord any retroactive effect to Fourth Amendment rulings would “encourage police or other courts to disregard the plain purport of our decisions and to adopt a let’s-wait-until-it’s-decided approach.” [Id. at 561.]
*84Given that a majority of this Court in Wright clearly expressed the “dubious constitutionality” of the failure to inform a suspect of the presence of an attorney, I believe that the police had sufficient notice that such a practice was impermissible. The majority’s decision gives the police little incentive to err on the side of a defendant’s constitutional rights. It permits the police to disregard our decisions, adopting a let’s-wait-until-we-absohitely-cannot-get-the-evidence-in-when-we-violate-adefendant’s-constitutional-rights approach.
As already noted, the majority asserts that the “purpose of the Bender rule is to provide ‘prophylactic’ protection against potential Miranda violations by mandating suppression as a deterrence to police misconduct.” Ante, pp 61-62. In addition, “the Bender rule is not relevant to the ascertainment of guilt or innocence and does not implicate the integrity of the fact-finding process.” Ante, p 62.
It is true that Miranda warnings are not mandated by the federal constitution. See ante, p 62. However, Bender is rooted in the protection of Michigan constitutional rights, and what this Court held in Bender is controlling, not what the United States Supreme Court has stated about Miranda. As the majority points out, federal law does not control the issues presented in this case.
“ ‘When a decision of this Court involves a rule which concerns the ascertainment of guilt or innocence, retroactive application may be appropriate.’ ” Ante, p 63, quoting People v Young, 410 Mich 363, 367; 301 NW2d 803 (1981).
The majority says that the “essence of the totahfy-of-the-eireumstances approach is the antithesis of an approach identifying any specific factor as illegal.” See ante, p 60, n 42. There is a decided difference between violating a factor in the totality of the circumstances and creating an exclusionary rule per se. However, the majority’s logic means that the police do not know that violating any factor so utilized is impermissible conduct unless and until a court has determined, after the fact, that a defendant’s statement was involuntary. Essentially, the police may then violate a certain quantum of factors before the behavior becomes “illegal.” The consequences of one’s actions do not necessarily determine whether the action taken is itself legal. If the majority was correct, whatever would be the purpose of articulating the factors to be used in a totality-of-thecireumstances test? None by themselves are “illegal.” In my view, the purpose of articulating the factors is to place the police on notice of what behavior is appropriate and what behavior is not. Here, the police were on clear notice, and, thus, their behavior was not “legal” as the term is used by the majority.