Defendant, Samuel Lee Elliott, appeals as of right his conviction by a jury of armed robbery, MCL 750.529. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 15 to 30 years’ imprisonment.
The police arrested defendant for violating his parole after receiving information that he had committed a robbery. The police advised defendant of his Miranda
I. FACTS AND PROCEDURAL HISTORY
On June 16, 2010, a man entered an Admiral gas station at about 3:15 a.m. and asked the cashier for a pack of Marlboro Reds cigarettes. The man then told the cashier that he had a gun and that the cashier needed to give him the money from the register. The man wore a University of Michigan fleece pullover
The next day, defendant’s brother contacted the police and told them that defendant had robbed the gas station. The police arrested defendant later that day for violating his parole and took him to the Jackson County Jail. The police then searched the residence where defendant was staying and obtained a hat and fleece pullover purportedly belonging to defendant that matched those worn by the robber. On June 18, 2010, detectives went to the jail, advised defendant of his Miranda rights, and interrogated him about the robbery. Defendant answered several questions, stated that he did not rob the gas station, and then invoked his right to an attorney, at which point the interrogation ended.
On June 21, 2010, Cheryl Evans, a parole officer, went to the jail to “serve [defendant] parole violation charges and get his statement” regarding the robbery. Before meeting with defendant, Evans received the police report and spoke with Detective Ed Smith about the fact that defendant was a suspect for the armed robbery of the gas station. A deputy escorted defendant from his jail cell to the jail library, where Evans interviewed him. Evans did not read defendant his Miranda rights. Evans served defendant with his parole-violation charges relating to the robbery and asked defendant for his statement regarding the robbery. According to Evans, defendant told her that he had robbed the gas station. After the interview, Evans called Smith and informed him that defendant had confessed to the
On the first day of trial, but before jury selection, defendant moved to suppress the statements that he had made to Evans on June 21, 2010. Defense counsel stated that “the main issue” with respect to the motion was whether a parole officer constitutes a law enforcement officer for Fifth Amendment purposes. Defense counsel argued as follows, in pertinent part:
My argument, Judge, is that un-Mirandized statements obtained by Cheryl Evans, a parole agent, in the jail is an inherently coercive custodial condition, which is envisioned by Miranda. And that’s the type of situation where ... in order for the statements to come in as evidence.. . you need to have advised the suspect of his Miranda warnings and his right to counsel and everything that comes along with it.
... I believe that Cheryl Evans was acting as an agent of the government. There’s a special relationship between her and Sam Elliott and, to make it even worse, it was in the jail. He was under arrest; he’d been there since the seventeenth.
Now, I know that the police advised him of his rights back on the eighteenth in this case, three days before. But he invoked his rights then and I don’t think you can keep coming back.... Once you invoke your rights, questioning must stop. It did here, but then [Evans] came back, and I don’t think you can come back again and start re-questioning where there has been an invocation of your constitutional right to counsel.
The prosecutor emphasized that under this Court’s decision in People v Littlejohn, unpublished opinion
The trial court stated that the Miranda issue before it was “very unclear from the precedent that’s out there.” “There’s a patchwork of law out there. There’s nothing definitive on this position.” The trial court then analyzed the motion to suppress under Littlejohn and concluded that defendant’s statements to Evans were admissible:
Looking at People v Littlejohn, Number 195286, although it’s not a . .. published case, it does state that:
“The parole officer testified she was not a police officer or a certified law enforcement officer.... Said she was acting independently from the police and that her only reason for speaking to the defendant was to advise him of the parole violation charges, to advise him of his rights for a preliminary hearing on those charges, and to determine if*630 he would agree to waive the hearing. Under these circumstances, we conclude that the parole officer was not a law enforcement official.”
And that’s really the main question: is a parole officer acting in this capacity, not in concert with the law enforcement — a law enforcement official.
Based on the guidance from People v Littlejohn and the circumstances outlined within that case, the Court’s going to find that the parole officer was not acting in concert and the testimony I’ve heard here and the stipulated facts was not acting in concert with the police. She was there to advise [defendant] of the charges. The information she obtained previously was to understand what was going on so that she could advise [defendant] of the parole violation charges. And, under these circumstances, she was not... a law enforcement official and, therefore, the confession will come in. The statements made ... to her will come in.
Evans testified at trial that defendant confessed to committing the robbery. Following his conviction, the trial court sentenced defendant as a fourth-offense habitual offender to 15 to 30 years’ imprisonment.
II. SUPPRESSION OF STATEMENTS TO PAROLE OFFICER
Defendant argues that the trial court erred when it denied his motion to suppress his statements to Evans because as a parole officer, Evans was a law enforcement officer for purposes of Miranda who subjected him to a custodial interrogation after he had invoked his right to counsel three days earlier. We agree.
When we review a trial court’s factual findings with respect to a motion to suppress, we defer to the trial court unless the court’s findings are clearly erroneous. People v Herndon,
B. MIRANDA AND CUSTODIAL INTERROGATION
The right against self-incrimination is guaranteed by both the United States and the Michigan Constitutions. US Const, Am Y; Const 1963, art 1, § 17. “[T]he protection against compelled self-incrimination in the Michigan Constitution [is] construed the same as its federal counterpart.” People v Bender,
“[T]he Fifth Amendment right to counsel is a corollary to the amendment’s stated right against self-incrimination and to due process.” People v Marsack,
In this case, it is not disputed that defendant’s June 18, 2010, police interrogation constituted a custodial interrogation under Miranda. While defendant was under arrest, detectives questioned him about the robbery for which he was a suspect. See Miranda,
On June 21, 2010, Evans went to the jail to serve defendant with parole-violation charges, question de
Therefore, Evans subjected defendant to a custodial interrogation. And, to the extent that Evans was a law enforcement officer under Miranda, her questioning of defendant violated defendant’s Fifth Amendment rights. See Edwards,
C. MIRANDA’S APPLICATION TO PAROLE OFFICERS
“[C]onstitutional protections apply only to governmental action.” See People v Anderson,
The trial court in the present case concluded that defendant’s statements to Evans were admissible for two reasons: (1) Evans was not acting in concert with or at the request of the police and (2) a parole officer, such as Evans, is not a law enforcement officer for Miranda purposes.
We conclude that the trial court did not clearly err when it determined that Evans did not act in concert with or at the request of the police. See Herndon,
However, notwithstanding the trial court’s finding that Evans was not acting in concert with or at the request of the police, the question remains whether Evans was a law enforcement officer under Miranda as a matter of law given her status as a parole officer and therefore precluded from interrogating defendant after he invoked his right to counsel.
We emphasize that [the defendant] was not under arrest and that he was free to leave at the end of the meeting. A different question would be presented if he had been interviewed by his probation officer while being held in police custody or by the police themselves in a custodial setting. [Id. at 429 n 5 (emphasis added).]
The case now before this Court presents the exact different question to which the Murphy Court alluded.
In Littlejohn, the trial court admitted into evidence statements that the defendant made to a parole officer who did not advise the defendant of his Miranda rights before an interview. Littlejohn, unpub op at 1-2. On appeal, this Court affirmed the trial court’s admission of the statements for two reasons. Id. at 2. First, the Littlejohn Court concluded that the parole officer did not subject the defendant to an interrogation because the defendant’s statements were “volunteered” and “not the result of questioning or of behavior calculated to elicit an incriminating response.” Id. Second, the Court concluded that the parole officer “was not a law enforcement official” and “was acting independently from the police” solely “to advise [the defendant] of parole violation charges, to advise him of his right to a preliminary hearing on those charges, and to determine if he would agree to waive the hearing.” Id.
Similarly, in Stokes this Court upheld the admission of statements that a defendant made to a parole officer who did not advise the defendant of his Miranda rights before an interview. Stokes, unpub op at 4-5. Relying on our previous decision in Anderson,
We note, however, that while this Court’s decisions in Littlejohn and Stokes are persuasive authority for our constitutional inquiry, they are not precedentially binding on this Court under the rule of stare decisis. MCR 7.215(C)(1); see also People v Green,
In Deaton, for example, the defendant’s parole officer testified at the defendant’s trial about incriminating
In addition to these federal circuits, there is persuasive authority from various state appellate courts holding that Miranda applies to parole and probation officers. See, e.g., State v Willis, 64 Wash App 634, 639-640;
In Marrs, police officers arrested the defendant on trespassing charges. Marrs, 53 Md App at 231-232. In the presence of two police officers, the defendant’s
It seems to us that an accused, whose essential obligation it is to “report to” and “answer questions posed by a probation officer,” United States v. Rea,678 F.2d 382 (2nd Cir.1982), is under even heavier psychological pressure to answer questions put by his probation officer, a figure of*642 both authority and trust. A probationer, who often talks to his supervising officer as a counselor and confidante, might very well assume that any statements made by him are in some way confidential thus bringing into play the mandates of Miranda. [Id. at 233.]
In Roberts, the Ohio Supreme Court similarly considered the relationship between probation officers and probationers before holding that a probation officer must give Miranda warnings before questioning an in-custody probationer. See Roberts, 32 Ohio St 3d at 231. After discussing the reasoning of the Marrs court, the Roberts court emphasized that there is a “deceptive effect engendered by the in-custody questioning of a probationer by his probation officer.” Id. at 230. In explaining the potential for abuse in the probationer-probation officer relationship, the court quoted Justice Thurgood Marshall’s dissent in Murphy. Id. Justice Marshall opined:
It is trae, as the majority points out, that the discussion between a probation officer and a probationer is likely to be less coercive and intimidating than a discussion between a police officer and a suspect in custody. Ante, at 1144, 1145 [Murphy,465 US at 433 ]. But it is precisely in that fact that the danger lies. In contrast to the inherently adversarial relationship between a suspect and a policeman, the relationship between a probationer and the officer to whom he reports is likely to incorporate elements of confidentiality, even friendship. Indeed, many probation officers deliberately cultivate such bonds with their charges. The point should not be overstated; undoubtedly, few probationers are entirely blind to the fact that their probation officers are ‘peace officer[s],. .. allied, to a greater or lesser extent, with [their] fellow peace officers.’ Fare v. Michael C.,442 U.S. 707 , 720,99 S.Ct. 2560 , 2569,61 L.Ed.2d 197 (1979). On the other hand, many probationers develop “relationship[s] of trust and confidence” with their officers. Id., at 722 []. Through abuse of that trust, a probation officer can elicit admissions from a probationer that the probationer*643 would be unlikely to make to a hostile police interrogator. [Murphy,465 US at 459-460 (Marshall, J., dissenting).]
Although we are mindful of this Court’s previous unpublished decisions in Stokes and Littlejohn that do not apply Miranda to parole officers, we are persuaded that the better rule is that articulated by the Deaton, Marrs, and Roberts courts and adhered to by the other jurisdictions listed.
The rationale for the suppression of statements elicited during a custodial interrogation by a law enforcement officer who does not adhere to Miranda is to “combat” the “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Miranda,
On the one hand, the parolee-parole officer relationship often becomes a relationship of trust and confidence, as does the probationer-probation officer relationship addressed by Justice Marshall in Murphy. See Murphy,
That [defendant] was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney, is immaterial. When [the psychiatrist] went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of*645 [defendant’s] future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting. During the psychiatric evaluation, [defendant] assuredly was “faced with a phase of the adversary system” and was “not in the presence of[d\ perso\n\ acting solely in his interest.”
... Because [defendant] did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to [the psychiatrist] to establish his future dangerousness. If, upon being adequately warned, [defendant] had indicated that he would not answer [the psychiatrist’s] questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose. [Estelle,451 US at 467-468 (citation omitted; emphasis added) (italicized alterations in original).]
Furthermore, when a parole officer subjects a parolee to a custodial interrogation, there is always the possibility that the parole officer’s questioning will lead to a criminal prosecution. The existence of such a possibility, the Supreme Court held, necessitated the use of Miranda safeguards by an internal revenue agent:
It is true that a ‘routine tax investigation’ may be initiated for the purpose of a civil action rather than criminal prosecution. ... But tax investigations frequently lead to criminal prosecutions, just as the one here did.... And, as the investigating revenue agent was compelled to admit, there was always the possibility during his investigation that his work would end up in a criminal prosecution. We reject the contention that tax investigations are immune from the Miranda requirements for warnings to be given a person in custody. [Mathis,391 US at 4 (emphasis added).]
D. HARMLESS ERROR
A preserved constitutional error occurring during the presentation of the case to a jury, i.e., a nonstructural error, is not grounds for reversal if the error was harmless. People v Miller,
In addition to eliciting Evans’s inadmissible testimony, the prosecution presented evidence that defendant smoked Marlboro cigarettes, which was the brand of cigarettes that the robber told the cashier to give him. Defendant’s brother testified that defendant returned home on the night of the robbery wearing clothes that matched the description of the clothes worn by the robber and with $152. The $152 included a $2 bill, which corresponded to the money that the robber stole from the gas station. Defendant’s brother reported defendant to the police. Moreover, the prosecution presented evidence that defendant frequently wore a University of Michigan fleece pullover and a University of Michigan hat that matched the description of the pullover and hat worn by the robber.
Notwithstanding this evidence of defendant’s guilt, there remains a “reasonable possibility” that defendant’s statements to Evans “might have contributed to the conviction.” See Anderson,
Accordingly, we conclude that the trial court’s failure to suppress defendant’s statements to Evans was not harmless error beyond a reasonable doubt. Therefore, we reverse defendant’s conviction and remand for a new trial.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
Miranda v Arizona,
The trial court later entered an amended judgment of sentence, indicating that defendant’s sentence was to run consecutively to his preexisting sentences related to the parole violations.
We note that the present case is distinguishable from Howes because the defendant in that case was questioned by authorities while he was serving a jail sentence, i.e., while he was living in jail. Howes,
We emphasize that we do not address whether the statements would be admissible in a subsequent parole revocation hearing. We note, however, that the Supreme Court has stated that “the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” Morrissey v Brewer,