People v Fenderson

Michigan Supreme Court Lansing, Michigan Syllabus Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kimberly K. Muschong PEOPLE v FENDERSON Docket No. 167391. Argued on application for leave to appeal March 12, 2026. Decided July 14, 2026. Daren D. Fenderson was bound over to the Wayne Circuit Court on charges of first-degree premeditated murder, MCL 750.316(1)(a); felony-firearm, MCL 750.227b; and escape from lawful custody, MCL 750.197a. Defendant was arrested and jailed in connection with a fatal shooting. Police read defendant his rights under Miranda v Arizona, 384 US 436 (1966), but police were unable to interrogate defendant at that time because they believed that he was intoxicated. The following day, Detroit Police Sergeant Reginald Beasley and Detective Douglas Williams conducted a videorecorded interrogation. Beasley provided standard Miranda warnings, and defendant voluntarily signed an advice-of-rights form. After an hour of questioning, police told defendant that there were a lot of holes in his story and that they had conducted research, including watching surveillance videos and speaking with witnesses. Beasley further indicated that someone who looked at the evidence would ask themselves whether defendant was a callous killer; Beasley told defendant several times that pictures of the victim were “fucked up” and that police had a “video of it happening.” At this point, defendant invoked his right to counsel. Beasley asked if defendant had an attorney. Defendant indicated that he would need appointed counsel and asked how long that would take. Beasley said that he was not sure but that he would “make a couple phone calls.” Beasley returned about 40 minutes after defendant’s invocation and told him that he was “trying to get that attorney.” Two hours and 45 minutes after defendant invoked his right to counsel, Beasley returned; he did not address defendant or provide him with information about efforts to locate an attorney. Beasley was accompanied by a uniformed officer who removed defendant’s handcuffs and then had defendant turn around so that he could handcuff defendant with his arms behind his back. Defendant then asked where his lawyer was. The audio of the interrogation video is difficult to decipher, but Beasley responded either “You don’t got one” or “You don’t get one.” Defendant expressed confusion, and Beasley told defendant that police tried to call a lawyer but nobody was available and defendant had no money. Defendant asked whether he could use the money he had in his possession when he was arrested, and Beasley said that he couldn’t use that money.  Defendant then asked, “So what’s going on?” Beasley stated that defendant had asked for an attorney and that he could not speak to defendant without one, “[s]o the story you got is the story we gon’ go with.” Defendant again expressed confusion, and Beasley asked defendant what he was confused about. Defendant responded that he didn’t know what was going on and that police hadn’t told him anything. Beasley stated that police would take defendant back to the Detroit Detention Center and submit a warrant that a prosecutor would review. Defendant told Beasley that he didn’t know what that meant, and Beasley responded that defendant had requested an attorney so he couldn’t speak to defendant about the case, but that if defendant wanted to talk, defendant had to say he wanted to talk without an attorney. Defendant then repeatedly said that he wanted “to get this over with,” and Beasley responded that he could go over defendant’s rights with him again if he agreed to talk without an attorney. Defendant agreed to talk without an attorney and again expressed that he wanted “to get this over with.” Beasley stated that he didn’t want defendant to feel compelled to talk to him, but that if defendant wanted to talk without an attorney present, Beasley would talk to defendant. Defendant said, “Yeah.” Beasley again stated that he didn’t want defendant to feel forced to do anything and asked, “Is that something you want to do?” Defendant said, “Yes.” Beasley and the uniformed officers accompanying him left the interrogation room, and defendant started crying. Another sergeant, who was not connected with the investigation and who had not previously spoken to defendant, entered the room. Defendant said, “I don’t understand this.” The sergeant stated that his role was to reestablish defendant’s rights, and he read the standard Miranda warnings again. After each warning, the sergeant asked defendant if he understood his rights. Defendant responded with a mix of verbal agreement and nonverbal affirmative head nods. When the sergeant asked if anyone had forced, threatened, or coerced defendant to make a statement, defendant responded, “See, that’s what I . . . I don’t understand what’s going on.” The sergeant asked if defendant wanted to talk to police, and defendant agreed. Defendant initialed another advice-of-rights form, and the sergeant left. Beasley and Williams returned, and defendant made incriminating statements. Defendant moved to suppress the incriminating statements in the trial court on the grounds that he did not voluntarily, knowingly, and intelligently waive his Miranda right to counsel. The court, Wanda A. Evans, J., granted defendant’s motion to suppress, concluding that police communications with defendant had frustrated the advice of rights required by Miranda. The trial court also concluded that police reinitiated the interrogation after defendant’s invocation by readministering Miranda warnings. The prosecution sought leave to appeal in the Court of Appeals, and the Court of Appeals, SWARTZLE, P.J., and SERVITTO, J. (GARRETT, J., dissenting), reversed the suppression of defendant’s statements in an unpublished per curiam opinion, issued June 6, 2024 (Docket No. 367926). Defendant sought leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral argument on the application. 516 Mich 934 (2025). In an opinion by Justice THOMAS, joined by Chief Justice CAVANAGH and Justices BERNSTEIN, WELCH, BOLDEN, and HOOD, the Supreme Court, in lieu of granting leave to appeal, held: Defendant’s Fifth Amendment rights under Miranda were violated. Under Edwards v Arizona, 451 US 477 (1981), statements following the invocation of counsel are admissible only if counsel is made available to the suspect for questioning or if the state shows that the suspect himself reinitiated the investigation. In this case, defendant initially waived his Miranda rights but later asserted his right to appointed counsel. However, defendant was not provided counsel and was told he did not have and could not obtain counsel. The statements police made in this case after defendant’s invocation of counsel can reasonably be understood as suggesting that defendant’s right to have an attorney present during questioning was dependent on his ability to retain counsel through his own funds; these statements are not consistent with Miranda’s assertions that suspects have a right to counsel and that, if they cannot afford counsel, counsel will be provided. Defendant’s confusion and lack of understanding was apparent from the record: defendant repeatedly told police that he was confused and didn’t understand, and defendant asked multiple clarifying questions. The police did not err because they failed to provide an attorney; the police here erred by suggesting that defendant could not be questioned with an attorney present because he did not have the money to hire one. This confusing and inaccurate information undermined the advice of rights previously read to defendant. By undermining the advice of rights and implying that the right to have an attorney present during questioning was predicated on the ability to pay for an attorney, police in this case violated defendant’s Fifth Amendment right to counsel under Miranda. Furthermore, the prosecution did not show that defendant reinitiated the investigation. Defendant’s question, “So what’s going on?” could not reasonably be considered an affirmative request to reinitiate the interrogation without an attorney. Defendant asked this question in the context of a discussion about whether, having invoked his right to counsel, he had an attorney and whether he could use the money he had for an attorney. As a result, the subsequent Miranda waiver and questioning did not overcome Edwards and the confusion created about defendant’s right to counsel. Finally, police engaged in the functional equivalent of questioning when defendant asked what was going on. After defendant was told that he did not have an attorney and could not use his money for an attorney, police continued the same theme from prior to defendant’s invocation of counsel, where they suggested that defendant’s story had holes and did not make sense. Police told defendant that a waiver of his rights was the way to tell another story and that otherwise he would be stuck with the prior story. Accordingly, police undermined the advice of rights required by Miranda and impermissibly continued the interrogation after defendant invoked his right to counsel. Defendant’s statements subsequent to invocation of his right to counsel must be suppressed. Court of Appeals’ judgment reversed; case remanded to the Wayne Circuit Court for further proceedings. Justice ZAHRA, dissenting, would have affirmed the Court of Appeals’ judgment that defendant’s decision to waive his rights was made voluntarily, knowingly, and intelligently and that the officers did not violate defendant’s right to be free from self-incrimination under the Fifth Amendment of the United States Constitution or Article 1, § 17 of the 1963 Michigan Constitution. The police did everything they were constitutionally required to do in this case. They ceased questioning immediately once defendant requested an attorney; they attempted to locate an attorney for defendant; they informed defendant that they could not question defendant any further about the case because they could not find an attorney to counsel defendant during the interrogation; when asked, they explained to defendant what the next steps in the process would be; and when defendant stated that he wanted to talk without an attorney, they asked defendant to make sure that is what he wanted, repeatedly told him not to feel compelled to speak to them, and informed him of his rights again before accepting his waiver. This police conduct was not only constitutionally acceptable but required under the law.  Michigan Supreme Court Lansing, Michigan OPINION Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood FILED July 14, 2026 STATE OF MICHIGAN SUPREME COURT PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v No. 167391 DAREN DONELL FENDERSON, Defendant-Appellant. BEFORE THE ENTIRE BENCH THOMAS, J. Defendant, Daren Fenderson, awaits trial on charges of first-degree premeditated murder, felony-firearm, and escape from lawful custody. We heard oral argument to determine whether the Court of Appeals erred by reversing the trial court’s decision to grant defendant’s motion to suppress statements he made during a custodial interrogation. We find that it did. In this instance, police provided Miranda warnings, and defendant asserted his right to have an attorney present during questioning and his right to have counsel provided at the public’s expense. 1 After the invocation of these rights, police must either provide counsel for a suspect or terminate the interrogation. 2 In this case, after defendant invoked his right to counsel, police tried to obtain an attorney for him. They returned empty-handed, over two and a half hours later, telling defendant that he did not have an attorney and could not use the money taken from him during arrest to obtain one. Thereafter, in response to defendant’s questions about what was going on, police resumed the interrogation. We agree with the trial court that defendant’s Fifth Amendment rights under Miranda were violated. 3 We therefore reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for further proceedings not inconsistent with this opinion. I. FACTS AND PROCEDURAL HISTORY A. INTERROGATION Defendant was arrested and jailed in connection with a fatal shooting. The victim of the shooting was found pinned between a crashed vehicle and the front porch of a house. After defendant was arrested, police read him his Miranda rights, but they were unable to interrogate him at that time because they believed that he was intoxicated. The following day, Detroit Police Sergeant Reginald Beasley and Detective Douglas Williams conducted a videorecorded interrogation. Beasley provided standard Miranda warnings, and 1 Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). 2 Edwards v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981). 3 US Const, Am V; Const 1963, art 1, § 17; Miranda, 384 US at 444; see also People v Cipriano, 431 Mich 315, 330-331; 429 NW2d 781 (1988); Edwards, 451 US at 484-485; People v Paintman, 412 Mich 518, 524-526; 315 NW2d 418 (1982). 2 Fenderson voluntarily signed an advice-of-rights form. At that point, Fenderson indicated a desire to continue the interrogation without counsel, stating that he did not need a lawyer and that “[e]verything’ll be good.” He did, however, ask if it would be best to have a lawyer present. Williams told him, “That is up to you, sir.” Fenderson then asked how long it would take to get a lawyer. Williams said he had “no idea” and asked defendant if he had a lawyer. Fenderson said he did not, but he referenced the advice-of-rights form and noted where it indicated that a lawyer would be appointed. At that moment, Fenderson did not invoke his right to counsel. He stated that he did not want to take up his interrogators’ time or his own waiting for a lawyer. During the initial portion of the interrogation, Fenderson described being with the victim during an alleged carjacking. After an hour of questioning, the officers called into question Fenderson’s statements. Beasley told defendant, “There’s a lot of—lot of holes in your story, alright?” Among other things, Beasley also told defendant that prior to the interrogation, he and Williams had conducted research—he said they watched surveillance videos, spoke to people in the neighborhood, and talked to defendant’s mother—and that he believed that some of what Fenderson was saying was not true and didn’t “make any sense.” Beasley then told defendant that he didn’t want defendant to “tell a story . . . that’s not true,” implying that it wouldn’t fit with the evidence. Beasley indicated that someone who did look at the evidence would ask themselves, “Man, is he a—a callous killer?” Defendant insisted that he did not kill anyone. Both Beasley and Williams confronted defendant with additional perceived inconsistencies in his story. 3  After more than an hour and a half of questioning, and after Williams had exited the interrogation room, Beasley asked defendant if he would be willing to take a polygraph exam. Defendant asked if his lawyer could be present for that. Beasley said that it would be possible, and defendant agreed to be polygraphed. No polygraph exam was administered. Beasley then told defendant several times that the pictures of the victim were “fucked up,” that police had a “video of it happening,” 4 and that anyone who saw what happened to the victim would say, “ ‘Oh shit, that’s fucked up.’ ” The parties agree that defendant then invoked his right to counsel. Beasley asked if defendant already had an attorney. Defendant indicated that he did not and that he would need appointed counsel. He inquired how long that would take. Beasley said that he was not sure but that he would “make a couple phone calls.” Beasley then left defendant alone in the interrogation room. Fenderson was later provided with a soda, and he declined an offer of chips. Beasley returned about 40 minutes after Fenderson’s invocation and told him that he was “trying to get that attorney.” Defendant requested to use the bathroom, was handcuffed with his arms in front, and was escorted out of the interrogation room. He returned moments later and was left alone and handcuffed. 4 Amicus curiae The Innocence Project argues that this was a false-evidence ploy and urges this Court to adopt a per se rule that statements made after such a ploy are inadmissible. Such a ruling would be premature; the record before this Court does not show whether video footage of the shooting does or does not exist. We note, however, that the use of false-evidence ploys can be considered in the voluntariness inquiry under existing caselaw. See People v Stewart, 512 Mich 472, 498-499; 999 NW2d 717 (2023) (concluding that officers’ lies about having an eyewitness placing defendant at the scene of a robbery and having home-surveillance video were exaggerations of the strength of the case against defendant, which weighed in favor of involuntariness). 4  Approximately two hours and 45 minutes after defendant invoked his right to counsel, Beasley returned. Beasley did not address defendant or provide him with information about efforts to locate an attorney. Beasley was accompanied by a uniformed officer who removed defendant’s handcuffs and then had defendant turn around so that he could handcuff defendant with his arms behind his back. This exchange followed: Defendant: Where . . . where my lawyer? Beasley: You don’t got one . . . so . . .[5] Defendant: Wait . . . huh? Beasley: You don’t have a lawyer. You got one? Defendant: No . . . I . . . you said . . . Beasley: We tried to get . . . we tried to call one. Ain’t nobody available and you ain’t got no money . . . so . . . Defendant: Yeah I do. The money that I came in with. You can’t use . . . that? Beasley: I can’t use that money. Defendant: Aww come on. 5 The audio of the interrogation video is difficult to decipher at some points. Defendant states that Beasley said, “You don’t get one.” We believe that Beasley actually says, “You don’t got one,” and we base our analysis on that interpretation of the video. Judge GARRETT also quotes this interaction as “You don’t got one . . . .” People v Fenderson, unpublished per curiam opinion of the Court of Appeals, issued June 6, 2024 (Docket No. 367926) (GARRETT, J., dissenting), p 2. The trial court paraphrased this interaction in its oral opinion, stating that the police told defendant, “[W]e don’t have any, you don’t get one . . . .” Neither the Court of Appeals’ majority opinion nor the prosecution in its briefing quotes this interaction. 5  Beasley then said, “So.” Defendant replied, “So what’s going on?” Beasley stated that defendant had asked for an attorney and that he could not speak to defendant without one, “[s]o the story you got is the story we gon’ go with.” Fenderson then said he was “confused,” and Beasley asked him what he was confused about. The following series of exchanges then occurred, which ended with defendant saying that he would be willing to talk to police without an attorney. Defendant: The story . . . I . . . I don’t know what’s going on from this point. You ain’t told me nothin’. Beasley: Ok. So what’s going to happen now. We’re gonna take you back to [the Detroit Detention Center (DDC)]. Then we gonna submit a warrant and the prosecutor will review it. Alright? Defendant: That mean, I’m not sure what all that means. Beasley: You requested an attorney. I can’t, I can’t talk to you any more about the case. . . . Now if you wanted to talk to me, you just say that you want, you want to talk without an attorney. I can talk to you. But you said you wanted an attorney. I’m not allowed to talk to you by law. Defendant: I just want to get this over with. If you tryna talk we can talk. I just want to get this over with. That’s it. I just want to get this over with. Beasley: Like I said, I can go over your rights again with you, if you agree to talk without an attorney. Defendant: I agree to talk without an attorney. Y’all heard that. I agree. I just want to get this over with. Beasley: I don’t want you to feel compelled to talk to me because you don’t want to go with them. That’s the thing. But if you reasonably want to talk to me without an attorney present, I—I’ll talk to you. But you understand that’s something that you want to do. Defendant: Yeah. Beasley: I don’t want you to feel like you’re forced to— 6  Defendant: Ok. Beasley: —do anything. Is that something you want to do? Defendant: Yes. After these exchanges, Beasley and the uniformed officers accompanying him left the interrogation room, and defendant started crying. Then another sergeant, who was not connected with the investigation and who had not previously spoken to defendant, entered the room. Defendant said, “I don’t understand this.” That sergeant stated his role was to reestablish defendant’s rights, and he read the standard Miranda warnings again. After each warning, the sergeant asked defendant if he understood his rights. Defendant responded with a mix of verbal agreement and nonverbal affirmative head nods. When the sergeant asked if anyone had forced, threatened, or coerced defendant to make a statement, defendant responded, “See, that’s what I . . . I don’t understand what’s going on.” The sergeant asked if defendant wanted to talk to police, and defendant agreed. Defendant initialed another advice-of-rights form, and the sergeant left. Beasley and Williams returned, and defendant made incriminating statements. Defendant sought to suppress those statements in the trial court on the grounds that he did not voluntarily, knowingly, and intelligently waive his Miranda right to counsel. B. TRIAL COURT’S SUPPRESSION ORDER The trial court granted defendant’s motion to suppress in a short bench ruling, concluding that police communications with defendant had frustrated the advice of rights required by Miranda. The trial judge had reviewed the interrogation video prior to issuing a ruling. The court discussed Beasley’s statements about defendant’s lack of attorney and inability to afford an attorney, including telling defendant, “ ‘You don’t have the money to 7 pay for one,’ ” and that defendant, then, didn’t have one. 6 This “really cause[d] some conflict” for the trial court in light of Miranda’s protections concerning both the right to have an attorney present during questioning and the right to have an attorney appointed if the suspect could not afford one. The trial court expressed concern that this put “extra pressure” on defendant, who had been interrogated for hours, and found that police used the fact that no lawyer was available as a “scare tactic” to get defendant “to start talking again.” The trial court also found that police reinitiated the interrogation after defendant’s invocation by readministering Miranda warnings. C. COURT OF APPEALS’ REVERSAL The Court of Appeals granted the prosecution’s application for leave to appeal and reversed the suppression of defendant’s statements in an unpublished per curiam opinion over the dissent of Judge GARRETT. People v Fenderson, unpublished per curiam opinion of the Court of Appeals, issued June 6, 2024 (Docket No. 367926). With regard to waiver, the majority first noted that “defendant signed multiple forms that indicated that he understood his constitutional right to counsel” and that he “was fully informed of his constitutional rights on three separate occasions, and he affirmed that he understood his rights each time.” Id. at 3-4. With regard to police statements about defendant’s inability to afford an attorney on which the trial court relied in suppressing defendant’s statements, the majority characterized the exchange in the following terms: “One of the officers explained to defendant that they could not find defendant an attorney, 6 In the trial court’s words, Beasley told defendant: “ ‘You don’t have the money to pay for one. You don’t have one. We don’t have any available, so you don’t get a lawyer.’ ” 8 and he did not have funds to hire his own attorney, so they were going to return him to the detention center.” Id. at 2. In its statement of the law, the majority cited Edwards v Arizona, 451 US 477, 484-485; 101 S Ct 1880; 68 L Ed 2d 378 (1981), and acknowledged that an interrogation must stop when a suspect invokes their right to counsel, Fenderson, unpub op at 3, but in its analysis, the majority essentially conducted a standard totality-of- the-circumstances inquiry into whether the waiver was knowing, intelligent, and voluntary, id. at 3-4. Noting that defendant was 24 years old at the time of the interrogation, had completed three years of high-school education, was not “intoxicated, drugged, or otherwise incapacitated,” and “was not physically or psychologically abused or threatened in any way,” the majority concluded that his waiver was valid. Id. at 3-5. In dissent, Judge GARRETT noted possible irregularities with the process that police followed to procure counsel for defendant. 7 Id. (GARRETT, J., dissenting) at 4-5. She would have found defendant’s waiver invalid based on Beasley’s “incomplete and contradictory statements” that “misled Fenderson into believing he would not be appointed counsel.” Id. at 5. Judge GARRETT did not believe that rereading defendant the Miranda rights cured this error, as it was clear that he was confused about his rights and “no one questioned Fenderson to ascertain whether his confusion or lack of understanding had resolved.” Id. at 6. 7 At oral argument, the panel questioned whether police followed protocol in their efforts to secure an attorney for defendant. As established at the preliminary examination, police attempted to call a line-up attorney rather than contacting a central department. They averred that they spent about 10 to 15 minutes trying to find an attorney but did not document those efforts or describe them with specificity in their testimony. 9  The Court of Appeals did not explicitly place the burden on the state to show that after invocation of the right to counsel defendant reinitiated questioning and that his subsequent waiver was knowing and intelligent. The panel did consider whether police improperly reinitiated interrogation after defendant invoked his right to counsel. The majority concluded that they did not and that by returning defendant to jail after they were unable to find an attorney for him, they were properly ending contact with defendant. Id. (opinion of the Court) at 4. The majority stated that “defendant was able to make a voluntary, informed decision to reinitiate the conversation” and made “multiple unequivocal requests to speak to the officers without an attorney present.” Id. Judge GARRETT dissented on this point as well. She would have concluded that defendant’s “decision to speak to the officers without counsel was a direct result of the uniformed officer cuffing his hands behind his back and Sergeant Beasley’s confusing and misleading statements that there was no attorney available to represent Fenderson and that Fenderson could not afford to retain an attorney.” Id. (GARRETT, J., dissenting) at 5. Rather than reinitiating, defendant was “backed into a corner and agreed to continue without counsel as a result of the coercive atmosphere created by Sergeant Beasley.” Id. This Court ordered oral argument on defendant’s application for leave to appeal. People v Fenderson, 516 Mich 934 (2025). 10  II. LAW AND ANALYSIS A. STANDARD OF REVIEW We review a trial court’s factual findings in a ruling on a motion to suppress for clear error. People v Tanner, 496 Mich 199, 206; 853 NW2d 653 (2014). 8 To the extent that the trial court’s ruling involves an interpretation of the law or the application of a constitutional standard, review is de novo. Id. B. CONSTITUTIONAL FRAMEWORK Statements of an accused made during custodial interrogation are inadmissible absent a voluntary, knowing, and intelligent waiver of the accused’s Fifth Amendment rights. Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966); US Const, Am V. 9 The suspect must be told that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the 8 We note that many of the trial court’s findings of fact are based on review of the interrogation video. Jurisdictions are split on whether lower courts should be afforded deference where video evidence is concerned. Compare, for example, Robinson v State, 5 NE3d 362, 365 (Ind, 2014) (applying clear-error review to video evidence because “[w]hile technology marches on, the appellate standard of review remains constant”), with Commonwealth v Novo, 442 Mass 262, 266; 812 NE2d 1169 (2004) (applying de novo review because an appellate court is in the same position as the trial court judge in viewing the videotape). A per curiam Court of Appeals panel has previously stated that it “need not rely on the trial court’s conclusions as to what the video contains,” People v Kavanaugh, 320 Mich App 293, 298; 907 NW2d 845 (2017), a decision that this Court has previously left undisturbed due to lack of argument by the parties, Stewart, 512 Mich at 500 n 13. We do not address the issue here other than to note that it is an important question that should be addressed in a case in which it is raised and litigated by the parties. 9 “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” US Const, Am V. 11 presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda, 384 US at 479. The Michigan Constitution also provides the right to be free from self-incrimination. Const 1963, art 1, § 17. 10 Generally, the Michigan Constitution is at least as protective as the United States Constitution, Oregon v Hass, 420 US 714, 719; 95 S Ct 1215; 43 L Ed 2d 570 (1975), and we “may interpret our constitution to afford greater protections than those afforded by the Fifth Amendment” with respect to the right against self- incrimination, Tanner, 496 Mich at 237. Michigan has a common-law prohibition of the introduction of coerced confessions, see, e.g., Flagg v People, 40 Mich 706, 709 (1879), and a long tradition of recognizing the constitutional right to be free from compelled self-incrimination even prior to incorporation of the Fifth Amendment against the states. 11 This Court has previously recognized that 10 “No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed.” Const 1963, art 1, § 17. 11 See, e.g., People v Conte, 421 Mich 704, 721-724; 365 NW2d 648 (1984) (opinion by WILLIAMS, C.J.) (outlining the history of the state constitutional basis for suppressing involuntary confessions); People v Cavanaugh, 246 Mich 680, 686; 225 NW 501 (1929) (providing that “a confession, extorted by mental disquietude, induced by unlawfully holding an accused incommunicable, is condemned by every principle of fairness . . . [and] is forbidden by the constitutional guaranty of due process of law”); People v Clarke, 105 Mich 169, 176; 62 NW 1117 (1895) (“Confessions are inadmissible when induced by threats, or by a promise of favor, made by persons apparently acting by authority.”); People v Prestidge, 182 Mich 80, 85-86; 148 NW 347 (1914) (concluding that a confession was inadmissible on voluntariness grounds where officers’ “zeal clearly outran their duty” in “grilling” for two or three hours a man who was “very nervous and nearly crazy”). 12 Article 1, § 17 provides broader due-process protection than the federal Constitution 12 but has also rejected arguments that the self-incrimination clause of Article 1, § 17 provides broader protections relative to the federal Constitution in certain contexts. 13 We have not considered whether our Constitution provides greater protection under the voluntariness prong of the waiver analysis. 14 “[W]hen a suspect has been afforded Miranda warnings and affirmatively waives his Miranda rights, subsequent incriminating statements may be used against him” if the waiver was “ ‘voluntarily, knowingly, and intelligently’ ” made. Tanner, 496 Mich at 209, quoting Miranda, 384 US at 444. The government bears a “heavy burden” to show that the accused waived the privilege against self-incrimination and the right to counsel. Miranda, 384 US at 475. The government must meet this burden by a preponderance of 12 See, e.g., AFT Mich v Michigan, 497 Mich 197, 245 n 28; 866 NW2d 782 (2015) (noting that this Court “has, on occasion, applied distinctive due process protections under Const 1963, art 1, § 17 broader than have been afforded under US Const, Am XIV”); In re Render, 145 Mich App 344, 348; 377 NW2d 421 (1985) (providing that Article 1, § 17 requires appointment of counsel at termination-of-parental-rights proceedings but that the Fourteenth Amendment does not); Delta Charter Twp v Dinolfo, 419 Mich 253, 265-266, 272-278; 351 NW2d 831 (1984) (concluding that the state Constitution provides more protection against arbitrary zoning regulations than the federal Due Process Clause). 13 See Tanner, 496 Mich at 244 (concluding that the state Constitution does not “require[] a greater showing that a Miranda waiver was made ‘knowingly’ than is required by the Fifth Amendment, given that this Court’s interpretation of Article 1, § 17 has indicated that it pertains solely to the voluntariness of a confession itself, not to whether a confession is made with full knowledge of its consequences”). 14 See People v Daoud, 462 Mich 621, 633-639; 614 NW2d 152 (2000) (noting that determining whether a waiver is voluntary or whether a waiver is knowing and intelligent are separate questions that courts must assess to determine whether a waiver is valid); see also Berghuis v Thompkins, 560 US 370, 382-383; 130 S Ct 2250; 176 L Ed 2d 1098 (2010) (noting that a waiver must be both voluntary and knowing). 13 the evidence. People v Cheatham, 453 Mich 1, 27; 551 NW2d 355 (1996) (opinion by BOYLE, J.); Colorado v Connelly, 479 US 157, 168; 107 S Ct 515; 93 L Ed 2d 473 (1986). C. QUESTIONING AFTER THE INVOCATION OF THE RIGHT TO COUNSEL In this case, defendant initially waived his Miranda rights but later asserted his right to appointed counsel. After invocation of the Fifth Amendment right to counsel, questioning of a suspect must cease. Edwards, 451 US at 482; People v Paintman, 412 Mich 518, 527; 315 NW2d 418 (1982). In Edwards, the United States Supreme Court created a prophylactic “presumption of involuntariness” following the invocation of the right to counsel. Maryland v Shatzer, 559 US 98, 106; 130 S Ct 1213; 175 L Ed 2d 1045 (2010). Typically, a knowing and voluntary Miranda waiver, as described above, will be sufficient at the time of questioning to allow the admission of a subsequent statement. Not so under Edwards. The Edwards Court determined that the “traditional standard for waiver was not sufficient to protect a suspect’s right to have counsel present at a subsequent interrogation if he had previously requested counsel; ‘additional safeguards’ were necessary.” Shatzer, 559 US at 104, quoting Edwards, 451 US at 484. The rationale of Edwards is that “if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and