totality of the circumstances test in Michigan

2002In re SLL, supra at 208-209 ; Givans, supra; Mendez, supra. In Givans, supra at 121 , this Court provided a list of factors to be considered in determining whether a juvenile’s statement is voluntary: The factors that must be considered in applying the totality of the circumstances test to determine the admissibility of a juvenile’s confession include (1) whether the requirements of Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966), have been met and the defendant clearly understands and waives those rights, (2) the degree of police compliance with MCL 764.27; MSA 28.886 and

2002In re SLL, supra at 208-209 ; Givans, supra; Mendez, supra. In Givans, supra at 121 , this Court provided a list of factors to be considered in determining whether a juvenile’s statement is voluntary: The factors that must be considered in applying the totality of the circumstances test to determine the admissibility of a juvenile’s confession include (1) whether the requirements of Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966), have been met and the defendant clearly understands and waives those rights, (2) the degree of police compliance with MCL 764.27; MSA 28.886 and

1996First, the waiver must have been voluntary — it must have been “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Second, the waiver must have been made upon “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” However, a purported waiver can never satisfy a totality of the circumstances analysis when police do not even inform a suspect that his attorney seeks to render legal advice. [Citations omitted; emphasis added.] “To hold otherwise would be to condone ‘affirmative police interf

1996First, the waiver must have been voluntary—it must have been "the product of a free and deliberate choice rather than intimidation, coercion, or deception." Second, the waiver must have been made upon "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." However, a purported waiver can never satisfy a totality of the circumstances analysis when police do not even inform a suspect that his attorney seeks to render legal advice. [ (Citations omitted) (emphasis added).] "To hold otherwise would be to condone `affirmative police inte

2025See, e.g., People v Zuniga, 372 P3d 1052 (Co, 2016) (holding “that the odor of marijuana is relevant to the totality of the circumstances test and can 13 contribute to a probable cause determination”); People v Redmond, 2024 IL 129201, ¶ 54 ; 248 NE3d 1026 (2024) (holding that “the odor of burnt cannabis is a fact that should be considered when determining whether police have probable cause to search a vehicle, but the odor of burnt cannabis, standing alone without other inculpatory facts, does not provide probable cause to search a vehicle”); State v Torgerson, 995 NW2d 164 , 174 (Minn, 2023)

2025See, e.g., People v Zuniga, 372 P3d 1052 (Co, 2016) (holding “that the odor of marijuana is relevant to the totality of the circumstances test and can contribute to a probable cause determination”); People v Redmond, 2024 IL 129201, ¶ 54 ; 13 248 NE3d 1026 (2024) (holding that “the odor of burnt cannabis is a fact that should be considered when determining whether police have probable cause to search a vehicle, but the odor of burnt cannabis, standing alone without other inculpatory facts, does not provide probable cause to search a vehicle”); State v Torgerson, 995 NW2d 164 , 174 (Minn, 2023)

2023Although the lead opinion, authored by then Chief Justice WILLIAMS and joined by Justices LEVIN and KAVANAGH, advocated for the more stringent analysis, see Conte, 421 Mich at 729 (opinion by WILLIAMS, C.J.), Justices BOYLE, RYAN, BRICKLEY, and CAVANAGH held that promises of leniency should be considered within the totality-of-the-circumstances analysis, see id. at 754-755 (opinion by BOYLE, J.); id. at 761 (BRICKLEY, J., concurring in part with BOYLE, J.); id. at 761-762 (CAVANAGH, J., concurring in part with BOYLE, J.).

2023Although the lead opinion, authored by then Chief Justice WILLIAMS and joined by Justices LEVIN and KAVANAGH, advocated for the more stringent analysis, see Conte, 421 Mich at 729 (opinion by WILLIAMS, C.J.), Justices BOYLE, RYAN, BRICKLEY, and CAVANAGH held that promises of leniency should be considered within the totality-of-the-circumstances analysis, see id. at 754-755 (opinion by BOYLE, J.); id. at 761 (BRICKLEY, J., concurring in part with BOYLE, J.); id. at 761-762 (CAVANAGH, J., concurring in part with BOYLE, J.).

2014Moreover, as I explained in Bender, “ ‘a purported waiver [of Miranda] can never satisfy a totality of the circumstances analysis when police do not even inform a suspect that his attorney seeks to render legal advice.’ ” Bender, 452 Mich at 616 (opinion by CAVANAGH, J.), quoting Bryan v State, 571 A2d 170, 176 (Del, 1990) (emphasis omitted). “ ‘When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity.’ ” Bender, 452 Mich at 617 (opinion by CAVANAGH, J.), quoting State v Hay

2014Moreover, as I explained in Bender , “ ‘a purported waiver [of Miranda] can never satisfy a totality of the circumstances analysis when police do not even inform a suspect that his attorney seeks to render legal advice.’ ” Bender, 452 Mich at 616 (opinion by CAVANAGH, J.), quoting Bryan v State, 571 A2d 170, 176 (Del, 1990) (emphasis omitted). “ ‘When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity.’ ” Bender, 452 Mich at 617 (opinion by CAVANAGH, J.), quoting State v Ha

1985See People v Paintman, 412 Mich 518 ; 315 NW2d 418 (1982), cert den 456 US 995 (1982); People v Brannan, 406 Mich 104 ; 276 NW2d 14 (1979); People v Robinson, 386 Mich 551 ; 194 NW2d 709 (1972).

1985See People v Paintman, 412 Mich 518 ; 315 NW2d 418 (1982), cert den 456 US 995 (1982); People v Brannan, 406 Mich 104 ; 276 NW2d 14 (1979); People v Robinson, 386 Mich 551 ; 194 NW2d 709 (1972).

1996This is contrary to Miranda itself and to our own precedent, both of which require the waiver inquiry to be resolved by considering the totality of the circumstances. 384 U.S. at 475 , 86 S.Ct. at 1628 ; People v. Cipriano, 431 Mich. 315 , 429 N.W.2d 781 (1988); see also Fare v. Michael C, supra at 724-725, 99 S.Ct. at 2571-2572 (holding that the totality of the circumstances test applies when determining whether a juvenile waived his Miranda rights).

1996This is contrary to Miranda itself and to our own precedent, both of which require the waiver inquiry to be resolved by considering the totality of the circumstances. 384 U.S. at 475 , 86 S.Ct. at 1628 ; People v. Cipriano, 431 Mich. 315 , 429 N.W.2d 781 (1988); see also Fare v. Michael C, supra at 724-725, 99 S.Ct. at 2571-2572 (holding that the totality of the circumstances test applies when determining whether a juvenile waived his Miranda rights).

2021This Court noted that the temporal relationship between the time the accused came into possession of the firearm and the time he or she deployed deadly force is relevant to determining whether the accused had an honest and reasonable belief that possession of a firearm was justified to prevent imminent death, great bodily harm, or sexual assault. . . . [B]oth the amount of time an accused possessed a firearm and the manner in which an accused came into possession of the firearm can be part of a totality-of-the-circumstances inquiry into whether there is evidence that a felon’s possession of a

2021See Guajardo, 300 Mich App at 40 n 4 (noting that “both the amount of time an accused possessed a firearm and the manner in which an accused came into possession of the firearm can be part of a totality-of-the-circumstances inquiry into whether there is evidence that a felon’s possession of a firearm was justified” under a self-defense theory). -4- and the prosecutor’s arguments regarding self-defense, which are the central focus of defendant’s claims of ineffective assistance of counsel at trial, are part of the existing record.

2021An independent contractor is not considered an “employee” for purposes of the no-fault act. [Adanalic v Harco Nat’l Ins Co, 309 Mich App 173, 190-191 ; 870 NW2d 731 (2015) (citations and some quotation marks omitted).] “These factors are viewed together in their entirety under a totality of the circumstances test.” Kidder v Miller-Davis Co, 455 Mich 25, 42 ; 564 NW2d 872 (1997).

2021An independent contractor is not considered an “employee” for purposes of the no-fault act. [Adanalic v Harco Nat’l Ins Co, 309 Mich App 173, 190-191 ; 870 NW2d 731 (2015) (citations and some quotation marks omitted).] “These factors are viewed together in their entirety under a totality of the circumstances test.” Kidder v Miller-Davis Co, 455 Mich 25, 42 ; 564 NW2d 872 (1997).

1993Next, the White majority revisited the Gates decision in which the Court rejected the Aguilar-Spinelli two-pronged test for the reliability of anonymous tips in favor of the totality of the circumstances test. 15 The Adams and Gates precedents formed the basis for the White Court’s test for assessing whether an anonymous tip furnishes the reasonable suspicion necessary to make an investigative stop. 16 The Court concluded that independent police corroboration of the informant’s predictions “imparted some degree of reliability to the other allegations made by the caller.” Id. at 332 .

1993Next, the White majority revisited the Gates decision in which the Court rejected the Aguilar-Spinelli two-pronged test for the reliability of anonymous tips in favor of the totality of the circumstances test. [15] The Adams and Gates precedents formed the basis for the White Court's test for assessing whether an anonymous tip furnishes the reasonable suspicion necessary to make an investigative stop. [16] The Court concluded that independent police corroboration of the informant's predictions "imparted some degree of reliability to the other *166 allegations made by the caller." Id. at 332.

2024If so, then the statement tended to subject the declarant to criminal liability. [Barrera, 451 Mich at 272 .] The trial court is to apply the totality-of-the-circumstances test when evaluating the trustworthiness of a declarant’s statements, and must consider “the circumstances surrounding the declarant making the statement, and all other relevant facts in the case.” Id. at 275-276 .

2024If so, then the statement tended to subject the declarant to criminal liability. [Barrera, 451 Mich at 272 .] The trial court is to apply the totality-of-the-circumstances test when evaluating the trustworthiness of a declarant’s statements, and must consider “the circumstances surrounding the declarant making the statement, and all other relevant facts in the case.” Id. at 275-276 .

2014Moreover, as I explained in Bender, “ ‘a purported waiver [of Miranda] can never satisfy a totality of the circumstances analysis when police do not even inform a suspect that his attorney seeks to render legal advice.’ ” Bender, 452 Mich at 616 (opinion by CAVANAGH, J.), quoting Bryan v State, 571 A2d 170, 176 (Del, 1990) (emphasis omitted). “ ‘When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity.’ ” Bender, 452 Mich at 617 (opinion by CAVANAGH, J.), quoting State v Hay

2014Moreover, as I explained in Bender, “ ‘a purported waiver [of Miranda] can never satisfy a totality of the circumstances analysis when police do not even inform a suspect that his attorney seeks to render legal advice.’ ” Bender, 452 Mich at 616 (opinion by CAVANAGH, J.), quoting Bryan v State, 571 A2d 170, 176 (Del, 1990) (emphasis omitted). “ ‘When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity.’ ” Bender, 452 Mich at 617 (opinion by CAVANAGH, J.), quoting State v Hay

2013In re SLL, 246 Mich App 204, 209 ; 631 NW2d 775 (2001); People v Givans, 227 Mich App 113,121 ; 575 NW2d 84 (1997).

2002In re SLL, supra at 208-209 ; Givans, supra; Mendez, supra. In Givans, supra at 121 , this Court provided a list of factors to be considered in determining whether a juvenile’s statement is voluntary: The factors that must be considered in applying the totality of the circumstances test to determine the admissibility of a juvenile’s confession include (1) whether the requirements of Miranda v Arizona, 384 US 436 ; 86 S Ct 1602 ; 16 L Ed 2d 694 (1966), have been met and the defendant clearly understands and waives those rights, (2) the degree of police compliance with MCL 764.27; MSA 28.886 and

2011People v Whalen, 390 Mich 672, 682 ; 213 NW2d 116 (1973); Faucett, 442 Mich at 164 n 11 (noting that Whalen “set[s] forth the reasonableness standard for all automobile searches, including those based on informants’ tips, using the totality of the circumstances test”); Christie, 206 Mich App at 308-309 .

2011People v Whalen, 390 Mich 672, 682 ; 213 NW2d 116 (1973); Faucett, 442 Mich at 164 n 11 (noting that Whalen “set[s] forth the reasonableness standard for all automobile searches, including those based on informants’ tips, using the totality of the circumstances test”); Christie, 206 Mich App at 308-309 .

2000Where the age and experience of a juvenile indicate that his request for his probation officer or his parents is, in fact, an invocation of his right to remain silent, the totality approach will allow the court the necessary flexibility to take this into account in making a waiver determination. [ Id. at 725, 99 S.Ct. 2560 .] The Supreme Court then went on to apply the totality of the circumstances test, and concluded that "no special factors indicate that respondent was unable to understand the nature of his actions" and that "[t]here is no indication that he was of insufficient intelligence

2000Where the age and experience of a juvenile indicate that his request for his probation officer or his parents is, in fact, an invocation of his right to remain silent, the totality approach will allow the court the necessary flexibility to take this into account in making a waiver determination. [ Id. at 725, 99 S.Ct. 2560 .] The Supreme Court then went on to apply the totality of the circumstances test, and concluded that "no special factors indicate that respondent was unable to understand the nature of his actions" and that "[t]here is no indication that he was of insufficient intelligence

1992See People v Good, 186 Mich App 180, 186-190 ; 463 NW2d 213 (1990) (adopting a totality of the circumstances test for determining the voluntariness and admissibility of the resulting confession).

1992See People v Good, 186 Mich App 180, 186-190 ; 463 NW2d 213 (1990) (adopting a totality of the circumstances test for determining the voluntariness and admissibility of the resulting confession).