Mi-in-gun Justin Charette a/k/a Justin Marshall Critt,

1
STATE OF MINNESOTA

IN SUPREME COURT

A20-1476

Court of Appeals Moore, III, J.

Mi-in-gun Justin Charette a/k/a Justin Marshall Critt,

Appellant,

vs. Filed: October 5, 2022
Office of Appellate Courts
State of Minnesota,

Respondent.

________________________

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant
Public Defender, Saint Paul, Minnesota, for appellant.

Keith M. Ellison, Attorney General, Saint Paul, Minnesota; and

Brian J. Melton, Clay County Attorney, Moorhead, Minnesota, for respondent.

________________________

S Y L L A B U S

Because a defendant does not have a right to counsel under the Fifth Amendment to
the U.S. Constitution when interrogation by law enforcement officers is merely
“imminent,” the district court did not abuse its discretion by denying appellant’s petition
for postconviction relief.
Affirmed.
2
O P I N I O N
MOORE, III, Justice.
In 2018, a district court jury found appellant Justin Marshall Critt guilty of second-
degree murder and first-degree arson for the 2016 death of M.W. after her body was found
in a Moorhead house that had been set on fire.1 The district court imposed consecutive
sentences totaling 528 months in prison. In 2020, Critt filed a petition for postconviction
relief, arguing that the district court committed a reversible error by denying a pretrial
motion to suppress his statements to law enforcement officers. Critt asserted that he clearly
invoked his Fifth Amendment right to counsel when he was held in custody on the night
of June 28, 2016, and that officers violated Miranda v. Arizona, 384 U.S. 436 (1966) and
Edwards v. Arizona, 451 U.S. 477 (1981), by initiating a custodial interrogation on the
following afternoon, June 29, 2016, without his counsel present.
The district court denied Critt’s request for postconviction relief, finding that he
could not invoke his Fifth Amendment right to counsel on the night of June 28 because he
was not subjected to custodial interrogation at that time. The court of appeals affirmed but
on different grounds, concluding that Critt did not invoke his Fifth Amendment right to
counsel on the night of June 28 because his “mere outbursts” about a lawyer were not clear
invocations of counsel. Charette v. State, No. A20-1476, 2021 WL 2406686, at *3 (Minn.
App. June 14, 2021). We agree with the district court that because no custodial

1 According to court records, Critt’s legal name is Mi-in-gun Justin Charette, but he
commonly uses the surname Critt. The court of appeals opinion refers to appellant as Critt,
and we will do the same in this opinion for consistency.
3
interrogation took place on the night of June 28, Critt could not invoke his Fifth
Amendment right to counsel. Accordingly, we affirm the court of appeals but on different
grounds.
FACTS
On June 28, 2016, law enforcement officers were dispatched to a fire at a Moorhead
home. First responders battled the blaze and then found a woman, later identified as M.W.,
dead inside of the home. Critt, known to have been at the house earlier in the day, was a
person of interest to law enforcement officers who began investigating the cause of the fire
and death.
When Critt returned to the house around 9:30 p.m., law enforcement officers told
him that he was being detained. They placed him in handcuffs and drove him to the local
law enforcement center where he was placed in an interview room. After the officers left
the interview room, Critt attempted to move his handcuffed hands from behind his back to
the front of his body, which required the officers to intervene. Critt was extremely agitated,
yelling and spitting. During this time, Critt twice asked: “Where’s my lawyer?” The
officers did not question Critt because, according to their testimony during an omnibus
hearing, they believed that he was “intoxicated” or “impaired” and “quickly realized that
[they] weren’t going to make any attempts in speaking with him that night.” The officers
testified that “[a]t that point it was just waiting for [another agency] to get there” to
investigate an unrelated assault and robbery that had occurred in Fargo, North Dakota, the
previous day, for which Critt was a suspect. Critt was eventually taken out of the interview
room and to the jail, where he was held overnight on the Fargo charge.
4
The next day, June 29, law enforcement officers brought Critt back into the
interview room at approximately 4:30 p.m. Unlike the night before, Critt sat in a chair
without handcuffs and acted in a calm manner. One of the detectives told Critt that the
body of a woman who they believed was M.W. had been found inside of the burned-out
house and that he was “on [their] list of people that [they] need to talk to” because he had
been at the house with M.W. before the fire. The detective advised Critt that he was not
under arrest in connection with the murder and arson investigation but that he was under
arrest for the pending criminal charges out of Fargo. The detective read Critt his Miranda
rights, explaining to Critt that it was “[b]ecause you’re in custody and we’re gonna ask
some questions.” When asked if he understood his rights, Critt responded, “Yeah.” When
asked if he “wish[ed] to talk to [them] about this,” Critt responded, “Aaah, yeah, well, what
do you wanna know? I mean, I don’t have anything to tell you.” Critt talked to the
detectives for more than 30 minutes until he said, “Interview’s over, please. I want, I want
a lawyer.”2 The detectives then ended the interview.
The State charged Critt with second-degree intentional murder without
premeditation under Minn. Stat. § 609.19, subd. 1(1) (2020), and first-degree arson of a
dwelling under Minn. Stat. § 609.561, subd. 1 (2020). Critt filed a pretrial motion to
suppress his statements to the officers during the June 29 interview, arguing that he clearly
invoked his Fifth Amendment right to counsel by asking “[w]here’s my lawyer?” on

2 Critt did not directly incriminate himself when he talked to the officers on June 29,
but he did provide the names of two witnesses who later testified for the State during the
jury trial and contradicted Critt’s statement. Critt argued that these witnesses were the
illegal “fruits” of his statement and that their testimony should have been suppressed.
5
June 28 and that the officers violated his constitutional right by questioning him without
an attorney present on June 29. The district court denied the suppression motion, finding
that Critt did not have a Fifth Amendment right to counsel when he asked “[w]here’s my
lawyer?” because he was not subjected to custodial interrogation on the night of June 28.
The case proceeded to a jury trial, and Critt was found guilty on both counts. The district
court imposed consecutive sentences of 480 months in prison for second-degree murder
and 48 months in prison for first-degree arson. Critt did not file a direct appeal.
In 2020, Critt filed a timely petition for postconviction relief, arguing that the district
court committed a reversible error by denying the motion to suppress his statements. The
district court denied the petition for postconviction relief, again finding that Critt did not
have a Fifth Amendment right to counsel when he asked for a lawyer on the night of
June 28 because he was not subjected to custodial interrogation. The district court also
rejected Critt’s claim that his request for a lawyer on the night of June 28 “should have
carried over into this police interrogation” the next day because Critt “has cited to no case
law, and this Court is unaware of any, that suggests the right to counsel attaches
preemptively to any custodial interrogation.” The district court observed that on the
afternoon of June 29 , when the detectives started to interrogate Critt, “he was read his
Miranda rights, and made no indication that he wished to consult with an attorney until
roughly 35 minutes into the interview.”
Critt appealed , and the court of appeals affirmed. Charette , 2021 WL 2406686 ,
at *5. After reviewing the record, the court of appeals concluded that Critt did not clearly
invoke his Fifth Amendment right to counsel on the night of June 28 because his
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“references to counsel were not responsive to interrogation or a Miranda warning but mere
outbursts” and “were phrased as questions, not requests.” Id. at *3. The court of appeals
noted that Critt’s statements to the officers on the night of June 28 “were vague—Critt did
not even say that he wanted counsel to be present, let alone that he specifically sought
counsel’s assistance for purposes of some future interrogation as opposed to some more
immediate purpose, such as securing his phone or his release on bail.” Id. The court of
appeals did not address the issue of whether Critt had a Fifth Amendment right to counsel
on the night of June 28. Id. at *3 n.2.
We granted Critt’s petition for review on the issue of whether he had a Fifth
Amendment right to counsel on the night of June 28.3
ANALYSIS
We review the district court’s denial of Critt’s postconviction petition for an abuse
of discretion. See Bolstad v. State, 966 N.W.2d 239, 244 (Minn. 2021). We will reverse
if the district court “exercised its discretion in an arbitrary or capricious manner, base d its
ruling on an erroneous view of the law, or made clearly erroneous factual findings.” Reed
v. State, 793 N.W.2d 725, 729 (Minn. 2010).
Under the Fifth Amendment to the U.S. Constitution, as applied to the states through
the Fourteenth Amendment, a person subjected to custodial interrogation by law
enforcement has the right to remain silent and the right to have an attorney present during
an interrogation. Miranda v. Arizona , 384 U.S. 436, 439– 40 (1966). These rights are

3 Critt also raised an issue related to juror bias in his petition, but we did not grant
further review of that issue.
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meant to protect against compelled self-incrimination by acknowledging “the compulsion
inherent in custodial surroundings.” Id. at 458. When a suspect invokes their Fifth
Amendment right to counsel, the police may not engage in a custodial interrogation unless
the suspect initiates further conversations with police or has an attorney present. Edwards
v. Arizona, 451 U.S. 477, 484–85 (1981). Statements obtained in violation of a suspect’s
Miranda rights must be suppressed. See Miranda, 384 U.S. at 479.
Suspects do not have a Fifth Amendment right to counsel when “simply taken into
custody, but rather where a suspect in custody is subjected to interrogation.” Rhode Island
v. Innis, 446 U.S. 291, 300 (1980). Both “custody” and “interrogation” are required. And
“[i]nterrogation . . . must reflect a measure of compulsion above and beyond that inherent
in custody itself.” Id. at 300 (internal quotation marks omitted); see also State v. Edrozo,
578 N.W.2d 719, 724 (Minn. 1998) (applying the Innis “interrogation” definition).
In this case, the State concedes that Critt was in custody on the night of June 28
when the officers placed him in the interview room. And Critt does not argue that he was
subjected to interrogation at that time. Instead, Critt asks us to establish a new rule of law
that suspects can invoke their Fifth Amendment right to counsel not only during custodial
interrogation but also when custodial interrogation is “imminent.”
4

4 Critt claims that he is not asking for an extension of the law but rather is asking us
to simply apply Miranda and Edwards. But Critt’s argument requires an extension of
existing law because we have never held that the Fifth Amendment right to counsel can be
invoked when interrogation is imminent, and, as discussed below, it is not clear that the
“context” of custodial interrogation includes when interrogation is imminent. See McNeil
v. Wisconsin, 501 U.S. 171, 182 n.3 (1991). Critt provides no compelling justification for
such an extension, especially in light of the lack of precedent from the U.S. Supreme Court
on “imminent interrogation.”
8
Notably, the U.S. Supreme Court has never held that defendants can assert their
Fifth Amendment rights when interrogation is “imminent.” But the Supreme Court seems
to have recognized that interrogation need not be presently underway for a person to validly
invoke their Fifth Amendment right to counsel. See Miranda , 384 U.S. at 470 (“An
individual need not make a pre-interrogation request for a lawyer. While such request
affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute
a waiver.” (emphasis added)); see also id. at 444–45 (“If . . . [a defendant] indicates in any
manner and at any stage of the process that he wishes to consult with an attorney before
speaking there can be no questioning.” (emphasis added)). As to the temporal proximity
required between a suspect’s invocation and an interrogation for Miranda purposes, the
Supreme Court noted in McNeil v. Wisconsin that it has “in fact never held that a person
can invoke his Miranda rights anticipatorily, in a context other than ‘custodial
interrogation.’ ” 501 U.S. 171, 182 n.3 (1991). This case law suggests that there might be
a distinction for Miranda purposes between an “anticipatory” invocation of the right to
counsel and an invocation “pre-interrogation,” but the Supreme Court has not yet defined
these contours.
Some federal and state courts have interpreted these decisions to mean that
defendants can invoke their Fifth Amendment rights when interrogation is “imminent.”
See, e.g., United States v. Grimes, 142 F.3d 1342, 1348 (11th Cir. 1998) (“Miranda rights
may be invoked only during custodial interrogation or when interrogation is imminent.”);
United States v. LaGrone, 43 F.3d 332, 339 (7th Cir. 1994) (“[I]n order for a defendant to
invoke his Miranda rights the authorities must be conducting interrogation, or interrogation
9
must be imminent.”); United States v. Kelsey, 951 F.2d 1196, 1199 (10th Cir. 1991) (“[T]he
fact that Kelsey invoked his right to counsel before the police were required to inform him
of that right is irrelevant.”); Ault v. State, 866 So. 2d 674, 682 (Fla. 2003) (holding that the
Fifth Amendment right to counsel may be invoked “either during custodial interrogation
or when it is imminent” (quoting Sapp v. State, 690 So. 2d 581, 586 (Fla. 1997))); State v.
Appleby, 221 P.3d 525, 548 (Kan. 2009) (considering whether a request for an attorney
was made when interrogation was “imminent or impending” to determine if the request
was unequivocal); Gupta v. State, 156 A.3d 785, 791, 803–04 (Md. 2017) (holding that
some circumstances may exist in which a suspect in custody could invoke Miranda rights
before interrogation, but declining to precisely define those instances because the facts
showed that the defendant’s request for a lawyer while in a holding cell “f[ell] well outside
the scope of any permissible definition of ‘imminence’ in the sense of an impending
interrogation”); State v. Hambly, 745 N.W.2d 48, 56 (Wis. 2008) (holding “that a suspect
in custody may request counsel and effectively invoke the Fifth Amendment Miranda right
to counsel when faced with ‘impending interrogation’ or when interrogation is ‘imminent’
and the request for counsel is for the assistance of counsel during interrogation”).

Critt argues that we should follow these courts and adopt the “imminent
interrogation” rule for two primary reasons. First, he argues that if a person already knows
of their Fifth Amendment right to counsel and the Miranda warnings function solely as a
reminder, the person should not have to wait until the warnings are read to invoke their
right to counsel. And second, Critt claims that it is “counterintuitive” to make a suspect
wait until questioning begins before the suspect can ask to have counsel present; a person
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should be able to anticipate that questioning will begin soon and request counsel in
advance.
The State counters that adopting an “imminent interrogation” rule “would be nearly
impossible to implement and would be a disservice to society.” In addition, the State offers
a list of illogical situations that would allegedly result if a suspect could invoke their right
to counsel when interrogation is imminent, including that a person could invoke their right
to counsel on social media or “shout out” a request for counsel when no officers are present.
Because the U.S. Supreme Court has never held that a suspect can invoke their Fifth
Amendment right to counsel when interrogation is imminent, we are not inclined to
expressly adopt an “imminent interrogation” rule at this time. The “imminent
interrogation” rule poses serious practical difficulties that we must consider before
adopting it as the law of Minnesota. Without defining when an interrogation becomes
imminent, it will be difficult for a law enforcement officer to make that determination,
particularly in evolving situations where the intent to interrogate may change based on the
suspect’s behavior (like here), the available evidence, or other circumstances, like the
availability of holding cells or interview rooms. We als o question whether “imminence”
might dissipate based on signals from law enforcement that they no longer intend to
interrogate a person and how this affects the ability to invoke the Fifth Amendment right
to counsel. This lack of clarity is contrary to the Supreme Court’s preference for “bright-
line rules” in the Miranda context. See Arizona v. Roberson, 486 U.S. 675, 681–82 (1988)
(“This gain in specificity, which benefits the accused and the State alike, has been thought
to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies
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and the courts . . . .”). Notably, Critt does not offer any suggestions for how we would
define “imminent interrogation” or apply the rule, except that interrogation might be
imminent if a person knows that interrogation will happen the next day. Accordingly,
under the facts of this case, we are not inclined to fashion such a rule when the Supreme
Court has not yet done so.
Contrary to Critt’s concern, persons subject to a custodial interrogation do not have
to wait for the Miranda warnings to be read before invoking their right to counsel. If police
fail to read the Miranda warnings before questioning, a person can still invoke their right
to counsel and right to remain silent because the warnings are simply “procedural
safeguards,” Innis, 446 U.S. at 297, not the source of the constitutional rights themselves.
For the reasons explained below, we disagree with the rule advanced by the State
that a person cannot invoke their Fifth Amendment right to counsel until after a question
has been asked. But adoption of an “imminent interrogation” rule would require us to
concur with Critt’s contention that “a defendant should be able to anticipate imminent law
enforcement questioning.” We do not agree with this claim, particularly when the
boundaries of “imminent” are not defined.
And finally, many of the courts that have adopted the “imminent interrogation” rule
offer little analysis or justification for adopting the standard.5 See Kelsey, 951 F.2d at

5 Other courts, meanwhile, have provided rationales for not affirmatively adopting
the “imminent” standard. See, e.g., Alston v. Redman, 34 F.3d 1237, 1247 (3d Cir. 1994)
(“It is only at the time that the state seeks to invade [a suspect’s] citadel of individual liberty
that these constitutional guarantees can be summoned to battle. . . . To require that the
Government first act to compel an individual to incriminate herself before that individual

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1198–1200 (holding that Edwards applied because the suspect asked for an attorney and
the police questioned him some time after the request, without analyzing whether the
request needed to be made in the context of custodial interrogation); People v. Villalobos,
737 N.E.2d 639, 646 (Ill. 2000) (holding that “the suspect must invoke the right to counsel
during custodial interrogation or when custodial interrogation was imminent” without
analyzing whether the “imminent” standard has a basis in U.S. Supreme Court Miranda
jurisprudence). Some courts do not define what it means for interrogation to be “imminent”
but merely recite the standard as part of the rule or hold that interrogation was clearly not
imminent. See, e.g., Gupta, 156 A.3d at 803. Other courts state the “imminent
interrogation” rule but hold that a purported invocation by the suspect was anticipatory and
therefore invalid. See, e.g., Grimes, 142 F.3d at 1348–49; LaGrone, 43 F.3d at 339–40;
Ault, 866 So. 2d at 682. With no holding from the Supreme Court compelling an
“imminent interrogation” rule, little analysis or justification from other courts, and no clear
guidance from Critt as to how we would define “imminent interrogation” or apply the rule,
we decline to adopt such a rule at this time.

can assert her right to remain silent is merely to recognize that the privilege against
compelled self-incrimination acts as a shield against state action rather than as a sword,
and that the shield may only be interposed when state action actually threatens.”), cert.
denied, 513 U.S. 1160 (1995); Russell v. State, 215 S.W.3d 531, 536 (Tex. Ct. App. 2007)
(declining to adopt the standard because, although “[s]ome courts have held that the
window of opportunity for invoking one’s Miranda rights extends . . . to that time when an
interrogation is imminent,” the Supreme Court has yet to recognize that right). Because
we share the analytical concerns other courts have raised, we decline to affirmatively adopt
an “imminent” standard here and need not address whether the facts here would meet such
a standard were it to be adopted.
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We also, however, do not fully agree with the State’s position in this case that a
person cannot invoke their Fifth Amendment right to counsel until after a question has been
asked. At oral argument, the State suggested that the Fifth Amendment right to counsel
attaches when a person faces the first question from law enforcement officers. But the
State’s recitation of the rule does not comport with Miranda, which says that a pre-
interrogation request for counsel may be valid.6 Miranda, 384 U.S. at 470. And
interrogation in the Fifth Amendment context is not limited to formal police questioning
but also includes the “functional equivalent” of interrogation, that is, actions by law
enforcement officers that “are reasonably likely to elicit an incriminating response from
the suspect.” Innis, 446 U.S. at 301 (footnote omitted); see State v. Heinonen, 909 N.W.2d
584, 589–94 (Minn. 2018) (applying Innis to determine whether police officers’ actions
amounted to interrogation). This “functional equivalent” of interrogation includes
“psychological ploys” meant to induce a suspect into making incriminating statements
without direct questioning from law enforcement, such as if officers “display an air of
confidence in the suspect’s guilt,” “minimize the moral seriousness of the offense,” or “cast

6 The State also argues that it is not reasonable to expect an officer who hears a
suspect invoke the Fifth Amendment right to counsel to relay that invocation to all other
officers who might later attempt to interrogate the suspect. Though we have never
explicitly addressed this imputed-knowledge issue and do not do so here, we note that the
U.S. Supreme Court has held that one officer’s knowledge of a Fifth Amendment
invocation is imputed to all officers who interact with the same suspect. See Roberson,
486 U.S. at 687 (“[W]e attach no significance to the fact that the officer who conducted the
second interrogation did not know that respondent had made a request for counsel. . . .
[C]ustodial interrogation must be conducted pursuant to established procedures, and those
procedures in turn must enable an officer who proposes to initiate an interrogation to
determine whether the suspect has previously requested counsel.”).
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blame on the victim or on society.” Miranda, 384 U.S. at 450, 457; Edrozo, 578 N.W.2d
at 724–25.
Rather than adopting the State’s position, we instead adhere to the principle that the
Miranda doctrine must “be enforced strictly, but only in those types of situations in which
the concerns that powered the decision are implicated.” Berkemer v. McCarty, 468 U.S.
420, 437 (1984). In its Fifth Amendment right to counsel jurisprudence, the Supreme Court
has focused on the “inherently compelling pressures [of a police-dominated atmosphere]
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, 384 U.S. at 467.
Applying those principles here, Critt was not subjected to any compulsion or
coercion in the interview room at the law enforcement center on the night of June 28, and
so the concerns underlying Miranda are not implicated here. See Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“It is the premise of Miranda that the danger of coercion results
from the interaction of custody and official interrogation.”). None of the officers present
mentioned the fire or the deceased person found inside the burned-out house. Critt was not
told that his cooperation would result in lenient treatment. There is no evidence of any
“psychological ploys” wielded by the officers. None of the officers asked Critt any
questions or tried to elicit an incriminating response about his involvement in a possible
murder and arson. Indeed, it is notable that Critt made no incriminating statements
whatsoever to law enforcement on the night of June 28. Considering these facts, we cannot
say that Critt’s mere presence in the interview room, after the officers told him that he was
15
being detained for questioning, “work[ed] to undermine [his] will to resist and to compel
him to speak where he would not otherwise do so freely.” See Miranda, 384 U.S. at 467.
Because Critt was not subjected to custodial interrogation on the night of June 28,
he did not have a Fifth Amendment right to counsel at that time. 7 Critt’s statements on
June 29, then, were not obtained in violation of Miranda or Edwards, and so the district
court did not err by denying Critt’s motion to suppress them. Accordingly, the district
court did not abuse its discretion by denying his request for postconviction relief.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.

7 Because we hold that Critt did not have a Fifth Amendment right to counsel on the
night of June 28, we need not decide whether his statements were “clear and unequivocal”
invocations of that right.