Ferguson v. State

200 So. 3d 106, 2015 Fla. App. LEXIS 19516, 2015 WL 9491865
CourtDistrict Court of Appeal of Florida
DecidedDecember 31, 2015
DocketNo. 5D14-1904
StatusPublished
Cited by5 cases

This text of 200 So. 3d 106 (Ferguson v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferguson v. State, 200 So. 3d 106, 2015 Fla. App. LEXIS 19516, 2015 WL 9491865 (Fla. Ct. App. 2015).

Opinion

ORFINGER, J.

David J. Ferguson appeals his conviction for three counts of sexual battery on a child under twelve years of age. Ferguson argues that the trial court erred by denying the motion to suppress his post-arrest statement to law enforcement and by admitting certain evidence at trial. We agree in part, and reverse for a new trial.1

Ferguson moved to suppress his post-arrest statement given to Florida law enforcement officers in a Virginia jail. Ferguson claimed that the statement should be suppressed because the detectives did not comply with the requirements of Almeida v. State, 737 So.2d 520 (Fla.1999).

Ferguson was arrested in Virginia based on a Florida arrest warrant. He was placed in a holding cell, and was informed, apparently by a Virginia jail officer, that there were “two ladies that come up from Florida” to talk with him. Thereafter, two detectives with the Orange County Sheriffs Office arrived for the purpose of questioning Ferguson concerning the allegations leveled by his now-adult daughters. As soon as the detectives introduced themselves, Ferguson inquired, “[i]s this the time I’m supposed to have a lawyer, of course, I’m not in Florida?” Rather than answer that question directly, the detectives spent the next several minutes trying to put Ferguson at ease and thus more susceptible to questioning. They then read Ferguson his Miranda rights and proceeded to question him for the next hour and a half during which he made incriminating statements.

A trial court’s ruling on a motion to suppress is presumptively correct and will be upheld if supported by the record. E.g., Cuervo v. State, 967 So.2d 155, 160 (Fla.2007); San Martin v. State, 717 So.2d 462, 469 (Fla.1998). We defer to the trial court findings of fact, provided they are supported by competent, substantial evidence, but review its application of law de novo. Delhall v. State, 95 So.3d 134, 150 (Fla.2012); Pagan v. State, 830 So.2d 792, 806 (Fla.2002).

A suspect has the right to consult with an attorney and to have an attorney present during custodial questioning. Spivey v. State, 45 So.3d 51, 54 (Fla. 1st DCA 2010) (citing Miranda v. Arizona, 384 U.S. 436, 469-73, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). “If a suspect clearly and unequivocally requests counsel at any time during a custodial interview, the interrogation must immediately stop until a lawyer is present or the suspect reinitiates conversation.” Id. (explaining that suspect must articulate desire to cut off questioning with sufficient clarity that reasonable police officer in circumstances would understand statement to be assertion of right to remain silent). On the other hand, if a suspect makes an equivocal or ambiguous request for counsel, police officers are not required to stop the interrogation or ask clarifying questions. Id. (holding that appellant’s statement, “I mean if I am being held and I’m being charged with something I need to be on the phone calling my lawyer,” was not an unequivocal request for counsel because it “did not clearly indicate that [he] wanted counsel present at that time or that he would not answer any further questions without counsel”); see also Walker v. State, 957 So.2d 560, 571, 574 (Fla.2007) (finding that appellant did not make unequivocal request for counsel where he said, “I think I might want to talk to an attorney” and later asked agent if he needed attorney); Jones v. State, 748 So.2d 1012, 1020 (Fla.1999) (finding that [109]*109appellant’s statement that he wanted to speak “to his mother, his attorney, and Detective Parker” was not unequivocal request for counsel). -

In Almeida, the Florida Supreme Court distinguished an equivocal statement that requires no clarification from a question that is “prefatory to — and possibly determinative of — the invoking of a right.” 737 So.2d at 523-24. The court held that

if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer. To do otherwise — i.e., to give an evasive- answer, or to skip over the question, or to override or “steamroll” the suspect — is to actively promote the very coercion that Traylor [v. State, 596 So.2d 957 (Fla.1992) ] was intended to dispel. A suspect who has been ignored or overridden concerning a right will be reluctant to exercise that right freely. Once the officer properly answers the question, the officer may then resume the interview (provided of course that the defendant in the meantime has not invoked his or her rights). Any statement obtained in violation of this proscription violates the Florida Constitution and cannot be used by the State. -

Id. at 525. Thus, a prefatory statement is subject to the following three-step analysis: (1) was the defendant referring to a constitutionally guaranteed right; (2) was the utterance a clear, bona fide question calling for an answer, not a rumination or a rhetorical question; and (3) did the officer make a good-faith effort to give a simple and straightforward answer. Id. at 523-25.

The supreme court clarified the duty of law enforcement officers when answering a suspect’s questions in State v. Glatzmayer, 789 So.2d 297, 305 (Fla.2001), explaining that

nothing in Almeida requires that law enforcement officers act as legal advis-ors or personal counselors for suspects. Such a task is properly left to defense counsel. To require officers to advise and counsel suspects would impinge on the officers’ sworn duty to prevent and detect crime and enforce the laws of the state. All that is required of interrogating officers under Almeida and [State v.] Owen [, 696 So.2d 715 (Fla.1997),] is that they be honest and fair when addressing a suspect’s constitutional rights....

(Footnotes omitted). .

In Glatzmayer, the suspect “asked the officers if ‘they thought he should get a lawyer?’ ” The officers responded that it was his decision. The court concluded that the response was a good-faith effort to give a simple and straightforward answer because “[tjheir response was simple, reasonable, and true,” explaining that, “[ujnlike the situation in Almeida, the officers did not engage in ‘gamesmanship’; they did not try ‘to give an evasive answer, or to skip over the question, or to override or ‘steamroll’ the suspect.’ ” Glatzmayer, 789 So.2d at 305 (quoting Almeida, 737 So.2d at 525); cf. Chaney v. State, 903 So.2d 951, 951-52 (Fla. 3d DCA 2005) (rejecting appellant’s arguments that detective failed to make good-faith effort to give simple and straightforward answer, was evasive, and intended to steamroll him where appellant asked detective if he thought appellant needed lawyer and detective responded, “Do you think you need a lawyer?,” because detective’s “question in effect correctly informed [appellant] that it was up to [him] to decide whether or not he needed a lawyer”).

[110]*110Here, the trial court correctly found that Ferguson made an unequivocal inquiry about his right to counsel which the detectives clearly understood. Hence, the issue turns on the third step of the Almeida

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Bluebook (online)
200 So. 3d 106, 2015 Fla. App. LEXIS 19516, 2015 WL 9491865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-v-state-fladistctapp-2015.