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Suppress Statements: Illegal Confession

COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Rules 3.190(h), Florida Rules of Criminal Procedure, and Article I, Section 9 of the Florida Constitution, and respectfully moves the Court to suppress any and all written and/or oral statements made by him to officers of the Jacksonville Sheriff’s Office (JSO), and in support thereof, states as follows:

Statement of Facts

1. On January 21, 2016, officers of the Jacksonville Sheriff’s Office (JSO) arrested the defendant for Capital Sexual Battery, pursuant to an arrest warrant.
2. After the defendant was arrested and taken into custody, the officers transported him to the Police Memorial Building (PMB), to be interrogated by detectives in the Special Assault Division of JSO.
3. The defendant was in police custody at the time of the interrogation, and not free to leave.
4. While he was being transported to the PMB, the defendant’s brother contacted undersigned counsel, and hired Fallgatter & Catlin, PA to represent the defendant on the pending charges.
5. While the defendant’s brother was speaking to Mrs. Varon, he handed the phone to an officer at the arrest scene, who advised her of the name of the detective assigned to the case.
6. The defendant’s brother observed the officer contact the detective and tell him the defendant’s family had hired an attorney to represent him.
7. Mrs. Varon tried to reach the Special Assault Division at JSO to speak with the detective by telephone, but could not reach anyone.
8. Attorney Curtis Fallgatter advised Mrs. Varon he had an email address for the detective. He stated he would send an email, as Mrs. Varon left to walk to the PMB.
9. Mr. Fallgatter sent an email at 5:47:40 p.m., letting the detective know his firm had been hired to represent the defendant, and that Attorney Lisa Varon was on her way to the PMB. He told the detective Mrs. Varon wanted to speak to the defendant, and asked that they not interview him, until she was present. A copy of this email, and the subsequent emails sent to the detective that evening, are attached as Composite Exhibit A.
10. Mrs. Varon began walking to the PMB as Mr. Fallgatter composed and sent the email. The offices of Fallgatter & Catlin are located at 200 East Forsyth Street, which is two and one half blocks from the Forsyth Street entrance of the PMB.
11. When she arrived at the PMB, Mrs. Varon spoke with the security officer at the Forsyth Street entrance and asked him to let the detective know she represented the defendant, and wanted to speak with him immediately.
12. The security officer was also not able to get through to the Special Assault Division by telephone, so he walked back to that department. When he returned, he told Mrs. Varon he had let the detectives in the unit know she was there, but was told she could not speak to anyone, until they were done with their interview.
13. The lieutenant in charge of JSO’s Special Assault Division testified at deposition that she was in the JSO Special Assault Division when the defendant was being interrogated, watching the interrogation on a closed circuit television. She stated she was notified by JSO security that an attorney hired by the defendant’s family was in the building and wanted to speak to him.
14. The lieutenant testified that because she knew the defendant had waived his rights, she did not interrupt the detective to let him or the defendant know an attorney hired by his family was there to speak to him.
15. At 5:59 p.m., Mrs. Varon emailed the detective and let him know she was in the lobby of the PMB, but had been informed by security that she could not go back to where the interrogation was taking place. She again asked the detective to stop interviewing the defendant and allow her to meet with him.
16. At 6:10 p.m., Mrs. Varon again approached the security officer and told him she wanted to speak with the defendant, and wanted them to stop interviewing him, so that she could do so. The security officer pointed to a female officer, who had walked into the lobby, and was speaking to someone else. He said she was the lieutenant, and that she had been in the back with the detective. He advised Mrs. Varon she could speak with the lieutenant, when she was done with her conversation.
17. When the lieutenant finished her conversation, the officer called her over to the desk. He pointed at Mrs. Varon, told the lieutenant she was an attorney, and that she wanted to speak to her client, who they were interviewing. Without looking at Mrs. Varon, the lieutenant told the officer: “He is a grown man, and he has waived his rights. She cannot speak to him until we are done with our interview.”
18. At 6:18 p.m., Mr. Fallgatter sent another email to the detective, again asking him to cease his interview of the defendant, and permit Mrs. Varon to speak with him. Mrs. Varon stayed at the PMB, another 15 to 20 minutes after that email was sent, but did not hear from anyone. She left the PMB approximately one hour after she had arrived.
19. At not time was the defendant informed by the JSO officers or supervisors that his family had hired an attorney, who was present in the building, and was attempting to reach him. This omission by the officers is confirmed by the recorded interview.
20. The defendant waived his rights and agreed to speak with the detective.
21. After he waived his rights, after Mr. Fallgatter had emailed the detective, and after Mrs. Varon had arrived at the PMB, the defendant specifically asked the detective: “Should I get a lawyer?”
22. Instead of stopping the interview, and answering the defendant’s question, the detective stated (at 44:26):
Look, listen, I’m going to shoot straight with you, if you want to talk to me and tell me everything, and we get everything out and we’re done with it and we walk past this, we’re good.
23. During the custodial interrogation, the defendant made statements and admissions to the charges alleged herein.

Memorandum of Law

Illegal Confession

The defendant’s statements to the detective after his arrest on January 21, 2016 should be suppressed because the defendant did not knowingly and intelligently waive his rights, pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). When the police failed to notify the defendant that an attorney retained on his behalf was present at the PMB, and requesting to see him, he was deprived of information essential to a knowing and intelligent waiver of his right to counsel under Miranda. Haliburton v. State, 514 So.2d 1088 (Fla. 1987).

In Haliburton, as in this case, the defendant was being interviewed by the police when an attorney hired by his family went to the police station and tried to speak to him. The police (1) failed to tell the defendant of his attorney’s phone call to them, (2) failed to provide the attorney with access to the defendant after he arrived at the police station, and (3) never told the defendant of his attorney’s presence. Id. at 905-906. The Florida Supreme Court held that the statements made by the defendant should be suppressed under those circumstances, because he was denied due process of law, under Article I, Section 9 of the Florida Constitution.

In State v. Allen, 548 So.2d 762 (Fla. first DCA 1989), as in this case, the defendant gave a statement to the police as an attorney, secured by his family, was attempting to reach him. As in this case, the police failed to tell the defendant the attorney was trying to contact him. The First DCA upheld the trial court’s suppression of the defendant’s statement to the police, and emphasized that the error was the failure by the police to tell the defendant that an attorney wished to speak to him. Id.

Recently, in Bruce v. State, 92 So.3d 902, 906 (Fla. fourth DCA 2012) the Fourth DCA stated:

Under Haliburton II, a suspect must be informed promptly of efforts by a lawyer to provide legal assistance relating to the detention; this means that the police must advise a defendant that a lawyer is present in the station house and available to speak with him. Armed with that information, the suspect may choose whether he wishes to speak to counsel. If he desires to do so, interrogation must cease. Only if a suspect decides to forego the assistance of counsel, may interrogation continue and counsel be denied access. Because they are responsible for the suspect’s isolation, the police have a duty to act reasonably, diligently, and promptly to provide the defendant with accurate information.

Recently, in McAdams v. State, 193 So. 3d 824, (Fla. 2016), the defendant was not under arrest, but was being interviewed in a non-public area of the police station, when an attorney hired by his family arrived to speak to him. The police would not interrupt the interview, or permit the attorney access to McAdams. The Florida Supreme Court held as follows:

Therefore, we now hold that when an individual is being questioned in a non public area, and an attorney retained on his or her behalf arrives at the location, the Due Process Clause of the Florida Constitution requires that the police notify the individual of the attorney’s presence and purpose. Pursuant to this holding, a person can no longer be deprived of the critical information that an attorney is present and available to provide legal advice based on pure police conjecture that the individual is not in custody. We also cannot allow law enforcement to refuse to interrupt an interview, as occurred here. Under the interpretation of the Due Process Clause of the Florida Constitution that we adopt today, it is the individual, rather than law enforcement, who is given the knowledge and power to decide whether to take advantage of the attorney’s services.

(emphasis added).

The Florida Supreme Court held that McAdams’s right to due process under the Florida Constitution was violated when law enforcement officers failed to inform him that an attorney retained by his parents had arrived at the Hernando County Sheriff’s Office and was available to assist him. Id. The court held that the statements made by the defendant must be suppressed. Id.

Here, as in the cases cited, the police denied Mrs. Varon access to the defendant, and did not tell him she was present at the PMB. Because the defendant was not told of his attorney’s presence, he was deprived of information essential to a knowing and intelligent waiver of his right to counsel. Therefore, pursuant to the case law cited above, the statements made by the defendant during his custodial interrogation, must be suppressed, because they violated his right to counsel, and his due process rights under the Florida Constitution.

Additionally, during the interrogation, after Mr. Fallgatter had emailed the detective, and after Mrs. Varon had arrived at the PMB, the defendant asked the detective a question about his constitutional rights. Specifically, he asked the detective: “Should I get a lawyer?” In Almeida v. State, 737 So.2d 520 (Fla. 1999), the Florida Supreme Court held that if a suspect asks a question about his constitutional rights in the course of a custodial interrogation, the police officer must stop the interview and make a good-faith effort to give a simple and straightforward answer.

In this case, instead of stopping the interview, and answering the defendant’s question, “in a simple straightforward manner,” as required by Almeida, the detective stated (at 44:26):

Look, listen, I’m going to shoot straight with you, if you want to talk to me and tell me everything, and we get everything out and we’re done with it and we walk past this, we’re good.

In Almeida, the court stated that “to give an evasive answer, or to skip over the question, or to override or ‘steamroll’ the suspect” was coercive. Id. at 525. The detective’s answer falls into the category of an evasive answer, that does not answer the defendant’s question, and in fact, is not truthful. The detective was not “shooting straight” with the defendant. If the defendant told him everything, they were not “good.” Thus, his answer was designed to mislead the defendant into believing he, in fact, did not need a lawyer, and was therefore coercive, as outlined in Almeida.

The detective’s failure to answer the question is even more egregious under these circumstances, because the defendant’s attorney was in the building and trying to speak with him. He should have been informed of his lawyer’s presence as soon as she arrived at the PMB, and most certainly when he asked that question, he should have been given the information that a lawyer was present and asking to speak with him.

Under these coercive circumstances, the waiver of rights by the defendant was not made knowingly and intelligently. Thus, the statements made by the defendant during his custodial interrogation by the detective must be suppressed.

WHEREFORE, the defendant moves the Court to enter an order suppressing any and all written and/or oral statements made by him to officers of the JSO, pursuant to Rules 3.190(h), Florida Rules of Criminal Procedure, and Article I, Section 9 of the Florida Constitution.