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Suppress Statements – Illegally Obtained Statements

MOTION TO SUPPRESS STATEMENTS
AND
INCORPORATED MEMORANDUM OF LAW

COMES NOW the Defendant, by and through his undersigned counsel, pursuant to Rules 3.190(h), Florida Rules of Criminal Procedure, the Fifth Amendment of the United States Constitution, 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 during his interrogation with Det. V. of the Jacksonville Sheriff’s Office (“JSO”), and in support thereof, states as follows:

STATEMENT OF FACTS

1. On May 11, JSO officers executed a search warrant at the home of the Client.
2. On January 23, pursuant to an arrest warrant, JSO officers arrested the Client on 10 counts of possession of child pornography.
3. After he was arrested and taken into custody, the officers transported the Client to the Police Memorial Building to be interviewed by Det. K. D. V.
4. The Client was in police custody at the time of the interrogation, and not free to leave.
5. The interrogation of the Client was video and audio recorded.
6. Before the interrogation began, the Client clearly invoked his right to remain silent.
7. Det. V. did not honor the Client’s invocation of his rights. Instead, he continued to speak to the Client, in an effort to elicit statements from him.
8. The conversation went as follows:
S: Remember what I said to you in the car? I respect y’all, ain’t no disrespect to you. But I have nothing to say.
V: You don’t want to talk to me at all?
S: Don’t matter.
S: It don’t matter? Well, it kinda does.
S: No, because I’ll be arrested either way.
V: You’re absolutely right because you have an active arrest warrant. But here’s what does matter, um, and we’ll get into – if you wanna talk to me we’ll discuss this. I don’t know the outcome of this, but I am the primary investigator here. This is my case. Me, and only me. So tomorrow – after we talk you’re going to be booked tonight, and I’m going to go to the State Attorney’s office and I’m personally filing this case with the State Attorney’s office. I cannot make any promises, but you’re looking at ten second degree felony charges here.
S: Oh my.
V: That’s a lot. That’s a lot of time, okay? So either you can just not talk to me, again it’s your preference. Or you can be cooperative and we can talk about this problem that I feel that you have, okay there is –
S: I have never touched a child.
9. After some additional conversation, Det. V. showed the Client the Constitutional Rights Form, and told him, that by signing the form, the Client was not agreeing he wanted to speak to the detective, but was just indicating he understood his rights.
10. At 6:40 p.m., Det. V. read the first line of the Rights Form, and asked the Client to read the other lines.
11. Det. V. then repeated that the Client should sign the form “indicating that you understand.”
12. Next, Det. V. asked the Client a series of questions about his education level and whether or not he was under the influence of alcohol or drugs.
13. The purpose of these questions was to insure the Defendant was capable of understanding his Constitutional Rights.
a. The Client stated he had an eleventh grade education.
b. The Client stated he was under the influence of alcohol, because after he arrived home at 4:00 p.m. (2 hours and 40 minutes earlier) he consumed 4 – 5 drinks/shots of rum.
14. Det. V. never asked the Client if he wished to waive his right to remain silent, and speak to him about the alleged crimes. He began questioning the Client about the alleged crime.
15. The Client made statements to the detective about the alleged charges.
Based on the foregoing facts and authorities, the defendant seeks suppression of the illegally obtained statements.

MEMORANDUM OF LAW

The Client’s statements to Det. V. after his arrest on January 21, should be suppressed, because the Client invoked his right to remain silent and did not freely, knowingly, and intelligently waive his Fifth Amendment rights, pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).

A. Client Invoked his Right to Remain Silent

At the beginning of the interrogation, the Client clearly told the detective he did not want to talk to him, when he stated “I have nothing to say.” The detective did not honor the Client’s invocation of his right to remain silent, and continued his conversation with him, making statements which were designed to elicit statements from the Client.
At the point that the Client stated he had nothing to say, the interview should have stopped. If the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. Miranda v. Arizona, 384 U.S. 436, 445 (1966).
The facts in the instant case are virtually identical to the facts in Cuervo v. State, 967 So. 2d 155 (Fla. 2007). In Cuervo, the defendant stated in Spanish, “I have nothing to declare.” The detective then had him initial the rights form, “to make sure he understood them.” The detective then told Cuervo that he could speak to them, and give his side of the story, or if he didn’t want to, that was his right. At that point, Mr. Cuervo began making statements, and answering questions.
In Cuervo, the Florida Supreme Court held that the defendant invoked his rights, and the detective should have immediately stopped questioning him, stating as follows:
Accordingly, we conclude that Cuervo clearly asserted his right to remain silent when he told the officers, “No quiero declarar nada,” and clearly confirmed his understanding of the right he was exercising when he initialed and signed the Spanish-language Miranda form. No further questioning should have ensued.

Id. at 164 (emphasis added).
Thus, here, pursuant to Cuervo, when the Client invoked his right to remain silent, the interview should have stopped, and Det. V. should not have continued to question him.

B. Detective’s Response to Invocation Improper

After a suspect invokes his or her Miranda rights, police officers are prohibited from engaging in words or actions that they “should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). The prohibition on further questioning applies not only when the defendant requests counsel, but also when the defendant exercises his or her right to remain silent. Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992).
In Cuervo, the court stated that the officers “engaged in conduct they could reasonably anticipate would elicit an incriminating response.” Cuervo at 164. After Mr. Cuervo invoked his right to remain silent and signed the rights form, indicating he understood his rights, the detective told Mr. Cuervo he could give “his side of the story.” Id. The detective then told Mr. Cuervo, “[N]ow would be your opportunity if you wish to speak and explain your side of your story.” The detective told Mr. Cuervo that although he was not obligated to talk, if he wished to talk “there’s still time.” Id.
The Florida Supreme Court stated these remarks by the detective undermined the warning to Cuervo that anything he said could be used against him in a court of law. Id. at 165. In addition, the detective’s statements created the impression that, despite his expressed desire not to talk, Cuervo had a brief window in which to vindicate himself. Id.
Here, as in Innis and Cuervo, after the Client stated he did not want to talk to the detective, the detective made statements that would reasonably illicit an incriminating response. The detective implied that it would be helpful for the Client to talk to him, because “he was the primary investigator” and “after we talk…I’m going to go to the State Attorney’s office and I’m personally filing this case with the State Attorney’s office. I cannot make any promises, but you’re looking at ten second degree felony charges here.” And finally, “How long you go [to prison] is really determined tonight.”
As in Cuervo, these statements, made by the detective after the Client invoked his right to remain silent, undermined the Miranda warnings the detective gave him. They implied that it would be helpful for the Client to discuss the case with him, they also implied he had this one brief window of opportunity to talk to the detective, and vindicate himself, or shorten his prison sentence, before the detective went to the State Attorney’s Office the next day. These statements by the detective were improper.

C. Client Under the Influence

Additionally, the Client did not freely and knowingly waive his rights, because he was impaired by alcohol at the time he spoke to the detective. Det. V. read the Client his rights at 6:40 p.m. The Client told the detective that, since he had arrived home at 4 p.m. that day, he had 4 – 5 shots of rum. During the interview, the Client slurred his words several times. Thus, the Client’s normal faculties were impaired by alcohol, and the waiver of his rights was invalid.
WHEREFORE, Defendant requests that pursuant to Rules 3.190(h), Florida Rules of Criminal Procedure, the Fifth Amendment of the United States Constitution, 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 during his interrogation with Det. V. of the Jacksonville Sheriff’s Office.