The Rap Sheet. Message from State Attorney Norm Wolfinger

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1 The Legal News for Law Enforcement in Brevard and Seminole Counties February 2006 Editor, Assistant State Attorney Mary Ann Klein Volume XXII, Issue 1 Message from State Attorney Norm Wolfinger Probably nothing is more beneficial to prove the case beyond and to the exclusion of every reasonable doubt than to have a defendant s statement or confession. Yet too often we see where, for whatever reason, officers do not take advantage of the opportunity. This issue of the addresses the law on the admissibility of a defendant s statements in a variety of settings and circumstances. Hopefully, many of the questions you may have about obtaining admissible statements are covered. If you have a specific question not addressed in the article, by all means call our office and we will do what we can to assist you. Until then, be safe and take care. Miranda Warnings Norm Wolfinger WHAT YOU SAY MAY BE USED AGAINST YOU This article is intended to provide a review of the law on the admissibility in court, of a defendant s statements. It will include Fifth and Sixth Amendment analysis, Florida Constitutional considerations, and due process considerations. These issues in the context of Juvenile and DUI arrests, which do not involve a traffic crash are also addressed. Let the defendant talk! The importance of obtaining a statement from the defendant cannot be over emphasized. Although a case may be strong without a defendant s confession, witnesses move or can change their stories, placing the case in a weaker posture. Even when a defendant February 2006 Page 1 of 20

2 denies everything, the substance of the denial will lock him into a story for his trial testimony or allow the state to investigate the story and point out the holes. If a defendant is willing to talk, get as many details as possible including who else he told about his involvement. When a defendant denies involvement, ask him detailed questions about his alibi or other defense. Simply getting from the defendant, I didn t do it is not helpful. Even in a case where the defendant is charged with the sale of drugs, a statement from the defendant admitting to it and why he sells drugs can go a long way in showing he wasn t entrapped six months later at trial. If the defendant s statement is not recorded, document everything in writing. This will assist you at trial when testifying. In addition, the state has a duty to disclose all statements made by a defendant. If we don t know about the statements, we can t disclose them. If we find out about the statements too close to the trial date, the court may prohibit us from admitting them as a result of the late disclosure. We need to know everything the defendant said. PART I ALL STATEMENTS MUST BE VOLUNTARY In order for a defendant s statements to be admissible, whether introduced in the state s case in chief or for impeachment, the statements must be voluntary. Due Process requires that a statement be voluntary before it can be used for any purpose. Convictions based on evidence obtained by methods that are so brutal and so offensive to human dignity that they shock the conscience of the Court, violate the Due Process Clause. Under this analysis a confession must not be the product of police torture or other abuse that results in a confession. The statement must be voluntary, in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, deception, or overly enticing promises. PART II ADMISSIBILITY OF STATEMENTS FIFTH AMENDMENT The Fifth Amendment to the U.S. Constitution and Florida s Constitution Counterpart in Article I 9, essentially has two components: (a) the Right to Counsel and (b) the Right to Remain Silent. The Fifth Amendment Right to Counsel and Right to Remain Silent attaches when a person is taken into custody and is subjected to questioning by law enforcement or an agent of law enforcement. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court created a prophylactic rule designed to protect the Fifth Amendment privilege against compelled self-incrimination, in the context of custodial interrogation. The Court reasoned that custodial interrogation creates: pressures which work to undermine the individual s will to resist and to compel him to speak where he would not otherwise do so freely. Thus, a bright line rule was created that would February 2006 Page 2 of 20

3 help ensure that the coercive nature of custodial interrogation would not result in confessions that would not otherwise be given. As previously stated, the Fifth Amendment attaches and therefore Miranda must be given if a person is to be subjected to custodial interrogation by law enforcement or an agent thereof. Custody means physical arrest and situations, which are the functional equivalent of arrest. Custody for Miranda purposes does not include typical Terry detention situations. 1 Although a person detained for investigation based on reasonable suspicion in a Terry detention is not free to leave, he is not in custody for Miranda purposes. Nor is Miranda required before a person is questioned during a consensual encounter. The determination of whether there was the functional equivalent of arrest is determined from the perspective of how a reasonable person would have perceived the situation not from what the law enforcement officer thought or what this particular defendant thought. If the defendant was not formally arrested, the court will consider the following factors in determining whether a reasonable person would have believed they were in custody 2 : 1. The manner in which police summoned the suspect for questioning. (If the interview occurred at the police station, did the defendant drive himself there?) 2. The purpose, place, and manner of the interrogation. (Was the defendant questioned at his own home, along the roadside, or at the police station? Was the defendant asked to go from one location to another for the interview, and did he travel to that second location by himself or in the patrol car? 4. The number of officers present during the interview. Whether the officers were in uniform. Was the defendant handcuffed during the interview or prior to the interview? 5. The extent to which the suspect was confronted with evidence of his guilt. 6. Whether the suspect was told that he was free to leave and not answer questions. In Yarborough v. Alvarado, 124 S.Ct (2004), the Court rejected factors such as a suspect s age and prior experience with the police as being factors to consider in determining whether a suspect is in custody for Miranda purposes. Whether a suspect is in custody for Miranda purposes is an objective test. A subjective test would require police to anticipate the frailties and idiosyncrasies of every person they question. Although the actual mindset of a 1 Miranda, in the context of accident investigations, is not addressed in this article. 2 See Ramirez v. State, 739 So.2 nd 568 (Fla. 1999) February 2006 Page 3 of 20

4 particular suspect will have a bearing upon whether a statement is voluntary or whether a Miranda waiver was valid, it is not a consideration in determining whether the suspect was in custody for Miranda purposes. Interrogation includes direct questions and any actions, behavior, or comments intending to elicit incriminating statements. 3 For example, in Origi v. State, 912 So.2d 69 (4 th DCA 2005), after the defendant s arrest for DUI and possession of drugs, the officer, while walking the defendant into the breath testing facility said, That s a lot of drugs you had. The defendant responded, I have to make money and make a living. The officer s statement was deemed to be interrogation in violation of Miranda since the defendant had invoked his right to remain silent earlier. In Pirzadeh v. State, 854 So.2d 740 (5 th DCA 2003), Pirzadeh was arrested for trafficking in opium, advised of his Miranda rights, and he invoked his right to counsel before being transported to the jail. The detective did not ask the defendant any direct questions about the case, but while being booked at the jail, the detective told him the crimes he was being charged with, the applicable sentencing guidelines and that he wasn t going to give him a bond. The defendant told the detective that he wanted to cooperate because he wanted a bond. The detective said he still wasn t going to give him a bond, and he should get an attorney and seek a hearing. However, a back-and-forth discussion ensued over cooperation and the continued denial of a bond. Eventually, the defendant gave a written statement regarding the charged crime. The Fifth District Court of Appeal agreed with the defendant that the statement was obtained in violation of the Fifth Amendment. The reasoning was that once the officer told Pirzadeh about the nature of the charges, he should have terminated the confrontation, as it became clear that continuing the conversation would lead to an incriminating response. 4 The appellate court rejected the State s argument that the defendant initiated the contact with police. In their view, the defendant made the statement after he had already requested counsel and as a result of the conversation initiated by law enforcement. The third component requires that the person conducting the custodial interrogation is a law enforcement officer or someone who is acting on behalf of or as an instrument of law enforcement. 5 Thus, Miranda is implicated if a defendant is questioned by a jail cellmate or any other person who is acting at the direction of law enforcement. 6 To determine whether a private individual acts as an instrument of the state, courts look to: (1) whether the 3 Rhode Island v. Innis, 446 U.S. 291 (1980). 4 The Court in Pirzadeh cited to Larson v. State, 753 So.2d 733 (Fla. 2 nd DCA 2000), wherein the 2 nd DCA found that an officer who held a conversation with a defendant about the charges and told the defendant he was facing a twenty-five-year sentence, was conducting an interrogation. 5 Mesa v. State, 673 So.2d 51 (3 rd DCA 1996). 6 This is different from situations where police have not directed the contact and questioning. See for example, Arizona v. Mauro, 481 U.S. 520, 107 S.Ct (1987); Lowe v. State, 650 So.2d 969 (Fla. 1994). February 2006 Page 4 of 20

5 government was aware of and acquiesced in the conduct; and (2) whether the individual intended to assist the police or further his own ends. 7 If the suspect invokes his Fifth Amendment Right, make clear and certain whether he is invoking his Fifth Amendment Right to Counsel or Fifth Amendment Right to Remain Silent. The rules are a little different depending upon which is being invoked. 8 If a defendant invokes his Fifth Amendment Right to Remain Silent, then all questioning must cease. However, this is not an absolute bar to all future interrogation while in custody. For example, in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321 (1975), Mosley, while in custody was read Miranda and waived. However, when asked about some burglary offenses, he said he didn t want to discuss them, thus invoking his right to remain silent. The officers ceased questioning. Approximately two hours later, a different officer came to speak with the defendant and read the defendant Miranda again. Mosley again waived, and confessed to a homicide. The U.S. Supreme Court ruled that admission of the homicide confession was not contrary to Miranda. The Court discussed several factors in its reasoning: the defendant had been informed of his rights in both interview sessions before questioning; the officer in the initial session did stop questioning when the defendant invoked his right to silence; there was a significant time span between each interview; the interviews took place at different locations by different officers; and the interview in the second session was about a different crime. 9 Most important to the question of the admissibility of statements obtained after a person in custody has invoked his or her right to remain silent is whether the person s decision to assert his or her right to cut off questioning was scrupulously honored. In Globe v. State, 877 So.2d 663 (Fla. 2004), Globe and fellow inmate, Busby, while in jail killed Busby s cellmate. FDLE investigators investigating the incident arrived at the jail and read Globe Miranda. They asked if Globe wanted to make a statement. Globe invoked his right to remain silent stating, Not at this time. Globe did not request an attorney. The interview was terminated. Approximately seven hours later, another FDLE investigator asked Globe if he was willing to make a statement. Globe said he would if he could be with Busby. Both Globe and Busby were advised of their Miranda rights, and each gave a recorded statement admitting to the killing. Globe was interviewed again several days later. Miranda was read and waived again, and Globe gave another statement. The Florida Supreme Court in Globe found that the taped statement was admissible. The second statement was also deemed admissible. (1) Miranda warnings were given several times, including right before each request for a statement; (2) interrogations ceased immediately when Globe 7 State v. Alexander, 810 So.2d 552, 558 n.2 (5 th DCA 2002). See also Massiah v. United States, 377 U.S. 201, 84 S.Ct (1964). 8 In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321(1975), the Court noted that Miranda distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that the interrogation must cease until an attorney is present only [i]f the individual states that he wants an attorney Mosley at 104 n The following Florida cases which discuss Mosley: Gore v. State, 599 So.2d 978, 998, n.5 (Fla. 1992), cert. denied, 506 U.S (1992); State v. Chavis, 546 So.2d 1094 (5 th DCA 1989); McNickles v. State, 505 So.2d 633 (4 th DCA 1987). February 2006 Page 5 of 20

6 expressed his desire to remain silent; (3) there was a significant time lapse between the questioning in that the second request for a statement was made seven-and-a-half hours after the first request; and (4) the second questioning took place at a different location. We conclude that it is not dispositive that the second questioning involved the same crime. We consider not only that four of the five factors weigh in favor of admissibility but also that when Globe initially invoked his right to silence he said only that he did not want to make a statement at this time, leaving open the prospect of future questioning on the crime. We hold that Globe s right to remain silent was scrupulously honored. 10 If, however, a defendant invokes his Fifth Amendment Right to Counsel, then all questioning must cease until an attorney is present. In this situation, no further interrogation may take place, even when a significant period of time has elapsed. 11 The Right to Counsel under the Fifth Amendment Right is not offense specific; thus no law enforcement officer may question a suspect while he is in custody about the present case or any other case without counsel present. A suspect who has invoked his Fifth Amendment right to remain silent may later initiate contact with law enforcement on his own. 12 Likewise a defendant who invokes his Fifth Amendment right to an attorney may, himself, initiate further communication, exchanges, or conversations with the police. See Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct (1981); Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486 (1990). If this occurs, make sure the record is clear that the suspect contacted you and re-advise him of the Miranda Warnings. Have them sign a written waiver, and have the defendant acknowledge that he initiated the contact. 13 Although there is no particular way in which Miranda warnings must be given, Miranda warnings must convey to a defendant that: (1) that he has the right to remain silent; (2) that anything he says can be used against him in court; (3) that he has the right to have an attorney present prior to and during any questioning, and (4) that if he cannot afford an attorney one will be appointed for him before questioning without cost. Officers are encouraged to read Miranda off the agency s preprinted Miranda card so that there is no question as to what was conveyed to the suspect. In Maxwell v. State, 917 So.2 nd 404, (5 th DCA Jan. 6, 2006), a case originating out of Seminole County, the officer told the defendant that he had the right to remain silent and that he had the right to an attorney but failed to tell him that he had a right to have an attorney present during questioning and that an attorney would be appointed to represent him if he could not afford one. The Court in Maxwell ruled that the warning given that he had the 10 Globe at 670. The Court in Globe Court referred to Mosley, supra. and its earlier case of Henry v. State, 574 So.2d 66 (1991). 11 See Edwards v. Arizona, 451 U.S. 477 (1981). 12 See Walton v. State, 847 So.2d 438 (Fla. 2003), discussing this issue. 13 See Durocher v. State, 596 So.2d 997 (Fla. 1992); Christmas v. State, 632 So.2d 1368 (Fla. 1994); Davis v. State, 698 So.2d 1182 (Fla. 1997). February 2006 Page 6 of 20

7 right to an attorney did not encompasses the right to have an attorney present during questioning or the right to have one appointed in the event the individual could not afford to hire one. Failure to provide these additional warnings was insufficient to apprise the defendant of his rights under Miranda, and thus the defendant s statements were inadmissible. 14 In West v. State, 876 So.2d 614 (4 th DCA 2004), the officer told the defendant, you have the right to remain silent, that anything that you say can be used against you in a court of law. You have the right to talk to a lawyer and have a lawyer present before any questioning, and if you cannot afford a lawyer, one will be appointed to represent you or for any questions if you wish. The 4 th DCA reversed the defendant s conviction since the Miranda warning that was given failed to inform the defendant that she was entitled to have counsel present during interrogation or that she could stop the interrogation at any time. It is also required that the defendant be advised that he can have appointed counsel free of charge if he cannot afford a lawyer. In Thompson v. State, 595 So.2d 16 (Fla. 1992), the officer read from a printed Miranda card the following: I understand that I need not consent to being interviewed nor am I required to make any further statement whatsoever; that I have the right to remain silent and not answer any questions asked of me relative to this crime. I further understand that if I do make a statement or answer any questions that said statement, whether written or oral, could and will be used against me if I am prosecuted for this offense. I further understand that prior to, or during, this interview that I have the right to have an attorney present. I further understand that if I am unable to hire an attorney, and I desire to consult with an attorney or have one present during this interview, that I may do so and this interview will terminate. I further understand that at any time that I desire I can have this interview stopped. The Thompson Court found Miranda inadequate since it did not communicate to the accused, the basic idea of the right to consult a free attorney. Once proper Miranda is given, questioning of the defendant may not commence unless the defendant knowingly, intelligently, and voluntarily waives his Fifth Amendment Rights. The 14 See also Bridgers v. Texas, 532 U.S. 1034, 121 S.Ct (2002), wherein the United States Supreme Court denied certiorari review of a case where law enforcement advised the defendant that he had the right to have an attorney prior to any questioning but failed to advise the defendant that he had the right to an attorney during the questioning. In denying certiorari the Court stated, Although this Court has declined to demand rigidity in the form of the required warnings,... the warnings given here say nothing about the lawyer s presence during interrogation. For that reason, they apparently leave out an essential Miranda element. Because this Court may deny certiorari for many reasons, our denial expresses no view about the merits of petitioner s claim. And because the police apparently read the warnings from a standard-issue card, I write to make this point explicit. That is to say, if the problem purportedly present here proves to be a recurring one, I believe that it may well warrant this Court s attention. February 2006 Page 7 of 20

8 state has the burden of showing that Miranda warnings were given to a defendant and waived by the defendant before a defendant s responses will be admitted at trial. Most Miranda cards include questions relating to: (1) Do you understand this right/these rights? (2) Do you wish to waive this right/these rights? (3) Do you wish to speak with us at this time? Some officers ask these questions or some form of these questions after each right is read. Some read it only once at the conclusion of reading all rights. These follow-up questions help establish whether the defendant knowingly, intelligently, and voluntarily waived his Fifth Amendment Rights. Having the defendant acknowledge that he was given his rights and that he is waiving them by having the defendant initial each right and a waiver on the Miranda card used, will assist the state in meeting its burden of proof. Whether Miranda rights were validly waived must be ascertained from two separate inquiries: First, the relinquishment of the right must have been voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension, may a court properly conclude that the Miranda rights have been waived. 15 In determining whether the waiver was knowingly, intelligently, and voluntarily made, the court will look to the totality of the circumstances. Factors the court will look to include the following: 1. the manner in which Miranda warnings were given; 2. whether the waiver of Miranda was in writing or recorded; 3. whether the defendant was under the influence of any drug or alcohol; 4. the defendant s age, background, and intelligence; 5. whether the defendant has been involved in the system before; 15 Globe v. State, 877 So.2d 663, 669 (Fla. 2004), citing Ramirez v. State, 739 So.2d 568, 575, (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct (1986). February 2006 Page 8 of 20

9 6. the location of the interview (police station interviews are typically seen as more coercive); 7. the time of day and length of the interview; 8. bringing up family or work consequences for talking or not talking; 9. deceptive tactics such as inflating the evidence you have against him already; 10. psychological ploys such as making him feel bad for his crime or failure to provide information that may put the victim s family at ease; 11. overt and implied threats; 12. promises such as not to arrest now, not to charge, to drop cases, or to get a more lenient sentence; and 13. If a juvenile is involved, the court will also take into consideration whether law enforcement contacted the juvenile s parents and whether the defendant was denied access to his parents prior to questioning. See Ramirez v. State, 739 So.2d 568 (Fla. 1999). The United States Supreme Court in Missouri v. Seibert, 124 S.Ct (2004), made clear that the procedure wherein officers question an arrestee without Miranda and then follow up with the reading of Miranda and a subsequent interrogation when the first interrogation produced a confession is improper and will result in suppression of the statements. The Court ruled that Miranda warnings given mid-interrogation are ineffective, and therefore a confession repeated after warnings are given, renders the warned statement inadmissible at trial. The Court reasoned that giving a defendant Miranda warnings in the midst of a coordinated and continuing interrogation, when he has already given an unwarned confession would tend to mislead the suspect and deprive him of the ability to understand the nature of his rights and the consequences of abandoning them. They distinguished the case of Oregon v. Elstad, 470 U.S. 298 (1985), which held that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings. They saw that Elstad involved a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect s ability to exercise his free will. Whereas, the investigatory process used in Seibert, was designed to undermine the purpose of Miranda warnings in the first place. Additionally, Elstad involved two statements given at different locations and different times. The court did not address whether the second statement in Seibert was voluntary in the sense that it was not coerced. The holding in Seibert appears to be limited to a finding that the two February 2006 Page 9 of 20

10 statements were actually one continuous statement with Miranda inserted in the middle, and therefore the second statement was treated as an unwarned statement. 16 Although a failure to read Miranda prior to custodial interrogation will prohibit the state from introducing the defendant s statements in its case in chief, the statements may be permitted to be introduced by the state in rebuttal for impeachment if the defendant testifies, provided the statements are otherwise voluntary. Thus, in those situations where you, as the law enforcement officer, don t formally arrest nor read Miranda, but the court later determines that Miranda was required, it is possible that the statements can be used for impeachment. The state may not comment on the defendant s invocation of his right to remain silent or his request to have a lawyer after the reading of Miranda. Comments include actual overt comments and argument, which are fairly susceptible to being interpreted by the jury as a comment on silence. Nor can a defendant s silence, whether at the time of arrest or after arrest pre-miranda, be used by the state in its case in chief or for impeachment. The Florida Supreme Court in State v. Hoggins, 718 So.2d 761 (1998), ruled that a defendant s silence at the time of arrest and his silence post-arrest, pre-miranda cannot be used against him either in the State s case in chief or for impeachment. The Florida Supreme Court reasoned that commenting on a person s right to remain silent in this fashion was a violation of Article I, Section 9 of our State Constitution. 17 Please discuss your testimony with the trial attorney so that they can advise what they intend to illicit from you in trial. An improper comment on the defendant s silence can result in a mistrial. PART III EXCEPTION TO MIRANDA PUBLIC SAFETY EXCEPTION The failure to read Miranda may not bar admission of statements given in life threatening situations or emergencies. This public safety exception was recognized by the United States Supreme Court in the case of New York v. Quarles, 467 U.S. 649, 104 S.Ct (1984). In Quarles, the female victim reported to police that she had just been raped at gunpoint and that her assailant had just run into a supermarket. Based upon the victim s description of the defendant, the police located him in the supermarket, detained him, frisked him, and discovered that he was wearing a shoulder holster, which was then empty. The officers then 16 See footnote 8 in Seibert case where the Court stated, Because we find that the warnings were inadequate, there is no need to assess the actual voluntariness of the statement. As a result, the case arguably does not foreclose the admissibility of the second statement for impeachment purposes, but this was not specifically addressed. 17 Under Federal Constitutional Law, using a defendant s pre-arrest, pre-miranda silence to impeach him when he gives an inconsistent story exculpating himself at trial does not violate the U.S. Constitution and is admissible provided the silence is inconsistent with innocence. Even if a defendant is arrested, his post arrest but pre-miranda silence can also be used to impeach him without violating the U.S. Constitution. This is different, however, in Florida as stated herein. In Florida, the law of Hoggins applies. The defendant s silence prior to the time of arrest may be admissible provided that the silence is inconsistent with his exculpatory statement. Inconsistency exists if the prior silence occurred at a time when it would have been natural for the defendant to deny the accusations made against him such as in direct response to someone saying, you stole my car and the defendant just stood there mute. The State will probably have this distinction recognized by the court pre-trial where applicable. February 2006 Page 10 of 20

11 immediately handcuffed him. Without reading him Miranda, the officers asked him where the gun was. The defendant nodded toward some boxes and said, The gun is over there. The officers found the loaded.38-caliber revolver in one of the cartons. The United States Supreme Court reversed the lower court s suppression of the gun and the defendant s statement regarding its whereabouts. The Court created a public safety exception, which recognizes that considerations for the public safety can justify the officer s failure to provide Miranda warnings. The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun, which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it. Quarles at 657. We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment s privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them. Quarles at 657. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety, or the safety of the public, and questions designed solely to elicit testimonial evidence from a suspect. Quarles at 658. The Florida Courts have also recognized the public safety exception announced in Quarles and have extended this exception to situations, which pose not only an immediate safety concern for the general public 18, but also to situations which pose an imminent threat to the officer 19 or to the suspect himself See Borrell v. State, 733 So.2d 1087 (3 rd DCA 1999). (Police officer responded to a call regarding a shooting at a hotel and saw defendant rapidly walking toward him near the hotel. When the defendant saw the officer, he raised his hands in surrender and was handcuffed by the officer. Without reading Miranda, the officer asked him where the gun was. The defendant said it was down the street on a roof and led officers to the gun. The defendant s statement as well as the gun were admissible under the logic of Quarles.) 19 See Joppy v. State, 719 So.2d 316 (1 st DCA 1998). (The officer responded to an alarm going off at a closed building at 5:40 a.m.. The officer spotted the defendant inside the dark building with his flashlight. The defendant fled when he saw the officer. The officer gave chase and observed evidence of forced entry and located the defendant leaving the area behind the building wearing black socks on his hands. The defendant was arrested for burglary. At the suppression hearing the officer testified that after handcuffing defendant and being overly concerned for officer safety, he asked, pre-miranda, if anyone February 2006 Page 11 of 20

12 PART IV USE OF EVIDENCE LEARNED FROM UNWARNED STATEMENTS In United States v. Patane, 124 S.Ct (2004), the defendant was arrested for violating a restraining order. The officers began advising him of Miranda when the defendant interrupted them and told them he already knew his rights. Rather than continuing with the reading of the Miranda rights, the officers began asking questions regarding the whereabouts of a gun. The defendant advised them that he had the gun and told them where the gun was. The officers retrieved it and also charged him with possession of a firearm by a convicted felon. The Court ruled that the failure to give the defendant Miranda did not require suppression of the gun in this case. Where the statements are voluntary in that they are not coerced, the absence of full Miranda does not require the suppression of physical non-testimonial evidence, which were the fruits of an unwarned but voluntary statement. The physical fruits of unwarned but coerced statements will however be suppressed. PART V SIXTH AMENDMENT The Right to Counsel is guaranteed by the Sixth Amendment to the U.S. Constitution. The Florida Constitutional counterpart is Florida Constitution Article I 16. The right to counsel component in the Fifth Amendment addresses the right to counsel during custodial interrogation. The Sixth Amendment Right to Counsel addresses a person s right to have an attorney to defend him and assist him during adversarial proceedings. [T]he Sixth Amendment provides a right to counsel... even when there is no interrogation and no Fifth Amendment applicability. 21 Thus, a discussion with a person at his home prior to arrest, else was in the building, to which defendant replied that there was no one else. The Court ruled [t]he facts in this case, reveal an objective and immediate threat of a potential danger to the safety of that officer and his fellow officers from someone else inside the dark building, and therefore satisfy the standard for applying the exception to Miranda set forth in Quarles. Just as in Quarles, the record in the instant case further demonstrates that the question at issue was asked just after appellant was handcuffed, while the possibility of a threat to the safety of that officer and that of the backup officers had not yet been eliminated. Joppy at 318. In Joppy v. State, 719 So.2d 316 (1 st DCA 1998), the court indicated that its decision was based upon the narrow circumstances in the case however. 20 See Benson v. State, 698 So.2d 333 (4 th DCA 1997). (During an undercover drug purchase, the defendant realized that officers were moving in to arrest him. Officers saw the defendant cup his hands like he was eating something. The officers grabbed defendant s jaw and head trying to prevent him from swallowing the object and they were also yelling at the defendant to spit it out. However, the defendant swallowed the object. Pre-Miranda, post-arrest, the officers asked how many crack cocaine rocks he had swallowed. The Defendant responded that he had swallowed one rock. The defendant s response was admissible because the questioning by police stemmed from an objectively reasonable concern over an immediate threat to defendant s health. The officers witnessed the defendant swallowing the contents of a film canister, which the officers reasonably believed contained cocaine. They did not know how much cocaine the defendant swallowed, but if he had ingested too much, he could have overdosed. The Court saw that the rationale in Quarles was applicable to police conduct in emergencies, where the primary objective of the questions posed were to save human life regardless of whether it was the public in general or the defendant himself. 21 Fellers v. United States, 540 U.S. 519, 124 S.Ct. 1019, 1023 (2004), citing Michigan v. Jackson, 475 U.S. 625, 632, n. 5, 106 S.Ct (1986). February 2006 Page 12 of 20

13 outside the presence of counsel, after the person has been charged by Indictment or Information, is a violation of the Sixth Amendment, absent a waiver of this right. In Florida, this right attaches at the earliest of the following points: when the suspect is formally charged with a crime via the filing of an Indictment or Information or as soon as feasible after custodial restraint, or at first appearance. Traylor v. State, 596 So. 2d 957 (Fla. 1991). It is safe to assume that this right attaches automatically once the individual is seen at first appearances or is charged by Information/Indictment but not yet arrested. Unlike the Fifth Amendment, this right is offense specific. Thus, there is no Sixth Amendment Right with regard to questioning of offenses for which the suspect has not been booked in for or offenses that have not been charged by Indictment or Information. See Owen v. State, 596 So. 2d 985 (Fla. 1992). Once the Sixth Amendment attaches, but prior to an attorney being appointed or requested, no interrogation may be initiated by law enforcement regarding that specific offense regardless of whether they are in custody, unless the suspect is informed of his Sixth Amendment Right to Counsel, the consequences of a waiver and the suspect gives a knowing, intelligent, and voluntary waiver. Thus, once the Sixth Amendment attaches, there must be a waiver of his Sixth Amendment right before questioning. Therefore, read Miranda, as this will satisfy the requirement that they be apprised of their Sixth Amendment Right to Counsel. Additionally, have the defendant sign a written waiver. For example, when a defendant is charged by Information, is not in custody, does not have an attorney on the case and hasn t been arrested on the case so no attorney has even been requested, law enforcement will need to read Miranda in order to apprise the defendant of his Sixth Amendment right to Counsel and obtain a waiver before questioning him regarding the case. Once the Right to Counsel has attached and a lawyer has been requested or appointed, then law enforcement officers may not initiate any confrontation on that case without counsel present. However, the suspect may initiate contact with law enforcement after the right attaches. The law enforcement officer must re-advise of Miranda. It is imperative that the officer documents that the suspect initiated contact, that Miranda was given; and that the defendant voluntarily, knowingly, and intelligently waived the right. Thus, re-read Miranda and have the defendant sign a written waiver. Invocation of Sixth Amendment Right to Counsel on one case does not invoke an in-custody suspect s Fifth Amendment Right to Counsel or Right to Silence on another crime, nor does it invoke Sixth Amendment Right on other cases. This issue will be addressed in Part VII. When the Sixth Amendment Right to Counsel attaches, it impacts upon law enforcement and persons acting on their behalf and at their direction. Therefore, statements obtained by law February 2006 Page 13 of 20

14 enforcement with the use of cooperating individuals to monitor and take recorded statements of a charged defendant, even when the defendant is out of custody, may not be used against the suspect on the charged offense. 22 The United States Supreme Court has not determined whether the Sixth Amendment requires suppression of a person s statements given after a knowing and voluntary waiver of the Sixth Amendment right to counsel when there has been an earlier police questioning in violation of Sixth Amendment standards. See Fellers v. United States, 540 U.S. 519,525, 124 S.Ct. 1019, 1023 (2004). PART VI EQUIVOCAL STATEMENTS AND CLEAR STATEMENTS MADE ABOUT MIRANDA RIGHTS In Davis v. United States, 512 U.S. 452, 114 S.Ct (1994), the United States Supreme Court held that law enforcement officers could continue interrogating a suspect who has already waived Miranda when the suspect makes an equivocal or ambiguous assertion of his Miranda rights during the interrogation. This rule was adopted in Florida in State v. Owen, 696 So.2d 715 (Fla. 1977). 23 Thus, where a suspect has already been informed of his Miranda rights and made a knowing, intelligent, and voluntary waiver but then during the interrogation makes only an equivocal or ambiguous request to terminate the interrogation, or regarding an attorney, police need not ask clarifying questions but can continue with the interrogation questioning. However, in Dooley v. State, 743 So.2d 65 (4th DCA 1999) 24, the 4 th DCA held that the rule in Davis and Owen did not apply during the reading of Miranda. If the defendant makes an ambiguous or equivocal statement regarding his rights during the reading of Miranda, the officer must ask clarifying questions to determine whether he is invoking his rights or not. The holding in Owen applies only where the suspect has waived his rights and later makes the equivocal statement during the interrogation. The Court in Dooley also found that the 22 See Peoples v. State, 612 So. 2d 555 (Fla. 1992); Massiah v. United States, 377 U.S. 201, 84 S.Ct (1964). 23 In Owen, during the interrogation, after having waived Miranda, the officers asked whether Owen had targeted the victim s house, or had he just been going through the neighborhood. Owen responded, I d rather not talk about it. Officers later asked what he had done with a bicycle, to which he responded, I don t want to talk about it. Officers did not ask him to clarify what he meant by, I don t want to talk about it, nor did they ask questions, the answers to which may have clarified his statement. The officers proceeded to question him regarding the details of the crime. The defendant gave inculpatory statements/answers. 24 Prior to questioning Dooley, Sanchez advised him of his Miranda rights. After detailing Dooley s Constitutional rights and after confirming that Dooley understood these rights, Sanchez proceeded with the interview as follows: Sanchez: Do you wish to waive your rights and speak to me without the presence of an attorney? Dooley: Um, I don t wish to waive my rights. Sanchez: By waiving your rights now doesn t mean that you waive them in the future. All you re saying here now is that you re talking to me without the presence of an attorney. If one is required later on, if that s your wish, one can be appointed to you. Do you understand that? Dooley: Right. Um, I m going to talk to you. The interview continued and Dooley confessed. February 2006 Page 14 of 20

15 officer s response to Dooley s assertion of his rights gave Dooley incorrect information. The officer s statement, "[b]y waiving your rights now doesn t mean that you waive them in the future, suggested to Dooley that there was no risk in speaking with the officer and that he could invoke his rights later and prevent what had been said earlier from being used against him. This was incorrect. Thus, in Dooley the defendant s statements were suppressed. Additionally, the Florida Supreme Court in Almeida v. State, 737 So.2d 520 (Fla.1999), held that when a person asks a clear question during custodial interrogation regarding his rights, law enforcement has a duty to stop the interview and provide a truthful, straightforward answer before resuming his questioning. In Almeida the defendant was given Miranda off tape and made some inculpatory statements. Police then went on tape and re-advised the defendant of Miranda. The defendant was read the portion, Do you wish to speak with me now without an attorney present? The defendant asked in response, Well, what good is an attorney going to do? The police responded with,... we are just going to talk to you as we talked to you before, that is all. The defendant said o.k. and gave an inculpatory statement on tape. The requirement to answer a defendant s clear questions applies during the reading of Miranda as well as after the defendant has waived his rights and asks a clear question about his rights during the questioning. The court found the defendant s statement/question in Almeida to be a clear, unequivocal question that was prefatory to and possibly determinative of him invoking his rights. Additionally, the question itself cast doubt on whether his previous waiver, off the record was actually knowing and intelligent since he did not know what an attorney could do. In State v. Glatzmayer, 789 So.2d 297 (Fla. 2001), the Florida Supreme Court provided some guidance on what type of response is needed from law enforcement. In Glatzmayer, the defendant, after being read Miranda, asked the officers if they thought he should have an attorney. The officers responded that that was not their decision but was his decision. The Florida Supreme Court found that the response by law enforcement was adequate. The Court ruled that nothing in Almeida requires law enforcement officers to act as legal advisors or personal counselors for suspects. 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 Owen is that they be honest and fair when addressing a suspect s Constitutional rights. 25 In State v. Seaton, 776 So.2d 997 (5 th DCA 2001), the defendant asked, Should I have a lawyer with me? The officer responded, That s something I can t tell you. That s a decision that you make, not me. Obviously, if you want a lawyer, you have that right. The 5th DCA ruled that the investigator s response to Seaton s inquiry about a lawyer was forthright and met the requirements of Almeida. The investigator s response clearly and straightforwardly informed Seaton that the decision to have a lawyer, or not, was a decision he had to make for himself. 25 State v. Glatzmayer, 789 So.2d 297 (Fl. 2001). February 2006 Page 15 of 20

16 In summary, if a suspect is given Miranda and waives Miranda, but then during the interrogation makes ambiguous statements regarding an attorney or statements which are not clear regarding his desire to stop the questioning, the police need not ask clarifying questions and may continue to question the suspect. It is, however, a good practice to clarify the suspect s statements to minimize the chance of the statements being suppressed if the court disagrees with the officer and finds the suspect s statements or his wishes for an attorney, to have been clear. If a suspect makes equivocal statements during the reading of Miranda, clarifying questions must be asked. If a suspect asks clear questions about his rights either during the reading of Miranda or during the interrogation after having waived Miranda, the officer must respond with a truthful, straightforward answer before resuming his questioning. 26 PART VII ATTORNEY SAYS, DON T TALK TO MY CLIENT. Often police are confronted with situations where a defendant has a lawyer on one case and they want to speak with the suspect regarding another unrelated case, or the attorney has filed a notice which says in essence don t talk to my client. The following is a review of these types of cases, which should provide guidance on how to handle these situations. In Sapp v. State, 690 So.2d 581 (Fla. 1997), Sapp was arrested on a robbery charge. He was advised of Miranda, which he waived and gave a statement to police. At first appearance on the robbery charge, he signed a claim-of-rights form stating he was invoking his Fifth and Sixth Amendment rights to counsel. A week later, while still in jail on the robbery charge, police approached the defendant, read him Miranda again, which the defendant waived and initiated an interrogation about a murder. Twelve hours later he gave another statement regarding the murder case also after another reading and waiver of Miranda. The Florida Supreme Court ruled that the claim-of-rights form signed by the defendant at first appearance on the robbery charge did not invoke the Fifth Amendment as to interrogation a week later on the unrelated murder for which he had not been arrested nor charged. In accord is McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct (1991), where the United States Supreme Court stated that when an accused invokes his Sixth Amendment right to counsel by requesting an attorney at his initial appearance on a charged offense, it does not constitute an invocation of his Miranda right to counsel on unrelated, uncharged offenses. In Durocher v. State, 596 So.2d 997 (Fla. 1992), the defendant was in jail awaiting sentencing on a murder charge. The public defender s office represented the defendant on the murder charge and had filed an Edwards notice 27 with the sheriff s office, asking that the authorities not talk to Durocher without notifying their office. The defendant, however, contacted the sheriff s office wanting to speak with detectives about another case. Prior to 26 See also Lewis v. State, 747 So.2d 995, (5 th DCA 1999), and Bean v. State, 752 So.2d 644(5 th DCA 2000). 27 Referring to Edwards v. Arizona, 451 U.S. 477 (1981), relating to a defendant s invocation of his Fifth Amendment right to counsel. February 2006 Page 16 of 20

17 doing so, the detective showed the defendant the Edwards notice and asked him if he wanted to talk to the attorney he had on the case awaiting sentencing. Durocher rejected the offer. He was then read his Miranda rights, signed a waiver, and confessed to a new murder. The confession could be used, as there was no violation of Miranda especially as the defendant had initiated contact with police. Additionally, there was no Sixth Amendment violation as the defendant had not been charged with that offense. Pursuant to Durocher, an attorney cannot unilaterally invoke a defendant s Sixth Amendment Right to Counsel for crimes which have not been charged or where the Sixth Amendment right has not otherwise attached. 28 However, in State v. Stanley, 754 So.2d 869 (1 st DCA 2000), the defendant learned that an arrest warrant had been issued for her arrest. She hired a lawyer who agreed to represent her and arranged for her surrender to authorities. Her attorney also advised her not to speak to anyone about the charges. When the defendant turned herself in, the attorney s receptionist advised jail personnel that Ms. Stanley was represented by counsel and that she was not to be questioned unless her attorney was present. The attorney learned shortly thereafter that investigators had taken Stanley to an interview room to be interrogated. The attorney called the Sheriff s Office and told them not to question his client in his absence. This call was conveyed to the investigator in question, but the investigator did not honor the request and went forward with the interrogation. The 1st DCA upheld suppression of the defendant s statement. The suppression was upheld based upon a violation of Art. I, section 16, of the Florida State Constitution. In Stanley, the defendant had been arrested pursuant to an arrest warrant for the very charge about which she was interrogated. The defendant had informed the officer that she had retained counsel. Counsel himself had made them aware that he was her attorney and clearly advised them not to speak with her regarding the case. In Valle v. State, 474 So.2d 796 (Fla. 1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct (1986), at the scene of Valle s arrest, arresting officers contacted an assistant public defender who spoke to Valle on the telephone. The public defender advised Valle not to talk to anyone about the case and also told the officers not to speak with Valle. The Florida Supreme Court ruled that the public defender could not unilaterally invoke Valle s Sixth Amendment right to counsel. Stanley distinguished Valle by noting that in Valle the public defender had not been appointed on the case nor had he been retained by the defendant. PART VIII JUVENILES 28 See also Owen v. State, 596 So.2d 985 (Fla. 1992). (Defendant was arrested for burglary and had appointed counsel on the burglary charge. While in custody police initiated questioning after the reading and waiver of Miranda on an uncharged murder case. The Court found no violation of his right to counsel); Happ v. State, 596 So.2d 991 (Fla. 1992). (Defendant was in jail in California on robbery and kidnapping charges and had appointed counsel on those charges. Statements he made to Florida officials regarding an unrelated murder after they read Miranda and he waived were admissible); Traylor v. State, 596 So.2d 957 (Fla. 1992). (The fact that defendant had appointed counsel on an Alabama homicide charge did not prohibit officer from questioning him regarding a charged Florida homicide where defendant was advised of Miranda which was sufficient to advise defendant of her Sixth amendment right to counsel on the Florida case and he waived.) February 2006 Page 17 of 20

18 The rules described above are also applicable to juveniles. Other factors considered include the juveniles: 1. Age 2. Maturity 3. Education 4. Intelligence 5. Prior experience in the system 6. Where interrogation took place 7. Length of interrogation 8. Whether there was denial of food, drink or rest room privileges 9. Juveniles mental and emotional capacity 10. Threats or promises made by law enforcement 11. Influence of drugs or alcohol 12. Whether parents were present or consulted with juvenile regarding the interrogation 13. Whether law enforcement refused to allow contact with parents after a request by the juvenile 14. Whether contact with juvenile was refused after a request made by the parent Questions arise when there are requests by the parent to be present or when the juvenile requests the presence of his parent. Florida Statute (2) (formerly F.S ), requires that when a child is taken into custody, the officer shall attempt to notify the parent, guardian, or legal custodian of the child and that these attempts shall continue until the parent is notified, or the child is delivered to an intake counselor who shall then make attempts to contact the parent. A juvenile s confession is not automatically rendered inadmissible if given prior to notification of the arrest to a parent. However, failure to notify a child s parent is relevant to the voluntariness of a statement and is a factor, which weighs against its admissibility. 29 Perfunctory attempts to contact a juvenile s parents are insufficient. There must be meaningful or continuing attempts to contact them. 30 Additionally, where a parent requests to see the arrested juvenile, questioning should cease and contact with the child should be permitted. The same applies should a child request to speak with a parent. 31 Failure to allow contact will likely result in suppression of the defendant s statements. 29 st See Brookins v. State, 704 So.2d 576 (1 DCA 1997), citing Doerr v. State, 383 So.2d 905 (Fla. 1980). See also Ramirez v. State, 739 So.2d 568 (Fla. 1999). 30 Ramirez v. State, 739 So.2d 568 (Fla. 1999). See Ramirez for cases cited therein distinguishing situations such as where a juvenile specifically requests that his parents not be contacted. 31 See Allen v. State, 636 So.2d 494 (Fla. 1994). February 2006 Page 18 of 20

19 PART IX MIRANDA IN A DUI CASE WITHOUT AN ACCIDENT In most driving-under-the-influence cases, a defendant is stopped by the officer for a civil traffic violation initially; or because the officer suspects the driver is sick, injured, or impaired based upon the driving pattern of the defendant driver. Subsequent to the stop, the officer detects various clues which lead him to suspect the driver is impaired by alcohol. Based upon the officer s reasonable suspicion, that the driver is impaired, the officer then administers roadside field sobriety exercises. There are often questions relating to alcohol consumption at the roadside as well. Subsequent to the administration of field sobriety exercises (FSE s), the driver is arrested and transported to the correctional facility for the administration of FSE s again on video and the breath test. The cases of Allred v. State, 622 So.2d 984 (Fla. 1993) 32, and State v. Burns, 661 So.2d 842 (5th DCA 1995), provide instruction on the applicability of Miranda and the admission of evidence in DUI cases. In Allred, it was undisputed that the defendants were in custody, and under arrest when the roadside FSE s were administered. The Florida Supreme Court agreed that a defendant s incorrect recitation of the alphabet and incorrect recitation of the counting of numbers is inadmissible if done after arrest unless Miranda is read and waived first. Therefore, in this case, suppression of the incorrect roadside recitations was upheld. The Allred Court reiterated, however, that routine booking questions such as name, address, height, weight, eye color, date of birth and current age are generally admissible even after arrest in the absence of Miranda because these questions are not designed to illicit an incriminating response. 33 In State v. Burns, 661 So.2d 842 (5th DCA 1995), decided after Allred, the officer conducted roadside field sobriety exercises prior to arrest and prior to Miranda which involved: recitation of alphabet from a to z, one-legged stand while counting, walk heel-to-toe nine steps, and the finger-to-nose exercise. After the roadside FSE s, Burns was formally arrested and taken to a breath-testing center. Burns refused all FSE s on video and refused the breath test. He did answer typical booking type questions on video and answered them correctly. After all of this Burns was then read Miranda. He invoked his right to remain silent but never requested an attorney. The Burns case made clear the following: 32 Allred involved an appeal of defendants Allred and DiAndrea. Defendant Allred was stopped for a driving infraction. At roadside, in the presence of three officers, he was asked to recite the alphabet from c to w. Allred started at e rather than c. Allred was then taken to the police department and was asked to count from 1001 to 1030 as part of the one-legged stand test. Allred counted as instructed until he got to 1021 where he then dropped the prefix 1000 before each number. Defendant DiAndrea was also stopped for a traffic infraction. At roadside he was asked to recite the alphabet. He could not get past the letter p. He was then taken to the video facility and asked to recite the alphabet from the letter c to w during the one leg stand test. The defendant recited from c to z. He was also asked to count from 1001 to 1030, which he did correctly. The county court suppressed Allred s alphabet and counting exercises and DiAndrea s alphabet exercise. The circuit court affirmed the suppressions. The 4th DCA reversed and certified the issue to the Florida Supreme Court. 33 Allred citing Pennsylvania v. Muniz, 110 L.Ed. 2d 528 (1990). February 2006 Page 19 of 20

20 ROADSIDE FSE s In a routine traffic stop where there is no evidence that the defendant was subjected to restraint comparable to a formal arrest, a defendant s incorrect recitation of the alphabet and his counting incorrectly during the roadside FSE s is admissible. 34 BOOKING QUESTIONS ON VIDEO These types of questions and their answers were ruled admissible if answered correctly to show the defendant s manner of speech; i.e., slurred. If answered incorrectly after arrest without benefit of Miranda then the answers are inadmissible because the answers are incriminating, as they would show faulty cognitive functioning. FSE ON VIDEO Although this was not an issue in Burns, it was discussed by the court in light of Allred. The 5th DCA in Burns stated that field sobriety exercises done after arrest, without benefit of Miranda are admissible in their entirety if the testimonial portions are done correctly because the testimony (reciting alphabet or counting) is not incriminating if done correctly. Instead the evidence is offered to show the defendant s manner of speech; i.e., slurred. However, if the testimonial portions are done incorrectly (defendant says abc s out of order, leaves letters out or counts wrong) after arrest without benefit of Miranda then the results are inadmissible. BREATH TEST OR REFUSAL TO TAKE BREATH TEST AFTER ARREST The administering of a Breath Test and Field Sobriety Exercises on video is an evidence gathering process. The police are essentially collecting and preserving physical evidence. This does not constitute a critical confrontation requiring the presence of an attorney. Additionally, citing Edwards v. State, 603 So.2d 89 (Fla. 5th DCA 1992), the court found the refusal to take the breath test admissible. REFUSAL TO PERFORM FSE ON VIDEO AFTER ARREST The court ruled that a defendant s refusal to perform non-testimonial FSE s after arrest without benefit of Miranda are admissible. Field sobriety exercises, which do not require the defendant to orally count or recite something out loud would be considered non-testimonial Burns citing to Berkemer v. McCarty, 82 L.Ed. 2d 317 (1984), and Pennsylvania v. Bruder, 102 L.Ed. 2d 172 (1988). In Burns the stop lasted eleven minutes in duration, occurred in a public area and only one officer was involved. 35 See also State v. Whelan, 24 FLW D640 (3rd DCA 1999), wherein the 3 rd DCA in a DUI accident case recognized that purely physical roadside exercise such as one-legged stand, walk-and-turn, finger-to-nose, and HGN invoke non-testimonial conduct. February 2006 Page 20 of 20

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