Lornitis v. State
| Decision Date | 10 February 1981 |
| Docket Number | No. TT-4,TT-4 |
| Citation | 394 So.2d 455 |
| Parties | John R. LORNITIS and Michael Lornitis, Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Martin S. Page of Darby, Peele, Page & Bowdoin, Lake City, for appellants.
Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
John and Michael Lornitis urge that their convictions, John for possession of more than 100 pounds of marijuana with intent to sell or deliver, and Michael for aiding and abetting his brother, were vitiated by the receipt in evidence of incriminating responses improperly elicited from them by deputy sheriff Jones in violation of Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, 723 (1966), and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). We agree, finding that the brothers' identification of their luggage in the rear of the truck in which they were traveling was incriminating evidence improperly elicited by deputy Jones after the suspects indicated to him their desire not to be interrogated. We reverse the convictions and remand the defendants for a new trial.
Accompanied by brother Michael as his passenger, John Lornitis drove an Illinois-licensed pickup truck with camper top past a Florida agricultural inspection station in Hamilton County without stopping for the required inspection. Section 570.15, Florida Statutes (1979). An inspector pursued the truck, looked in the rear of the cargo area with John's consent, smelled marijuana, arrested John for not having stopped for inspection, and returned the truck and passengers to the station. A later search of the cargo area, by warrant, produced 782 pounds of marijuana which was baled, wrapped in burlap or plastic, and covered by a quilt.
After arresting the suspects and advising them of their Miranda rights, deputy sheriff Jones read aloud and asked each of them to sign an "acknowledgment and waiver of rights" form, stating:
The above statement of my rights has been read and explained to me and I fully understand what my rights are. I am ready and willing to answer questions or to make a statement without first consulting with a lawyer or without having a lawyer present during questioning. In waiving my right to remain silent, I wish to state that no promises or threats have been made to me and no persuasion or coercion has been used against me.
The Lornitis brothers refused to sign the waiver forms. Deputy Jones then instructed each of them to identify any personal belongings in the cargo area of the truck. John Lornitis testified at the suppression hearing that when he asked deputy Jones what would happen to personal belongings not claimed, Jones said they would be "disposed of." John understood that to mean those items would be "throwed away or something." Deputy Jones did not recall making such a statement. Both brothers then pointed out their luggage in the midst of the marijuana bales. When Michael Lornitis pointed out his suitcase, deputy Jones asked him how it had gotten there, and the suspect answered that he did not know. Both Lornitis brothers denied knowledge of how the marijuana bales came to be in the rear of the truck.
Over objection and despite motions for mistrial, the prosecutor was permitted to adduce the incriminating evidence that the Lornitis brothers identified as their own the luggage which was found amidst the marijuana bales in the closed cargo area of the truck, and that Michael Lornitis claimed not to know how his luggage got there. The propriety of the convictions turns on three major issues: (1) By refusing to sign the waiver forms, did the suspects sufficiently indicate a desire not to be questioned? (2) If so, did deputy Jones nevertheless "interrogate" the suspects by instructing them to identify their personal effects in the back of the truck? (3) If so, and if receipt of the evidence was on that account improper, should the convictions nevertheless be affirmed on harmless error principles because of other evidence against these defendants?
Miranda explains how police should govern themselves when questioning suspects in custody:
If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. (Emphasis added, 384 U.S. at 473-74, 86 S.Ct. at 1627-28, 16 L.Ed.2d at 723.)
By refusing to sign the waiver forms, did the suspects indicate "in any manner" to deputy Jones that they desired to remain silent and did not wish to be interrogated, signalling that "interrogation must cease"? Certainly so. A refusal to sign a form such as was tendered here is not in all events a conclusive indication that the suspect wishes to remain silent, North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), but in the circumstances of this case the import of the suspects' refusal to sign was that they chose not to be interrogated. In Butler the suspect said, "I will talk with you but I am not signing any form." Here there was no such spoken consent. The words of the waiver form itself, reciting that the signer was "ready and willing to answer questions or to make a statement without first consulting with a lawyer," are cogent evidence of the privilege asserted by the refusal to sign. Moreover, deputy Jones had no doubt about the significance of his suspects' refusal to sign:
Q. Did you understand by (John Lornitis') refusal to sign the acknowledgment and waiver of rights that he did not wish to be questioned any further?
A. Yes sir.
Q. Each one said no, I am not going to sign this thing?
A. That's correct.
Q. Upon them doing that you wouldn't say okay boys, what do you know about it, would you?
A. No sir.
Q. Because you understand they didn't want to be questioned anymore?
A. Right.
Deputy Jones understood that the Lornitis brothers did not wish to be interrogated. Evidently the deputy did not consider that he "interrogated" the suspects by instructing them to identify any personal belongings in the rear of the truck. He testified:
Q. The defendants did not desire to be questioned any further?
A. Well, I wasn't really questioning, I just asked them about personal effects.
Q. What was (the) purpose of asking?
A. Identifying what was theirs in the rear of the vehicle.
Despite deputy Jones' disclaimer that "I wasn't really questioning," the circumstances persuasively suggest that deputy Jones understood and expected that compliance with his instructions, like responses to conventional interrogation, would produce incriminating evidence. Significantly, deputy Jones did not miss the opportunity of asking Michael Lornitis how his luggage "got there" amidst the marijuana:
(By Jones) (H)e identified his personal items in the rear of the vehicle and stated he didn't know how they got back there.
(By Michael Lornitis) He asked me if the suitcase there was mine, I said yes. Then he asked me how it got there, I told him I didn't know.
Though it may be charitably debated whether deputy Jones knew and intended that his instructions operate as "interrogation" concerning the suspects' knowledge of marijuana bales in the rear of the truck, the deputy's perceptions and intentions are not determinative of the issue. Rhode Island v. Innis, supra, 441 U.S. at 300, 100 S.Ct. at 1689, 64 L.Ed.2d at 307 (1980) established an objective rather than a subjective standard to define when interrogation occurs:
(T)he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
While Innis recognizes that the officer's subjective intent may...
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Webb v. State, No. 06-03-00099-CR (Tex. App. 4/29/2004)
...evidence as his or her property is interrogation. United States v. Corbin, 494 F. Supp. 244 (M.D.N.C. 1980) (gun); Lornitis v. State, 394 So. 2d 455 (Fla. Dist. Ct. App. 1981) (luggage with marihuana); People v. Jordan, 413 N.E.2d 195 (Ill. App. Ct. 1980) ("grassy substance"). However, Webb......
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...53 (Fla. 3d DCA 1982), review denied, 434 So.2d 889 (Fla.1983); Tierney v. State, 404 So.2d 206 (Fla. 2d DCA 1981); Lornitis v. State, 394 So.2d 455 (Fla. 1st DCA 1981); see also State v. Garcia, 422 So.2d 926 (Fla. 3d DCA 1982); Singleton v. State, 344 So.2d 911 (Fla. 3d DCA 1977). These a......
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...true position, or to exert improper or undue influence over his mind." Frazier v. State, 107 So.2d 16 (Fla.1958). In Lornitis v. State, 394 So.2d 455 (Fla. 1st DCA 1981), the Lornitis brothers were arrested for possession of marijuana and advised of their Miranda rights. The brothers were a......
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Origi v. State, 4D04-1223.
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