Moore v. State, 1D00-1073.

• Decision Date: 26 October 2001
• Docket Number: No. 1D00-1073.,1D00-1073.
• Citation: 798 So.2d 50
• Parties: Lawrence MOORE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

798 So.2d 50

Lawrence MOORE, Appellant,
v.
STATE of Florida, Appellee

No. 1D00-1073.

District Court of Appeal of Florida, First District.

October 26, 2001.

798 So.2d 51

Steven M. Greenberg, P.A., Cooper City, for Appellant

798 So.2d 52

Robert A. Butterworth, Attorney General and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee

VAN NORTWICK, J.

Lawrence Moore appeals his conviction for trafficking in cocaine, possession of cannabis and possession of drug paraphernalia arguing that the evidence adduced at trial against him was insufficient to support these convictions and that the trial court erred in admitting into evidence an inculpatory statement made by him after he invoked his right to silence. Because appellant's inculpatory statement was made in response to custodial interrogation subsequent to appellant invoking his right to silence, it was error to admit the statement. Finding that the error was not harmless, we reverse.

Appellant and a codefendant were arrested following the execution of a search warrant in a Gainesville, Florida hotel. No one was present in the hotel room at the time the search warrant was executed; police discovered cocaine, cannabis, and paraphernalia in the room. Also located in the room were various items of clothing as well as certain receipts bearing the name of appellant's codefendant. Appellant and his codefendant were arrested sometime thereafter while traveling in the codefendant's car.

After he was arrested, appellant was given his Miranda¹ rights and indicated to police that he did not wish to speak. After invoking this right, a police officer, Michael Witherington, approached appellant with clothing taken from the hotel room and asked appellant if any of the clothing was his. According to Witherington, the clothing was not being retained as evidence, and he wanted to return it. The fact that appellant identified some of the clothing as his was used at trial to establish that appellant occupied the room in which the drugs and paraphernalia were found.

Appellant sought to exclude this testimony as to his claimed ownership of the clothing, but the trial court denied the request. This was error.

It is well-established that once a suspect invokes his right to silence, no further police initiated custodial interrogation can take place unless the accused initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Almeida v. State, 737 So.2d 520 (Fla.1999). A request to remain silent is to be scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975).

There is no question here that appellant was in custody in the instant case at the time he was asked to identify his clothing. The issue before us is whether the inculpatory statement by the appellant was made as a result of interrogation.

The Supreme Court examined the concept of interrogation in the context of Miranda in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Innis court explained that, under Miranda, custodial interrogation occurs when a law enforcement officer initiates the questioning of an individual who "has been taken into custody or is otherwise deprived of his freedom of action in any significant way." Id., 446 U.S. at 298, 100 S.Ct. 1682. Interrogation occurs when an individual in custody is subject to express questioning or its "functional equivalent." Id. at 300-301, 100 S.Ct. 1682. The "functional equivalent" of express questioning is "any

798 So.2d 53

word[ ] or action[ ] on the part of the police (other than those normally attendant to arrest and custody) that the police should know is reasonably likely to elicit an incriminating response from the suspect." Id. at 301, 100 S.Ct. 1682. The latter portion of the functional equivalent test focuses "primarily upon the perceptions of the suspect, rather than the intent of the police." Id. This focus on a suspect's perceptions "reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure...