State v. Outten

• Decision Date: 31 January 1968
• Docket Number: No. 36368,36368
• Parties: STATE of Florida, Petitioner, v. William A. OUTTEN, Respondent.
• Court: Florida Supreme Court

Page 392

206 So.2d 392

STATE of Florida, Petitioner, v. William A. OUTTEN, Respondent.

No. 36368.

Supreme Court of Florida.

Jan. 31, 1968.

Earl Faircloth, Atty. Gen., and William D. Roth, Asst. Atty. Gen., for petitioner.

Robert E. Jagger, Public Defender, and Joseph P. McDermott, Asst. Public Defender, for respondent.

THORNAL, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Second District, Because of an alleged conflict with a decision of this Court on the same point of law. Fla. Const. Art. V, § 4, F.S.A. See, Outten v. State, 197 So.2d 594 (2nd D.C.A.Fla.1967).

Our problem involves a consideration of the validity of an extra-judicial confession absent a so-called 'constitutional advisory', and also the effect of such a confession upon a second confession buttressed by an intervening advisory as to constitutional rights.

On the morning of November 27, 1965, while patrolling the highways, Trooper E. R. Peterson of the Florida Highway Patrol, was advised by radio to watch for a blue Dodge automobile headed east on Interstate 4. He was requested to stop the car and advise the occupants, who were enroute to Gainesville, that they had left their football tickets at home in Pinellas County, While parked on the Interstate 4 median, in Hillsborough County, Trooper Peterson noticed a blue Dodge automobile passing in an easterly direction. Upon following this car, he found that it did not have the tag number of the car he was requested to stop. The trooper testified, however, that the driver of the car was looking at him in the rearview mirror and seemed quite concerned about the fact that he was being pursued. Peterson related that there were two young men in the car and that it occurred to him that the driver, who appeared extremely young, might not have a driver's license. The trooper followed the car as it turned off into an exit from the interstate. As the car stopped for a stop sign, Peterson blew his horn. He got out of his patrol car and walked up to the suspect vehicle to make a driver's license check. This was at approximately 7:30 a.m. The driver responded that he had no driver's license and that he was sixteen years old. Incidentally, he later advised that he was eighteen. At this point, Trooper Peterson requested the driver to pull over to the side of the road. It was there ascertained that the driver was one Polumbo and Outten, the respondent, was the passenger. Polumbo told Peterson that the car belonged to his brother, but he could not tell where his brother lived. He could give no local telephone numbers or local addresses for the officer to check. The trooper then called headquarters by radio and found that the license tag on the Dodge he had stopped was actually issued for a 1957 Ford. The respondent Outten could offer no identification at all, and the driver, Polumbo, had only a draft card.

Trooper Peterson placed the two under arrest for 'suspicion of auto theft' and transported them to the Hillsborough County Jail. The respondent, Outten, was then charged with vagrancy. While standing at one of the 'divider gates' in the jail, the respondent volunteered the admission that the car had been stolen from a used car lot in St. Petersburg. Shortly after this initial admission the respondent was taken upstairs to the interrogation room. He was then advised of his right to remain silent, that he could have an attorney present and that anything he said could be used against him in the prosecution of 'future' cases. The respondent again admitted that he had stolen the car from a used car lot in St. Petersburg. This second confession was obtained between 9 a.m. and 9:18 a.m. Outten testified that he was not mistreated in any way, that he was not threatened in any manner, that he was not promised anything, and that his statements were freely and voluntarily given. He also stated that he knew of his constitutional right to remain silent because he had been informed of his right on other occasions.

At the trial without a jury on January 12, 1966, the trial judge ruled the 'divider gate' confession constitutionally inadmissible because the 'full scale predicate was not laid' prior thereto. However, he ruled that the second confession obtained in the interrogation room was admissible. Outten was found guilty of larceny of an automobile. On appeal, the Court of Appeal, Second District, held that the trial court was correct in refusing to admit the first confession on constitutional grounds. However, it reversed on the ground that the interrogation room confession was inadmissible because it was 'tainted' by the earlier confession. We now review this decision.

It should be noted that the District Court expressly approved the trial court ruling that the first confession was inadmissible because of the absence of a so-called 'constitutional advisory', citing Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The State here asserts that this holding conflicts with the decision of this Court in Montgomery v. State, 176 So.2d 331 (Fla.1965). In Montgomery we noted the specific requirements of Escobedo, and the attachment of that decision to the 'facts of that particular case'. We held that the elements of invalidity in the Escobedo confession were cumulative, and that the absence of any one of them would have produced a different result. These Escobedo elements will be catalogued later. At this point it suffices to note that the District Court here evidently overlooked our Montgomery interpretation of Escobedo. In the instant case, although at least two of the Escobedo elements were missing, the trial judge, with District Court approval, ruled out the so-called 'divider gate' confession. All of this is clearly apparent from the District Court opinion, and the jurisdictional conflict with our decision in Montgomery thereby arises.

It is true that the State did not object to the first confession ruling of the trial judge, who, at the same time, admitted into evidence the second confession. However, the District Court did not uphold the trial court as to the first confession on the procedural ground that no objection had been made. It did so with a detailed consideration of the merits of the ruling and relied upon it as its basis for going further in holding that this first confession fatally tainted the second. This was the ultimate holding that led to a reversal of the trial court. In so doing, the District Court has elevated the trial court holding into an appellate rule of decision sufficient to activate the jurisdiction of this Court on the conflict theory. We, therefore, find jurisdictional conflict with Montgomery v. State, supra.

Respondent was tried on January 12, 1966. Escobedo was decided on June 22, 1964. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, was decided on June 13, 1966. Consequently, the trial of Outten should be measured by Escobedo standards, but not by Miranda. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

Judged by these standards, the District Court erred in approving the trial court's ruling that the 'divider gate' confession was inadmissible. Escobedo held that a confession or admission obtained from a suspect is inadmissible when All of the following elements are shown: (1) the investigation ceases to be a general inquiry and begins to focus on a particular suspect, (2) the suspect has been taken into police custody, (3) the police carry out a process of interrogation that lends itself to eliciting incriminating statements, (4) the suspect has requested and been denied an opportunity to consult with his lawyer, and (5) the police have not effectively warned him of his right to remain silent. See 17 U.Fla.L.Rev. 634 (1965). Clearly, the 'divider gate' situation did not contain all of these requirements. It is true that the custodial investigation had begun to focus on the respondent, but there was no showing that a process of interrogation had been initiated. Instead, the evidence indicates that the respondent first confessed Of his own volition almost immediately after arriving at the county jail. This occurred during a conversation with one officer. This was not the type of long, intensive police grilling that Escobedo condemned. Even if it were,...