This matter is before the Court for review of the decision of the Second District Court of Appeal in McAdams v. State, 137 So.3d 401 (Fla. 2d DCA 2014). In its decision, the district court ruled upon a question that it certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
FACTS AND BACKGROUND INFORMATION
The Pasco County Sheriff's Office was notified that Lynda McAdams (Lynda), the estranged wife of Respondent/Cross-Petitioner Michael McAdams (McAdams), and her boyfriend/coworker, William Andrews (Andrews), had been reported missing by concerned family members. On October 21, 2009, a detective responded to Lynda's
During the welfare check, the detective observed that the lid of the washing machine was open and a substance that appeared to be blood could be seen on the rim. Blood-stained clothing was inside the washing machine. The detective also observed latex gloves in the kitchen, along with rolls of duct tape. He departed the residence and notified a supervisor of his observations. McAdams was contacted, and he gave written consent for a search of the Palomino Lake Drive home.
A different detective entered McAdams's separate residence in Spring Hill to perform a welfare check there with the consent of McAdams's father. When the detective walked through the garage, he observed a pair of blue-jean shorts that appeared to have blood on them. Further, a broken cell phone was found on a night stand and McAdams's father stated that it did not belong to McAdams. Law enforcement subsequently obtained a search warrant for the Spring Hill home. The warrant was executed at approximately 2:22 a.m. on October 23, and McAdams was not present. The shorts, a grey shirt, and a black belt were seized.
Later that morning, a detective with the Hernando County Sheriff's Office approached McAdams in the driveway of the Spring Hill home and asked if he would be willing to come to the sheriff's office to speak with detectives. McAdams understood that the detective was there because Lynda was missing and replied that he wanted to help. McAdams rode to the sheriff's office in the back of a deputy's vehicle, but he was not handcuffed.
Upon his arrival at the Hernando County Sheriff's Office, McAdams was escorted to an interview room where he met with Pasco County Detectives Christensen and Arey. The encounter at the sheriff's office between McAdams and the detectives began at 11:55 a.m., and the interview was recorded in its entirety. During the majority of the interview, McAdams maintained that he did not know what happened to Lynda or Andrews. However, at 2:27:15 p.m., while McAdams was in the room with only Detective Arey, he commenced a confession in which he admitted that he fatally shot Lynda and Andrews on October 18, 2009. McAdams also confessed that he buried the bodies and discarded the weapon off a bridge. At 2:42:07 p.m., Detective Arey read McAdams the Miranda
At 2:04 p.m., while McAdams was being interrogated by the Pasco County detectives in the Hernando office, and before
he was not allowed to see or otherwise communicate with McAdams in any manner. Facing that insurmountable obstacle, the attorney departed from the sheriff's office at 2:17 p.m., just ten minutes before McAdams commenced his confession. McAdams was first informed about the presence of the attorney only after he directed the detectives to the burial site. On November 10, 2009, McAdams was indicted on two counts of first-degree murder.
McAdams subsequently filed a motion to suppress any statements made to law enforcement, any evidence obtained as a result of those statements, and any audio or video evidence that resulted from those statements.
During the hearing on the motion to suppress, Detective Christensen outlined the reason the attorney was not allowed to see or speak with McAdams:
The trial court denied the motion to suppress on both the Miranda basis and the failure of law enforcement to notify McAdams with regard to the presence of the attorney for him. With regard to the Miranda claim, the trial court considered the four-factor test approved in Ramirez v. State, 739 So.2d 568 (Fla.1999),
With regard to the failure to advise McAdams of the attorney who had been retained by his parents and appeared at the sheriff's office, the trial court considered Haliburton v. State, 514 So.2d 1088 (Fla. 1987) (Haliburton II), in which this Court reversed murder and burglary convictions and ordered a new trial where the defendant gave a statement while an attorney who had been retained on the defendant's behalf was at the police station requesting to speak with him. Id. at 1089. The trial court concluded that Haliburton II was distinguishable:
After a jury trial, during which the video of the interview was played, McAdams was convicted of two counts of first-degree murder and was sentenced to life imprisonment.
The Second District Court of Appeal reversed the judgment and sentences. McAdams, 137 So.3d at 408. The district court agreed with the trial court that McAdams was not in custody when he initially confessed to the murders. Id. at 407. The district court noted that Haliburton II involved a custodial interrogation, and declined to hold that a refusal by law enforcement officers to interrupt an interview to allow an attorney access to a client who has voluntarily agreed to speak with police constitutes misconduct. However, the district court certified the following question as one of great public importance:
Nonetheless, the Second District held that once McAdams confessed and the Miranda warnings were read, he was in custody and should have been informed about the attorney, and the detectives violated McAdams's right to due process under the Florida Constitution when they failed to do so. Id. at 407-08. Based upon this violation, the Second District held that any evidence collected after McAdams was read his rights and until he was informed about the attorney should have been suppressed pursuant to Haliburton II. Id. at 408.
Both the State and McAdams petitioned for review of the certified question. For purposes of our analysis, we rephrase the question as follows:
The rephrased certified question is a pure question of law that requires interpretation of the Florida Constitution and is, therefore, subject to de novo review. Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1084-85 (Fla. 2008). To provide context and background as to the current state of Florida law on this issue, we summarize Haliburton II, and its predecessor decision, Haliburton v. State, 476 So.2d 192, 193 (Fla.1985) (Haliburton I).
Haliburton I & II
Haliburton was brought to a police station with regard to a homicide, read the Miranda warnings, and questioned. Haliburton I, 476 So.2d at 193. The following then occurred:
Id. Haliburton was convicted of burglary and first-degree murder, and he was sentenced to death. Id. On direct appeal, this Court held that the trial court erred when it refused to suppress the statements that Haliburton gave after the attorney arrived at the station and sought access to his client. Id. We explained that because Haliburton was not notified of the attorney retained for him who was at the station and available to advise him, the waiver of the Miranda rights was invalid, and he was entitled to a new trial. Id. at 194. In support of the holding, we stated:
The State petitioned the United States Supreme Court for certiorari review, and the Supreme Court vacated Haliburton I for further consideration in light of the decision in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). Florida v. Haliburton, 475 U.S. 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711 (1986). In Burbine, an attorney telephoned the police station and advised that she would act as Burbine's legal counsel in the event the police intended to question him. 475 U.S. at 417, 106 S.Ct. 1135. The attorney was informed Burbine would not be questioned that day; however, he was actually questioned that evening. Id. After waiving his Miranda rights on three separate occasions, Burbine signed three statements in which he confessed to a murder. Id. at 417-18, 106 S.Ct. 1135. During that time, Burbine was not notified of the telephone call from the attorney. Id. at 417, 106 S.Ct. 1135.
The Supreme Court held that suppression of the confessions was not required under the Fifth Amendment to the United States Constitution. Id. at 428, 106 S.Ct. 1135. The Supreme Court concluded that events occurring outside of a suspect's presence can have no impact on his or her ability to understand and knowingly waive a constitutional right. Id. at 422, 106 S.Ct. 1135. It also rejected an expansion of Miranda that would require law enforcement to keep a suspect informed as to the status of his or her legal representation. Id. at 427, 106 S.Ct. 1135. However, the Supreme Court specifically noted that nothing in its decision precluded the States from implementing different requirements under state law. Id. at 428, 106 S.Ct. 1135. The Supreme Court further concluded that although deception by the police may rise to the level of a constitutional due process violation, the police conduct in Burbine was not of the type that "so shocks the sensibilities of civilized society as to warrant a federal intrusion into the criminal processes of the States." Id. at 433-34, 106 S.Ct. 1135.
On remand from the Supreme Court, this Court, in Haliburton II, held that the conduct of the police violated the due process provision of article I, section 9, of the Florida Constitution
514 So.2d at 1090 (emphasis supplied).
Due Process Under the Florida Constitution
Three theories have been posited as to what is required under the Due Process
The State's theory simply does not lead to a practical application. Were this Court to adopt such a position, the police could routinely conceal from a suspect who is even in custody the fact that an attorney who has been retained on his or her behalf is at the law enforcement office and is available to speak with him or her. This application would constitute a complete departure from the conclusion of Haliburton II that under the Florida Constitution, "[p]olice interference in the attorney-client relationship is the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause prohibits." Id. (quoting Burbine, 475 U.S. at 467, 106 S.Ct. 1135 (Stevens, J., dissenting)); see also Walls v. State, 580 So.2d 131, 133 (Fla.1991) ("Due process contemplates that the police and other state agents act in an accusatorial, not an inquisitorial, manner.").
Further, to adopt the interpretation of the State would inject uncertainty into the law. Questions would arise as to what type of conduct, coupled with the failure to inform the individual of the attorney's presence, would be sufficiently outrageous to rise to the level of a due process violation. No bright-line rule would exist for trial courts to apply or law enforcement officers to follow. Instead, outrageousness would be evaluated on a case-by-case basis, creating a substantial risk that trial courts would reach different conclusions on similar facts. This would muddy, rather than clarify, the level of conduct by law enforcement officers that is constitutionally permissible. Therefore, we reject the position advocated by the State.
Moreover, while Haliburton II involved a situation where the defendant was in custody, the present case demonstrates why it is also unworkable for the due process rights of an individual under the Florida Constitution to be contingent upon custodial status with regard to access to a retained attorney. It is clear that as soon as a retained attorney arrives at the law enforcement office, the questioning of the individual can intensify significantly with the goal of obtaining a confession.
We conclude that the only way to properly protect the due process rights of citizens under the Florida Constitution is to implement a bright-line rule. Otherwise, determinations of when voluntary questioning evolves into custodial interrogation will spawn hundreds of thousands of dollars in costs or expenses and hours in litigation. Therefore, we now hold that when an individual is being questioned in a non-public area, and an attorney retained on his or her behalf arrives at the location, the Due Process Clause of the Florida Constitution requires that the police notify the individual of the attorney's presence and purpose. Pursuant to this holding, a person can no longer be deprived of the critical information that an attorney is present and available to provide legal advice based on pure police conjecture that the individual is not in custody. We also cannot allow law enforcement to refuse to interrupt an interview, as occurred here. Under the interpretation of the Due Process Clause of the Florida Constitution that we adopt today, it is the individual, rather than law enforcement, who is given the knowledge and power to decide whether to take advantage of the attorney's services.
In light of the foregoing, we hold that McAdams's right to due process under the Florida Constitution was violated when law enforcement officers failed to inform him that an attorney retained by his parents had arrived at the Hernando County Sheriff's Office and was available to assist him. Pursuant to this holding, the determinations of both the trial court and the Second District as to when McAdams had the right to be notified about the attorney were in error.
Moreover, although custodial status is irrelevant to a person's right under the Florida Constitution to know that an attorney retained on his or her behalf is at the location where he or she is being questioned, we also conclude that the trial court and the district court erred when they determined that McAdams was not in custody before he confessed to the homicides at 2:27:15 p.m., and a Miranda violation occurred when this confession was admitted during trial.
In Miranda, the Supreme Court explained that:
384 U.S. at 467, 86 S.Ct. 1602. Failure to provide the Miranda warnings prior to custodial interrogation generally requires exclusion from trial of any post-custody statements given. Missouri v. Seibert, 542 U.S. 600, 608, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004); see also Deviney v. State, 112 So.3d 57, 79 (Fla.2013) ("[I]f a defendant's statement resulted from a law enforcement officer's illegal actions, that evidence is `fruit of the poisonous tree' and the trial court should exclude it from trial.").
Interrogation occurs when a state agent asks questions or engages in actions that a reasonable person would conclude are intended to lead to an incriminating response. Traylor v. State, 596 So.2d 957, 966 n. 17 (Fla.1992). We have further explained that:
Ramirez, 739 So.2d at 573. Although we approved in Ramirez a four-factor test to provide courts with guidance in determining whether an individual in is custody,
Ross v. State, 45 So.3d 403, 415 (Fla.2010) (quoting Yarborough v. Alvarado, 541 U.S. 652, 663, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). Courts are to consider the totality of the circumstances in determining whether a reasonable person would believe that his or her freedom of action has been curtailed to a degree associated with actual arrest. Caldwell v. State, 41 So.3d 188, 197 (Fla.2010). Further, while precedent remains a guide, custody determinations are heavily fact dependent. Rigterink v. State, 2 So.3d 221, 246 (Fla.2009), vacated on other grounds, 559 U.S. 965, 130 S.Ct. 1235, 176 L.Ed.2d 175 (2010).
We have applied these standards and conclude that although McAdams was not in custody initially, the encounter with the detectives steadily evolved into a custodial situation in which a reasonable person would not have felt free to terminate the interview and leave. The record reflects that McAdams voluntarily accompanied law enforcement to the Hernando County Sheriff's Office. When approached in his driveway by a detective, McAdams acknowledged that his wife was missing and expressed a desire to help law enforcement.
Upon arrival at the sheriff's office, McAdams was placed in a small room with a desk and three chairs that was located in a non-public area. During the motion to suppress hearing, Detective Christensen described herself, Detective Arey, and McAdams as being "pretty close." McAdams's access to the door of the interview room was not blocked, and there is no indication that the door was ever locked. At the beginning of the interview, Detective Christensen informed McAdams that he was not under arrest, and he confirmed that he came to the sheriff's office voluntarily. At no point did the detectives yell at him or even raise their voices — the interview was conducted at all times in a conversational tone. After approximately 1.5 hours of questioning, McAdams was offered a drink, and the detectives also brought him a slice of pizza.
At 1:26:17 p.m., McAdams was given a restroom break. However, McAdams testified during the motion to suppress hearing that he was only allowed to have a restroom break while escorted to the restroom by three Hernando County officers, and the officers entered the restroom with him. McAdams further testified that he could not exit the restroom unless the officers moved. It is questionable that a reasonable person would have felt free to leave the sheriff's office under such circumstances.
Further, whereas before the restroom break, the interview focused mainly on McAdams's movements during the week that Lynda and Andrews disappeared, and his relationship with Lynda, the tone began to change shortly after the break. Arey noted that McAdams's parents had already lost their daughter to an aneurysm and informed McAdams that his mother was "pretty fragile" and "really very, very distraught" about the current situation. McAdams confirmed that the day before, he had taken a gun from his parents' residence and contemplated suicide due to financial troubles and family difficulties, but ultimately decided against it. Detective Arey later informed McAdams:
(Emphasis supplied.) When McAdams asked Detective Arey what he thought McAdams wanted to tell him, Arey responded, "Well, I think there's some more things that may have gone on." Detective Christensen followed up:
She later asked McAdams if he bled in either of his residences, noting that he had
Detective Arey also sought to establish a rapport with McAdams through commiseration. Arey confided that he too had been through a divorce and recognized that it can be an "emotional roller coaster." In response to a question from McAdams as to how many men would feed their wives' horses so that their wives could spend time with their new boyfriends, as McAdams agreed to do for Lynda, Arey replied: "[F]rom a man's perspective, I can tell you that a person — a person can only take so much crap. That's — a person can only take so much." Arey later continued:
Detective Christensen then told McAdams:
She noted there were things at both the Palomino Lake Drive and Spring Hill residences that "just don't look right."
Detective Arey left the interview room at 2:03:37 p.m. and returned at 2:04:32 p.m.
(Emphasis supplied.) Upon Detective Arey's return, the dialogue continued:
(Emphasis supplied.) Thereafter, McAdams commenced his confession.
There is not necessarily a single specific comment, question, or circumstance that converts an encounter from noncustodial to custodial. A situation can commence as a voluntary interaction with police, but slowly intensify and become more pressured, pointed, and accusatory until it evolves into custodial status. The circumstances of this interview, which involved: (1) an escort to, and inside, the restroom by multiple officers; (2) accusatory statements that there is human blood and DNA evidence at both of McAdams's residences, and the evidence is "really, really strong," indicating to McAdams that the police believed he was the prime suspect in what had happened to Lynda and Andrews; (3) repeated assertions that the situation will not "go away"; (4) being informed that a couple of days are not available to consider the matter because "everything's already set in motion"; and (5) being advised that the possibility of leaving the sheriff's office that day is uncertain, would lead a reasonable person to conclude that he or she was not at liberty to terminate the encounter and depart from the sheriff's office. Ross, 45 So.3d at 415.
The fact that McAdams asked Arey about possible penalties and defenses and stated "[y]ou guys know what happened. It's right there in black and white," prior to the confession demonstrates that McAdams believed the police possessed sufficient evidence to arrest him for a crime. Therefore, based upon a totality of the circumstances, we hold that McAdams was in custody before he commenced his confession at 2:27:15 p.m., and the Miranda warnings should have been given prior to that time. Accordingly, both the trial court and the district court erred when they held that McAdams's pre-Miranda confession was properly admitted during trial.
Moreover, this analysis supports our earlier conclusion that it is unworkable for the due process right of an individual to be advised of a retained attorney's presence at a law enforcement office to be contingent upon only custodial status. From the time that Detective Arey asked Detective Christensen to leave the interview room so that he could speak with McAdams alone until 2:17 p.m. — a time period of almost
Further, during the entire one-on-one interaction between Detective Arey and McAdams prior to the confession, the detective used numerous interrogation tactics to gain McAdams's trust and wear down his resistance. These tactics included suggestions that (1) McAdams spare his family heartache and a media "zoo"; (2) Arey too had been involved in a difficult divorce, so he knew what McAdams was experiencing and would not judge him; (3) McAdams's role in what happened to Lynda and Andrews would inevitably be established by the "tons" of "really strong" evidence, so it would be in McAdams's best interest if he cooperated and confessed; and (4) Arey would speak favorably on his behalf if McAdams confessed. Detective Arey was well aware that McAdams was in a fragile state because McAdams admitted he had contemplated suicide the previous day because of financial and familial stress.
We have previously recognized that "the modern practice of in-custody interrogation is psychologically rather than physically oriented." Rigterink, 2 So.3d at 251. Had McAdams been notified with regard to the attorney who had been retained on his behalf and chosen to take advantage of that attorney's services, he would have been insulated from these tactics, which, while initially conveyed in a compassionate and sympathetic fashion, were unquestionably utilized solely for the purpose of obtaining a confession.
Precedent supports our conclusion that McAdams was subject to custodial interrogation. In Ross, we held that a noncustodial interrogation turned custodial when the defendant was informed that blood evidence on his clothing matched blood found at the crime scene, and he was told by the detective that "this evidence could not be disputed." 45 So.3d at 410; see also id. at 417 ("Once the police informed Ross that they had his bloody pants that matched the crime scene, a reasonable person would not have felt at liberty to terminate the interrogation and leave. At this point the officer should have advised Ross as to his Miranda rights.").
In Mansfield v. State, 758 So.2d 636, 644 (Fla.2000), a custodial interrogation occurred where the defendant was confronted with evidence that strongly suggested his guilt (a pager found at the murder scene was traced to the defendant), he was never informed that he was free to leave, and the questions that were asked "made it readily apparent that the detectives considered him the prime, if not the only, suspect." Cf. Hunter v. State, 8 So.3d 1052, 1062-63 (Fla.2008) (holding that interview was not custodial prior to the reading of the Miranda warnings, in part, because the defendant was not a person of interest at the time he went to the police station, but had been identified as an acquaintance of a person who had already been taken into custody; "the purpose of the interview was to learn about Mr. Victorino and not necessarily about Mr. Hunter.").
Here, consistent with Ross and Mansfield, McAdams was confronted with evidence that strongly suggested his guilt,
Further, lower courts have considered whether a law enforcement officer questioned a defendant's version of events or accused him of lying in determining whether the defendant was in custody for purposes of Miranda. For example, in Meredith v. State, 964 So.2d 247, 249 (Fla. 4th DCA 2007), after voluntarily travelling to a law enforcement office, the defendant was notified that his ex-girlfriend's younger brother had alleged that the defendant had touched him inappropriately. The detective informed the defendant that he was not under arrest and stated that he just wanted to get the defendant's "side of the story." Id. After the defendant told the detective that the touching occurred during either wrestling or playing "show and tell," the detective did not question these explanations and even told the defendant, "relax, I'm not calling you a child molester." Id. at 249, 252. Based upon the low-key interrogation tactics, the consolatory tone of the detective, and the failure of the detective to challenge the defendant's explanation for the inappropriate touching, the Fourth District held that the questioning was not custodial for purposes of Miranda. Id. at 252-53.
Similarly, in State v. Pitts, 936 So.2d 1111, 1118 (Fla. 2d DCA 2006), after the defendant (Pitts) voluntarily rode to a sheriff's office substation, law enforcement officers interviewed him with regard to property he pawned that belonged to one of two missing men. Pitts admitted he had been the passenger in a car that had been involved in a police chase. Id.
During a subsequent interview that occurred at a different location, the supervising officer, Captain W.J. Martin, wrote on a pad, "TJ says [Pitts] killed these guys," and left the pad in the room with Pitts. Id. at 1119.
In concluding that Pitts was not in custody at the time he made these admissions and before he was read the Miranda warnings, the Second District stated with regard to the fabricated accusation by Wright:
Id. at 1128 (quoting Mansfield, 758 So.2d at 644).
The State relies heavily on Pitts to assert that McAdams was not in custody at the time he initially confessed. The State notes that Martin told Pitts, "Sammy, I have been doing this a long time now, I think you know more than what you're telling us. I actually believe that you were there." Id. at 1119. Further, according to the Second District,
Id. at 1119 (emphasis supplied). While the emphasized language is similar to what Detective Arey told McAdams, the two cases are factually distinguishable. In its decision, the Second District specifically noted that:
Id. at 1128 (emphasis supplied) (footnote omitted). The Second District then held with regard to the fabricated accusation by Wright, "[a] reasonable person understands that ordinarily the police do not take a suspect into custody on the basis of a potentially self-serving accusation that is unsupported by any details concerning the circumstances of the crime." Id.
Pitts was confronted with an uncorroborated accusation that he killed the victims. Further, he was only told that the police believed he was present when the killings occurred, and that he knew the location of the bodies. These comments indicate mere suspicion, and do not reflect that the police were in possession of concrete, inculpatory evidence that connected Pitts to the disappearance of the victims (other than the fact that he pawned items belonging to one of the victims and had been a passenger in a vehicle involved in a police chase, but he provided innocent explanations for this conduct). Here, however, Detective Arey told McAdams there was "tons" of DNA and blood evidence at his two residences, and that the evidence was "really, really strong." Further, Arey created an atmosphere of inevitability when he told McAdams that he would not be allowed a couple of days to think about the situation because "everything's already set in motion" and expressed his belief that Lynda would not reappear because of "all that evidence." Under such circumstances, a reasonable person would believe "that the police have probable cause to arrest the suspect for a serious crime such as murder or kidnapping." Id. Thus, the degree to which McAdams was confronted with tangible evidence that strongly suggested his guilt, rather than uncorroborated accusations and mere suspicion, distinguishes this matter from Pitts. Accordingly, our conclusion that McAdams was subjected to custodial interrogation and, therefore, should have been read the Miranda warnings prior to his confession is not altered by the decision of the Second District.
Statements admitted during trial in violation of Miranda are subject to a harmless error analysis. Caso v. State, 524 So.2d 422, 425 (Fla.1988). In State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986), we explained:
(Citation omitted.) Here, compelling evidence of McAdams's guilt was presented to the jury through his confession, in which he admitted that after being berated by his estranged wife and her new boyfriend at the Palomino Lake Drive residence, he became outraged, retrieved a gun from outside the residence, fatally shot them, buried the bodies in a rural area, and disposed of the weapon. It is simply impossible to conclude that the erroneous admission of this highly detailed confession did not contribute to the convictions in this matter. Id. Accordingly, we hold that the Miranda violation constituted
More than twenty years ago, we stated with regard to the Declaration of Rights in the Florida Constitution:
Traylor, 596 So.2d at 963-64 (quoting Bizzell v. State, 71 So.2d 735, 738 (Fla.1954)) (some alterations in original). The sentiments expressed in Traylor remain equally important today, and this case demonstrates why constitutional safeguards must be jealously guarded to prevent overreaching by law enforcement in the quest to obtain a confession.
In response to the rephrased certified question, we hold that when a person is questioned in a location that is not open to the public, and an attorney retained on his or her behalf appears at the location, the Due Process Clause of the Florida Constitution requires that law enforcement notify the person with regard to the presence and purpose of the attorney, regardless of whether he or she is in custody. The decision of the Second District Court of Appeal is quashed, and this matter is remanded for further proceedings consistent with this opinion.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY, J., concurs.
POLSTON, J., concurring in part and dissenting in part.
I agree with the majority that the trial court reversibly erred by admitting McAdams' confession. Similar to the majority, I believe that McAdams was in custody before he confessed based upon the fact that he was informed, in response to a direct question after being confronted with incriminating evidence, that it was uncertain whether he could leave the sheriff's office. See Ramirez v. State, 739 So.2d 568, 573 (Fla.1999) ("A person is in custody if a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest."). Therefore,
Once McAdams was in custody, this Court's decision in Haliburton v. State, 514 So.2d 1088 (Fla.1987) (Haliburton II), required law enforcement to notify McAdams that his family had retained counsel for him and that this counsel would like to speak with him. In Haliburton II, this Court adopted a dissent regarding the right to due process under the United States Constitution to create a broader right to due process under the Florida Constitution. Specifically, quoting Justice Stevens' dissent in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), this Court in Haliburton II held that the failure to inform Haliburton of privately retained counsel after he was in custody and Mirandized was "[p]olice interference in the attorney-client relationship [and] the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause prohibits." Haliburton II, 514 So.2d at 1090 (quoting Burbine, 475 U.S. at 467, 106 S.Ct. 1135 (Stevens, J., dissenting)). Accordingly, pursuant to Haliburton II, any evidence collected between the time McAdams was in custody and when law enforcement informed him of the attorney should have been suppressed as a violation of Florida's due process clause.
However, I disagree with the majority's extension of our decision in Haliburton II to voluntary interactions with law enforcement. As the Second District cogently explained, "[n]either Haliburton nor any other case [cited] holds that it is misconduct for law enforcement officers to refuse to interrupt a noncustodial interview to permit an attorney access to a suspect who has voluntarily agreed to be interviewed." McAdams v. State, 137 So.3d 401, 407 (Fla. 2d DCA 2014). In fact, cases in which Florida district courts have held that due process violations occurred pursuant to Haliburton II involved custodial interrogations, not voluntary interviews. See Bruce v. State, 92 So.3d 902 (Fla. 4th DCA 2012); State v. Allen, 548 So.2d 762 (Fla. 1st DCA 1989). Furthermore, the conclusion that Haliburton II only applies while a suspect is in custody is supported by and entirely consistent with this Court's precedent that protections for the right against self-incrimination under the Florida Constitution only apply in custodial settings. See Traylor v. State, 596 So.2d 957, 966 (Fla.1992) (holding that a suspect must be properly advised of his right to counsel in order to protect his right against self-incrimination under the Florida Constitution but explaining that "[t]hese guidelines apply only to statements obtained while in custody and through interrogation; they do not apply to volunteered statements initiated by the suspect or statements that are obtained in noncustodial settings or through means other than interrogation") (footnotes omitted); see also Roman v. State, 475 So.2d 1228, 1233 (Fla.1985) (concluding that "police officers questioning a suspect in a noncustodial setting [were not required to] comply with an attorney's request that they cease questioning the suspect and then inform the suspect of the attorney's call") (emphasis added).
To be clear, the defendant in Haliburton II (like the defendant in this case) was in custody when privately retained counsel informed law enforcement of counsel's presence and purpose. See Haliburton v. State, 476 So.2d 192, 193 (Fla.1985) (Haliburton I). And because both Haliburton and McAdams were in custody, it is unnecessary and inappropriate for this Court to address whether Haliburton II should apply to non-custodial interviews.
The only reason given by the majority for extending Haliburton II to voluntary
Accordingly, I respectfully concur in part and dissent in part.
CANADY, J., concurs.
Id. at 574 (citing State v. Countryman, 572 N.W.2d 553, 558 (Iowa 1997)).
We agree with the conclusion reached by the Fourth District. In the present matter, once it was determined that McAdams was at the Hernando County Sheriff's Office, a duty existed for law enforcement to inform him that an attorney retained on his behalf was present. See id. ("Because they are responsible for the suspect's isolation, the police have a duty to act reasonably, diligently, and promptly to provide the defendant with accurate information.").