A Newsletter for the Criminal Justice Community Invoking Right to Silence In this issue: Request for Counsel Question as Request Voluntariness Published by: Office of the State Attorney West Palm Beach, FL 33401 B. Krischer, Editor The night manager at a gas station heard someone enter the store and demand, give me the money. The manager saw that the man had a gun. He gave the man approximately $160 that was in the register. The man demanded more money, so the manager gave him the cash from a shelf under the register and the money in the safe. After grabbing the money, the man fled the scene. When law enforcement arrived, the manager described the robber s height, weight, and race, and gave a detailed clothing description. The manager was able to see the man s eyes, nose, mouth, and chin when the man leaned in close to get the cash after the safe was opened. When the lead detective returned to the store with a photo lineup, the manager immediately identified Shorter as the robber and said that he was 100% sure. The detective observed the manager begin to shake and sweat after identifying Irvin Shorter s photograph. At trial the detective testified that he advised Shorter of his Miranda rights, that he understood them, and he agreed to talk with the detective. He showed Shorter the photo lineup that he had shown the manager. Shorter acknowledged that the manager had circled his picture. The detective next showed Shorter pictures from the surveillance cameras. The detective testified at that point that Shorter stopped making eye contact, put his head down, and sighed. The detective then asked Shorter if the gun in the photos was a real gun or a toy, to which Shorter responded by saying, I don t see why I should talk now, you already have these pictures, what can Bradshaw [Sheriff] do for me now? Shorter then asked to go back to his cell. The defense argued to the trial court that the defendant s actions of putting his head down and sighing was his attempt to exercise his right to remain silent. Additionally, the defense argued that Shorter s question as to why he should talk to the detective was a clear indication of his desire not to talk further with the detective. The trial court disagreed. The 4 th D.C.A. agreed with the trial court. Did the defendant clearly and unequivocally express his intent to assert his right to remain silent by putting his head down and sighing when confronted with incriminating Legal Officers Eagle should consult with their agency advisors to confirm 1 the interpretation provided in this publication Miranda to Issue what extent it will affect their actions. Past issues of the are available at //SA15.org under Resources.
evidence? No. Right to Remain Silent: The law is clear that after a prior voluntary, knowing, and intelligent waiver of Miranda rights, the police do not have to stop an interrogation and clarify an equivocal or ambiguous invocation of Fifth Amendment rights. Once a suspect voluntarily waives Miranda rights and begins an interview with law enforcement, a suspect must articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent. The determination of whether a suspect has re-invoked his or her right to remain silent is analyzed under the totality of the circumstances. A determination of the issues of both the voluntariness of a confession and a knowing and intelligent waiver of Miranda rights requires an examination of the totality of the circumstances. However, after the defendant acknowledges that he understands his rights, and chooses to waive them, only a clear unequivocal assertion of his rights stops the questioning. After a prior voluntary, knowing, and intelligent waiver, the police do not have to stop an interrogation and clarify equivocal or ambiguous invocations of Fifth Amendment rights. State v. Owen (Fla.1997). The 4 th D.C.A. had no difficulty finding the defendant s actions of putting his head down and sighing not to be an invocation of his right to remain silent. The interview of Shorter was relatively brief. When the detective showed still photos of Shorter from the surveillance cameras, Shorter broke eye contact, hung his head and sighed. Demeanor and body language indicating a realization that the police have incriminating photographic evidence is not the same thing as demeanor and body language indicating a desire to terminate an interview. Shorter s demeanor and body language upon being shown surveillance photographs was not behavior a reasonable law enforcement officer would clearly recognize as an affirmative indication of the desire to terminate an interview. When asked if the gun in the photos was a real gun or a toy, Shorter responded: I don t see why I should talk now, you already have these pictures, what can [Sheriff] Bradshaw do for me now? Although one could infer from the response that Shorter wished to terminate the interview, one could also infer the response was an inquiry as to whether law enforcement could offer a deal if he were to admit guilt. The response was not an unequivocal or unambiguous statement that Shorter wanted to terminate the interview. When the detective did not immediately suggest some way in which Sheriff Bradshaw or law enforcement could help his situation, Shorter announced he wanted to return to his jail cell. We agree with the trial court that the request to return to his jail cell was the only articulate statement of sufficient clarity that any reasonable law enforcement officer would understand to be a desire to terminate the interview. The trial court made proper evidentiary rulings; we affirm the trial court on this issue. The U.S. Supreme Court in 1994 ruled that a defendant s invocation of his right to counsel must be unambiguous (Davis v. U.S.). If an accused makes a statement concerning the right to counsel that is ambiguous or equivocal or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda right to an attorney. See, Waiver of Right to Counsel,, (August 2009). The Court acknowledged that they had not as yet applied that ruling to the right to remain silent. There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. In Berghuis v. Thompkins, (S.Ct.2010) the defendant, Thompkins, was advised of his rights, acknowledged his understood them, and then remained silent for 2 hours as the detectives asked him questions. He then acknowledged that he shot the victim. The Court allowed his statement in evidence. Thompkins did not say that he wanted to remain silent or that he did 2
not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his right to cut off questioning. Here he did neither, so he did not invoke his right to remain silent. In the instant case, Shorter putting his head down and letting out a sigh did not invoke his right to remain silent. Shorter v. State 4 th D.C.A. (Oct. 3, 2012) Miranda and Request for Attorney Tio Sessoms was involved in a home invasion robbery. Sessoms then fled from California to Oklahoma. There, at his father s urging, Sessoms surrendered to Oklahoma police. His father advised him to ask for a lawyer before talking to the police. Sessoms was in custody for four days before being interrogated. Two police officers, Detectives Woods and Keller, flew from California to Oklahoma to question Sessoms at the county jail where he was being held. Tio exchanged pleasantries with the detectives and then said, There wouldn t be any possible way that I could have a a lawyer present while we do this? Yeah, that s what my dad asked me to ask you guys... uh, give me a lawyer. Det. Woods proceeded as though Sessoms said nothing. Instead of ending the interrogation, Woods persuaded Sessoms that having a lawyer was a bad idea. Only then after telling Sessoms that having a lawyer would only hurt him, and that invoking his right to counsel would be futile because the police already knew what happened did the police even read Sessoms his rights under Miranda. Sessoms eventually said Let s talk, and proceeded to implicate himself in the crime. His pre-trial motion to suppress his statement was denied by the trial court and the California Court of Appeals. On appeal to the U.S. Court of Appeals for the 9 th Circuit his conviction was overturned. Did the defendant adequately request counsel so as to terminate the police interview? Yes. Miranda, Edwards, and Davis: Miranda v. Arizona (1966), set forth clear mandates: prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney. If a suspect indicates in any manner and at any stage of the process that he wishes to consult with an attorney, all questioning must cease. Fifteen years later, in Edwards v. Arizona, the Supreme Court reaffirmed the view that the assertion of the right to counsel was a significant event and that once exercised by the accused, the interrogation must cease until an attorney is present. The purpose of the Edwards rule is to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. Until the suspect has counsel made available to him any further interviews must be initiated by the suspect himself. The Supreme Court revisited the scope of Miranda and Edwards in Davis v. United States. There, the Court confronted a scenario where Davis had executed a written waiver of his rights and expressly agreed to speak to the police. After being questioned for ninety minutes Davis uttered the words maybe I should talk to a lawyer. The Court went on to clarify, however, that if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. Rather, the suspect must unambiguously request counsel. The Court ultimately concluded that the statement maybe I should talk to a lawyer was not an unambiguous or unequivocal request for counsel. The U.S. Court of Appeals noted the distinction in the Edwards and Davis rulings. The rule announced in those cases applied only after the suspect had been advised of his rights under Miranda. In this case Sessoms requested an attorney before any questioning or having been advised of his Miranda rights. As the U.S. Supreme Court ruled in Davis, We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney. 3
The Court of Appeals noted, in Davis, the Court emphasized that the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves and that, after having those rights explained to him, a suspect must invoke his rights affirmatively. The Court of Appeals concluded, A person not aware of his rights cannot be expected to clearly invoke them. Once, however, a suspect has been read his Miranda rights, it is reasonable to ascribe to him knowledge of those rights. If at some later point during the custodial interrogation he decides that he wants an attorney, he should be held to a higher standard of clarity to invoke that right. That is precisely what Davis concluded. Thus, if a suspect invokes his rights before the Miranda warnings are given, the invocation must be analyzed under the rule of Miranda and Edwards, not that of Davis. We therefore conclude that the California Court of Appeal unreasonably extended Davis s clear invocation rule to a situation where it does not apply. Sessoms requested an attorney before receiving a clear and complete statement of his rights and, therefore, knowledge of his rights cannot be ascribed to him. In this circumstance, the clear invocation rule simply should not have been applied. The Court of Appeals went on to find that any reasonable police officer, as indeed did these officers were, would understand that Sessoms was expressing a desire to have a lawyer present at his interview. Yeah, that s what my dad asked me to ask you guys... uh, give me a lawyer. Simply put, the words give me a lawyer mean just that: give me a lawyer. Each of Sessoms s statements, taken on its own, clearly expresses his desire for an attorney. But when the two statements are taken together, that conclusion is indisputable. Detective Woods s response to Sessoms s statements shows that he knew Sessoms was requesting a lawyer, and he wanted to do his best to talk Sessoms out of it. This desire is understandable. Detective Woods had flown halfway across the country to speak to Sessoms about a murder case, and it was surely frustrating when Sessoms requested a lawyer only forty seconds into the interrogation. But the rigid prophylactic rule of Edwards requires the police to cease questioning immediately when a suspect requests counsel and forbids any attempt to badger a suspect into waiving his previously asserted rights. The Court of Appeals reversed the conviction and ordered Sessoms retried or released. The Florida Supreme Court, in Almedia v. State (1999), ruled that when a suspect poses a question during the recitation of rights under Miranda the officer must stop, acknowledge the question, and fairly and directly answer it. The question cannot be ignored or steamrollered. As has been noted in each of these cases interpreting the Miranda safeguards, a suspect s request for a lawyer or to remain silent, terminates the interview. There is no possibility of trying to explain to the suspect that it is in his best interest to talk or not to engage an attorney. All contact must end. Only the suspect, by reinitiating contact, can restart the discussions. Playing fast and loose with Miranda will only result in the suppression of the statement obtained, or as here, provide the defendant with a doover. Sessoms v. Runnell U.S. Court of Appeals, 9 th Circuit (August 16, 2012) Miranda and Request for Attorney A transcript of the police interview details that when the detective read defendant Desmond Gilbert his Miranda rights, Gilbert invoked his right to counsel by stating, I d rather have somebody to represent me. Despite this assertion the detectives continued to talk with the defendant. One detective told Gilbert that they did not want him to say, on a later date, that no one asked for his side of the story. The detective added, We re trying to protect you. The second detective told him, I wouldn t be doing my job if I didn t come, at least to try to get your side of the story. After talking about defendant s family, the first detective asked Gilbert what he wanted to do. The detective told him, I respect whatever... whatever you decide. I m not, I m not here to force you to do anything. I m here to get your side of the story. And it-it s completely up to 4
you. Defendant responded by stating, I m going to give my side of the story. Gilbert ultimately admitted that he fired one shot in the air. The defendant was charged and convicted of Manslaughter. He argued on appeal that the evidence used to convict him was obtained in violation of his rights protected by the Miranda decision. The 4 th D.C.A. agreed. Did the defendant effectively invoke his right to counsel? Yes. Did the detectives violate Miranda by continuing their police interview despite that request? Yes. Request for Counsel: As a general rule, when an accused has expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, (1981). Which brings us to the golden rule - once an individual has invoked his or her right to counsel, police questioning of the person must cease. Black v. State, (4DCA 2011). 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. Rhode Island v. Innis, (S.Ct.1980). A suspect s request to cut off questioning until counsel can be obtained must be scrupulously honored by the police. Michigan v. Mosley, (S.Ct.1975). The 4 th D.C.A. found that the defendant s request to deal will the police through counsel was not scrupulously honored. The record does not support the trial court s finding that defendant reinitiated discussion with law enforcement after interrogation had ceased. To the contrary, almost immediately after defendant invoked his right to counsel, the detectives engaged in interrogation by telling defendant that they were trying to protect him and encouraging him to tell his side of the story. Such statements constitute interrogation, as they were reasonably likely to elicit an incriminating response. At no point did the detectives cease interrogating defendant after he made clear that he wanted to have an attorney. Because the interrogation never stopped, defendant could not, as the trial court found, have reinitiated contact with the detectives. See Moss v. State, (4DCA 2011) (where ongoing interrogation never paused, defendant did not reinitiate further exchanges with detective). In Cuervo v. State, (Fla.2007) the Florida Supreme Court found that officers engaged in conduct they could reasonably anticipate would elicit an incriminating response where, after the defendant invoked his right to remain silent, the officers stated, Now would be your opportunity if you wish to speak and explain your side of your story, your version of what happened. The detectives statements in this case are similar to those that were found to constitute interrogation in Cuervo. Because defendant s confession was the product of interrogation after defendant s invocation of his right to counsel, it should have been suppressed. The 4 th D.C.A. previously had the opportunity to rule similarly in Moss v. State (4DCA 2011), After his request for a lawyer, Moss did not reinitiate further exchanges with law enforcement; the ongoing interrogation never paused. The continued conversation was a strategy to wear down [Moss s] resistance and make him change his mind about talking with the detective before consulting a lawyer. In light of this coercion, the State has not met its heavy burden to demonstrate that Moss knowingly and intelligently waived his privilege against self-incrimination and the right to counsel. For these reasons, we hold that the trial court erred in denying the motion to suppress the statement. Clarifying statements, as were made by the detective in this case that are designed to ensure that the suspect understands that requesting an attorney will terminate the conversation with him are NOT allowed. Gilbert v. State 4 th D.C.A. (Nov. 21, 2012) Request for Counsel The defendant was on a construction crew at a courthouse and engaged in 5
a confrontation with a fellow worker. The victim was stabbed and died. Sheriff s detectives arrived at the courthouse and interviewed construction workers. Based on these interviews, law enforcement determined that Venegas was involved in the incident. After the detectives made contact with Venegas, he agreed to go with his wife to a police substation for questioning. It was clear that Venegas was not free to leave the police station. After being advised of his Miranda rights the defendant was asked by one of the detectives, Do you want to talk to us now without a lawyer present? Venegas responded, No, because there is someone dead. The detective then asked Venegas for the name of his lawyer, to which Venegas responded, I want to talk with my wife. I ve never had a lawyer because I ve never committed any crimes or done anything. In response, the detective stated: Okay. We re going to have to either get or going to ask you to consent to give us the knife, the tool that you used.... Or I m gonna have to go apply for a search warrant and search his house and his truck. At that point, Venegas interrupted, stating, No, I know where it is; it s in the bathroom. Yes I put it in the bathroom because I got scared when this happened. Based on this information, the detective went to the portable toilet on the construction site and located the knife. The defendant was charged with second degree murder. His attorney filed a motion to suppress the knife and statement arguing that they were acquired in violation of Venegas Miranda rights. The 2nd D.C.A. agreed. Did the officers violate the defendant s right under Miranda by continuing a dialog with him after he asserted his right to counsel? Yes. Right to Counsel: The trial court determined that Venegas made an unequivocal request for an attorney and that the detectives failed to immediately cease questioning Venegas after he asserted his rights to have his attorney present during the questioning. Thus the trial court ruled that all the statements made by Venegas subsequent to his invoking his right to counsel must be suppressed. The 2nd D.C.A. agreed, citing to Francis v. State, (Fla. 2001) Once an accused has invoked his right to counsel, any interrogation must immediately cease until counsel is made available, unless the accused himself initiates further communications with the police. Seizure of the Knife: The D.C.A. ruled that the police discovered the murder weapon and its location by violating the defendant s Miranda rights after he invoked his right to counsel. As such, they ordered the suppression of the knife. Despite such invocation, the officers continued to interrogate Venegas by telling him that he would have to consent to giving them the knife or that they would obtain a search warrant to search his house. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect... amounts to interrogation. The exclusion of the physical evidence is necessary to deter future improper police conduct, namely continuing an interrogation after the suspect invokes his or her right to counsel. To exclude only the statement and not the knife in this case would not only reward the police for intentionally violating Venegas right to counsel but would also encourage future such violations by suggesting that even if any incriminating statements have to be excluded, the State still could benefit from any incriminating non-testimonial evidence it may be able to obtain. Venegas statement here regarding the location of the knife cannot be considered voluntary. Voluntariness... is to be determined by an examination of the totality of the circumstances surrounding the confession. Here, Venegas advising the detectives of the location of the knife was a direct response to the unlawful interrogation conducted in violation of his right to counsel. As such, it cannot be deemed voluntary. The fruit of the poisonous tree doctrine requires the exclusion of the knife that law enforcement located as a result of the involuntary statement made by Venegas in response to unlawful interrogation conducted after he had invoked his right to counsel. The trial court therefore erred in denying Venegas motion to suppress the knife. 6
The lesson is very clear and simple. Once the suspect asserts his right not to communicate with law enforcement either with or without an attorney present, all communications with him must cease. The courts will not permit any follow-up questions, or attempts to verify that the suspect understands that by asserting his rights the detective will not be able to speak with him. Contact with the suspect is over until he re-establishes contact with law enforcement of his own volition. State v. Venegas 2nd D.C.A. (Feb. 17, 2012) Question as a Request for an Attorney Charles Hebron was under investigation for numerous serious felonies including kidnapping, three counts of sexual battery, burglary of a conveyance, and burglary of an occupied conveyance, and police shooting and a gas station robbery. He was fully advised of his rights under Miranda and acknowledged and waived those rights. The defendant expressed concern about possible sentences that he could receive. He asked the detective, Can someone tell me what my options are? I don t know the law... I need to know what I can do... What am I looking at? Detective: I can't tell you. Defendant: Who can tell me? You got a lawyer here? Can we get a lawyer here that can tell me...? Detective: No, let me ask you this. We don t have any lawyers who work here. Let me ask you this. Was it drug related? Seconds later, the defendant consented to police officers searching his apartment which uncovered the physical evidence utilized in his trial and conviction. He argued on appeal that his Miranda rights were violated, and that violation led to the seizure of the evidence used to convict him. The 4 th D.C.A. agreed. Did the detective adequately respond to the defendant s questions so as to ensure his Miranda rights were preserved? No. State v. Glatzmayer: The seminal case with regard to the issue here is, State v. Glatzmayer, (Fla.2001). The Florida Supreme Court set forth specific, basic, rules that apply to questioning a suspect after Miranda has been read and understood. We hold that police in Florida need not ask clarifying questions if a defendant who has received proper Miranda warnings makes only an equivocal or ambiguous request to terminate an interrogation after having validly waived his or her Miranda rights. Where, however, the suspect asks a question, such as, Do you think I need an attorney, the officer must stop the interview and respond. We hold that if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer. To the extent that officers may be uncertain how to respond to a particular question, they may where appropriate re-advise the suspect of his or her rights. The inquiry is whether the suspect asked a direct question as opposed to some equivocal statement, Gee, maybe I ought to get a lawyer. Upon review the Court must determine whether the utterance was a bona fide question calling for an answer. If it is, then the officer is required to make a good-faith effort to give a simple and straightforward answer. In sum, nothing requires that law enforcement officers act as legal advisors or personal counselors for suspects. Such a task is properly left to defense counsel. 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 is that they be honest and fair when addressing a suspect s constitutional rights. In sum, whenever constitutional rights are in issue, the ultimate bright line in the interrogation room is honesty and common sense. The 4 th D.C.A. found in Hebron v. State, that the detective in effect engage in gamesmanship; he did try to give an evasive answer, or to skip over the question, or to override or steamroll the suspect. The D.C.A. ruled, In the instant case, the defendant asked a clear question concerning his rights when he asked what his options were, stated that he did not know what the law was and 7
asked can we get a lawyer here? The detective merely asserted that there were no lawyers on the staff and failed to provide a simple and straightforward answer to the question posed. The officer was required to properly answer the defendant s question regarding his Miranda rights before resuming the interrogation. The failure to stop the interrogation to answer the defendant s question tainted the subsequent consent to search, which, in turn, tainted the evidence seized. Because of this, the evidence discovered during the search of the defendant s apartment should have been suppressed. See, Traylor v. State, (Fla.1992) (noting that evidence obtained by the State in contravention of the right to counsel may not be used by the State). We reverse his convictions because of the admission of this evidence at trial. In Almeida v. State, (Fla. 1999) the Florida Supreme Court set forth a simple rule, Accordingly, we hold that if, at any point during custodial interrogation, a suspect asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer. To do otherwise i.e., to give an evasive answer, or to skip over the question, or to override or steamroll the suspect is to actively promote the very coercion that [Miranda] was intended to dispel. Once the officer properly answers the question, the officer may then resume the interview (provided of course that the defendant in the meantime has not invoked his or her rights). Any statement obtained in violation of this proscription violates the Florida Constitution and cannot be used by the State. Thus, if the suspect asks a clear, direct question, What am I looking at here? The detective must stop the interview, acknowledge the question, and provide a clear, fair, and direct response. Such as, I don t know at this time. It will depend on what if any charges are filed by the State, and the sentencing judge. As noted above, if the officer is unclear on how to respond to the question, he can re-advise the suspect of his rights pursuant to Miranda. Remember this simple admonishment from the Florida Supreme Court, Whenever constitutional rights are in issue, the ultimate bright line in the interrogation room is honesty and common sense. Hebron v. State 4 th D.C.A. (April 4, 2012) Voluntary Statement Detective Duff, acting on allegations that Josh Carroll had engaged in lewd and lascivious conduct with a minor, asked Carroll to accompany him to the Sheriff s Office for questioning. During the interview, Carroll confessed. He later filed a motion to suppress alleging that his statement was not voluntary because he was induced into incriminating himself by the detective s misleading statements. At the hearing, Carroll pointed to certain statements made by the detective during the interview as objectionable, including the following: So it s probably a good time for you to help yourself out right now, you know, and just see what it is that we can do to help you out, You used a thirteen-year-old kid who was willing to do it, you know. I mean, that s a whole lot different than a guy that s, you know, forcing little kids to do something to him. The trial court granted Carroll s motion to suppress, finding that Carroll s admissions were involuntarily made based on the totality of the circumstances, including the offering of an inducement, downplaying the seriousness of the allegations, suggesting that the alleged victim may have consented to the alleged criminal activity, the Defendant s lack of education, and his lack of a prior record indicating his inexperience in being interrogated by the police. The State appealed the ruling and the 2 nd D.C.A. reversed the trial court s order. Were the detective s comments likely to overcome the will of the defendant resulting in an involuntary statement? No. Voluntariness: As has been observed in many of these analyses, the admissibility of a defendant s statement, admission, or confession requires more than just a showing that Miranda warnings were read. The subject must not only understand those rights but his statement must be proven to have been voluntarily given and of his own free 8
will. The test of voluntariness of a confession is whether, examining the totality of the circumstances, the confession was the product of coercive police conduct. In assessing the totality of the circumstances, and the defendant s ability to overcome pressure asserted against him, courts examine such factors as youth, level of education, intelligence, explanation of constitutional rights, the length of the interrogation, and prior experience with police. An interrogating officer may, without rendering a confession involuntary, promise to make a suspect s cooperation known to the prosecutor or advise the suspect that it would be easier on him if he cooperated. Bush v. State, (Fla.1984). Promises by law enforcement officers are objectionable if they establish a quid pro quo bargain for the confession. See, Brockelbank v. State, (2DCA 1981) (holding that suppression of the defendant s statements was warranted where the officers promised the defendant an immediate release from jail and that no other charges would be filed against him if he confessed to the charges). The 2 nd D.C.A. found that none of the detectives comments made during his conversation with the defendant resulted in an involuntary statement. In this case, the detective s statement that he would see what it is that we can do to help you out did not rise to the level of a promise of leniency in return for Carroll s confession. In essence the D.C.A. ruled this was not a quid pro quo bargain for the defendant s confession. The D.C.A. went on to review the other factors that impact voluntariness. Although education and experience with the criminal justice system are factors to be considered in the totality of the circumstances standard, these factors alone are not sufficient to establish coercion Notwithstanding that Carroll only has a ninth-grade education, the recording of the interrogation demonstrates that Carroll was able to converse intelligently with the detective and that the interview lasted only twenty-two minutes. Finally, the fact that the detective may have misled Carroll into believing that the victim could consent to the sexual activity is insufficient to find that the confession was involuntary. Accordingly, we reverse the order suppressing Carroll s incriminating statements. Last year the U.S. Supreme Court decided, J.D.B. v. North Carolina (S.Ct. 2011) and ruled that the age of the suspect was relevant to a determination of voluntariness. Two discrete inquiries are essential to the determination of voluntariness: First, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. More specifically, would a 14 year old appreciate that he had the right to terminate the interview with the school resource officer and walk out of the principal s office? Probably not. Dealing with juveniles will always raise additional issues in establishing to a trial court that the statement was freely and voluntarily given, over-and-above his understanding of Miranda warnings. See also, Peterson v. State, (5DCA 2002) (holding that even though the defendant was functionally illiterate and of low normal intelligence, there was no showing that the confession was involuntary or coerced where the interview lasted only twenty-five minutes, there was no showing of force, the defendant willingly agreed to talk, he was read his Miranda rights, and the atmosphere during the interview was not intimidating). Not all promises are viewed by the court as a quid pro quo bargain for the suspect s cooperation. For example, a number of cases have found the following comments harmless: An offer to advise the court of the suspect s cooperation was not improper. It will be better for you if you told the truth, not improper. The truth will set you free, not improper. Moral urgings to do the right thing, found not improper. A promise not to prosecute the suspect s spouse or child held improper. Note that the D.C.A. relied on the recording of the defendant s statement to overrule the trial court s finding of coercion. This is the real benefit of taking the extra step to record the entire interview. See also, Coerced Confession,, October 2012. State v. Carroll 2 nd D.C.A. (Nov. 9, 2012) 9