IN THE SUPREME COURT OF FLORIDA

CASE NO. SC0-1527

LOWER COURT CASE NO. 4D04-4231

RAYMOND PARDON a/k/a PETER PARDON,

Petitioner,

-vs-

THE STATE OF FLORIDA,

Respondent.

ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT

BRIEF OF PETITIONER ON JURISDICTION

MELISSA MINSK DONOHO

100 S.E. 6th Street, Ste. 102 Fort Lauderdale, FL 33301 Tele. (954)523-7949 Florida Bar No. 955700 Attorney for Petitioner

TABLE OF CONTENTS

TABLE OF CONTENTS...... i

TABLE OF AUTHORITIES...... ii

INTRODUCTION ...... 1

STATEMENT OF CASE AND FACTS...... 1

SUMMARY OF ARGUMENT...... 2

ARGUMENT...... 2

CONCLUSION...... 10

CERTIFICATE OF SERVICE ...... 10

CERTIFICATE OF COMPLIANCE...... 10

i TABLE OF AUTHORITIES

CASES: PAGE NO.:

Arizona v. Roberson 486 U.S. 675 (1988)...... 3

Ault v. State 866 So. 2d 674 (Fla. 2003)...... 1,2,3,4,5,6,7

Edwards v. Arizona 451 U.S. 477 (1981)...... 3

McNeil v. Wisconsin 501 U.S. 171 (1991)...... 2

Miranda v. Arizona 384 U.S. 439 (1966)...... 2,8

Sapp v. v. State 690 So. 2d 581 (Fla. 1997)...... 2,3

State v. Stanley 754 So. 2d 869 (Fla. 1st DCA 2000) ...... 1,2,9

Traylor v. State 596 So. 2d 957 (Fla. 1992)...... 3

ii INTRODUCTION

Petitioner, Raymond Pardon a/k/a Peter Pardon, seeks discretionary review of the decision below that expressly and directly conflicts with this Court=s decision in Ault v.

State, 866 So. 2d 674 (Fla. 2003) and with the decision in the case of State v. Stanley,

754 So. 2d 869 (Fla. 1st DCA 2000). In this brief, the designation A(A. [page number])@ refers to the attached appendix containing a conformed copy of the decision below.

STATEMENT OF THE CASE AND FACTS

Following a jury trial, Mr. Pardon was convicted of attempted robbery, aggravated battery on a person older than sixty-five, and aggravated assault with a deadly weapon

(A.1). The trial court sentenced him to life in prison. Mr. Pardon appealed his convictions to the Fourth District Court of Appeal. The District Court affirmed the judgments of conviction as set forth in the attached opinion.

Mr. Pardon argued on appeal that police obtained his statement in violation of his right against self-incrimination (A.2). While at the police station following his arrest, Mr.

Pardon asked a police officer for an attorney (A.2). A few hours later, a detective woke

Mr. Pardon from sleep and, despite confirming that Mr. Pardon had previously requested counsel, sought and obtained Mr. Pardon=s agreement to answer questions relating to the very same charges for which Mr. Pardon had sought counsel (the charges for which he was arrested)(A.2,5). The District Court concluded that the trial court did not err in denying Mr. Pardon=s motion to suppress his subsequent statements to police because an

1 interrogation was not Aimminent@ when Mr. Pardon invoked his right to counsel (A.5). In essence, the District Court held that police are not prohibited from initiating an interrogation and seeking a waiver of Miranda rights unless a defendant=s request for counsel immediately precedes this interrogation.

SUMMARY OF THE ARGUMENT

The decision of the lower court in the instant case expressly and directly conflicts with the decisions in Ault v. State, 866 So. 2d 674 (Fla. 2003), Sapp v. State, 690 So. 2d

581 (Fla. 1997),and State v. Stanley, 754 So. 2d 869 (Fla. 1st DCA 2000) on the issue of whether or not custodial interrogation is Aimminent@1 such as to allow a suspect to invoke his or her right to counsel under the Fifth Amendment and article I, section 9 of the

Florida Constitution. This Court should accept jurisdiction to resolve these conflicts.

ARGUMENT

Following his arrest on the instant charges, Mr. Pardon was taken to the police

1In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held, AIf the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease@ Id. at 473-74 (emph. added). However, in McNeil v. Wisconsin, 501 U.S. 171 (1991), the Court observed in dictum that, AWe have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than >custodial interrogation=.@ Id. at 182, n.3, (1991). Relying explicitly on this footnoted language in McNeil, this and other courts have since held that an individual may not invoke the Fifth Amendment right to counsel unless custodial interrogation has begun or is Aimminent@. See e.g. Ault; Sapp v. State, 690 So. 2d 581 (Fla. 1997).

2 station where he asked a police officer to allow him to speak to his attorney (A.2). A few hours later, a detective advised him of his Miranda rights and Mr. Pardon agreed to answer the detective=s questions regarding the instant charges without the assistance of counsel (A.2,5). The detective knew at this point that Mr. Pardon had recently asked for the assistance of counsel on the very charges the detective was seeking to question him

(A.2). Mr. Pardon moved to suppress his statements to police on the ground that, by initiating interrogation after Mr. Pardon had already invoked his right to counsel, police obtained his statement in violation of his right against self-incrimination guaranteed by the

Fifth and Fourteenth Amendments of the Untied States Constitution and article I, section

9 of the Florida Constitution (A.2). See Arizona v. Roberson, 486 U.S. 675 (1988);

Edwards v. Arizona, 451 U.S. 477 (1981); Traylor v. State, 596 So. 2d 957 (Fla. 1992).

The lower court=s decision conflicts with Ault and Sapp because, critical to the decisions in those cases was the fact that the defendants= each sought to invoke their Fifth

Amendment right to counsel on charges completely unrelated to the charges for which they were later interrogated and which resulted in the statements sought to be suppressed.

See Ault, 866 So. 2d 677-78; Sapp, 690 So. 2d at 583. Unlike Ault and Sapp, Mr. Pardon sought the assistance of counsel on the very same charges for which he was interrogated.

A person in Mr. Pardon=s position, having been arrested and taken to the police station, reasonably would expect police to question him regarding the charges for which he was arrested. In contrast, the defendants in Ault and Sapp had not been arrested on the

3 charges for which they were later interrogated and, therefore, had no reason to expect such interrogation at the time they sought to invoke their right to counsel. The lower court=s decision conflicts with Ault and Sapp because this significant factual distinction precludes their application to the instant case.

The lower court=s decision also conflicts with Ault because the lower court failed to apply what is effectively Ault=s Areasonable suspect@ test to determine whether interrogation was Aimminent.@ In Ault, this Court determined whether interrogation was

Aimminent@ based upon whether or not the defendant had an objective reason to believe questioning was imminent at the time he sought to invoke his rights. See Ault at 683. In the instant case, the lower court ruled interrogation was not imminent solely because questioning did not occur until a few hours after Mr. Pardon requested the assistance of counsel (A.5). Contrary to Ault, the lower court did not consider whether, at the time Mr.

Pardon asked police for the assistance of counsel, he had an objective reason to believe that interrogation was imminent. This Court should grant jurisdiction because the lower court failed to apply the proper test articulated by this Court in Ault. Accepting jurisdiction will give the Court the opportunity to resolve the conflict and to issue a definitive statement of the law to guide lower courts facing this issue in the future.

The lower court did not determine whether, at the time Mr. Pardon asked police for the assistance of counsel, he had an objective reason to believe that interrogation was imminent. Instead, the court applied a straight temporal test:

4 Here, the interrogation of Pardon was not imminent. He was merely being booked into detention, albeit on the same charge on which he was later questioned. Questioning did not occur until a few hours later. Any request for an attorney at this point was an anticipatory invocation of his Miranda rights which would not prevent the officers from later reading him his rights preparatory to interrogation.

(A. p.5)(emph. added). Thus, the only factor the court considered in concluding that interrogation was not imminent was the amount of time (Aa few hours@) that elapsed between when Mr. Pardon asked for counsel and the start of questioning by the detective.

The court failed to apply the test set forth in Ault, which is whether, under the circumstances facing Mr. Pardon at the time he requested counsel, Mr. Pardon had an

Aobjective reason to believe . . . questioning on that case was imminent.@ Ault at 683.

In Ault, the defendant was convicted of two counts of murder and other charges.

He argued that the trial court erred in denying his motion to suppress statements that he made following his arrest on an unrelated attempted sexual battery charge. Prior to his arrest on the unrelated charge, he had voluntarily gone to the police station and talked to police about his knowledge of and contact with the murder victims. Id. at 676. Shortly after the interview, police arrested him on the unrelated charge. Id. He was transported to the jail and signed a form invoking his right to counsel and right to remain silent on the unrelated charge. Id. at 679. At his magistrate hearing held the next day on the unrelated charge, the magistrate ordered police not to speak to Ault without an attorney present regarding the unrelated case in light of Ault=s invocation of rights. Id. After the magistrate

5 issued the order, a detective visited Ault at the jail and elicited a confession to the murders. The detective did not know that Ault had previously invoked counsel on the unrelated charges. Id.

In affirming the denial of Ault=s motion to suppress his confession, this Court held that, at the time Ault invoked his rights, Ano interrogation was imminent@ on the murder case. In reaching this conclusion, the Court reasoned:

Prior to his arrest on the unrelated attempted sexual battery charge, Ault had voluntarily given a statement about the missing girls to Detective Rhodes and was free to leave the Oakland Park Police Department. After this voluntary encounter concluded, Ault was arrested by an officer from the Broward County Sheriff's Department on the unrelated charge. . . . Having already made a statement to the police concerning the girls' disappearance, Ault had no objective reason to believe further questioning on that case was imminent.

Thus, Ault's invocation of rights at the magistrate hearing only precluded the police from questioning Ault about the attempted sexual battery charge, not the unrelated murders.

Id. at 682-3 (emphasis added). This language in Ault establishes that the determination of whether or not interrogation is Aimminent@ turns on an objective assessment of the facts from the suspect=s point of view at the time he attempts to invoke his right against self- incrimination. In other words, a Areasonable suspect@ test. The Court expressly rejected the notion that whether or not interrogation was Aimminent@ turned solely on the amount of time that elapsed between the invocation of rights and the start of interrogation See id. at 682 (A[I]t is clear from the analysis in Sapp that this Court was not concerned with the

6 time between the invocation of rights and the questioning on the unrelated charge.@).

The lower court=s decision in the instant case is grounded exclusively upon the amount of time (a few hours) between the request for counsel and the start of questioning. Under Ault, the court should have focused on whether, based upon an objective view of the facts facing Mr. Pardon at the time he asked for counsel, Mr.

Pardon had reason to believe interrogation was imminent. Mr. Pardon was arrested, taken to the police station, and booked. A person in Mr. Pardon=s position would reasonably believe that questioning by police on the allegations forming the basis for his arrest was imminent. As previously noted, unlike Ault and Sapp, Mr. Pardon sought the assistance of counsel on the charges for which he was interrogated. That police waited a few hours before initiating questioning does not alter the fact that, when Mr. Pardon requested counsel, he had good reason to believe questioning was imminent. Under the test set forth in Ault, which focuses on the suspect=s perspective, not the perspective of police, interrogation was imminent at that time.

Ault=s focus on the suspect=s perspective is critical and logical given that the purpose of Miranda=s procedural safeguards is to protect citizens from the inherent pressure of custodial interrogation. See Miranda. Typically, police do not inform an arrestee in advance that interrogation will begin at a certain time. With the benefit of hindsight, it is quite easy to discern exactly when, in the continuum of unfolding events, interrogation was imminent. However, absent the police explicitly informing the suspect in

7 advance when interrogation will begin, the suspect is left to rely on the suspect=s limited knowledge of the surrounding circumstances to determine whether or not he is about to be interrogated. If an arrestee in custody at the police station has a reasonable basis to believe that interrogation is imminent, then the pressures inherent in custodial interrogation necessarily are, at the very least, starting to weigh on the suspect. Therefore, the suspect should be permitted at that point to invoke his right against self-incrimination.

Because the root concern is the inherent psychological pressure on the suspect, the test to determine whether or not interrogation is imminent must be based on the suspect=s perspective of events as they unfold and not on a hindsight-based determination of the amount of time between the suspect=s assertion of his rights and the start of questioning.

The latter approach, which was utilized by the lower court in this case, ignores

Miranda=s core purpose to protect citizens from the pressure of custodial interrogation.

The decision in the instant case also conflicts with the decision in State v. Stanley,

754 So. 2d 869 (Fla. 1st DCA 2000). In Stanley, the defendant retained an attorney after she learned that a warrant had been issued for her arrest. Id. at 870. The attorney arranged for her to turn herself in to police and advised her not to speak to anyone about the alleged crime (attempted murder) unless the attorney was present. Id. Pursuant to an arrangement by the attorney, the defendant went to the jail accompanied by the attorney=s receptionist and an intern. Id. When the attorney=s staff notified the attorney that the defendant had been taken from the jail to the homicide office, the attorney called the

8 Sheriff=s Office and told a detective that the defendant was not to be questioned in the attorney=s absence. Id. Police thereafter interrogated the defendant. Id.

The court held that police could not lawfully initiate an interview of the defendant in the absence of her attorney because Aher right to counsel at custodial interrogation@ had been invoked. Id. at 875. Although the court=s decision was grounded on the attachment of the defendant=s right to counsel under article I, section 16 of the Florida Constitution and not right against self-incrimination, the court specifically found that, A[i]n any event, interrogation was imminent when Mr. Williams [the attorney] spoke to [the detective on the telephone].@ Stanley, n.8. The First District=s finding that the interrogation was

Aimminent@ prior to the time of the start of the interview directly conflicts with the decision of the court in the instant case. In Stanley, the defendant was in custody and being booked when the defendant, through previously retained counsel, invoked her right to counsel for the purposes of custodial interrogation. This Court should accept jurisdiction in order to resolve the conflict between Stanley and the decision in the instant case.

CONCLUSION

The lower court=s decision in the instant case directly and expressly conflicts with the decisions in Ault, Sapp, and Stanley. This Court should accept jurisdiction to resolve these conflicts.

CERTIFICATE OF SERVICE

9 I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via United States Mail to: AAG Georgina Jiminez-Orosa, Office of the Attorney

General, 1515 N. Flagler Drive (9th Floor), West Palm Beach, FL 33401-3432, on this

___ day of August, 2006.

CERTIFICATE OF COMPLIANCE

The undersigned counsel hereby certifies that this brief complies with the font requirements of Fla. R. App. P. 9.210(a)(2)

Respectfully Submitted,

______MELISSA MINSK DONOHO

500 S.E. 6th Street, Ste. 100 Fort Lauderdale, FL 33301 Tele. (954)523-7949 Florida Bar No. 955700 Attorney for Petitioner

10 IN THE SUPREME COURT OF FLORIDA

CASE NO. ______

LOWER COURT CASE NO. 4D03-853

JAMES BELL,

Petitioner,

-vs-

STATE OF FLORIDA,

Respondent.

ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT

APPENDIX TO BRIEF OF PETITIONER ON JURISDICTION

11 INDEX TO APPENDIX

Copy of opinion in Raymond Pardon v. State of Florida, 4D04-4231 (Fla. 4th DCA April 26, 2006)...... A

12