       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                      MICHAEL TYRONE MOORE,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D18-1083

                           [ February 5, 2020 ]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew Siegel, Judge; L.T. Case No. 14006988CF10A.

   Carey Haughwout, Public Defender, and Logan Mohs, Assistant Public
Defender, West Palm Beach, for appellant.

  Ashley Moody, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

   Appellant, Michael Moore, appeals his conviction and sentence for
burglary of a dwelling. Because we conclude that appellant’s confession
was involuntary and should have been suppressed, we reverse appellant’s
conviction and remand for a new trial.

    On the morning of May 5, 2014, the victim came home to her apartment
and walked into her bedroom. A man jumped out of the bedroom closet,
hit her in the head with his hand or an object, and then fled. The intruder
appeared to have entered the apartment through the bedroom window.
Appellant’s DNA was found on a swab taken from the victim’s bedroom
windowsill.

    Appellant was interrogated for several hours by law enforcement
officers. During the interrogation, appellant repeatedly denied that he
went inside the victim’s apartment. The officers made multiple comments
about helping appellant or speaking to a judge about his case. Some of
the officers’ comments could be construed as permissible attempts to
confront appellant with evidence of his guilt, such as the following: “So
how do we explain to a judge that your DNA is in this lady’s apartment?”

    However, before appellant confessed, the officers also made multiple
vague offers to help appellant, often implying that it would benefit him to
“come clean” or that it would be worse for him if he denied culpability.
One detective told appellant that “this is the one and only chance you get”
if appellant wanted the detective to tell the judge about his cooperation.
The detective also suggested that the guys who say things like “I don’t
know what you’re talking about” do worse in court. The detective also
implied that he had the authority to amend the charges: “So, help me help
you, dude . . .. So, help me help you. I [c]an always amend this.”

   Without quoting the interrogation at length, we note that the officers
made constant vague offers to help appellant yet failed to explain or clarify
the limits of their authority.

    About two-and-a-half hours into the interrogation, when a detective
asked appellant to tell him “what part of this I have wrong so that, maybe,
we can change it,” appellant stated: “Let me talk to you as a man. Fuck
all of that I don’t know nothing.”

   Appellant eventually began to make incriminating statements.
Appellant admitted that he had entered the victim’s apartment through
the window, but claimed that another man was with him. Appellant stated
that when the victim came home, he hid in a hallway closet and left the
apartment. Appellant denied hitting the victim and claimed that the other
man probably did it.

  Appellant later made clear that he was implicating himself because he
wanted “some form of leniency” and didn’t want to be the guy who says, “I
don’t know.” The detective replied: “Well, that’s what I can do for you.
That’s why I was telling you – that’s – how I can help you.”

  The police continued to interrogate appellant for several more hours,
questioning him about the May 2014 burglary as well as other burglaries.

   Appellant moved to suppress the interrogation, but the trial court found
that appellant’s confession was voluntary and denied the motion.
Appellant’s interrogation was admitted into evidence at trial.

  The jury found appellant guilty of burglary of a dwelling. Appellant now
appeals from his conviction and sentence.

   On appeal, appellant raises multiple issues, but we need only address

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appellant’s argument that his confession was involuntary.

   An appellate court accords a presumption of correctness to the trial
court’s factual findings in connection with a motion to suppress, but
independently reviews mixed questions of law and fact that ultimately
determine constitutional issues. Connor v. State, 803 So. 2d 598, 608 (Fla.
2001). The issue of whether an interrogator’s statements constitute
coercion presents a question of law reviewed de novo. State v. Jackson,
120 So. 3d 88, 90–91 (Fla. 4th DCA 2013).

    Under the due process clause, “[a] confession is inadmissible if it is
involuntary.” Martin v. State, 107 So. 3d 281, 298 (Fla. 2012). The
determination of whether a confession was voluntary is based on the
totality of the circumstances. Arizona v. Fulminante, 499 U.S. 279, 285–
87 (1991). 1 A confession is voluntary if “it was the product of free will and
rational choice.” Martin, 107 So. 3d at 298. “Thus, whether a confession
is admissible depends on (1) whether the interrogating officers engaged in
coercive activity, and (2) whether that activity was sufficient to overcome
the free will of the defendant.” Baker v. State, 71 So. 3d 802, 814 (Fla.
2011).

   “In assessing the totality of the circumstances, a court must consider
any promises or misrepresentations made by the interrogating officers.”
Martin, 107 So. 3d at 298. “Before finding the confession inadmissible,
Florida courts have repeatedly required that the alleged promise ‘induce,’
be ‘in return for,’ or be a ‘quid pro quo’ for the confession.” Blake v. State,
972 So. 2d 839, 844 (Fla. 2007).

   The absence of an express “quid pro quo” bargain does not, however,
preclude a finding of coercion. See Ramirez v. State, 15 So. 3d 852, 856
(Fla. 1st DCA 2009). Although some older Florida cases have stated that
police “statements suggesting leniency are only objectionable if they
establish an express quid pro quo bargain for confession,” 2 the Florida
Supreme Court has since explained that more recent U.S. Supreme Court

1 In Bram v. United States, 168 U.S. 532, 542–43 (1897), the United States
Supreme Court stated that a confession cannot be obtained by “any direct or
implied promises, however slight.” However, in Arizona v. Fulminate, 499 U.S.
279, 285 (1991), the Court noted that this passage from Bram “does not state the
standard for determining the voluntariness of a confession” under current
precedent.
2 See State v. Moore, 530 So. 2d 349, 350 (Fla. 2d DCA 1988); see also Bruno v.

State, 574 So. 2d 76, 79–80 (Fla. 1991) (citing Moore for this proposition);
Philmore v. State, 820 So. 2d 919, 928 (Fla. 2002) (quoting Bruno for this
proposition).

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decisions “render this authority questionable at best.” Martin, 107 So. 3d
at 314. Instead, the proper analysis requires an evaluation of the totality
of the circumstances. Id.

     A statement is involuntary if, considering the totality of the
circumstances, the court concludes that “the defendant was unable to
make a choice free from unrealistic hope and delusions as to his true
position, due to the officer’s conduct.” Ramirez, 15 So. 3d at 856. For
example, in Ramirez, the First District Court of Appeal held that the
defendant’s confession was involuntary where the detective made
“constant offers of unspecified help” and failed to explain the limits of his
authority, telling the defendant that “[t]his is your only chance” and that
“[i]f you want us to help you, you need to help us also.” Id. at 856–57.

    Similarly, in Day v. State, 29 So. 3d 1178, 1182 (Fla. 4th DCA 2010),
our court held that, under the totality of the circumstances, the
investigator’s “many offers of help” and statements implying authority to
influence the process rendered the defendant’s confession inadmissible as
improper “fruits of hope.” Relying on Ramirez, we explained: “The
investigator’s constant offers of help, followed by requests for information,
and the lack of clarity on the real limits of the investigator’s authority
certainly added to appellant’s ‘unrealistic hope’ that the investigator would
truly ‘help him.’” Id.

   Nonetheless, merely advising a suspect of potential penalties and
encouraging a suspect to cooperate does not amount to coercive conduct.
Martin, 107 So. 3d at 305. Neither does merely offering to make the
suspect’s cooperation known to prosecuting authorities or to the judge,
without more, render a confession involuntary. See Maqueira v. State, 588
So. 2d 221, 223 (Fla. 1991); Parker v. State, 845 So. 2d 242, 243 (Fla. 5th
DCA 2003).

    In Martin, for example, our supreme court held that a confession was
voluntary where, although the detectives offered to convey the defendant’s
cooperation to the State, the detectives also explicitly told him that they
could not make any promises. 107 So. 3d at 312–13. The supreme court
explained that the detectives “clearly explained to [the defendant] the limits
of their authority and did not commit an error similar to that in Day or
Ramirez.” Id. at 312. However, the supreme court was also careful to note
that the techniques the detectives used in Martin presented “the very outer
limit as to what tactics law enforcement may employ when performing a
custodial interrogation.” Id. at 298.



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    Under the totality of the circumstances in this case, we conclude that
appellant’s confession was involuntary. The interrogation tactics in this
case were nearly identical to those that resulted in involuntary confessions
in Day and Ramirez. Here, just as in Day, the “constant offers of help,
followed by requests for information, and the lack of clarity on the real
limits of the [officers’] authority certainly added to appellant’s ‘unrealistic
hope’ that the [officers] would truly ‘help him.’” 29 So. 3d at 1182.

   As the State correctly points out, many of the interrogators’ most
problematic statements occurred well after appellant had already
confessed to key details of the burglary. We thus need not focus on any of
the officers’ statements that occurred after appellant began to implicate
himself. However, close scrutiny of the officers’ statements that occurred
before appellant began to confess leads us to conclude that appellant’s
statement was involuntary.

   Here, as in Day and Ramirez, the officers never explained the limits on
their authority to help appellant. The officers gave constant offers of
unspecified help when they were requesting information from appellant,
told appellant that the interview was his “only chance” to come clean so
that they could tell the judge about his cooperation, warned appellant that
the guys who say things like “I don’t know what you’re talking about” do
worse in court, and even implied significant authority to amend the
charges.

    Viewing the totality of the officers’ statements that led to the confession,
we conclude that appellant’s confession was the product of the officers
giving appellant an unrealistic hope of leniency and delusions as to his
true position. The fact that appellant did not confess to striking the victim
is not dispositive on the question of whether his will was overborne. The
officers’ tactics clearly induced appellant to make incriminating
statements. Their numerous offers of help, suggestions of leniency if
appellant cooperated, implied threats of increased punishment if he did
not confess, and statements implying authority to influence the process
rendered appellant’s confession inadmissible.

   We cannot say that the erroneous admission of appellant’s confession
was harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).
Accordingly, we reverse the denial of appellant’s motion to suppress and
remand for a new trial. This disposition renders it unnecessary for us to
reach the other issues appellant raises on appeal.

   Reversed and Remanded.


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MAY and DAMOORGIAN, JJ., concur.

                         *         *      *

  Not final until disposition of timely filed motion for rehearing.




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