               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



JUAN JOSE BARRIENTOS, JR.,         )
                                   )
           Appellant,              )
                                   )
v.                                 )                    Case No. 2D14-5870
                                   )
STATE OF FLORIDA,                  )
                                   )
           Appellee.               )
___________________________________)

Opinion filed August 16, 2019.

Appeal from the Circuit Court for Collier
County; Ramiro Mañalich, Judge.

Howard L. Dimmig, II, Public Defender, and
Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Christina Z. Pacheco,
Assistant Attorney General, Tampa, for
Appellee.



KHOUZAM, Chief Judge.

              Juan Jose Barrientos, Jr., appeals his convictions and sentences for first-

degree murder and robbery with a deadly weapon, arguing that the trial court erred in

declining to suppress his statements to police in their entirety. We affirm.
              The record shows that on December 30, 2008, Barrientos—a juvenile at

the time—showed up at a Collier County police substation with his mother and sister to

report that there had been a death at Six L's Farm two days earlier. In the lobby of the

police station and then again after being invited into the sergeant's office, Barrientos

stated that he and his friend had been involved in a man's death. He remembered that

they had disposed of the body, but he could not recall exactly what had happened

because he suffered from blackouts. The detective "let him talk" and did not interrupt or

question him. The police did not have a record of any incidents at Six L's Farm, so they

called major crimes to respond to the scene. Because at this point the police did not

know whether a crime had in fact occurred, the detective did not give Barrientos

Miranda1 warnings. Although Barrientos was free to leave, he was not advised to that

effect.

              Within approximately half an hour, a detective from major crimes arrived to

talk to Barrientos. Barrientos' mother and sister were asked to leave the room, to which

no one objected. When asked for permission to speak to Barrientos, his mother stated,

"[T]his is why I am here." Barrientos was not Mirandized. This second statement took

place from 4:08 p.m. to 4:27 p.m. and was recorded. During this interview, the

detectives still had not determined whether a crime had in fact been committed.

However, Barrientos confessed that his friend Jesus Garza planned to kill a man named

Don Berto—later identified as Roberto Avalos-Jasso—and that Barrientos had helped

him do it. Garza had supplied Barrientos with a knife and socks to cover his hands.

They agreed on a code word to signal when to kill Don Berto. The three men got into


              1Miranda   v. Arizona, 384 U.S. 436 (1966).


                                            -2-
Garza's car, with Don Berto in the front passenger seat and Barrientos in the back.

Garza said the code word, and Barrientos blacked out. The next thing he remembered

was that Don Berto was on the ground outside the car bleeding from his neck.

Barrientos and Garza waited for Don Berto to die, then they grabbed his body and

disposed of it in the woods. After that, they cleaned Garza's car. They disposed of the

socks and clothes they had worn as well as the towels they had used to clean the car.

Garza cleaned the knife and put it back in his house. He also attempted to sell Don

Berto's power saw and burn his wallet. Barrientos gave the detective directions to

where they could find the body and the various pieces of evidence.

             Immediately after this interview, the major crimes detective went to Six L's

Farm to investigate whether Barrientos' story was true. The detective testified that

when he exited the police station, no one was left to guard Barrientos. The detective

found the crime scene and dead body as Barrientos had described. It was at this point

the detective "knew for sure" a crime had been committed and they were looking at

more than just a "suspicious incident."

             The third interview took place later the same day from 7:25 p.m. to 7:59

p.m. Barrientos was given Miranda warnings and signed a waiver. During this

interview, Barrientos stated that he did not want to change his previous statement. He

repeated essentially the same story that he had already given. Barrientos did make

additional incriminating statements as the interview continued, but these statements

were suppressed based on inappropriate comments made by the detective. Although

his motion to suppress was granted in part, Barrientos contends that both his second

and third statements should have been suppressed in their entirety.




                                          -3-
             The Second Statement

             Barrientos argues that his second statement to police should have been

suppressed because it was made under custodial interrogation without Miranda

warnings. Considering the unique circumstances surrounding this statement, however,

we conclude that Barrientos was not in custody at the time and that therefore Miranda

warnings were not yet required.

             "Miranda warnings are not required for every potential suspect." State v.

Thompson, 193 So. 3d 916, 920 (Fla. 2d DCA 2016) (citing Wright v. State, 161 So. 3d

442, 448 (Fla. 5th DCA 2014)). Rather, "[t]he warnings apply only to custodial

interrogations," where an individual is both in custody and under interrogation. Id.

"Absent one or the other, Miranda warnings are not required." Id. (quoting Davis v.

State, 698 So. 2d 1182, 1188 (Fla. 1997)).

             For purposes of Miranda, custody includes not only formal arrest but also

"any restraint on freedom of movement [to] the degree associated with formal arrest."

Id. (quoting Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999)). In determining whether

a suspect is in custody, courts apply a reasonable person test, focusing on how a

reasonable person in the suspect's position would perceive the situation—not on the

unarticulated plan of law enforcement. Id. "Miranda warnings are not required simply

because the questioning takes place in the station house, or because the questioned

person is one whom the police suspect." Id. (quoting California v. Beheler, 463 U.S.

1121, 1125 (1983)).

             "If a reasonable person in the suspect's position would understand that the

police have probable cause to arrest the suspect for a serious crime such as murder or




                                           -4-
kidnapping, that circumstance militates strongly toward the conclusion that the suspect

is in custody." State v. Pitts, 936 So. 2d 1111, 1128 (Fla. 2d DCA 2006) (footnotes

omitted). "A reasonable person understands that when a suspect confesses to

committing a serious criminal act, the police ordinarily will not permit the suspect to go

free." Id. at 1134. Therefore, a confession can transform an interrogation from

noncustodial to custodial. Id.

              We consider four nonexclusive factors in evaluating whether the suspect

is in custody for purposes of Miranda: "(1) the manner in which the police summon the

suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the

extent to which the suspect is confronted with evidence of her guilt; and (4) whether the

suspect is informed that she is free to leave." Thompson, 193 So. 3d at 920

(quoting Ramirez, 739 So. 2d at 574). The ultimate inquiry is "whether, under a totality

of the circumstances, 'a reasonable person in the suspect's position would feel a

restraint of his or her freedom of movement, fairly characterized, so that the suspect

would not feel free to leave or to terminate the encounter with police.' " Id.

(quoting Ross v. State, 45 So. 3d 403, 415 (Fla. 2010)).

              Applying this test to the facts of this case, we conclude that Barrientos

was not in custody at the time he made the second statement. The record shows that

Barrientos voluntarily came to the police station to provide information about his crimes.

He was not summoned for questioning. Even though Barrientos implicated himself in

very serious criminal conduct, the police did not know whether his story was true until

they investigated Barrientos' claims. Without confirmation that a man was actually

dead, much less that he had been murdered, Barrientos could not have been




                                            -5-
considered a suspect in that murder. Moreover, Barrientos was not confronted with

evidence of his guilt—the police did not yet have such evidence. The interview was

short (approximately twenty minutes) and casual. Barrientos' mother gave permission

for the detectives to speak with him. The interview began mostly with Barrientos

speaking in narrative form. The detective later asked clarifying questions but did not

pressure, coerce, or intimidate Barrientos. Barrientos' freedom of movement was not

restricted. He was not handcuffed, and he was free to leave. According to the

detective, no one was left to guard Barrientos when the detective left the station to

investigate his story. Rather, Barrientos and his family agreed to wait at the station

while the detective investigated.

              Under these circumstances, we cannot say that Barrientos' freedom of

movement was restrained to the degree associated with formal arrest at the time he

made the second statement. Because he was not in custody, Miranda warnings were

not required and the trial court properly denied Barrientos' motion to suppress as to this

statement.

              The Third Statement

              Barrientos argues that the trial court erred in failing to suppress his third

statement in its entirety because his Miranda waiver was rendered involuntary by law

enforcement's deliberate delay in giving the warning. It is important to note that most of

this statement was indeed suppressed because the court found that the detective made

improper comments.

              "[W]here a defendant makes a statement after receiving a Miranda

warning which confirms an earlier voluntary statement made before Miranda warnings




                                            -6-
were given, the post-Miranda statement is admissible if the police officer did not engage

in a calculated two-step strategy to undermine the requirements of Miranda." Dyer v.

State, 16 So. 3d 990, 991 (Fla. 3d DCA 2009); Jump v. State, 983 So. 2d 726, 727 (Fla.

1st DCA 2008); see also State v. Lebron, 979 So. 2d 1093, 1097 (Fla. 3d DCA

2008); Pitts, 936 So. 2d at 1135. "[A] suspect who has once responded to unwarned

yet uncoercive questioning is not thereby disabled from waiving his rights and

confessing after he has been given the requisite Miranda warnings." Dyer, 16 So. 3d at

991 (quoting Oregon v. Elstad, 470 U.S. 298, 318 (1985)).

              As already discussed, the detectives were not required to Mirandize

Barrientos at the time he made his second statement. There is no evidence to suggest

that the detectives strategically delayed providing Miranda warnings in order to secure a

confession. Rather, between the second and third statements the detectives took time

to investigate whether there was any truth to Barrientos' story and whether a crime had

in fact been committed. Once they realized that a crime had been committed, they

Mirandized Barrientos before proceeding with questioning. Accordingly, we conclude

that the trial court properly declined to suppress the beginning of the third statement.

              Because the trial court did not err in denying, in part, Barrientos' motion to

suppress, we affirm.

              Affirmed.


NORTHCUTT and KELLY, JJ., Concur.




                                            -7-
