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


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT

ANDRE LAMONT WILSON, JR.,                     )
                                              )
              Appellant,                      )
                                              )
v.                                            )       Case No. 2D15-1730
                                              )
STATE OF FLORIDA,                             )
                                              )
              Appellee.                       )
                                              )

Opinion filed April 4, 2018.

Appeal from the Circuit Court for Highlands
County; J. Dale Durrance, Judge.

Howard L. Dimmig, II, Public Defender,
and Carol J.Y. Wilson, Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Brandon R. Christian,
Assistant Attorney General, Tampa, for
Appellee.



CASANUEVA, Judge.

              Andre Lamont Wilson, Jr., appeals his judgments for burglary of an

occupied structure while armed with a firearm, robbery with a firearm, aggravated

battery with a firearm, and two counts of armed kidnapping with a firearm. Mr. Wilson

was sentenced to fifteen years in prison on the aggravated battery count and
consecutive life sentences with a ten-year minimum mandatory term for the remaining

counts. Each conviction factually stemmed from a robbery of a Pizza Hut on December

12, 2012.

               The issue presented by Mr. Wilson is whether the conduct of law

enforcement officers during his interrogation violated protections afforded him by the

Constitution of the United States and the Constitution of the State of Florida and, more

specifically, those protections provided by Miranda v. Arizona, 384 U.S. 436 (1966).

Based on our review of the record, including the audio and video recording of the

interrogation, we conclude that the confession given by Mr. Wilson, elicited prior to the

administration of Miranda warnings, was obtained improperly. The trial court erred in

denying Mr. Wilson's motion to suppress, and this error was not harmless.

               We are required to reverse and remand for further proceedings and note

that "[t]he disadvantage of the Miranda rule is that statements which may be by no

means involuntary, made by a defendant who is aware of his 'rights,' may nonetheless

be excluded and a guilty defendant go free as a result." Dickerson v. United States, 530

U.S. 428, 444 (2000).

                         I. FACTS AND PROCEDURAL BACKGROUND

               On December 18, 2012, Mr. Wilson agreed to meet with officers of the

Sebring Police Department at a park near his home. He had contacted the officers at

the request of a friend. When the officers arrived at the park, they asked if Mr. Wilson

would be willing to talk with them at the station. He agreed, and the officers gave him a

ride in their vehicle.




                                           -2-
             At the beginning of the interview, Mr. Wilson did not know what the officers

wanted to discuss with him. Mr. Wilson stated that he needed to leave by 3:30 p.m. to

meet someone. The officer responded, "[Y]ou won't be here that long. And like I said,

we'll ride you home whenever you're ready." They also told him where the exits were

and told him he was free to leave at any time.

             The interview was held in a small room with a closed door at the station. It

began around 2 p.m. and ended just after 5:30 p.m. Minutes into the questioning, Mr.

Wilson was told, "Well, the reason we're here to talk to you today is we've had a series

of robberies in which you have become a suspect."

             Mr. Wilson denied any involvement, but the officers were not deterred.

The officers stated that they had collected evidence from the scene and that they knew

he was involved. The officers stated they were willing to work with him, but he needed

to "stop playing games" and "start either coming clean or you're going to end up taking

the ride." The officers pressed him with increasing details of evidence implicating him in

the crime, including DNA and fingerprints found on items linked to the robbery. These

items were found at the house of his friend, Terrell. They stated they had GPS data and

phone call recordings and could place Mr. Wilson at that house just after the robbery.

After some time, Mr. Wilson acknowledged he may have touched a gun that was at the

friend's house, but he denied using the gun, denied owning a cell phone, and denied

any involvement in the robbery.

             The officers responded that it was obvious he was not telling the truth

"because the gun that you've tied yourself to was used in an armed robbery. . . . So all

this stuff that you're giving is just tying you more and more and more to the armed




                                           -3-
robbery." They went on to tell him, "I can look you in the eye and without a shadow of a

doubt, all right, through forensics and DNA and other evidence and other statements put

you in Pizza Hut" at the time of the robbery. "I know the last thing you want is another

armed robbery with a firearm charge. . . . Without us talking to the State Attorney, that

will send you up for a number of Christmases and a number of your birthdays."

              They told him that a shot was fired from a gun during the robbery, making

it "a 10/20/Life1 case." They also stated that they had his DNA on a gun that was fired

and that they recovered a projectile and casing from the scene. After further denials,

one officer stated: "We know pretty much what's happened. All right. We wanted to

give you the opportunity to be forthcoming, so we can tell the State Attorney that you

need a second chance." After explaining that they had "a stack of evidence" against Mr.

Wilson, one officer stated: "When it comes down, it's going to come down so hard until

there's nothing that we can do for you. . . . We're giving you the opportunity to continue

your life."

              Mr. Wilson was told that they could have arrested him already and, if he

continued to deny his involvement, "when we present it to the State Attorney, all right,

they are going to issue a warrant for your arrest. And you're going to go to jail."

However, they offered him a way out and stated they were willing to recommend

probation if he would tell them the truth, but this was a one-time offer.

              The officers explained that they believed he was the driver for the robbery

and they could track him to Terrell's house where the stolen money and employees' cell

phones were found, along with face masks and guns. After giving him a bottle of water,



              1See   § 775.087(2)(a), Fla. Stat. (2012).


                                            -4-
they explained that they believed he was worth saving, and so they wanted to give him

a second chance at life if he would tell the truth. The officers then explained that they

would be willing to recommend that his prior robbery charge and the instant case be

lumped together and that he receive a total of eight years of probation. When Mr.

Wilson questioned the impact of a recommendation, one officer reassured him: "I've

been a cop 16 years. . . . I have never seen the State not go with the recommendations

that we make." The officers agreed to "stand up" for Mr. Wilson and recommend no

prison time. When Mr. Wilson stated, "I don't want to go to prison," one officer offered

to put on the record, "I promise you I will go to the State Attorney and recommend that

you catch probation. No prison time." The other two officers agreed, and they told him

that they needed to get the truth from him that day: "In other words, you can't leave here

today and think about it and call us tomorrow. . . . [I]t's all or nothing right here right

now."

              Mr. Wilson expressed interest in the plan, asked for a pen and paper to

get the officers' names, and then asked to use the phone. Mr. Wilson stated, "I just

want to get my lawyer's opinion on this. . . . I just want to get my lawyer's opinion of it."

The officer said that was fine, it was his right, but it would end the discussion. Mr.

Wilson said, "I just want to just like see if that's—that's even possible what you guys are

telling me." Then the officer presented an alternative to Mr. Wilson calling his lawyer,

stating: "I'll do you one better. . . . I'll bring you our boss in. All right. And you can ask

him."

              The other officers exited, and the boss came in and spent some time

answering Mr. Wilson's questions one-on-one. He explained that the officers would




                                             -5-
make a recommendation based on his cooperation and, while they could not give a

guarantee, he could very possibly get house arrest. He explained that he was getting

this offer before any of the other suspects and told Mr. Wilson that it could not hurt him

in any way to work with the officers.

              At the end of this consultation, Mr. Wilson seemed reassured and stated,

"I just wanted to get it from another opinion." The sergeant reiterated, "You ain't got

nothing to lose." The steps of the plea negotiations were explained, the three officers

further assured Mr. Wilson, "[W]e're going to go to bat for you," and Mr. Wilson then

gave his confession that was later placed, as evidence, before the jury.

              After giving his recorded statement confessing to his involvement in the

armed robbery, Mr. Wilson was in fact permitted to go home, and it was not until a

follow-up interview the next day that Mr. Wilson was advised of his constitutional rights,

commonly known as the Miranda warnings.

              On April 2, 2014, Mr. Wilson filed a motion to suppress his statement,

asserting that it was obtained during an improper custodial interrogation, that it was

obtained by coercion, and that he had invoked his right to counsel which was ignored.

Counsel for Mr. Wilson and for the State stipulated that the trial court would review the

recording of the interview off the record and thereafter rule on the motion to suppress.

Later, when asked by the parties if the trial court had an opportunity to review that

evidence, the trial court indicated that it had, and the motion to suppress was denied

with no oral or written findings of fact.

              The case went to trial in March 2015, and the State presented testimony

that three masked men with guns robbed the Sebring Pizza Hut. Police located cash, a




                                            -6-
key from the restaurant, guns, and the employees' cell phones at Terrell's house. They

found a projectile and casing at the Pizza Hut matching one of the guns, but no prints of

value were found on the firearms or plastic bags containing the stolen items. Over

defense objection, the State played for the jury Mr. Wilson's statement in which he

admitted that he drove to the Pizza Hut in a mask, held a revolver, got a worker to open

the back door, and stayed at the back of the restaurant while two others went inside to

get the money. None of the evidence referenced during the interrogation was used to

link Mr. Wilson to the robbery, and none of the witnesses identified him as being a

participant in the robbery or at Terrell's house that night; the State's case was based

primarily on Mr. Wilson's confession.

                                        II. ANALYSIS

                                  A. Standard of Review

              In reviewing a trial court's decision on a motion to suppress, we afford a

presumption of correctness to the trial court's findings of facts, but the application of

those facts to the law is reviewed de novo. Wyche v. State, 987 So. 2d 23, 25 (Fla.

2008). This court must interpret the evidence and the reasonable inferences to be

drawn from the evidence in a manner most favorable to sustaining the trial court's ruling.

Martin v. State, 107 So. 3d 281, 298 (Fla. 2012) (citing Pagan v. State, 830 So. 2d 792,

806 (Fla. 2002)).

                                B. Custodial Interrogation

              Here, the motion to suppress sought to exclude the statements made by

Mr. Wilson while being questioned at the station. We pause to note that neither the

United States Constitution nor the Florida Constitution requires the exclusion of all




                                            -7-
statements of confession made by an accused. "Indeed, far from being prohibited by

the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently

desirable." United States v. Washington, 431 U.S. 181, 187 (1977). What is prohibited

is the admission of governmentally compelled statements.

              We look to the language of the Fifth Amendment to the Constitution of the

United States to determine the parameters of its field of protection. It provides, in

pertinent part, that "[n]o person . . . shall be compelled in any criminal case to be a

witness against himself." U.S. Const. Amend. V. These protections apply to the States

by virtue of the Fourteenth Amendment. Maryland v. Shatzer, 559 U.S. 98, 103 (2010)

(citing Malloy v. Hogan, 378 U.S. 1, 6 (1964)). The protection against self-incrimination

is also set forth in article I, section 9, of the Florida Constitution, and this fundamental

right must be broadly construed. Myers v. State, 211 So. 3d 962, 966 (Fla. 2017) (citing

State v. Horwitz, 191 So. 3d 429, 439 (Fla. 2016)).

              "Statements obtained from a defendant in violation of the right against

self-incrimination (also known as a 'privilege') cannot be used against the defendant at

trial." Cuervo v. State, 967 So. 2d 155, 160 (Fla. 2007). A suspect who is subjected to

a custodial interrogation must be made aware of his or her constitutional right against

self-incrimination, and this is accomplished through Miranda warnings. Myers, 211 So.

3d at 971; see Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999) (noting Miranda

enunciates a "bright-line rule to guard against compulsion and the coercive nature and

atmosphere of custodial interrogation"). "Under Miranda . . . , statements made to the

police in the course of a 'custodial interrogation' must be suppressed if the police have

not informed the suspect of his constitutional rights prior to the interrogation." State v.




                                             -8-
Pitts, 936 So. 2d 1111, 1123 (Fla. 2d DCA 2006); see also State v. McAdams, 193 So.

3d 824, 833 (Fla. 2016) (citing Missouri v. Seibert, 542 U.S. 600, 608 (2004), and

Deviney v. State, 112 So. 3d 57, 79 (Fla. 2013)).

             In Oregon v. Elstad, 470 U.S. 298, 306-07 (1985), the Supreme Court set

forth the operation of the Miranda decision:

             The Miranda exclusionary rule, however, serves the Fifth
             Amendment and sweeps more broadly than the Fifth
             Amendment itself. It may be triggered even in the absence
             of a Fifth Amendment violation. The Fifth Amendment
             prohibits use by the prosecution in its case in chief only of
             compelled testimony. Failure to administer Miranda
             warnings creates a presumption of compulsion.
             Consequently, unwarned statements that are otherwise
             voluntary within the meaning of the Fifth Amendment must
             nevertheless be excluded from evidence under Miranda.
             Thus, in the individual case, Miranda's preventive medicine
             provides a remedy even to the defendant who has suffered
             no identifiable constitutional harm.

(Footnote omitted.) It is the State's burden to prove that a statement was voluntarily

made. See Ross v. State, 45 So. 3d 403, 418 (Fla. 2010) (citing Ramirez, 739 So. 2d at

573).

             Because Miranda warnings are necessary only when a suspect undergoes

a custodial interrogation, we must first determine whether Mr. Wilson was in custody

and, if so, whether he was interrogated while in custody. See Hunter v. State, 8 So. 3d

1052, 1063 (Fla. 2008). We acknowledge that in this area of law, "while precedent

remains a guide, custody determinations are heavily fact dependent." McAdams, 193

So. 3d at 833 (citing Rigterink v. State, 2 So. 3d 221, 246 (Fla. 2009), vacated on other

grounds, 559 U.S. 965 (2010)). Nonetheless, we continue to examine precedent as it




                                           -9-
sheds probative light on our factual examination. The element of interrogation is more

easily determined in this case, and we will consider it first.

                                      1. Interrogation

              We observe that an interrogation takes place "when a state agent asks

questions or engages in actions that a reasonable person would conclude are intended

to lead to an incriminating response." Id. Based on our review of the record, we

conclude that this standard was clearly met. The motivating purpose of the interview

right from the start was to obtain incriminating evidence regarding Mr. Wilson's

involvement in the robbery. Officers made promises of leniency, made representations

that he did not need an attorney and that he could rely upon the good offices of the

police department, and used other techniques to obtain the desired incriminating

evidence. Ultimately, Mr. Wilson did incriminate himself. Because this standard was

unequivocally met, we turn to the custodial determination.

                                         2. Custody

              To determine whether a person is in custody as contemplated by Miranda,

both the United States Supreme Court and the Supreme Court of Florida have adopted

an objective, reasonable person framework. The federal standard has been articulated

as "how a reasonable person in the suspect's situation would perceive his

circumstances." Yarborough v. Alvarado, 541 U.S. 652, 662 (2004). In Connor v.

State, 803 So. 2d 598, 605 (Fla. 2001), the Florida Supreme Court said that to meet the

standard it "must be evident that, under the totality of the circumstances, a reasonable

person in the suspect's position would feel a restraint of his or her freedom of




                                            - 10 -
movement, fairly characterized, so that the suspect would not feel free to leave or to

terminate the encounter with police."

               When determining whether a person is in custody, courts must examine:

"(1) the 'circumstances surrounding the interrogation;' and (2) 'given those

circumstances, would a reasonable person have felt he or she was not at liberty to

terminate the interrogation and leave.' " McAdams, 193 So. 3d at 833 (quoting Ross, 45

So. 3d at 415); see also Caldwell v. State, 41 So. 3d 188, 197 (Fla. 2010) (stating "[t]he

standard for 'custody' is whether, based on the totality of the circumstances, a

reasonable person would feel that his freedom of movement has been restricted to a

degree associated with an actual arrest").

               The question of whether Mr. Wilson was "in custody" is a mixed question

of law and fact, which we review using a two-step process. Connor, 803 So. 2d at 605.

This court is required to "defer to a trial court's findings of fact as long as they are

supported by competent, substantial evidence, but we review de novo a trial court's

application of the law to the historical facts." Ross, 45 So. 3d at 414. As previously

observed, the trial court did not articulate any findings of fact. However, we are able to

review the same evidence reviewed and relied upon by the court in making its ruling,

i.e., the video recording of Mr. Wilson's interview.

               To evaluate how a "reasonable person" in Mr. Wilson's position would

have perceived the situation, we consider the four factors set forth in Ramirez, 739 So.

2d at 574. In doing so, the point of perception is not that of the inquiring law

enforcement officer but that of a reasonable person in the suspect's position. The four

factors are:




                                             - 11 -
              (1) the manner in which 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 his or her guilt; (4) whether the
              suspect is informed that he or she is free to leave the place
              of questioning.

Id.

              The first factor weighs in the State's favor. Mr. Wilson agreed to meet the

officers at a park near his home. At the officers' request, Mr. Wilson, who was barefoot,

accepted a ride to the station in the officers' vehicle. He was not handcuffed, and they

assured him that they would bring him back to the park at the conclusion of the

interview. After reviewing the record, we conclude that Mr. Wilson voluntarily agreed to

be transported for the interview.

              We next examine the second factor—the purpose, place, and manner of

the questioning. The place of questioning was a small room at the police station. While

questioning at the police station is not determinative of whether the interrogation was

"custodial," it is certainly consistent with a custodial interrogation. See Pitts, 936 So. 2d

at 1126 ("Most custodial interrogations take place in a police station, and a defendant's

presence in a station while subjected to questioning undoubtedly can have a bearing on

how a reasonable person in the defendant's situation views his status."). The record

further discloses that multiple officers entered and exited the room throughout the

interrogation, and multiple officers were present for almost all of the interview.

              As for purpose and manner, it is clear that the purpose of the questioning

from the inception of the interview was to pressure Mr. Wilson to explain his

involvement in the Pizza Hut robbery and to obtain a confession. The manner of the

questioning supports this conclusion. Questioning was confrontational and accusatorial,



                                            - 12 -
and Mr. Wilson was pressured throughout the interview to "tell the truth" and explain his

involvement in the robbery. The officers were clearly frustrated by Mr. Wilson's

continued denial as to any involvement or knowledge, and they made it clear that this

was his one opportunity to cooperate with them and receive their assistance by

admitting his involvement.

              In Ross, 45 So. 3d at 415, the suspect was initially asked to give a

statement and then was questioned about inconsistencies in his story. He was then

confronted with evidence against him, and "the detective's focus shifted from merely

questioning a witness to attempting to obtain a confession and pressuring Ross to admit

his involvement in the crime. The detective repeatedly told Ross that he knew Ross

committed the crime and the only question remaining was why." Id. at 415-16. Ross

was questioned in a highly confrontational and accusatorial manner for hours in a small

room at the station by at least two officers. When Ross asked for a smoke break, he

was told to smoke in the room and questioning continued. The supreme court

concluded that, as to this Ramirez factor, the record clearly supported a conclusion that

Ross was in custody.

              Likewise, the questioning of Mr. Wilson was confrontational and

accusatorial almost from the start of the interview. They told him right out of the gate

that he was a suspect in a series of robberies, and they specifically mentioned an

armed robbery at a Pizza Hut on December 12, 2012. When he claimed to have no

knowledge of or involvement in the robbery, the officers told him they had a stack of

evidence against him, including DNA, fingerprints, ballistics, and voice forensics, and

they said unequivocally that they could place him at the Pizza Hut during the robbery.




                                           - 13 -
             In response to continued denials of any involvement, the officers stated

that they knew he was lying, told him to stop playing games, and reminded him that this

was a 10/20/Life crime while he was awaiting sentencing on another robbery charge.

They told him that they had sufficient evidence to arrest him already. Mr. Wilson was

told on more than one occasion that only one of the perpetrators would get the benefit

of cooperation. The final effect was to obtain a confession. We conclude that this factor

weighs against the State and in support of a conclusion that Mr. Wilson was in custody

at the time he made his confession.

             The third factor to consider is the extent to which Mr. Wilson was

confronted with evidence of his guilt, and we note that the circumstances of this factor

can weigh heavily in the determination of whether the suspect was in custody. Pitts,

936 So. 2d at 1127. The importance of this factor was explained in Pitts as follows:

             A reasonable person in the situation of a suspect who has
             been "confronted with evidence strongly suggesting his guilt"
             may well understand that such evidence means that the
             police will not allow the suspect to go on his way. . . . 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 kidnapping,
             that circumstance militates strongly toward the conclusion
             that the suspect is in custody.

Id. at 1127-28 (footnote omitted).

             Here, the transcript reveals the frequent and extensive use of this

information throughout the interview, some of which we have already set forth. As

noted in the discussion of the second factor, the officers repeatedly informed Mr. Wilson

that they had physical evidence against him, including DNA and fingerprints, and

fingerprints and DNA "don't lie." They explained that they had a gun with his DNA on it




                                          - 14 -
and a casing that proved that the gun had been fired at the Pizza Hut; they had ski

masks that a witness confirmed were used during the robbery, and they were certain his

DNA would be on one; and they had GPS data and cell phone calls confirming his

involvement. When he offered an innocent explanation for why his fingerprints might be

found on a gun at Terrell's house, the officers told him that he was just tying himself

more and more to the armed robbery.

              In McAdams, the defendant was similarly presented with evidence of his

guilt, including DNA evidence. 193 So. 3d at 843. When the defendant posited an

innocent explanation, the detective responded immediately that his explanation was

inconsistent with the evidence. Further, the detective "created an atmosphere of

inevitability when he told McAdams that he would not be allowed a couple of days to

think about the situation." Id.

              As in McAdams, Mr. Wilson was confronted with evidence that strongly

suggested his guilt, and this continued despite his repeated denials. While "the

significance of this factor may be diminished if the police do not express their belief in

the suspect's guilt or do nothing to refute the suspect's offered explanation of

innocence," Meredith v. State, 964 So. 2d 247, 251 (Fla. 4th DCA 2007) (citing

Stansbury v. California, 511 U.S. 318, 325 (1994), and Pitts, 936 So. 2d at 1128), the

officers did just the opposite here. When Mr. Wilson asserted his innocence and

disputed the claims that he was involved, the officers accused him of lying, told him to

stop playing games, and indicated that his arrest was inevitable. We conclude that this

important factor weighs in favor of a finding of custody.




                                           - 15 -
              The final factor is whether Mr. Wilson was informed that he was free to

leave the place of questioning. At first glance, this factor appears to weigh in favor of

the State. At the outset of his contact with the officers in this case, Mr. Wilson was told

that he was free to go, shown the way out, and told that no matter what he said he

would not be arrested that day. In fact, he was not arrested that day and was returned

to his car after giving his statement.

              However, we note that the officers' questioning as the interview

progressed suggested that Mr. Wilson was free to leave only after admitting to his

involvement. One officer stated:

              You are going back to your car at Lake June Park when this
              conversation is over. I give you my word as a Christian on
              that. All right. You are not leaving from here to go to jail.
              I—but here is the deal. Plain and simple, 1,000 percent, we
              can put you inside Pizza Hut on December 12th of this year.

Another officer later stated, "[W]hen we are done here you're back to your car." Mr.

Wilson asked, "[W]hat do you want from me?" And the officer answered, "I want the

truth, Andre." He again denied involvement, and the questioning continued despite Mr.

Wilson expressing concern over the time and needing to meet someone at 3:30. After

the officers gave assurances that they would go to bat for him if he told the truth, Mr.

Wilson asked, "And then I get to go home?" The officer confirmed, "Absolutely. . . .

After we get through with this, we'll head off." Shortly thereafter, Mr. Wilson made a

confession.

              We recognize again that each suppression case is highly fact-dependent.

Similar conduct may not suggest a custodial interrogation when viewed in isolation or

under a different set of circumstances. However, Mr. Wilson had not been read his




                                           - 16 -
Miranda warnings, had been repeatedly told that the officers could have already

arrested him if they wanted to, and if he continued to deny his involvement, the State

Attorney would direct them to do just that. He had been driven to the station in his bare

feet and was interviewed with multiple officers in the room at a time, all while being

presented with accusations and evidence of his guilt. Thus, while Mr. Wilson was told

that he was free to leave, these statements were qualified by the officers' words and

actions such that this factor does not weigh in favor of the State and is, at best, in

equipoise.

              As the supreme court noted in McAdams: "[T]here 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." 193 So. 3d at 839. That is precisely what occurred here.

We find that, under the totality of the circumstances, a reasonable person in Mr.

Wilson's situation would not have felt free to leave, and thus we conclude that Mr.

Wilson was in custody at the time he made his statement.

                                   3. Right To Counsel

              Having concluded that Mr. Wilson was in custody at the time he gave his

statement, we turn to his argument that the confession should have been excluded as

provided in violation of his right to counsel. The United States Supreme Court has held

that "a suspect subject to custodial interrogation has the right to consult with an attorney

and to have counsel present during questioning, and that the police must explain this

right to him before questioning begins." Davis v. United States, 512 U.S. 452, 457




                                           - 17 -
(1994) (citing Miranda, 384 U.S. at 469-73). Similarly, the Florida Supreme Court has

held that, to ensure the voluntariness of a confession, prior to custodial interrogation,

suspects must be informed "that they have a right to a lawyer's help, and that if they

cannot pay for a lawyer one will be appointed to help them." Traylor v. State, 596 So.

2d 957, 965-66 (Fla. 1992) (footnote omitted) (referencing Article 1, Section 9, of the

Florida Constitution).

              As we have already concluded, Mr. Wilson was subjected to custodial

interrogation. "[T]he primary protection afforded suspects subject to custodial

interrogation is the Miranda warnings themselves." Davis, 512 U.S. at 460. No such

warnings were given here. To make matters worse, Mr. Wilson requested the

assistance of counsel prior to giving his confession. The following exchange took place:

              A. I just want to get my lawyer's opinion on this.

              Q. Huh?

              A. I just want to get my lawyer's opinion of it.

              Q. And that's fine.

              A. If we can --

              Q. Understand this though. If you want a lawyer, we can't
              talk to you anymore.

              A. Yeah.

              Q. Okay. And that's your right.

              A. No, I don't want it. I just want to just like see if that's --
              that's even possible what you guys are telling me.

              Q. Okay. I'll do you one better.

              A. All right.




                                             - 18 -
              Q. I'll bring you our boss in. All right. And you can ask
              him.

              Whenever constitutional rights are at issue, our Supreme Court has said

that law enforcement officers must use "common sense." State v. Glatzmayer, 789 So.

2d 297, 305 (Fla. 2001) (citing Almeida v. State, 737 So. 2d 520, 526 (Fla. 1999)).

Here, common sense would require the officers to stop and afford Mr. Wilson an

opportunity to contact counsel, particularly as during the custodial interrogation the

Miranda warnings had not been provided. The Florida Supreme Court noted in Almeida

that both sides benefit from disclosure regarding the rights available to the suspect:

              Disclosure ensures that any subsequent waiver will be
              knowing and intelligent, and it reaffirms those qualities in a
              prior waiver. Nondisclosure, on the other hand, is doubly
              harmful: It exacerbates the inherently coercive atmosphere
              of the interrogation session, and it places in doubt the
              knowing and intelligent nature of any waiver—whether prior
              or subsequent.

737 So. 2d at 525 (footnote omitted).

              The surrounding context in which Mr. Wilson's words were spoken is also

important. See State v. Sepanik, 110 So. 3d 977, 980 (Fla. 2d DCA 2013). Here,

context adds to the conclusion that Mr. Wilson was seeking to consult with his attorney

and was invoking his right to do so. Indeed, he made the request twice. He was not

only discouraged from doing so, he was offered the advice of a senior law enforcement

officer as a better alternative. The impact was to " 'steamroll' the suspect." See

Almeida, 737 So. 2d at 525. That is, "to actively promote the very coercion that Traylor

was intended to dispel." Id. (citing Traylor, 596 So. 2d at 966).

              As to Mr. Wilson's first basis for suppression, we conclude that Mr. Wilson

was subjected to a custodial interrogation and officers failed to provide him Miranda



                                           - 19 -
warnings, resulting in a presumption of compulsion. See Elstad, 470 U.S. at 307.

Further, he was denied his right to the assistance of counsel. Consequently, Mr.

Wilson's statement elicited prior to the administration of Miranda warnings was not

voluntarily given and should have been suppressed.

                                       C. Coercion

              Next, Mr. Wilson contends that his statement should have been

suppressed because it was obtained by improper coercion. In Miller v. Fenton, 474

U.S. 104, 109 (1985), the Court held that, under the Due Process Clause of the

Fourteenth Amendment, certain interrogation techniques are forbidden. Those "certain

interrogation techniques, either in isolation or as applied to the unique characteristics of

a particular suspect, are so offensive to a civilized system of justice that they must be

condemned." Id.

              Discussing the Due Process Clause's application to interrogation

techniques, Chief Justice Rehnquist, writing for the Supreme Court, observed that

"coercive government misconduct was the catalyst for this Court's seminal confession

case, Brown v. Mississippi, 297 U.S. 278[ ] (1936)." Colorado v. Connelly, 479 U.S.

157, 163 (1986). Furthermore, "the cases considered by this Court over the 50 years

since Brown v. Mississippi have focused upon the crucial element of police

overreaching." Id. And while police overreaching is a focus, it is not the sole focus;

there must be a nexus between the police overreaching and the suspect's confession.

Id. at 165.

              "[A] main focus of Florida confession law has always been on guarding

against one thing—coercion." Traylor, 596 So. 2d at 964. A statement obtained as a




                                           - 20 -
result of overreaching or coercive police conduct is subject to exclusion on due process

grounds. Baptiste v. State, 179 So. 3d 502, 506 (Fla. 1st DCA 2015); see also Brewer

v. State, 386 So. 2d 232, 235 (Fla. 1980). In determining whether the confession was

voluntary, we use the identical standard used in federal court prosecutions. See

Brewer, 386 So. 2d at 235. The inquiry is whether the confession was the product of

free will and rational choice. Martin, 107 So. 3d at 298.

               A confession or statement is determined to be involuntary where,

considering the totality of the circumstances, we "conclude 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." Baptiste, 179 So. 3d at 506 (quoting Ramirez v. State, 15

So. 3d 852, 856 (Fla. 1st DCA 2009)); see Traylor, 596 So. 2d at 964 (stating coercion

is not limited to direct promises or threats; "[i]t is sufficient, if the attending

circumstances, or declarations of those present, be calculated to delude the prisoner as

to his true position, and exert an improper and undue influence over his mind" (quoting

Simon v. State, 5 Fla. 285, 296 (1853))); Brewer, 386 So. 2d at 235-36.

               While evaluating the totality of circumstances surrounding the confession,

the court must examine any promise or misrepresentation made by a state actor to the

accused. Martin, 107 So. 3d at 298. The challenged conduct must constitute

outrageous behavior, and it must be established that the improper police conduct, to wit,

the outrageous behavior, had a causal nexus to the confession. Bussey v. State, 184

So. 3d 1138, 1141 (Fla. 2d DCA 2015). It is the State's burden to prove by a

preponderance of the evidence that the statement was freely and voluntarily given.

Martin, 107 So. 3d at 293.




                                              - 21 -
              This court in Bussey reiterated the long-standing rule that "a confession

cannot be obtained through direct or implied promises." Bussey, 184 So. 3d at 1141

(quoting Johnson v. State, 696 So. 2d 326, 329 (Fla. 1997)). In Brewer, a confession

given in response to threats and promises was involuntary and inadmissible where

"[t]he officers raised the spectre of the electric chair, suggested that they had the power

to effect leniency, and suggested to the appellant that he would not be given a fair trial."

386 So. 2d at 235. However, simply advising a suspect of the potential consequences

of a crime does not constitute a threat, and encouraging cooperation with law

enforcement does not constitute coercive conduct. Bussey, 184 So. 3d at 1141. Like in

Bussey and the cases reviewed therein, we examine the totality of the circumstances

surrounding the confession.

              Mr. Wilson was presented with two options: he could either cooperate and

be the one who obtained the benefit of the officers' assistance and influence with the

appropriate authorities, such as the State Attorney's Office and the trial court, or he

could continue to deny involvement, be arrested as soon as the next day, and the

prosecution will "hammer you. . . . [A]s hard as they possibly can." Pressure alone does

not convert a confession into an involuntary statement. However, the record in this

case reveals circumstances, including the absence of Miranda warnings and certain

statements by the officers calculated to delude Mr. Wilson as to his true position,

exerted an improper and undue influence over Mr. Wilson's mind such that we cannot

say that his confession was freely and voluntarily given.

              The confession here followed suggestions by the officers that they had the

power to effect leniency and "save" Mr. Wilson's life. Cf. Brewer, 386 So. 2d at 233-34.




                                           - 22 -
While the death penalty was not on the table in this case as it was in Brewer, the

officers stated that Mr. Wilson was a suspect in a "string of robberies," noted that this

was "a 10/20/Life crime," and made it clear that Mr. Wilson was looking at significant

prison time if he failed to cooperate and give a statement. They presented themselves

as his only option to avoid this fate and promised to recommend probation.2

              We have not overlooked the fact that the officers spoke in terms of

recommendations, and the sergeant informed Mr. Wilson that the officers could give no

guarantee as to the sentence he would receive. However, these statements were

undermined by the officer's representation that, in sixteen years, the State had always

taken the officer's recommendation. The long-time officers used their seniority to offer

unrealistic hope in the form of assurances that their recommendation of probation would

be accepted if Mr. Wilson would just tell them the truth about his involvement in the

robbery.

              The officers exacerbated the coercive impact of the misrepresentations

when Mr. Wilson asked to call his attorney and get his opinion about the deal being

presented. In response to this request, one officer stated: "I'll do you one better. . . . I'll

bring you our boss in. All right. And you can ask him." Mr. Wilson stated he wanted to

get his lawyer's opinion, he was offered the sergeant's opinion as a better alternative,

and, having received the sergeant's opinion, Mr. Wilson provided his confession. All of

this took place without Mr. Wilson having been given Miranda warnings.




              2The 10/20/Life statute carries a minimum mandatory prison term, a fact
likely known to these experienced law enforcement officers. See § 775.087(2)(a).


                                             - 23 -
              We find that, under the totality of the circumstances, the suggestions that

the officers could effect such leniency, coupled with the representation that the

sergeant's opinion was superior to that of his own counsel, amount to outrageous police

conduct. Further, we find a clear nexus between the outrageous conduct and Mr.

Wilson's confession. Therefore, we conclude that the confession was not freely and

voluntarily given. Such a coerced confession should have been suppressed.

                           III. HARMLESS ERROR ANALYSIS

              The erroneous admission of Mr. Wilson's confession is subject to a

harmless error analysis. See McAdams, 193 So. 3d at 843. Pursuant to State v.

DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), the harmless error test requires the State

"to prove beyond a reasonable doubt that the error complained of did not contribute to

the verdict or, alternatively stated, that there is no reasonable possibility that the error

contributed to the conviction."

              In analyzing the impact the error had on the verdict, we must examine

both the permissible evidence presented to the jury for consideration and the

impermissible evidence that may have influenced the jury. Id. In this case, the

improperly admitted statement was the primary if not the only evidence tying Mr. Wilson

to the robbery. Thus, we cannot conclude that the erroneous admission of the

confession did not contribute to the convictions in this case.




                                     IV. CONCLUSION




                                            - 24 -
             We conclude that Mr. Wilson's statement should have been suppressed

because he was subjected to custodial interrogation and did not receive Miranda

warnings. We further conclude that the statement should have been suppressed as it

was coerced through improper police conduct, and he was denied his right to counsel.

The trial court erred in admitting Mr. Wilson's statement, and that error was not

harmless. Accordingly, we reverse and remand for a new trial at which the evidence of

his statement must be suppressed.

             Reversed and remanded.



KHOUZAM and BADALAMENTI, JJ., Concur.




                                          - 25 -
