       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                            LAVONTE DAVIS,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D12-586

                            [October 8, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Edward Fine and Joseph Marx, Judges; L.T. Case No.
08CF008874AMB.

  Carey Haughwout, Public Defender, and John M. Conway, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier,
Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

    Appellant Lavonte Davis was convicted of first degree murder with a
firearm, attempted robbery with a firearm, and burglary with assault while
armed with a firearm. His appeal challenges the trial court’s denial of his
motion to suppress his recorded pre-trial statements to police. As
Appellant’s statements were freely and voluntarily given and the product
of a proper police investigatory process, we affirm.

   Appellant became involved in the subject murder investigation after
detectives learned he had been present at the scene the night of the
murder. Over the next week, the detectives conducted four interviews with
Appellant, each of which was recorded with Appellant’s consent. The first
two interviews were conducted in an unlocked vehicle in front of
Appellant’s home. During the first interview, Appellant admitted to being
a lookout the night of the murder but maintained that others committed
the robbery and murder. Appellant retold the same story about being a
lookout during the second interview.
    The third interview also took place in an unlocked vehicle but at a
shopping center near Appellant’s home. The detectives read Appellant his
Miranda1 rights at the beginning of this interview. After again retelling the
story about being just a lookout, Appellant was arrested for that alleged
involvement. The fourth interview was conducted at the police station
following the arrest, during which Appellant confessed to committing the
robbery and murder.        Appellant moved to suppress the recorded
statements from the four interviews. The trial court denied the motion,
finding that the statements were freely and voluntarily made.

   We review a motion to suppress under a mixed standard of review,
being bound by the trial court’s factual findings if supported by competent
substantial evidence and applying a de novo standard to the mixed
questions of law and fact. Murdock v. State, 115 So. 3d 1050, 1054 (Fla.
4th DCA 2013).

   The Florida Supreme Court has recently addressed the issue of
voluntariness of statements that can be construed as confessions:

      [T]he test is . . . one of voluntariness, or free will, which is to be
      determined by an examination of the totality of the circumstances
      surrounding the confession.         Moreover, to establish that a
      statement is involuntary, there must be a finding of coercive police
      conduct. Absent police conduct causally related to the confession,
      there is simply no basis for concluding that any state actor has
      deprived a criminal defendant of due process of law.

          Thus, whether the 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) (internal quotations and
citations omitted); see also Blake v. State, 972 So. 2d 839, 843-44 (Fla.
2007).

   The Court noted further in Baker that quid pro quo or inducement
promises of leniency or promises not to prosecute in exchange for a
confession are the type of coercive police activity that would render a
confession inadmissible. Baker, 71 So. 3d at 815. However, promises that

1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


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do not affect voluntariness of a defendant’s statement are when the officers
tell a defendant that it would be easier on him if he told the truth or that
the officers would make his cooperation known to prosecuting authorities.
Id. With other promises that do not fall within these categories, the
Supreme Court instructs to look at the “surrounding facts to determine
whether, in each particular case, the defendant’s will was overborne.” Id.;
see also Blake, 972 So. 2d at 844.

   In the instant case, we find no error in the trial court’s application of
the totality of the circumstances test to find that Appellant’s statements
were freely and voluntarily given and not the product of police coercion or
improper promises. The record reveals that Appellant clearly understood
that he was free to leave at any time and in control of the questioning
during the first three interviews up until his arrest, which occurred only
after proper Miranda rights were given and probable cause existed. See
Bethel v. State, 93 So. 3d 410, 413 (Fla. 4th DCA 2012). In fact, both of
the first two interviews were concluded upon Appellant’s initiative.

   Although the detectives repeatedly encouraged Appellant to tell the
truth during the interviews and referenced Appellant’s unborn child, these
statements amounted to nothing more than “regularly employed
investigative and interrogation techniques,” as the trial court noted. See
Frazier v. State, 107 So. 2d 16, 23 (Fla. 1958) (“Exhortations to tell the
truth, while under arrest, absent duress, threats, compulsion, hope of
reward or benefit, do not render a statement involuntary.” (quoting Thomas
v. State, 92 So. 2d 621, 623 (Fla. 1957))). No evidence suggests that
Appellant was coerced, provided with express or implied promises of
leniency (or other improper promises), or that his will was overborn such
as to render his confession to the crimes inadmissible.

    The detectives’ treatment of Appellant was indicative of a proper
investigation and interrogation of a suspect, drawing out details in an
informal and incremental fashion and without coercion, harsh treatment
(such as denying the suspect food or restroom breaks), or false promises.
Accordingly, the trial court properly found that Appellant’s confession was
voluntary and not the result of coercive police activity. See, e.g., Martin v.
State, 107 So. 3d 281, 298-99 (Fla. 2012); State v. Jackson, 120 So. 3d 88,
91 (Fla. 4th DCA 2013) (holding that a confession was admissible as
“[t]here was no express or implied promise of leniency made to [the
defendant] in return for his statements”); State v. Walter, 970 So. 2d 848,
851-52 (Fla. 2d DCA 2008).

    Regarding Appellant’s additional request to suppress the recording of a
telephone conversation between himself and his mother at the police

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station, the trial court properly denied this request as “individuals do not
have an expectation of privacy while within police custody.” Davis v. State,
121 So. 3d 462, 485 (Fla. 2013). The Florida Supreme Court has
recognized an exception when police officers “deliberately foster[] an
expectation of privacy in the inmate’s conversation . . . especially where
the obvious purpose was to circumvent a defendant’s assertion of the right
to remain silent.” Id. (quoting Allen v. State, 636 So. 2d 494, 497 (Fla.
1994)). This was not the situation in the instant case. The detectives
never made any assurances to Appellant that his calls would be made in
private and he knew he was being recorded. Additionally, Appellant never
requested privacy during the conversation and allowed a detective to be
present in the room for at least portions of the conversation.

   As the trial court’s factual findings are supported by competent
substantial evidence and the court applied the correct law to reach its
conclusion, we affirm the court’s denial of Appellant’s motion to suppress
and the resulting final judgment.

   Affirmed.

DAMOORGIAN, C.J., and TAYLOR, J., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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