         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-1681
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STATE OF FLORIDA,

    Appellant,

    v.

JUSTIN DAVID LANTZ,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Okaloosa County.
John T. Brown, Judge.

                       February 23, 2018


PER CURIAM.

     The State appeals an order suppressing a number of
incriminating statements made by Justin Lantz after invoking his
right to counsel. We reverse in part and remand because some of
the incriminating statements suppressed by the trial court were
offered voluntarily by Mr. Lantz and were not the product of
questions, or other actions by law enforcement that were
reasonably likely to elicit incriminating responses.

                                I.

     Mr. Lantz was charged with first degree murder of his mother
and he entered a plea of not guilty. After being arrested late one
night under a bridge, and in close proximity to his dead mother’s
floating body, Mr. Lantz was brought to an interrogation room at
the police station. He was told of his rights to remain silent and to
counsel. And he asked for a lawyer. At this, the officers told Mr.
Lantz that they’d like to talk to him again after he got a lawyer.
They told him that he would leave the room to go to the jail after a
crime scene technician arrived to process him for physical evidence
(he had scrapes and cuts on his body). But then, they had to wait
for the technician to arrive for about two hours. In the meantime,
officers got Mr. Lantz coffee and they waited for the technician to
arrive. During this period, Mr. Lantz became chatty and made
incriminating statements. He has filed a motion to suppress the
statements, arguing that he made them within the context of an
unlawful interrogation after he had invoked his constitutional
right to counsel.

     After a suppression hearing, the trial court ordered some of
his statements suppressed and others not. The State appeals the
suppression order asserting that six portions of his statements
shouldn’t be suppressed because Mr. Lantz volunteered the
information without law enforcement asking questions of him or
taking other actions reasonably likely to elicit his incriminating
responses.

                                 II.

     A ruling on a motion to suppress is reviewed by the appellate
court with a presumption of correctness. Martin-Godinez v. State,
225 So. 3d 926, 927 (Fla. 1st DCA 2017) (citing Spivey v. State, 45
So. 3d 51, 54 (Fla. 1st DCA 2010)). “This Court applies a mixed
standard of review, giving deference to the factual findings that
are supported by competent, substantial evidence, but reviewing
the determination of constitutional rights de novo.” Id. The
ultimate question here, of whether the action of officers constitutes
“interrogation” for Miranda purposes, is a legal question that we
review de novo. See Everett v. State, 893 So. 2d 1278, 1284 (Fla.
2004); United States v. Yepa, 862 F.3d 1252, 1258 (10th Cir. 2017).

                                 A.

    The Florida and United States Constitutions protect those
arrested for committing crimes against being compelled to become
witnesses against themselves in their own criminal cases. U.S.
Const. amend. V; Art. I, § 9, Fla. Const.; Ramirez v. State, 739 So.
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2d 568, 572–73 (Fla.1999). Suspects arrested for crimes must be
notified of their “right to remain silent, that any statement [made]
may be used as evidence against [them], and [of the] right to the
presence of an attorney, either retained or appointed.” Miranda v.
Arizona, 384 U.S. 436, 444 (1966). “Once warnings have been
given, the subsequent procedure is clear. . . . If the individual
states that he wants an attorney, the interrogation must cease
until an attorney is present.” Id. at 473-74. Continuing with an
interrogation after invocation of the right to counsel risks
suppression of whatever exculpatory or inculpatory statements
arise from the interrogation. Id. at 479 (“[U]nless and until such
warnings and waiver are demonstrated by the prosecution at trial,
no evidence obtained as a result of interrogation can be used
against him.”). But see, e.g., New York v. Quarles, 467 U.S. 649,
651 (1984) (recognizing limited exceptions to the prophylactic
rule).

     Once the right to counsel has been invoked, Miranda requires
counsel during interrogations. But it does “not require counsel’s
presence for all further communications; only for interrogations.”
Everett v. State, 893 So. 2d 1278, 1284 (Fla. 2004) (emphasis in
original); see also Edwards v. Arizona, 451 U.S. 477, 485-86 (1981)
(“The Fifth Amendment right identified in Miranda is the right to
have counsel present at any custodial interrogation. Absent such
interrogation, there would have been no infringement of the
right.”). Thus, Miranda is implicated only when a defendant in
custody is subjected to questioning or “its functional equivalent.”
Rhode Island v. Innis, 446 U.S. 291, 301 (1980); see also Traylor v.
State, 596 So. 2d 957, 966 (Fla. 1992) (“These guidelines . . . do not
apply to volunteered statements initiated by the suspect or
statements that are obtained in noncustodial settings or through
means other than interrogation”). Interrogation “refers not only to
express questioning, but also to any words or actions on the part
of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” Innis, 446 U.S. at
301; see also Traylor, 596 So. 2d at 966, n.17 (“Interrogation takes
place for Section 9 purposes when a person is subjected to express
questions, or other words or actions, by a state agent, that a
reasonable person would conclude are designed to lead to an
incriminating response.”). However, “no interrogation occurs

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where an officer does not initiate a conversation and merely
responds to the suspect.” Gordon v. State, 213 So. 3d 1050, 1053
(Fla. 4th DCA 2017). “Officers do not interrogate a suspect simply
by hoping that he will incriminate himself.” Arizona v. Mauro, 481
U.S. 520, 529 (1987).

                                 B.

     In this case, the State challenges the suppression of five parts
of a police-station dialogue between Mr. Lantz and officers after he
had invoked his right to counsel. The State argues that it was not
interrogating Mr. Lantz when he voluntarily offered inculpatory
statements, and we partly agree.

     The State first challenges the suppression of statements found
in the record, page 114, line 9 through line 20, of the interview
transcript. The statements are immediately preceded by dialogue
that the trial court did not suppress. In this section, the officer
responded to a question posed by Mr. Lantz regarding potential
sentences for murder as follows:

    Mr. Lantz: What’s murder these days? Life?”

    [Investigator]: I don’t know anything. I’ve been doing this
    27 years, to be honest with you, sir. It [sic] really, case by
    case (unintelligible).”

    Mr. Lantz: I didn’t – I didn’t kill the b****, but somebody
    paid me to f***ing help him. That was a good way to make
    money.

    [Investigator]: No.

    Mr. Lantz: Somebody else killed her. I didn’t kill her. The
    body was there. He told me to come get her. 10 grand
    (unintelligible) pay me. Never going to see that money.
    And now he got away with murder, and I get the f***ing
    rap.

     In this instance, there wasn’t officer questioning, or words or
actions by an officer “reasonably likely to elicit an incriminating
response from the suspect.” Innis, 446 U.S. at 301. The officer

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simply responded to an unsolicited question from Mr. Lantz
regarding the sentence for murder, and did so in way that didn’t
invite Mr. Lantz’s incriminating response. These circumstances do
not constitute interrogation requiring suppression of Mr. Lantz’s
incriminating statements. See Gordon, 213 So. 3d at 1054 (finding
no interrogation where the officer responded to the suspect’s
question and “did not initiate the conversation, nor did he assume
wrongdoing on appellant’s part, and finally did not call for
appellant to respond”).

     For similar reasons, we conclude that the trial court
erroneously suppressed statements found in the record at page
126, line 6, through page 128, line 10; and page 134, line 1 through
page 135, line 16. As in the first instance, the officers in these later
parts of the transcript variously responded to questions posed by
Mr. Lantz. But they did not ask questions, or take actions that
were reasonably likely to elicit incriminating statements. We thus
reverse the suppression order also with respect to these parts of
the dialogue.

      In all of these instances, it wasn’t unlawful for officers to wait
with Mr. Lantz for the crime scene technician to arrive, even if Mr.
Lantz was intoxicated at the time. See, e.g., Pennsylvania v. Muniz,
496 U.S. 582, 600-606 (1990) (holding that an intoxicated suspect’s
statements to officers over a period of time were not the product of
interrogation); Mauro, 481 U.S. at 529 (recognizing that police
don’t “interrogate” a suspect simply by hoping he will confess). Nor
do we think that giving Mr. Lantz coffee was reasonably likely to
elicit incriminating statements. See, e.g., Bobby v. Dixon, 565 U.S.
23, 29 (2011) (finding that a defendant’s statements were
voluntarily made, in part, because he “was given water and offered
food, and was not abused or threatened”).

     With respect to all other parts of the transcript challenged by
the State, we affirm.

                                  III.

     AFFIRMED in part, REVERSED in part and REMANDED for
further proceedings consistent with this opinion.

LEWIS, OSTERHAUS, and BILBREY, JJ., concur.

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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellant.

Andy Thomas, Public Defender, and Justin Karpf, Assistant Public
Defender, Tallahassee, for Appellee.




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