IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
KEENON LAMAR RHODES, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-5852
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed May 19, 2017.
An appeal from the Circuit Court for Alachua County.
Robert Groeb, Judge.
Andy Thomas, Public Defender, Christopher F. Busch and Benjamin R. Kelley,
Special Assistant Public Defenders, Busch & Kelley, P.A., Tallahassee, for
Appellant.
Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General,
Tallahassee, for Appellee.
PER CURIAM.
Appellant, Keenon Lamar Rhodes, appeals his conviction of the following
offenses: (I) – (II) burglary while armed with a firearm; (III) possession of a
controlled substance without a prescription; and (IV) resisting an officer without
violence. We reverse due to trial court error in denying Appellant’s Motion to
Suppress, which sought to suppress statements he made during a custodial
interrogation by police. The following exchange is under review:
Appellant: Man, I'm not no lawyer.
Officer: What's up?
Appellant: I said I'm not no lawyer. I need to see a lawyer.
Officer: Okay. Well, what I'm telling you is this. They said you
were observed in a vehicle, rummaging through a vehicle.
The Fifth Amendment right against self-incrimination requires an accused
person be made aware that he is entitled to counsel during a custodial
interrogation. Moss v. State, 60 So. 3d 540, 542 (Fla. 4th DCA 2011)
(citing Miranda v. Arizona, 384 U.S. 436, 467-72 (1966)). Once the right to counsel
is invoked, police questioning is required to cease. Moss, 60 So. 3d at 543
(citing Black v. State, 59 So. 3d 340, 345 (Fla. 4th DCA 2011)). There are no magic
words an accused person must use in order to invoke their right to counsel. State v.
Owen, 696 So. 2d 715, 719 (Fla. 1997). Whether an accused person has invoked his
right to counsel hinges on whether the invocation is clear and unambiguous. Spivey
v. State, 45 So. 3d 51, 54 (Fla. 1st DCA 2010). “‘[A]t a minimum, some statement
that can reasonably be construed to be an expression of a desire for the assistance of
an attorney’ is a sufficient invocation of rights to require the cessation of further
interrogation.” Moss, 60 So. 3d at 543 (quoting McNeil v. Wisconsin, 501 U.S. 171,
178 (1991)).
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In the present case, a review of the Appellant’s interrogation establishes he
made a clear, unequivocal request for counsel when he stated, “I need to see a
lawyer.” The officer disregarded Appellant’s invocation of his right to counsel and
continued the conversation without acknowledging the statement. A lengthy
interrogation followed, during which inculpatory statements were made by
Appellant.
In Moss, the Fourth District reversed the denial of a motion to suppress and
noted, “[i]t is hard to imagine more unequivocal statements,” than “I want a lawyer,”
and “I want to talk to a lawyer.” 60 So. 3d at 543. Similarly, here, because
Appellant’s statement, “I need to see a lawyer,” was a clear and unequivocal request
for counsel, we hold that the trial court erred in denying Appellant’s Motion to
Suppress.
Reversed and remanded for a new trial. Appellant’s Motion to Suppress is
hereby granted, and all portions of the recorded interview after Appellant’s
invocation of his right to counsel are to be suppressed.
WETHERELL, and M.K. THOMAS, JJ., CONCUR; B.L. THOMAS, J.,
DISSENTS WITH OPINION.
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B.L.THOMAS, J. DISSENTS.
I respectfully dissent, because the order denying Appellant’s motion to
suppress should be affirmed under the authority of Jones v. State, 748 So. 2d 1012
(Fla. 1999), and State v. Owen, 696 So. 2d 715 (Fla. 1997). Appellant’s comments
regarding his “need to see a lawyer,” taken in context, were not an unequivocal
request for an attorney or for a cessation of questioning. As the supreme court noted
in Jones, “once there has been a knowing and voluntary waiver of the Miranda rights
. . . ‘law enforcement officers may continue questioning until and unless the suspect
clearly [unequivocally] requests an attorney.’” Jones, 748 So. 2d at 1020 (quoting
Owen, 696 So. 2d at 719).
In Jones, the defendant stated that he “wanted to speak ‘to his mother, his
attorney, and Detective Parker.’” Id. The court rejected the defendant’s argument
that he had revoked his waiver of Miranda rights, describing the statement as “at
most an equivocal statement regarding counsel.” Id. In rejecting the argument, the
supreme court quoted its earlier opinion in Long v. State, wherein it stated that the
defendant’s comment, “‘I think I might need an attorney,’” was an equivocal request
for counsel. 517 So. 2d 664, 667 (Fla. 1987), receded from on other grounds, Owen,
696 So. 2d at 720. The supreme court also relied on its earlier opinion in Waterhouse
v. State, where the defendant stated, “I think I want to talk to an attorney before I
say anything else,” and the supreme court held that police interrogation could
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continue “because appellant did not express a desire to deal with the police only
through counsel.” 429 So. 2d 301, 305 (Fla. 1983), receded from on other grounds,
Owen, 696 So. 2d at 720.
The Fourth District’s holding in Moss v. State, 60 So. 3d 540, 542 (Fla. 4th
DCA 2011), is not controlling here. While the majority holds that our sister court’s
opinion in Moss is factually similar, any similarities Moss shares with the instant
case conflicts with Jones, which should control because it is binding.
A review of Appellant’s interrogation and the context of the conversation
demonstrates that Appellant’s comments were, at best, merely “equivocal
statement[s] regarding counsel” and did not in any way show that Appellant wanted
to “deal with police only through counsel.” Jones, 748 So. 2d at 1020. I would
affirm the trial court’s order denying Appellant’s motion to suppress.
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