Kessler v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2008
KEVIN HORST KESSLER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D07-1386
[ October 8, 2008 ]
TAYLOR, J.
The defendant appeals his convictions for trafficking in cocaine and
conspiracy to traffic in cocaine. He contends that the trial court erred in
admitting into evidence a tape recording of a phone call that he made to
his alleged drug source upon the request of law enforcement officers
while in custody without adequate Miranda1 warnings. We agree and
reverse.
The defendant was charged by information with trafficking in cocaine
and conspiracy to traffic in cocaine. Before trial, he moved to suppress a
recorded statement he made to law enforcement officers after he was
arrested. Citing Roberts v. State, 874 So. 2d 1225 (Fla. 4th DCA 2004),
the defendant asserted that he received inadequate Miranda warnings
because he was not advised of his right to have counsel present during
questioning. The body of his motion to suppress addressed only his
recorded statement, b u t in the “wherefore clause” the defendant
requested that the court suppress “any subsequent evidence directly
obtained b y law enforcement officers vis-a-vis this illegally obtained
statement including, but not limited to, Mr. Kessler’s allegedly recorded
telephone call to ‘RAMSES.’ ”
Th e trial court granted the defendant’s “Motion to Suppress
Statements and/or Confessions” in a written order, citing Roberts. The
state appealed, and we affirmed the order in State v. Kessler, 919 So. 2d
1
Miranda v. Arizona, 384 U.S. 436 (1966)
688 (Fla. 4th DCA 2006).
Thereafter, the defendant filed a motion in limine seeking to exclude
the tape recording on a controlled phone call he made to his alleged drug
source while he was in police custody following his arrest. The motion
also sought to exclude the identity of the drug source, as well as any
reference to him or to any alleged transactions with him. The motion
asserted that this evidence was “fruit of the poisonous tree” because it
derived from the defendant’s unwarned statements, which were
previously suppressed by the trial court. The defendant did not allege in
his motion, or argue at the hearing on the motion, that the controlled
phone call h a d already been suppressed by th e trial court’s prior
suppression order and should be excluded based on law of the case.
At the hearing, the evidence showed that after the defendant was
arrested for trafficking in cocaine and taken into custody, he was
questioned by Detective Floyd Baker.
During the course of the
questioning, Detective Baker requested the defendant’s cooperation in
contacting his alleged cocaine supplier. The defendant agreed to contact
his source in Miami, whom he identified as “Ramses.” The defendant
provided the officers with Ramses’ phone number and then made phone
calls to him. These were recorded by the police with the defendant’s
consent.
Defense counsel argued to the trial court that the officers obtained the
defendant’s consent to contact his drug source by exploiting statements
that he made during questioning, when he had not been fully advised of
his Miranda rights. He urged the court to exclude the recorded phone
call from evidence. The state countered that this evidence should not be
excluded because the officers knew from an independent source that the
defendant had a cocaine supplier and his identity would inevitably have
been discovered through their ongoing investigation. The state further
argued that the defendant voluntarily agreed to cooperate with law
enforcement in makin g the controlled phone call to his source.
According to the state, the controlled phone call was independent of the
defendant’s statement to the police and thus was not “fruit of the
poisonous tree.” The trial court denied the motion in limine, agreeing
with the state’s inevitable discovery argument and determining that, in
any event, the defendant’s cooperation with the police and controlled
phone call were not a result of his unwarned suppressed statement. The
court concluded that the defendant’s statement was “totally separate and
apart” from the defendant’s cooperation with the police.
On appeal, the defendant first argues that the trial court violated law
2
of the case principles by allowing the taped phone call to be played for
the jury at trial.
He contends that the trial court’s prior order
suppressing his statements, along with our affirmance of that order,
required the court to exclude the taped phone call. We do not consider
this argument, however, because the defendant did not raise this law-ofthe-case issue sufficiently to preserve it for appeal. To be preserved, an
issue must first be presented to the lower court and the specific legal
argument argued on appeal must be part of the presentation. Tillman v.
State, 471 So. 2d 32, 35 (Fla. 1985).2
Further, even if we were to consider it, we would not reverse on this
ground because the record does not clearly show that the trial court’s
suppression order encompassed the taped phone call to the defendant’s
cocaine supplier. The law of the case doctrine requires that questions of
law actually decided on appeal govern the case in the same court and the
trial court through all subsequent stages of the proceedings. State v.
McBride, 848 So. 2d 287, 289-90 (Fla. 2003); Fla. Dep’t of Transp. v.
Juliano, 801 So. 2d 101, 105 (Fla. 2001). Here, it is not apparent from
the record that the trial court actually suppressed the taped controlled
phone call in its “Order Granting Defendant’s Motion to Suppress
Statements And/Or Confession.” The defendant did not mention the
taped controlled phone call in the main body of his first motion to
suppress, and the trial court’s order refers only to the defendant’s
“statements and confession.”
The main thrust of the defendant’s argument below on its motion in
limine was that the taped phone call should be excluded from evidence
because it was “fruit of the poisonous tree,” i.e., evidence that derived
from a Miranda violation.
The Fifth Amendment’s Self-Incrimination Clause provides: “No
person ... shall be compelled in any criminal case to be a witness against
himself.” U.S. CONST. Amend. V. An analogous provision of our state
constitution creates a constitutional right against compelled selfincrimination. Art. I, § 9 of our state Declaration of Rights provides in
part that:
[n]o person shall be … compelled in any criminal matter to be a
witness against oneself.
2
The only exception to this principle arises in cases of fundamental error. See
Steinhorst v. State, 412 So. 2d 332 (Fla. 1982). The defendant here has not
argued that this error was fundamental.
3
In Miranda, the United States Supreme Court established a
procedural safeguard to protect a n individual's Fifth Amendment
privilege against compelled self-incrimination from the coercive pressures
of custodial interrogation. Caso v. State, 524 So. 2d 422, 423 (Fla.
1988). Miranda requires law enforcement officers to inform suspects of
certain fundamental constitutional rights prior to initiating custodial
interrogation. See Miranda, 384 U.S. at 444. The safeguards provided
by Miranda are intended to help ensure the voluntariness of statements
given by a suspect. They apply only if the suspect is in custody and
subject to interrogation. Traylor v. State, 596 So. 2d 957 (Fla. 1992);
Timmons v. State, 961 So. 2d 378, 379 (Fla. 4th DCA 2007) (citing State
v. Weiss, 935 So. 2d 110, 116 (Fla. 4th DCA 2006)). Included among the
Miranda rights that a suspect must be advised of is the right to consult
with a lawyer before being interrogated and to have the lawyer present
during interrogation. Traylor, 596 So. 2d at 966 n.13 (Fla. 1992);
Roberts.
In this case, it is undisputed that the defendant was in custody and
subjected to interrogation at the time of his statements to the police. The
trial court determined that the defendant was not fully informed of his
Miranda rights before being interrogated because he was not advised that
h e ha d th e right to have a n attorney present during interrogation.
Accordingly, the trial court suppressed his statements to the police.
However, the trial court refused to exclude the recorded phone
conversation between the defendant and his alleged drug source. The
trial court erred in doing so. First, we find no support in the record for
the court’s conclusion that the drug supplier’s identity would inevitably
have been discovered without the defendant’s unwarned statements. See
Fitzpatrick v. State, 900 So. 2d 495, 514 (Fla. 2005) (holding that for
“inevitable discovery” exceptio n to the “fruit of the poisonous tree”
doctrine to apply, the state must demonstrate that at the time of the
constitutional violation the police already possessed facts which would
have led to the evidence notwithstanding the police misconduct).
Second, we disagree with the court’s reasoning that the controlled call
was separate and apart from the defendant’s statements to the police.
Th e ph o n e call, which the police solicited while questioning the
defendant after he was arrested and placed in custody, was part of the
interrogation process.
Interrogation takes place for Miranda 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.” Traylor, 596 So.2d at 966 nn.16-17; see
also Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (holding that
4
“interrogation” under Miranda includes any statements that the police
should know are reasonably likely to elicit an incriminating response);
Allred v. State, 622 So.2d 984, 987 (Fla.1993). Under the broad rationale
of Miranda, interrogation includes questioning a suspect about his drug
supplier and soliciting the suspect’s cooperation in securing evidence
against the supplier. Such a request b y a law enforcement officer
constitutes conduct “reasonably likely to elicit an incriminating response
from the suspect.” Innis, 446 U.S. at 301.
The record shows that o n September 5, 2001 the defendant was
arrested at 7:55 p.m., placed a controlled recorded call at the request of
the detectives at 8:18 p.m., and gave a taped statement at 8:38 p.m.
There were n o intervening circumstances that broke the causal
relationship between the Miranda violation a n d th e defendant’s
disclosure of his drug source and consent to contact him by phone.
Given the temporal proximity of the arrest, statements, and controlled
phone call, a n d th e absence of any intervening circumstances to
dissipate any taint arising from the incomplete Miranda warnings, we
conclude that the request to reveal the drug source and place a phone
call to him constituted custodial interrogation requiring Miranda
warnings.
The issue then is the scope of the remedy for the Miranda violation in
this case. The defendant argues that the trial court should have
suppressed the taped phone conversation as “fruit” of the Miranda
violation. The state, citing United States v. Patane, 542 U.S. 630, 124 S.
Ct. 2620, 159 L.Ed.2d 667 (2004), argues that the “fruit of the poisonous
tree” doctrine does not apply to Miranda violations. However, the state
misconstrues Patane. The Patane plurality and concurrence held that
the “fruit of the poisonous tree” doctrine does not extend to physical
evidence derived from unwarned but voluntary statements. See United
States v. Jackson, 506 F.3d 1358, 1361 (11th Cir. 2007) (recognizing,
along with several other circuits, this narrow holding of Patane.)
According to Patane, the failure to give complete Miranda warnings does
not require suppression of physical or non-testimonial evidence derived
from the violation. The Supreme Court clarified, however, that exclusion
of testimonial evidence continues to be the proper remedy for a Miranda
violation. See Patane, 542 U.S. at 641-42.3
3
The Florida Supreme Court has not directly addressed Patane’s holding
that physical evidence need not be suppressed as a result of an interrogation
conducted without Miranda warnings. The question thus remains whether
Florida will follow Patane or decline to adopt it as controlling precedent based
on independent state constitutional grounds or public policy. See State v.
5
Here, unlike in Patane, the defendant was not seeking to exclude
physical evidence produced as the result of a Miranda violation, but,
rather, testimonial evidence obtained during the course of his custodial
interrogation. The Fifth Amendment privilege protects an accused from
being compelled to testify against himself, or otherwise provide the state
with evidence of a testimonial or communicative nature. Schmerber v.
California, 384 U.S. 757, 763 (1966). We consider the defendant’s tape
recorded conversation with his alleged d r u g supplier to b e an
incriminating testimonial communication. See Allred v. State, 622 So. 2d
984 (Fla.1993).
In Allred, the Florida Supreme Court held that a DUI suspect’s
recitation of the alphabet is a testimonial act which requires Miranda
warnings. As the court explained, “[t]he content is incriminating evidence
out of the suspect’s own mouth. The incriminating inference is drawn
from the testimonial act – answering the question incorrectly, not from
physical evidence – slurred speech.”
Allred, 622 So. 2d at 987.
Similarly, the defendant’s phone call to his alleged cocaine source is a
testimonial act from which an incriminating inference can be drawn. The
inference a jury could draw is that the defendant must be involved in
cocaine trafficking because he has a cocaine supplier who is readily
accessible. The phone call tends to show his knowledge of the drug trade
and method of operation.4
Hoggins, 718 So. 2d 761, 767 (Fla. 1998) (noting that state courts have the
power to interpret their state constitutions as more protective of individual
rights that the federal constitution). We observe that several states have
declined to follow Patane because their state constitutions require application of
the “fruit of the poisonous tree” doctrine to physical evidence derived from
Miranda violations. See State v. Vondehn, 219 Or. App. 492, 184 P.3d 567
(2008); State v. Peterson, 923 A.2d 585 (Vt. 2007); State v. Farris, 849 N.E.2d
985 (Ohio 2006); State v. Knapp, 700 N.W.2d 899 (Wisc. 2005); Commonwealth
v. Martin, 827 N.E.2d 198 (Mass. 2005); State v. Pebria, 938 P.2d 1190 (Haw.
1997); State v. Smith, 834 S.W.2d 915 (Tenn. 1992).
But for such an inference, the relevancy of the controlled phone call would be
in doubt. See, e.g., Williams v. Commonwealth, 4 Va. App. 53, 74, 354 S.E.2d
79, 91 (1987) (holding that the defendant’s taped phone conversation with his
cocaine supplier, made pursuant to his agreement to cooperate with the police,
was inadmissible to show the defendant’s intent to distribute cocaine; the
phone conversation demonstrated only the defendant’s intent to cooperate with
the police). The defendant did not raise this relevancy issue at trial or on
appeal, and we, therefore, cannot consider this point; our reversal rests solely
on Miranda.
4
6
By permitting the police to record the phone conversation, the
defendant furnished incriminating evidence out of his own mouth. The
evidence he secured for the state did not just implicate the supplier, but
himself as well. This is precisely the type of incriminating testimonial
communication which the Miranda rule was designed to address. See
Patane, 542 U.S. at 636-37 (Miranda is a prophylactic rule designed to
protect against violation of the privilege against self-incrimination).
Accordingly, we hold that the trial court erred in failing to exclude the
taped phone call, because it occurred during custodial interrogation after
the defendant was given incomplete Miranda warnings. Further, having
examined the entire record, we conclude that admission of the recorded
phone call was not harmless. See Caso, 524 So. 2d at 425 (“The
erroneous admission of statements obtained in violation of Miranda
rights is subject to harmless error analysis.”).
Reversed and Remanded.
WARNER, J., concurs.
POLEN, J., concurs in result only.
*
*
*
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Susan Lebow, Judge; L.T. Case No. 01-15071CF10B.
Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
Bill McCollum, Attorney General, Tallahassee, a n d Jeanine M.
Germanwicz, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
7
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