DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TERRANCE LAVERN WALKER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2022-3397

[September 18, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; John J. Murphy, III, Judge; L.T. Case No. 18-1237 

CF10A.

Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant 

Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, 

West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano, 

Senior Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Terrance Walker appeals his convictions of second-degree murder and 

grand theft auto, raising several issues on appeal. We find no merit in 

Walker’s argument that he unequivocally invoked his right to silence 

during a post-arrest, post-Miranda interrogation. Walker’s remaining 

arguments relate to his motion to suppress his inculpatory statements as 

fruit of the poisonous tree. His arguments hinge on the trial court’s ruling 

that it could not compel certain testimony from the arresting deputy. On 

that matter, Walker’s arguments on appeal differ from those raised in the 

trial court. Consequently, we affirm.

Affirmed.

CIKLIN and LEVINE, JJ., concur.

WARNER, J., concurs specially with opinion.

WARNER, J., concurring specially.
2

I concur with the majority but write to address the motion to suppress. 

Appellant moved to suppress his statements as fruit of the poisonous tree, 

because officers illegally seized him by the use of real-time cell phone 

location tracking data (CSLI) to arrest him. Using such tracking data 

without a warrant is a search in violation of the Fourth Amendment. 

Tracey v. State, 152 So. 3d 504, 526 (Fla. 2014); see also Carpenter v. U.S., 

585 U.S. 296, 316 (2018).1

At the hearing on the motion to suppress, the arresting officer declined 

to testify regarding whether he used CSLI to locate appellant and whether 

he obtained a warrant to use that technology. While he was a Broward 

County deputy, he was also a member of the U.S. Marshals Service 

Fugitive Task Force. An assistant U.S. attorney appeared at the hearing 

to inform the court of the arresting officer’s inability to testify, because the 

officer’s involvement in locating the defendant “was based on his crossdesignation as a task force officer with the Marshals Fugitive Task Force.

All of his information that he worked on in terms of investigation was based 

on his federal capacity in that task force.” As such, “he is subject to the 

U.S. Marshals federal regulations in terms of what he’s authorized to 

testify about.” His superiors had declined to allow him to testify as to the 

matter of appellant’s apprehension. The trial court declined to compel the 

officer to answer questions about how he had located appellant. Appellant 

did not examine the arresting officer as to how, as a Broward County 

Sheriff’s officer seeking to arrest appellant on a state crime, he had been

acting in his capacity as a member of the U.S. Marshal’s fugitive task force.

Ultimately, the court denied the motion to suppress in part, because no 

evidence was presented that the seizure of appellant was based upon an 

illegal search using CSLI.

On appeal, appellant argues that the court erred in preventing 

appellant from questioning the officer about whether he had used CSLI to 

locate appellant. I disagree. 28 C.F.R. § 16.22(a) provides that in any case 

where the United States is not a party, “no employee or former employee 

of Department of Justice2 shall, in response to a demand . . . disclose any 

1 The court also found that the statements which appellant had sought to 

suppress were attenuated from illegal conduct, if any. I would hold that the 

evidence produced did not meet the factors for that determination: “(1) the time 

elapsed between the illegality and the acquisition of the evidence; (2) the presence 

of intervening circumstances; and (3) the purpose and flagrancy of the official 

misconduct.” State v. Frierson, 926 So. 2d 1139, 1143 (Fla. 2006).

2 The definition of employee includes state or local law enforcement officers 

assigned to a task force. Justice.gov Justice Manual Title 1: Organization and 
3

information or produce any material acquired as part of the performance 

of that person’s official duties or because of that person’s official status 

without prior approval of the proper Department official[.]” In addition, 28 

C.F.R. § 16.28 provides that “if the court . . . rules that the demand must 

be complied with irrespective of instructions rendered in accordance with 

§§ 16.24 and 16.25 of this part not to produce the material or disclose the 

information sought, the employee or former employee upon whom the 

demand has been made shall, if so directed by the responsible Department 

official, respectfully decline to comply with the demand.” If the witness 

declines to answer, the trial court cannot compel the witness to answer 

under penalty of contempt. U.S. ex rel. Touhy v. Ragen, 340 U.S. 462, 469

(1951). Thus, the court did not err in refusing to compel the officer to 

testify.

Nevertheless, the Justice Department’s refusal to allow this witness to 

testify to whether he used CSLI to locate appellant and whether he secured 

a warrant does not seem to comport with its own regulations. “It is 

Department policy that the responsible official shall, following any 

necessary consultation with the originating component, authorize 

testimony by a present or former employee of the Department or the 

production of material from Department files without further authorization 

from Department officials whenever possible . . . .” 28 C.F.R. § 16.24(c). I 

do not understand how revealing that CSLI had been used to locate 

appellant would reveal investigative techniques whose effectiveness would 

be impaired by disclosure.3 I find it hard to believe the public is unaware

that police use cell tracking data to locate persons. What one gleans from 

this record is an effort to hide the fact that the deputy acted without a 

warrant, thus making the search for appellant illegal.

Although the officer may not be held in contempt for following the 

directions of his superiors, that does not preclude the superior from being 

held in civil contempt. See Touhy, 340 U.S. at 472 (Frankfurter, J., 

concurring) (“[T]he Attorney General [cannot] forbid every subordinate who 

is capable of being served by process from producing relevant documents 

and later contest a requirement upon him to produce on the ground that 

procedurally he cannot be reached . . . . [T]he Attorney General can be 

reached by legal process.”); see also United States v. Salemme, 978 F. 

Supp. 364, 371 (D. Mass. 1997) (holding that the DOJ regulations do not

immunize the ultimate decisionmaker, the Acting Deputy Attorney 

Functions 1-6.111- Definition of Employee. https://www.justice.gov/jm/jm-1-

6000-doj-personnel-witnesses#1-6.111 (last viewed 8-28-2024)

3 Appellant’s request did not require the disclosure of codes or techniques used 

to locate with CSLI, just that the technology had been used.
4

General, from being held in civil contempt if the court decides that it is 

appropriate to compel disclosure of the information at issue). However, 

the record does not demonstrate that appellant attempted to bring before 

the court any official responsible for the withholding of this information.

It is very concerning that appellant was potentially deprived of a 

constitutional right. Appellant may be able to pursue this claim in 

postconviction proceedings and obtain the information by way of a 

Freedom of Information Act request to determine whether CSLI was used. 

See, e.g., Woodward v. U.S. Marshal Serv., 534 F. Supp. 3d 121 (D.D.C. 

2021). But because these arguments differ from those made in the trial 

court, I concur. See Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985).

* * *

Not final until disposition of timely filed motion for rehearing.