## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________
No. 1D 17

- 1681

_____________________________
S TATE O F F LORIDA , Appellant,

v.

J USTIN D AVID L ANTZ , Appellee.

_____________________________

On appeal from the Circuit Court for Okaloosa County

. John T. Brown , Judge

. February 23, 2018

P ER C URIAM

. 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 s ome 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 mot her’s floating body

, Mr. Lantz was brought to an interrogation room at2 the police station. He was told of his rights to remain silent and to counsel

. And he asked for a lawyer

. At this, the o fficer s told Mr. Lantz that they’d like to talk to him again afte r 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, t hey had to wait for the technician to arrive for a bout two hours. In the meantime,

o fficers 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, t he trial court ordered some of his statements suppressed and others not

. The State appeal s the suppression or der 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 r uling 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 Co nstitutions protect those arrested for committing crimes against being compelled to become witness es against themselves in their own criminal cases. U.S. Const. amend. V; A rt . I, § 9, Fla. Const.; Ramirez v. State , 739 So.3 2d 568, 572

– 73 (Fla.1999). Suspec ts 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. 4 36
, 4 44 (1966 )

. “Once warnings have been given, the subsequ ent procedure is clear. . . . I f 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 invo cation 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.”)

. B ut 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 interr ogation s . 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 s ubjected 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”). I nterrogation “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 arr est 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 occurs4 where an officer does not initiate a conversation a nd merely responds to the suspect.” Gordon v. State , 213 So. 3d 1050, 1053 (Fla. 4th DCA 2017). “ O fficers 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 Sta te 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.

T he State first challenges the suppression of statements found in the r ecord
, 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 wit h 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 incrimin ating
response from the suspect

. ” Innis , 446 U.S. at 301. The officer5 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 incriminat ing response

. T hese circumstances do

no t constitute interrogation requiring suppression of Mr. Lantz’s incriminating statements

. See Gordon

, 213 So. 3d at 10 54 ( finding no interrogation where the officer res ponded 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 sta tements found in the r ecord at page 126
, line 6 , through page 128
, line 10 ; and page 134
, line 1 through
page 135
, line 1 6. As in the first instance, the officer s 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, 60 0

- 606 (1990) (holding that a n intoxicated suspect’s
statements to offi cers over a period of time were not the product of interrogation); Mauro , 481 U.S. at 52 9 ( recognizing that p olice 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 voluntar il y made , in part, because he “was given water and offered food, a nd was not abused or threatened ”).

With respect to a ll other parts of the transcript challenge d by the State , w e affirm

.
III.

A FFIRMED in part, R EVERSED in part and R EMANDED for further proceedings consistent with this opinion

.
L EWIS , O STERHAUS , and B ILBREY , JJ., concur

.6 _____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

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.