Statement “I don’t even have no money to call a lawyer” is not a waiver of the right to counsel during questioning

Chavers v. State, 38 Fla. L. Weekly D1035a (Fla. 1st DCA May 9, 2013):  Defendant was arrested on a murder charge.  Cops read him his rights under Miranda, and the following conversation occurred:

Officer: So I want to go over your Miranda warnings. That means you have the right to remain silent, okay?

 Appellant: Uh-huh.

 Q: Anything you say can and will be used against you in a court of law.

 A: Uh-huh.

 Q: You have the right to talk to a lawyer and have him or her present with you while you’re being questioned.

 A: Uh-huh.

 Q: Okay. If you cannot afford to hire a lawyer, one will be appointed to represent you before any further questioning, if you wish. If you decide to answer questions now, without your lawyer being present, you have the right to change your mind at any time and request a lawyer be present before any further questioning. So if you don’t like the way it’s going, you can say, whoa, [detective].

 A: I don’t have no lawyer, so —

 Q: You — –

 A: I don’t even have no money to call a lawyer.

 Q: Okay. But, understand, you know, you could have one, but — do you have any questions about these? Do you understand them?

 A: Uh-huh.

 Q: You do? Do you understand the rights? Could I get an initial right there? And if you want to talk to me now.

Chavers then made statements about the murder that were used against him at trial.  Prior to trial, however, he made a motion to suppress the statements, saying that they were made in violation of the the right to have counsel present during questioning (“interrogation”).  The suppression motion was denied by the Florida criminal court judge.

The Florida criminal trial court’s partial denial of the motion to suppress Chavers’ statement to law enforcement was reversed because Chavers’ right to the presence of counsel for the interrogation was not validly waived.  “[A]n ambiguous waiver must be clarified before initial questioning.”  Alvarez v. State, 15 So. 3d at 745. “Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation.”  U.S. v. Rodriguez, 518 F. 3d 1072, 1080 (9th Cir. 2008) (considering waiver of right to remain silent when officer inquired if suspect “wished to speak to him” and suspect responded “I’m good for tonight.”).  See also Miles v. State, 60 So. 3d 447, 451 (Fla. 1st DCA 2011) (“If the suspect makes an equivocal request to remain silent before waiving his Miranda rights, the police must clarify the suspect’s intent before continuing the interrogation.”)

In this case, the Florida appeal court found that the State did not meet its “heavy burden” to show a knowing and intelligent waiver of Chavers’ right to appointed counsel because Chavers’ statement that he did not have the money for a lawyer indicated that he did not intelligently understand he had the right to appointed counsel even if he could not afford one.  See Martinez v. State, 564 So. 2d 1071 (Fla. 1990); Fields v. State, 402 So. 2d 46 (Fla. 1st DCA 1981). Because the officer’s response to Appellant’s statement did not clarify Appellant’s right to the presence of counsel regardless of his lack of financial resources, Appellant’s waiver of that right was not valid.  Accordingly, Appellant’s subsequent statements placing him in the victim’s vehicle on the evening in question and other incriminating statements should have been suppressed.

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