County Criminal Court: CRIMINAL LAW --- Search and Seizure --- Miranda – Order granting motion to suppress should not have been granted because record did not show defendant subject to custodial interrogation. Order granting motion to suppress reversed. State v. Koross, No. CRC 07-19 APANO, (Fla. 6th Cir. App. Ct. March 31, 2008).

 

 

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING

AND, IF FILED, DETERMINED

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

STATE OF FLORIDA

 

            Appellant,

                                                                              Appeal No. CRC 07-19 APANO

                                                                              UCN522007AP000019XXXXCR

v.

 

TAMMY C. KOROSS

 

            Appellee.

__________________________/

 

Opinion filed _________________.

 

Appeal from an order entered

by the Pinellas County Court

County Judge Lorraine M. Kelly

 

Kristi Aussner, Esquire

Assistant State Attorney

 

Heather Fleming, Esquire

Assistant Public Defender

ORDER AND OPINION

            (J. Bulone)

 

            THIS MATTER is before the Court on the State’s appeal from a decision of the Pinellas County Court granting the defendant’s motion to suppress. After reviewing the briefs and record, this Court reverses the trial court’s decision.

            The police received information from an alleged victim that an individual, the defendant, had battered her at a lounge and then gone across the street to a bar. The police went to the bar, saw the defendant sitting at the bar, approached her, and asked her if she had been at the lounge earlier in the evening. Initially, the defendant denied it, but when asked again she admitted being there. At that point she was read her Miranda rights; she was ultimately arrested for battery. The defendant, however, testified that the police officer grabbed her arm, blocked her from the door, and handcuffed and arrested her almost from the time he entered the bar. She contends she was never given any Miranda warnings. The trial court’s written order did not mention this. Perhaps the trial court implicitly rejected this testimony, but it is not clear from the record. The defendant sought to suppress all statements made to the police prior to being read Miranda warnings. The trial court granted the defendant’s motion to suppress, and the State is appealing that decision.

            Any factual findings made by the trial court are accorded a presumption of correctness. This Court, however, must review the application of the law to those facts de novo. Connor v. State, 803 So.2d 598 (Fla. 2001).

            The State contends that the trial court erred in granting the motion because even though the court decided that the defendant was interrogated, it failed to consider whether or not the defendant was in custody at the time. A reading of the transcript reveals that the trial court used the wrong legal test in deciding the motion to suppress. The trial court stated: “she (defendant) doesn’t have to be in custody.  It can turn on either she was in custody or whether an interrogation had begun.” R. 62. “Miranda warnings are only required for custodial interrogations.” Lorenzo v. State, 948 So.2d 1012, 1014 (Fla. 3d DCA 2007). As noted in State v. Shell, 932 So.2d 628, 630 (Fla. 2d DCA 2006), “[i]t is custodial interrogation – not mere questioning – that triggers Miranda’s requirement of the advisory warning that must be given to a suspect before questioning begins.” The trial court’s failure to consider whether or not the defendant was in custody was error. Therefore, the order granting the defendant’s motion to dismiss is reversed, and this case is remanded to the trial court so that it may address the issue.

            Upon remand, the trial court must determine if the defendant was in custody. The test is whether or not a reasonable person would believe that his or her freedom of action was curtailed to a degree associated with actual arrest. Id. at 631. The trial court should consider four factors: (1) the manner in which the police summoned the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect was confronted with evidence of her guilt; and (4) whether the suspect was informed that she was free to leave the place of questioning. Id. The trial court is, of course, free to resolve all conflicts in the testimony and make findings of fact.

            IT IS THEREFORE ORDERED that this Court reverses the order granting the defendant’s motion to suppress, and remands this case to the trial court so that it can consider whether or not the defendant was in custody at the time of the interrogation.

            DONE AND ORDERED in Clearwater, Pinellas County, Florida this _____ day of March, 2008.

                                                            _____________________________

                                                                        Joseph A. Bulone

                                                                        Circuit Court Judge

 

 

                                                            _____________________________

                                                                        David A. Demers

                                                                        Circuit Court Judge

 

 

                                                            ______________________________

                                                                        Cynthia J. Newton

                                                                        Circuit Court Judge

cc:        Office of the State Attorney

            Honorable Donald E. Horrox

            Office of the Public Defender