Supreme Court, U.S.PILED

11)-5 5 0 0¢i lS 2010

Case No. OFFICE OF TIlE CLERK

IN THE UNITED STATES SUPREME COURT

STATE OF FLORIDA,Petitioner,

Vo

BLAINE ROSS,Respondont.

PETITION FOR A WRIT OF CERTIORARITO THE SUPREME COURT OF FLORIDA

BILL McCOLLUMATTORNEY GENERAL

CAROL M. DITTMAR*Senior Assistant Attorney General

Florida Bar No. 0503843

OFFICE OF THE ATTORNEY GENERAL3507 East Frontage Road, Suite 200

Tampa, Florida 33607-7013813"287"7910

*Counsel of Record

Bla~k pa~e

QUESTION PRESENTED FOR REVIEW

[Capital Case]

Petitioner asks this Court to grant review ofthe following issue:

WHETHER THE PROVISION OFCOMPLETE AND ACCURATE MIRANDAWARNINGS DURING A CUSTODIALINTERROGATION, ACCOMPANIED BY AWRITTEN ACKNOWLEDGMENT ANDWAIVER, AFFORDS APRESUMPTION OFADMISSIBILITY OF POST-WARNINGSTATEMENTS WHERETHE INITIAL, PRE-WARNING STATEMENTS WERE NOTCOERCED BUT WERE VOLUNTARILYPRODUCED AND WHERE THERE ISNOEVIDENCE OF POLICE MISCONDUCT?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ..................i

TABLE OF AUTHORITIES .......................................iv

OPINION BELOW ......................................................1

JURISDICTION ..........................................................2

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED .........................................2

STATEMENT OF THE CASE ....................................3

REASONS FOR GRANTING THE WRIT ................13

THE PROVISION OF COMPLETE ANDACCURATE MIRANDA WARNINGSDURING A CUSTODIALINTERROGATION,ACCOMPANIED BY A WRITTENACKNOWLEDGMENT AND WAIVER,SHOULD AFFORD A PRESUMPTION OFADMISSIBILITY OF POST-WARNINGSTATEMENTS WHERE THE INITIAL, PRE-WARNING STATEMENTS WERE NOTCOERCED BUT WERE VOLUNTARILYPRODUCEDAND WHERE THERE ISNOEVIDENCEOF POLICE MISCONDUCT.

CONCLUSION ..........................................................34

ii

OPINION OF THE FLORIDA SUPREMECOURT ..............................................................A1-A90

TRIAL COURT ORDER ON MOTIONTO SUPPRESS ..............................................A91-A179

MIRANDA WAIVER FORM ................................A180

iii

TABLE OF AUTHORITIES

Federal Cases

Ford v. United States,931 A.2d 1045 (D.C. Cir. 2007),cert. denied, 533 U.S. 1026 (2008) .........................18

Marks v. United States,430 U.S. 188 (1977) ................................................24

Miranda v. Arizona,384 U.S. 436 (1966) ........................................passim

Missouri v. Seibert,542 U.S. 600 (2004) ........................................passim

Oregon v. Elstad,470 U.S. 298 (1985) ........................................passim

United States v. Briones,390 F.3d 610 (8th Cir. 2004),cert. denied, 545 U.S. 1122 (2005) .........................18

United States v. Carrizales-Toledo,454 F.3d 1142 (10th Cir.),cert. denied, 549 U.S. 1065 (2006) .........................18

United States v. Carter,489 F.3d 528 (2d Cir. 2007),cert. denied, 128 S. Ct. 1066 (2008) ......................17

United States v. Courtney,463 F.3d 333 (5th Cir. 2006) ..................................18

iv

United States v. Crisp,371 Fed. Appx. 925 (10th Cir. 2010)(unpublished) .........................................................22

United States v. Fellers,397 F.3d 1090 (8th Cir.),cert. denied, 546 U.S. 933 (2005) ..........................19

United States v. Gonzalez-Lauzan,437 F.3d 1128 (11th Cir.),cert. denied, 549 U.S. 861 (2006) ....................18, 19

United States v. Heron,564 F.3d 879 (7th Cir. 2009) ..................................19

United States v. Jackson,608 F.3d 100 (1st Cir. 2010),pet. for cert. filed Sept. 2010 .................................19

United States v. Mashburn,406 F.3d 303 (4th Cir. 2005) ..................................18

United States v. Naranio,223 Fed. Appx. 167 (3d Cir.)(unpublished decision after remand),cert. denied, 552 U.S. 1055 (2007) .........................22

United States v. Naranio,426 F.3d 221 (3d Cir. 2005) ...................................17

United States v. Ollie,442 F.3d 1135 (8th Cir. 2006) ..........................21, 22

United States v. Pacheco-Lopez,531 F.3d 420 (6th Cir. 2008) ..................................18

V

United States v. Stewart,388 F.3d 1079 (7th Cir. 2004) ................................19

United States v. Stewart,536 F.3d 714 (7th Cir.),cert. denied, 129 S. Ct. 741 (2008) ..................21, 22

United States v. Street,472 F.3d 1298 (11th Cir. 2006),cert. denied, 551 U.S. 1138 (2007) .........................18

United States v. Verdugo,__ F.3d m, 2010 WL 3260805(1st Cir. Aug. 19, 2010) ..........................................19

United States v. Williams,435 F.3d 1148 (9th Cir. 2006) ..........................18, 21

State Cases

Carter v. State,309 S.W.3d 31 (Tex.Crim.App. 2010) ........18, 21, 22

Davis v. State,990 So. 2d 459 (Fla. 2008) ...............................13, 19

People v. Lopez,892 N.E.2d 1047 (Ill. 2008),cert. denied, 129 S. Ct. 998 (2009) ........................18

People v. Rios,101 Cal.Rptr.3d 713 (Cal. 2009) ............................18

Ross v. State,35 Fla. L. Weekly $295 (Fla. May 27, 2010). passim

vi

State v. Fleurie,968 A.2d 326 (Vt. 2008) ...................................18, 19

State v. Gaw,285 S.W.3d 318 (Mo. 2009),cert. denied, 130 S. Ct. 1082 (2010) ......................18

State v. Hickman,u P.3d __, 2010 WL 3555802 (Wash. 2010) ......18

Other Authorities

28 U.S.C. § 1257(a) ......................................................2

Daniel S. Nooter, Note, Is Missouri v. SeibertPracticable?: Supreme Court Dances the"Two-Step" Around Miranda,42 Am.Crim. L.Rev. 1093 (2005) ...........................21

Sup. Ct. R. 10(b) ........................................................22

Sup. Ct. R. 10(c) .........................................................23

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Blank Page

Case No.

IN THE UNITED STATES SUPREME COURT

STATE OF FLORIDAPo tition er,

Vo

BLAINE ROSS,Respon den t.

OPINION BELOW

The decision from which Petitioner seeks toinvoke the discretionary review of this Court isreported as Ross v. State, 35 Fla. L. Weekly $295(Fla. May 27, 2010), as revised on September 8, 2010(35 Fla. L. Weekly $501).

Petitioner’s Appendix (A1-A180) contains theopinion of the Florida Supreme Court below, CaseNo. SC07-2368, (A1-A90). The Appendix furthercontains the trial court’s order denying the motion tosuppress (A91-A179) and the Miranda Waiver Form(A180). The parties will be referred to as they appearbefore this Court or as they stood in the court(s)below. 1

1 The symbol; "A" followed by the appropriate page

number expresses a citation to the materialscontained in the Appendix to this pleading.

1

JURISDICTION

The jurisdiction of this Court is invokedpursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED

Constitution of the United States

AMENDMENT V

No person shall be held to answer for a capital, orotherwise infamous crime, unless on a presentmentor indictment of a Grand Jury, except in cases arisingin the land or naval forces, or in the Militia, when inactual service in time of War or public danger; norshall any person be subject for the same offence to betwice put in jeopardy of life or limb; nor shall becompelled in any criminal case to be a witnessagainst himself, nor be deprived of life, liberty, orproperty, without due process of law; nor shallprivate property be taken for public use, without justcompensation.

2

STATEMENT OF THE CASE

In 2007, Respondent Blaine Ross wasconvicted of robbery and two counts of first degreemurder following the deaths of his parents, Richardand Kathleen Ross. Ross was arrested for themurders on January 9, 2004, after extensivequestioning which started as a noncustodialinterview at approximately 3:35 p.m. The trial courtfound that the interview became custodial so as torequire warnings pursuant to Miranda v. Arizona,384 U.S. 436 (1966), at 7:22 p.m., when ManateeCounty Sheriffs Detective William Waldron advisedRoss of his constitutional rights and secured awritten acknowledgment and waiver of rights (A180).The Florida Supreme Court disagreed and concludedthat Ross was in custody two hours earlier, as of 5:20p.m., when Waldron confronted Ross with the factthat his parents’ blood had been found on a pair ofhis pants that had been collected from his girlfriend’shouse on January 8, 2004. Ross, 35 Fla. L. Weekly at$299 (A26). At issue in this petition is the proprietyof the Florida Supreme Court’s analysis andconclusion that Ross’s statements following theexecution of his written waiver of rights should havebeen excluded under this Court’s decision in Missouriv. Seibert, 542 U.S. 600 (2004).

A. TRIAL

On January 7, 2004, Blaine Ross called 911 toreport the discovery of his parents’ bodies in thebedroom of their home in Bradenton, Florida. Law

3

enforcement officers with the Manatee CountySheriffs Office responded to the scene, and foundRoss, 21-years-old, and his 16-year-old girlfriend,Erin, waiting outside the Ross home. At Ross’srequest, law enforcement transported him away fromthe scene to be interviewed.

Ross then spent about twelve hours at theManatee Sheriffs substation, during which time hegave four separate interviews that amounted to atotal of less than four hours. Ross was not advised ofhis Miranda rights but when he challenged theadmission of these statements, the courts determinedthat there was no custodial interrogation so thestatements were properly admitted. Ross, 35 Fla. L.Weekly at 297, n.7 [note at 309] (A14). In theinterviews, Ross attempted to describe his actionsover the previous few days but he admitted that hismemory was poor as he had ingested illegalsubstances which interfered with his recall ability.Ross made a number of inconsistent, improbable, andimplausible statements over the course of theseinterviews. He was repeatedly accused of havingkilled his parents but he consistently denied havingdone so. Ultimately, the questioning concluded andRoss was driven to his girlfriend’s house about 2:40a.m. on January 8.

On January 9, Ross returned to the sheriffsoffice seeking information about getting victim’sassistance as well as the status of the investigation.The January 9 meeting between Ross and Det.Waldron was videotaped and admitted as evidence attrial. The tape opens with Ross and Waldron

4

discussing questions which Ross had based on mediacoverage he had seen about his parents’ murders andsome aspects of the investigation. After answeringRoss’s questions, Waldron asks if they could go backover the information they had been discussing onJanuary 7 and 8 regarding Ross’s actions beforediscovering his parents’ bodies. Ross is offered abathroom or smoke break and something to drink,but he declines. The time is 3:35 p.m. About half anhour later Ross and Waldron left the room for acigarette break, and the interview is resumed at 4:33.Around 5:00 the interview becomes more heated,with Waldron repeating suspicions he had raised inthe earlier interviews and Ross insisting that, whilehe did not remember details about his activities, hecould not have committed the crimes. At 5:20,Waldron tells Ross that his pants that were collectedfrom Erin’s house had spots of blood on them thatmatched blood from the crime scene. About fifteenminutes later, Ross admits that it was possible hecommitted the crime with no memory of his actions,but that he did not believe he had done so.

A few minutes after 6:00, Ross asks to see hissister, and Waldron leaves the room so that Ross andhis sister can speak alone. On the video, Ross’s sisteradvises him to tell the truth, but not to let the policetalk him into believing that he had done somethingthat he did not do. Waldron returns and theinterview resumes at 6:23 but is halted whenWaldron leaves the room again shortly before 7:00.Waldron returns at 7:16 but leaves when Rossrequests to speak to his sister again. Waldronreturns five minutes later saying that he couldn’t

5

find Ross’s sister, but there were some other thingshe had learned, and they needed to go over some"procedures." Waldron then advises Ross of hisconstitutional rights, which were discussed brieflybefore Ross agreed to continue answering Waldron’squestions. Ross signed a written waiveracknowledging his rights, and indicated, both orallyand in writing, that he was willing to continuespeaking with Waldron. Waldron proceeded to tellRoss that the police had discovered a bloody ski maskin his car, and Ross told Waldron that there was aninnocent explanation for the mask. In fact, the maskdid not incriminate Ross and was not admitted asevidence against him at the trial. At 7:54, Rossacknowledged knowing that he "did do this," tellingWaldron that he recalls standing at the foot of hisparents’ bed with a bloody baseball bat in his hands.Ross admitted realizing what he had done andattempting to stage the scene to look like a burglary.He stated that he took his mother’s purse and that,ultimately, he threw the purse, the baseball bat, andhis bloody shirt off of a bridge. Ross continued toanswer questions until 8:48, when he expresslyinvoked his right to remain silent.

It is undisputed that, at some point in thisinterview, the questioning became custodial; the trialcourt determined that custody occurred atapproximately 7:22 p.m., when Det. Waldron advisedRoss of his constitutional rights pursuant toMiranda, while the Florida Supreme Courtdetermined that the interrogation had becomecustodial about two hours earlier, once Waldronconfronted Ross with the fact that law enforcement

6

had detected blood on a pair of Ross’s pants that hadbeen collected from Erin’s house and matched bloodfrom the crime scene.

Several days after the arrest, Ross’s sistercontacted Waldron and advised him that Rosswanted to talk to him. Waldron spoke to Ross at thejail cell on January 12, and after receiving Mirandawarnings again, Ross made further inculpatorystatements. In addition to Ross’s statements ofJanuary 7, 8, 9, and 12, the State presented evidenceat trial indicating that Ross had been present at thescene. Specifically, Erin testified that Ross had notbeen at her house when she went to sleep on January6, but he had been there when she woke up onJanuary 7. Ross’s fingerprint was found on acigarette lighter which had been left on top of abaseball equipment bag in the garage of the house;the compartment for bats was unzipped and empty.Another fingerprint was found on the inside of asliding glass door that had been left ajar. Inaddition, blood with his parents’ DNA was found onthe pants Ross had been wearing the night of themurder, which were collected at Erin’s house thenext day.

Evidence was also offered to establish afinancial motive for the murders. Testimony andbank records showed that Ross had withdrawn atotal of $1401.50 from his mother’s checking accountover a short period of time before her murder; awritten contract dated January 6, 2004, betweenRoss and his mother stated, "I, Kathleen Ross, has[sic] loaned Blaine Ross $1400 that will be paid back

7

in full as soon as possible. Blaine will never ask forSam’s Club card or any other money."

The murders were estimated to have occurredbetween 3 a.m. and 5 a.m. on January 7. After Rossand Erin woke up at Erin’s house on January 7, theywent to a credit union where Ross attempted towithdraw money with an ATM card. When he wasunable to obtain money, Ross went into the creditunion to speak with an employee to have her accessthe account. When told that the account was only inhis mother’s name, Ross told the employee that hismother was out of town and he needed the PINnumber. Although Ross was insistent, the creditunion employee refused to give Ross access to theaccount. After leaving the credit union, Rossattempted to use the ATM card at another locationbut was still unable to obtain any money. At thatpoint, Ross returned to his parents’ house, ostensiblyto talk to his mother about getting money, and that iswhen he discovered his parents’ bodies.

At Ross’s trial, the January 9 videotape wasadmitted and published, along with audiotapes of theJanuary 7, 8 and 12 interviews. Ross presenteddefense witnesses in an attempt to establish that hisconfession was unreliable and that someone else hadcommitted the murders. Ross was convicted ascharged and, following a penalty phase proceeding,his jury recommended that two death sentences beimposed for the first degree murder convictions. Thetrial judge complied and sentenced Ross to death forthe murders.

8

B. PRETRIAL SUPPRESSION HEARING

Ross filed written motions to suppress physicalevidence which had been gathered as well as hisstatements to law enforcement officers on January 7and 8, January 9, and January 12. A series ofpretrial hearings were conducted in 2006 to addressthe constitutional issues raised in Ross’s motions.The testimony regarding the circumstances of Ross’sstatements of January 9 was provided primarily byDet. Waldron and the defense confession expert,forensic psychologist Dr. Gregory DeClue. Ross didnot testify.

Evidence was presented that the ManateeCounty Sheriffs Office formal policy required officersto provide Miranda warnings to any suspect beforequestioning either upon arrest or when thequestioning passes from the fact-finding process tothe accusatory stage. Det. Waldron testified that histraining on interviews and interrogations taught himto provide Miranda warnings at the point where aperson’s movements are restricted and the person isnot going to be free to leave. Waldron stated that theoffice policy was just a guideline and that, dependingon the situation, some interviews became accusatorybefore the warnings were given. Waldronacknowledged that, before he spoke to Ross, hediscussed the case with his supervisors and had beengiven suggestions on how to proceed. ManateeCounty Sheriff Charlie Wells had offered some advicebefore the January 9 interview and indicated that hewas counting on Waldron to get "closure." Waldronalso was aware that Wells and others were

monitoring the interview as it took place. Whenasked why he did not provide Ross with Mirandawarnings earlier than he did, Waldron explained thathe did not believe that he had probable cause toarrest Ross until he learned about the ski mask,which he believed would incriminate Ross.

Following the hearing, the trial court renderedan extensive order addressing numerous aspects ofRoss’s multiple statements. The court agreed withDet. Waldron that Ross was not in custody prior tothe time that Waldron advised him of his rights andsecured a written acknowledgment and waiver(A139-A153). The court described the January 9interview, finding "[a]lthough there are portions ofthe interview that are confrontational and indeedpointed and accusatory, most of the interview wasovertly non-confrontational and overtlyconversational," (A145-A146) and "the majority of theconversation was cordial and particularly non-accusatory" (A148). The court also expressly foundthat there was "no evidence that the detectivesdeliberately withheld Miranda until the defendantconfessed" (A152). In response to Ross’s claim ofinvoluntariness, the trial court found that "[t]here isnothing in the interviews that indicate thatDefendant was coerced or intimidated into confessingto this crime" (A162).

10

C. THE FLORIDA SUPREME COURT OPINION

In a split 4"3 decision, the Florida SupremeCourt concluded that Ross was actually in custody atthe point where Waldron confronted him with thefact that blood from the crime scene had been foundon the pants that he had left at Erin’s house themorning of the murders, and determined thatMiranda warnings should have been given at thattime. The court also held that the failure to providetimely warnings and the manner in which thewarnings were delivered rendered them ineffective,and, pursuant to this Court’s Seibert decision,suppression of Ross’s post-Miranda statements wasalso required. The court noted that thecircumstances of the confession were"uncontroverted," and determined that the State hadfailed to establish that Ross’s waiver had beenknowingly, voluntarily and intelligently made, andthat therefore the post-waiver statements shouldhave been suppressed.

The dissenting justices agreed that Ross wasin custody for Miranda purposes when confrontedwith the bloody pants, but concluded that thestatements following Ross’s written waiver of rightswere properly admitted. The dissenters expresslydisagreed with the majority’s application of Seibert,noting that, since there was no evidence of adeliberate, two-step strategy to avoid Miranda, thestandards of Oregon v. Elstad, 470 U.S. 298 (1985),should control. Because the record affirmativelydemonstrated that Ross’s pre-warning statementswere voluntary, and that Waldron fully explained

11

Ross’s rights before securing the writtenacknowledgment and waiver, Ross’s post-warningstatements were properly admitted. The dissentingopinion also concludes that the error in admittingRoss’s statements after he was confronted with bloodon his pants but before being provided with thewarnings was harmless beyond any reasonabledoubt. Therefore, the dissenting justices would haveaffirmed Ross’s convictions despite admission of theJanuary 9 videotape.

12

REASONS FOR GRANTING THE WRIT

Since the release of Missouri v. Seibert, 542U.S. 600 (2004), both federal and state courts havestruggled to apply the fragmented decision. TheFlorida Supreme Court opinion issued below reflectsthe difficulty which has been noted in a number ofcases attempting to enforce Seibert. The Floridacourt itself disagreed on the proper application ofSeibert and the appropriate standards to be assessedunder the factual situation presented, with the threedissenting justices concluding "[t]he majority isimproperly mixing the [Oregon v.] Elstad [470 U.S.298 (1985)] and Seibert standards together." Ross, 35Fla. L. Weekly at 307 (A79). The majority opinionitself recognized that "there is a split in the federalcircuits regarding whether the plurality rather than[Justice Kennedy’s] concurrence operates as thecontrolling precedent." Ross, 35 Fla. L. Weekly at301, n.9 [note at 309] (A37). While the FloridaSupreme Court has previously applied JusticeKennedy’s concurring opinion as the operative rule,see Davis v. State, 990 So. 2d 459 (Fla. 2008), theanalysis conducted in the instant case signals a clearretreat from that position. Below, the Florida courtconflagrated Elstad and Seibert, concluding that bothsupport the "application of a totality of thecircumstances analysis when warnings are deliveredmidstream during an ongoing interrogation." Ros___~s,35 Fla. L. Weekly at 301 (A41). However, JusticeKennedy’s opinion in Seibert rejects the suggestionthat a Miranda violation in connection with onestatement necessarily threatens the admissibility ofother statements taken in full compliance with

13

Miranda, noting "[I]t would be extravagant to treatthe presence of one statement that cannot beadmitted under Miranda as sufficient reason toprohibit subsequent statements preceded by a properwarning." Id. at 620. The Florida Supreme Courtopinion below failed to limit its Seibert application toJustice Kennedy’s narrower opinion, and accordinglyimproperly directed a new trial be held and thatRoss’s voluntary, post-Miranda statements beexcluded.

14

THE PROVISION OF COMPLETE ANDACCURATE MIRANDA WARNINGSDURING A CUSTODIAL INTERROGATION,ACCOMPANIED BY A WRITTENACKNOWLEDGMENT AND WAIVER,SHOULD AFFORD A PRESUMPTION OFADMISSIBILITY OF POST-WARNINGSTATEMENTS WHERE THE INITIAL, PRE-WARNING STATEMENTS WERE NOTCOERCED BUT WERE VOLUNTARILYPRODUCED AND WHERE THERE IS NOEVIDENCE OF POLICE MISCONDUCT.

In Oregon v. Elstad, 470 U.S. 298, 310-11(1985), this Court held that where a properly-warnedconfession is preceded by an unwarned but clearlyvoluntary admission, "a careful and thoroughadministration of Miranda warnings serves to curethe condition that rendered the unwarned statementinadmissible." However, the release of Missouri v.Seibert, 542 U.S. 600 (2004), nearly twenty yearslater has generated confusion and conflict over thecontinued viability of Elstad as federal and statecourts have struggled to apply the fractured Seibertdecision to cases, such as the one below, whereMiranda warnings are provided "midstream" duringthe course of a custodial interrogation. The resultinglegal split among federal circuits and state courts oflast resort provides an unsettled area of law whichdemands this Court’s attention. Because the FloridaSupreme Court below improperly commingled therelevant standards in an attempt to reconcile the

15

tension it identified as necessarily flowing from thecase law, resulting in the suppression of a voluntary,post-warning confession, this case presents anappropriate vehicle to settle and resolve the properanalysis when these circumstances are presented.

The Conflict Among State and Federal CourtsInterpreting Seibert

It is easy to identify the federal circuit splitmost commonly associated with Seibert’s application,as the Florida Supreme Court acknowledged the lineof debate in a footnote in its opinion rendered below.See Ross, 35 Fla. L. Weekly at 301, n.9 [note at 309](A37-A38):

[FN9] While we focus on JusticeKennedy’s concurrence in analyzing theholding of Seibert, there is a split in thefederal circuits regarding whether theplurality rather than his concurrenceoperates as the controlling precedent. Infact, while the case cited by the dissent,United States v. Stewart, 388 F.3d 1079(7th Cir. 2004), relies on JusticeKennedy’s concurrence as to the holdingof Seibert, more recent circuit caseshave called into question the reliance onJustice Kennedy’s concurrence ratherthan the plurality. See, e.g., UnitedStates v. Heron, 564 F.3d 879, 884 (7thCir. 2009) ("[W]e conclude that theMarks Iv. United States, 430 U.S. 188,97 S.Ct. 990, 51 L.Ed.2d 260 (1977)] rule

16

is not applicable to Seibert. AlthoughJustice Kennedy provided the crucialfifth vote for the majority, we find it astrain at best to view his concurrencetaken as a whole as the narrowestground on which a majority of the Courtcould agree."); United States v. Pacheco-Lo~ez, 531 F.3d 420, 427 n. 11 (6th Cir.2008) (recognizing split in circuits as towhether Justice Kennedy’s concurrenceis controlling precedent); United Statesv. Carrizales-Toledo, 454 F.3d 1142,1151 (10th Cir. 2006) ("Determining theproper application of the Marks rule toSeibert is not easy, because arguablyJustice Kennedy’s proposed holding inhis concurrence was rejected by amajority of the Court."). In Heron, 564F.3d at 885, the Seventh Circuitrecognized that it had not settled on adefinitive approach to Seibert and heldthat its more recent decision in UnitedStates v. Peterson, 414 F.3d 825 (7thCir. 2005), "may be in some tensionwith our decision in Stewart and JusticeKennedy’s intent-based test."

A survey of relevant cases reveals that mostfederal circuits and several state courts of last resorthave solidly adopted Justice Kennedy’s concurringopinion as the holding in Seibert. See United Statesv. Carter, 489 F.3d 528, 536 (2d Cir. 2007), cert.denied, 128 S. Ct. 1066 (2008); United States v.Naranio, 426 F.3d 221,231-32 (3d Cir. 2005); United

17

States v. Mashburn, 406 F.3d 303, 309 (4th Cir.2005); United States v. Courtney, 463 F.3d 333, 338(5th Cir. 2006); United States v. Briones, 390 F.3d610, 613 (8th Cir. 2004), cert. denied, 545 U.S. 1122(2005); United States v. Williams, 435 F.3d 1148,1157-58 (9th Cir. 2006); United States v. Street, 472F.3d 1298, 1313 (llth Cir. 2006) (citing UnitedStates v. Gonzalez-Lauzan, 437 F.3d 1128, 1136, n.6(llth Cir.), cert. denied, 549 U.S. 861 (2006)), cert.denied, 551 U.S. 1138 (2007); Ford v. United States,931 A.2d 1045, 1052 (D.C. Cir. 2007), cert. denied,533 U.S. 1026 (2008); State v. Hickman, __ P.3d __,2010 WL 3555802, at *4 (Wash. 2010); Carter v.State, 309 S.W.3d 31, 38 (Tex.Crim.App. 2010); Statev. Gaw, 285 S.W.3d 318 (Mo. 2009), cert. denied, 130S. Ct. 1082 (2010); People v. Rios, 101 Cal.Rptr.3d713, 723 (Cal. 2009); People v. Lopez, 892 N.E.2d1047, 1069 (Ill. 2008), cert. denied, 129 S. Ct. 998(2009); State v. Fleurie, 968 A.2d 326 (Vt. 2008).These cases typically describe Seibert as carving outan exception to Elstad’s application. The Sixth andTenth Circuits have expressly questioned the properscope of Seibert, suggesting that it strictly limitedElstad to its facts and created a new analysis toapply in all cases where Miranda warnings areadministered midstream to assess the effectiveness ofthe warnings as provided. United States v. Pacheco-Lo~ez, 531 F.3d 420, 427 n. 11 (6th Cir. 2008); UnitedStates v. Carrizales-Toledo, 454 F.3d 1142, 1151(10th Cir.), cert. denied, 549 U.S. 1065 (2006). TheFirst Circuit has declined to resolve the question,finding the result would be the same under either theplurality or Justice Kennedy’s tests in those caseswhich have presented the issue. United States v.

18

Verdugo, __ F.3d __, 2010 WL 3260805 (1st Cir.Aug. 19, 2010); United States v. Jackson, 608 F.3d100, 104 (lst Cir. 2010), pet. for cert. filed Sept. 2010.Most troubling are those jurisdictions, such as theSeventh Circuit, which are inconsistent about whichanalysis to undertake when reviewing theadmissibility of statements made following Mirandawarnings given in the middle of an interrogation.See United States v. Stewart, 388 F.3d 1079 (7th Cir.2004) (applying Justice Kennedy’s concurringopinion) and United States v. Heron, 564 F.3d 879(7th Cir. 2009) (concluding that Marks does not applyto Seibert, and deeming it unnecessary "to resolveonce and for all what rule or rules governing two-stepinterrogations can be distilled from Seibert"); see alsoDavis v. State, 990 So. 2d 459, 465-66 (Fla. 2008)(applying Justice Kennedy’s concurring opinion) andRoss, 35 Fla. L. Weekly at 301"302 (A42"A43)(applying new totality’of’the’circumstances testwhich commingles the approach of Elstad, theSeibert majority, and Justice Kennedy’s Seibertconcurrence). Moreover, even those jurisdictionswhich appeared to have solidly adopted JusticeKennedy’s concurring opinion have engaged inadditional, unnecessary analyses, suggesting a lackof confidence in the true holding to be applied. See,e._~., United States v. Fellers, 397 F.3d 1090 (8thCir.), cert. denied, 546 U.S. 933 (2005); Gonzalez-Lauzan, 437 F.3d at 1139, n.8, Fleurie, 968 A.2d at333-36.

Thus, the most fundamental debate concernsthe question of whether application of Seibert isproperly assessed under Marks and therefore

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restricted to Justice Kennedy’s requirement thatthere be a deliberate, two-step strategy employed tocompel Seibert’s additional protections to insure theeffectiveness of the Miranda warnings when given.The extent to which Elstad survived Seibert is aquestion which is necessarily at the heart of theFlorida court’s analysis below. By melding thevoluntariness analysis of Elstad and theeffectiveness-of-warnings analysis of Seibert into awholesale, totality of the circumstances approach, theFlorida court has returned litigation of this issue tothe days before Miranda. Instead of assessing thevoluntariness of particular statements on a case-by-case, totality of the circumstances approach, courtsare now assessing the effectiveness of the Mirandawaiver on a case-by-case, totality of thecircumstances approach. Miranda itself attempted toresolve the difficult issue of the admissibility ofincriminating statements made to law enforcementofficers by providing an understandable method toinsure that only those statements given after clearwarning of the consequences could be produced fortrial. In the absence of any evidence indicatingeither police misconduct (such as the use of coercionor Seibert’s deliberate two-step strategy) or thesuspect’s inability to voluntarily waive his rights, thegiving of full and accurate Miranda warnings,accompanied by a written acknowledgement andwaiver of rights as in this case, should be sufficient topermit admission of the contested statements.However, in this case, the Florida Supreme Courtruled that it was not.

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While the central issue in this case is whethera Seibert analysis into the effectiveness of midstreamMiranda warnings is appropriate in the absence ofevidence of an intentional tactic to delay Mirandauntil a confession has been obtained, other ancillaryissues are also presented, such as the correctallocation of the burdens of proof and appropriatestandards of review, which have also led touncertainty and conflict. See United States v.Stewart, 536 F.3d 714, 719 (7th Cir.), cert. denied,129 S. Ct. 741 (2008); United States v. Ollie, 442 F.3d1135, 1142 (8th Cir. 2006); Williams, 435 F.3d at1158, n.ll; Carter, 309 S.W.3d at 38-39; Daniel S.Nooter, Note, Is Missouri v. Seibert Practicable?:Supreme Court Dances the "Two-Step" AroundMiranda, 42 Am.Crim. L.Rev. 1093, 1113 (2005).These questions are of particular concern since "thetrial judge’s assessment of the interrogating officer’ssubjective intent is especially important underJustice Kennedy’s approach in Seibert." Carter, 309S.W.3d at 39. In its decision below, the FloridaSupreme Court acknowledged that the trial courtfound "no evidence was submitted to show that thedetectives deliberately withheld Miranda warningsuntil Ross confessed" but the appellate court did notfeel bound by this finding, noting that "althoughdeference is to be accorded to credibility findings, theissue of the admissibility of the postwarningstatements is a mixed question of law and fact."Further, the court held "In this case, the trial courtdetermined only that there was no evidencesubmitted to show that the detectives deliberatelywithheld Miranda until after Ross confessed, thusimpermissibly shifting the burden of proof." This

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holding conflicts with conclusions drawn in othercases with similar findings. Compare United Statesv. Crisp, 371 Fed. Appx. 925 (10th Cir. 2010)(unpublished) (statements admissible where "recorddoes not reflect any indicia of deliberate action;"evidence insufficient to suggest deliberate delay);Stewart, 536 F.3d at 720"21 (finding of no deliberatedelay is a factual finding entitled to deference);United States v. Naranio, 223 Fed. Appx. 167, 169(3d Cir.) (unpublished decision after remand)(statements properly admitted where officer testifiedhe did not believe that he had to give warnings untilthe defendant was placed under arrest), cert. denied,552 U.S. 1055 (2007); see also Carter, 309 S.W.3d at41 (trial court’s finding no improper intent reversedby intermediate appellate court finding a deliberatechoice to undermine Miranda, which was reversed ondiscretionary review since the record supported thetrial court’s original finding); Ollie, 442 F.3d at 1143(finding Justice Kennedy’s test satisfied where therewas no evidence presented on the issue of adeliberate delay). Therefore, there is conflict as tothe proper application of Seibert above and beyondthe basic question of whether Justice Kennedy’sopinion controls.

Federal courts of appeal and state courts oflast resort are divided on the proper application ofSeibert. Consequently, this case satisfies Rule 10(b)of this Court’s Rules relating to the propriety ofcertiorari review. There is clearly a need for aresolution from this Court to the existing divisionamong courts across the country. Accordingly, thewrit of certiorari should be granted.

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The Florida Supreme Court’sOpinion BelowConflicts With Elstad and Seibert

In addition to presenting an issue on whichthere is conflicting law among the federal circuitsand state courts of last resort, this case also offers astate court of last resort decision on an importantfederal question which conflicts with this Court’sprecedents in Elstad and Seibert, warrantingcertiorari review under Rule 10(c) of this Court’sRules.

The Florida Supreme Court reversed Ross’sconvictions and resulting death sentences becausethe jury was allowed to consider the videotape ofRoss’s January 9, 2004 interview with Det. Waldron.In finding that Ross’s confession should have beenexcluded, the Florida court commingled theories andstandards from several different cases applyingMiranda v. Arizona, 384 U.S. 436 (1966), includingOregon v. Elstad, 470 U.S. 298 (1985), and Missouriv. Seibert, 542 U.S. 600 (2004). Citing the overridingmeasure of finding a knowing and voluntary waiverfrom the totality of the circumstances, the courtoutlined the circumstances which allegedly compelledsuppression: the fact that Miranda warnings werenot provided at the point that the reviewing courtconcluded they should have been; the fact that thesheriff and his staff discussed the interview processbefore the interview started and monitored it as itprogressed; and the fact that, when Mirandawarnings were given, they were introduced as a

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matter of "procedure," which the court helddownplayed and diminished the importance of thewarnings given so as to render them ineffective. As aresult of its flawed legal analysis, the Florida courthas reversed Ross’s convictions for a new trial wherethe State may not offer evidence of Ross’s voluntary,post-warning confession, despite the absence of anyevidence of overreaching police misconduct or anyevidence that Ross in fact failed to understand orappreciate the significance of the constitutionalrights which he acknowledged and waived orally andin writing.

In discussing the governing case law, theFlorida court "focused" on Justice Kennedy’sconcurrence when addressing Seibert. Ross, 35 Fla.L. Weekly at 301, n.9 [note at 309] (A37). However,rather than strictly applying Justice Kennedy’sconcurring opinion to restrict Seibert to its narrowestholding, the court’s analysis demonstrates that itdeveloped a new, "totality of the circumstances"standard to assess both the effectiveness of theMiranda warnings and the voluntariness of theMiranda waiver. See Ross, 35 Fla. L. Weekly at 301-305 (A42-A65). In doing so, the Florida courtviolated the "holding" of Seibert, which, pursuant to astraightforward application of Marks v. UnitedStates, 430 U.S. 188 (1977), must be construed as thenarrowest ground on which the decision could bebased.

It is readily apparent that this case does notinvolve the improper two’step strategy at issue inSeibert. It would be a stretch indeed to find that

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Miranda warnings were withheld in this case until aconfession had been obtained, since no confessionwas obtained prior to the administration of thewarnings. Rather than restricting Seibert to casespresenting a method of securing a confession whichwould then be perfunctorily repeated following thewarnings, the Florida Supreme Court changed thetrigger by reviewing for any "improper and deliberatetactics in delaying the Miranda warnings." Ross, 35Fla. L. Weekly at 301-303 (A42-A50).

As a result, the decision below is out of linewith those cases holding that Justice Kennedy’sopinion carved out a limited exception to Elstad,Seibert requires a court assessing the propriety ofmidstream Miranda warnings to first determinewhether there was a deliberate strategy of delayingMiranda warnings until a confession had beenobtained. According to Justice Kennedy, if thisdeliberate two-step strategy was not used, "[t]headmissibility of postwarning statements shouldcontinue to be governed by the principles of Elstad."Seibert, 542 U.S. at 622. Under Elstad, the firstconsideration is whether the initial, pre-warningstatements were coerced or voluntarily produced.This is a necessary determination because there is adifferent analysis involved in assessing voluntarinessof the waiver if there is a level of coercion whichmight carry over into the second interrogation.

In this case, the trial court determined thatRoss’s interviews, taken as a whole, "do not suggestthat law enforcement engaged in coercion orintimidation." (A162). The dissenting opinion below,

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which also expressly found Ross’s initial, pre’warningstatements to be "uncoerced," Roses, 35 Fla. L. Weeklyat 307, n.33 [note at 310] (A76), recognized themajority’s improper analysis and pointedly explainedthe error:

[FN35] The majority cites the followinglanguage from Elstad as its support thatElstad requires an examination of thesame factors as the plurality in Seibertwould require: "When a prior statementis actually coerced, the time that passesbetween confessions, the change in placeof interrogations, and the change inidentity of the interrogators all bear onwhether that coercion has carried overinto the second confession." Majority op.at 31 (quoting Elstad., 470 U.S. at 310(citing Westover v. United States,decided together with Miranda, 384 U.S.at 494)). However, this language doesnot apply every time there are twoconfessions with an interveningMiranda waiver. Rather, this languagereferencing Westover only applies aftera determination that the pre’Mirandastatements were coerced, which was notthe case in Elstad. As the United StatesSupreme Court explained in Elstad,

[t]he failure of police toadminister Miranda warningsdoes not mean that thestatements received have actually

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been coerced, but only that courtswill presume the privilege againstcompulsory self’incrimination hasnot been intelligently exercised.See New York v. Quarles, 467U.S., at 654, and n. 5; Miranda v.Arizona, supra, at 457. Of thecourts that have consideredwhether a properly warnedconfession must be suppressedbecause it was preceded by anunwarned but clearly voluntaryadmission, the majority haveexplicitly or implicitly recognizedthat Westover’s requirement of abreak in the stream of events isinapposite. In thesecircumstances,a careful andthorough administration ofMiranda warnings serves to curethe condition that rendered theunwarned statementinadmissible. The warningconveys the relevant informationand thereafter the suspect’schoice whether to exercise hisprivilege to remain silent shouldordinarily be viewed as an "act offree will." Wong Sun v. UnitedStates, 371 U.S., at 486.

Elstad, 470 U.S. at 310-11 (footnoteomitted). Indeed, in Elstad, the UnitedStates Supreme Court reversed the

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Oregon court’s holding that, despite thefact that the pre-Miranda statementswere uncoerced, "lapse of time, andchange of place from the originalsurroundings are the most importantconsiderations" in determining theadmissibility of the post’Mirandastatements. Id. at 303 (quoting State v.Elstad, 61 Or.App. 673, 658 P.2d 552,554 (Or.App.1983), rev’d, 470 U.S. 298,105 S.Ct. 1285, 84 L.Ed.2d 222 (1985),which cited Westover v. United States,384 U.S. 436, 496, 86 S.Ct. 1602, 16L.Ed.2d 694 (1966)).

Ross, 35 Fla. L. Weekly at 308, n.35 [note at 310](A86-A87).

Thus, both Seibert and Elstad compel analyseswhich are necessarily sequential rather thancumulative. A court faced with a challenge tomidstream Miranda warnings should first determineif there was a "two’step interrogation technique [ ]used in a calculated way to undermine the Mirandawarning." Seibert, 542 U.S. at 622. If there was, thecourt must consider the Seibert factors to determineif the Miranda warnings lost their effectiveness dueto the strategic delay. If there was no deliberatedelay until a confession was obtained, Seibert doesnot apply and the post’warning statements must beassessed under Elstad. Applying Elstad, the courtmust first determine if the initial, pre’warningstatements were coerced. If so, the factors noted inElstad must be considered to assess whether the

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coercion carried over into the post’warningquestioning (the time elapsed between statements,whether the second phase of questioning involved achange in place or in the identity of theinterrogators). If, however, the initial pre-warningstatements were voluntary, "careful and thoroughadministration of Miranda warnings" overcomes thepresumption of inadmissibility which applies to thepre’warning statements.

The court below departed from the sequentialSeibert/Elstad analysis outlined above andsubstituted a new analysis involving "a multiplicityof factors" impacting the ultimate issue ofadmissibility. The Florida court outlined itsapproach as follows:

The caselaw demonstrates that the analysisof the admissibility of statements madefollowing a custodial interrogation and afterthe delayed administration of Mirandawarnings is based on the totality of thecircumstances, with the following being factorsimportant in making this determination: (1)whether the policeused improper anddeliberate tactics in delaying theadministration of theMiranda warnings inorder to obtain the initial statement; [FNll](2) whether the police minimized anddownplayed the significance of the Mirandarights once they were given; [FN12] and (3) thecircumstances surrounding both the warnedand unwarned statements including "thecompleteness and detail of the questions and

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answers in the first round of interrogation, theoverlapping content of the two statements, thetiming and setting of the first and second[interrogations], the continuity of policepersonnel, and the degree to which theinterrogator’s questions treated the secondround as continuous with the first." [FN13] Inaddition, there are other circumstances toconsider on a case-by-case basis, such as thesuspect’s age, experience, intelligence, andlanguage proficiency. [FN14]

[FN11] See Elstad, 470 U.S. at 314("We must conclude that, absentdeliberately coercive or improper tacticsin obtaining the initial statement, themere fact that a suspect has made anunwarned admission does not warrant apresumption of compulsion [as to thelater statement]." (emphasis supplied)).

[FN12] See Davis, 859 So.2d at 471(noting that under Elstad, "a careful andthorough administration of Mirandawarnings serves to cure the conditionthat made an unwarned statementinadmissible"); Ramirez, 739 So.2d at574-75 (holding that postwarningstatements had to be suppressed whereofficers employed a concerted effort tominimize and downplay the significanceof the Miranda rights).

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[FN13] Seibert, 542 U.S. at 615(reviewing the following factors: "thecompleteness and detail of the questionsand answers in the first round ofinterrogation, the overlapping content ofthe two statements, the timing andsetting of the first and the second[interrogations], the continuity of policepersonnel, and the degree to which theinterrogator’s questions treated thesecond round as continuous with thefirst"); see also Elstad, 470 U.S. at 310("When a prior statement is actuallycoerced, the time that passes betweenconfessions, the change in place ofinterrogations, and the change inidentity of the interrogators all bear onwhether that coercion has carried overinto the second confession.").

[FN14] See, e.g., Bevel v. State, 983So.2d 505, 515-16 (Fla. 2008) (reviewingintelligence as one of the circumstancesto be considered in determining whethera defendant knowingly and voluntarilywaived his rights); Chavez v. State, 832So.2d 730, 750 (Fla. 2002) (reviewingdefendant’s understanding of theEnglish language and noting thatMiranda warnings were given inSpanish as one of the circumstances tobe considered in determining whether adefendant knowingly and voluntarilywaived his rights); Ramirez, 739 So.2d

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at 576 (reviewing age and experience incriminal justice system as one of thecircumstances to be considered indetermining whether a defendantknowingly and voluntarily waived hisrights).

Ross, 35 Fla. L. Weekly at 301-302 [notes at 309](A42-A43).

While the court identified the need to considercircumstances "such as the suspect’s age, experience,intelligence, and language proficiency," the actualanalysis conducted offered little concern for thosetraditional voluntariness factors.Conspicuouslyabsent in the majority opinion below is anyconclusion about the voluntarinessof Ross’s pre-warning custodial statements on January 9. The 64"page majority opinion devotes only a single sentenceto these considerations, noting, "In addition, we alsotake into account that Ross was only twenty-one atthe time with no indication of any prior experiencewith the criminal justice system." Ross, 35 Fla. L.Weekly at 304 (A64). This summary observationprovides no support for any finding of coercion todefeat the trial court’s finding that Ross entered aknowing, voluntary and intelligent waiver of hisconstitutional rights prior to confessing to havingkilled his parents.

Fundamentally, under Elstad. any analysis asto the voluntariness of statements produced afterMiranda warnings are given midstream must beginwith an analysis of the voluntariness of the initial,

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pre-warning statements. As this Court hasrecognized, statements are not deemed to have beencoerced simply because Miranda warnings were notgiven when required. "The Miranda exclusionaryrule sweeps more broadly than the Fifth Amendmentitself." Elstad, 470 U.S. at 306. In its opinion below,the Florida Supreme Court considered the initialstatements to have been coerced just because theywere unwarned. The court then analyzed whetherthis "coercion" carried over into the post-Miranda,warned statements. Finding that the warnings were"ineffective" because they were introduced as amatter of "procedure," the court then determined thatthe State failed to prove the voluntariness of thewaiver, despite the absence of any actual coercion orconfusion about the warnings as given. In doing so,the Florida court departed substantially from theproper analysis embodied in the holdings of Elstadand Seibert.

The Florida Supreme Court’s decision in thiscase conflicts with this Court’s precedents as to theproper assessment of the admissibility of voluntarystatements following the administration of Mirandawarnings during the course of a custodialinterrogation. Consequently, certiorari reviewshould be granted in this case.

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CONCLUSION

Based on the foregoing arguments andauthorities, Petitioner, the State of Floridarespectfully requests that this Honorable Co~rtGRANT this Petition for Writ of Certiorari.

Respectfully submitted,

BILL McCOLLUMATTORNEY GENERAL

CAROL M. DITTMAR*Senior Assistant Attorney GeneralFlorida Bar No. 0503843*Counsel of Record

3507 East Frontage Road, Suite 200Tampa, Florida 33607"7013Telephone: 813-287-7910Facsimile: 813-281-5501carol.dittmar@myfloridalegal.com

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