FL: Moran v. Burbine rejected under FL const.; due process right to have lawyer who showed up admitted for questioning

A person being questioned at the police station has a state due process right to know that a lawyer has shown up on his or her behalf, and the police have to let the lawyer in. Moran v. Burbine rejected under state constitution. State v. McAdams, 2016 Fla. LEXIS 831 (April 21, 2016):

Three theories have been posited as to what is required under the Due Process Clause of the Florida Constitution when an attorney retained on behalf of an individual who is being questioned in a non-public area of a law enforcement office appears at the office. They are:

1) Absent some other outrageous conduct, no due process violation occurs under the Florida Constitution where the police fail to inform a person about the appearance of an attorney who has been retained on his or her behalf, even if he or she is in custody (the position taken by the State).

2) The Due Process Clause of the Florida Constitution requires a person to be informed about the appearance of an attorney who has been retained on his or her behalf once he or she is in custody (the holding of the Second District).

3) The Due Process Clause of the Florida Constitution requires a person to be informed about the appearance of an attorney who has been retained on his or her behalf regardless of whether he or she is in custody (the position taken by McAdams).

The State’s theory simply does not lead to a practical application. Were this Court to adopt such a position, the police could routinely conceal from a suspect who is even in custody the fact that an attorney who has been retained on his or her behalf is at the law enforcement office and is available to speak with him or her. This application would constitute a complete departure from the conclusion of Haliburton II that under the Florida Constitution, “[p]olice interference in the attorney-client relationship is the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause prohibits.” Id. (quoting Burbine, 475 U.S. at 467 (Stevens, J., dissenting)); see also Walls v. State, 580 So. 2d 131, 133 (Fla. 1991) (“Due process contemplates that the police and other state agents act in an accusatorial, not an inquisitorial, manner.”).

Further, to adopt the interpretation of the State would inject uncertainty into the law. Questions would arise as to what type of conduct, coupled with the failure to inform the individual of the attorney’s presence, would be sufficiently outrageous to rise to the level of a due process violation. No bright-line rule would exist for trial courts to apply or law enforcement officers to follow. Instead, outrageousness would be evaluated on a case-by-case basis, creating a substantial risk that trial courts would reach different conclusions on similar facts. This would muddy, rather than clarify, the level of conduct by law enforcement officers that is constitutionally permissible. Therefore, we reject the position advocated by the State.

Moreover, while Haliburton II involved a situation where the defendant was in custody, the present case demonstrates why it is also unworkable for the due process rights of an individual under the Florida Constitution to be contingent upon custodial status with regard to access to a retained attorney. It is clear that as soon as a retained attorney arrives at the law enforcement office, the questioning of the individual can intensify significantly with the goal of obtaining a confession. Here, within minutes of the arrival of the attorney at the Hernando County Sheriff’s Office, the questioning of McAdams by the detectives became more pointed and aggressive. Detective Arey confronted McAdams with the blood and DNA evidence discovered at both of his residences. Further, Arey clearly conveyed to McAdams that law enforcement knew he was responsible for the disappearances of Lynda and Andrews. Although probable cause may have existed to arrest McAdams, Detective Arey continued to apply psychological pressure until McAdams confessed.

We conclude that the only way to properly protect the due process rights of citizens under the Florida Constitution is to implement a bright-line rule. Otherwise, determinations of when voluntary questioning evolves into custodial interrogation will spawn hundreds of thousands of dollars in costs or expenses and hours in litigation. Therefore, we now hold that when an individual is being questioned in a non-public area, and an attorney retained on his or her behalf arrives at the location, the Due Process Clause of the Florida Constitution requires that the police notify the individual of the attorney’s presence and purpose. Pursuant to this holding, a person can no longer be deprived of the critical information that an attorney is present and available to provide legal advice based on pure police conjecture that the individual is not in custody. We also cannot allow law enforcement to refuse to interrupt an interview, as occurred here. Under the interpretation of the Due Process Clause of the Florida Constitution that we adopt today, it is the individual, rather than law enforcement, who is given the knowledge and power to decide whether to take advantage of the attorney’s services.

In light of the foregoing, we hold that McAdams’s right to due process under the Florida Constitution was violated when law enforcement officers failed to inform him that an attorney retained by his parents had arrived at the Hernando County Sheriff’s Office and was available to assist him. Pursuant to this holding, the determinations of both the trial court and the Second District as to when McAdams had the right to be notified about the attorney were in error.