North FL’s Highest Court Finds Defendant DID NOT Invoke Miranda Right to Counsel – Here’s Why

April 20, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal found that the defendant did not invoke his Miranda rights despite asking interrogating detectives if he needed a lawyer, and subsequently asking if he could call a lawyer during questioning.

CASE: Washington v. State, 253 So.3d 64 (Fla. 1st DCA 2018)

Charge(s): First-Degree Murder, Burglary with Battery

Outcome: Convictions AFFIRMED – Washington’s Miranda rights were NOT violated, so his confession was permissibly introduced at his trial.

Miranda Rights in Florida

In Florida and throughout the U.S., someone must be advised of their Miranda rights before they are subject to CUSTODIAL INTERROGATION by law enforcement. These rights, per the U.S. Supreme Court’s landmark Miranda v. Arizona, 384 U.S. 436 (1966) decision, include:

• The right to remain silent
• The fact that anything they say can and will be used against them in court
• The right to an attorney, including to have one present during police questioning
• The fact that if they cannot afford an attorney, one will be provided for them

If someone is read their Miranda rights, the SMART next move is to EXERCISE them! Tell law enforcement that you will be remaining silent and are requesting an attorney. In the event that a person simply sits there silently and does not invoke their rights out loud, the police have legal permission to KEEP QUESTIONING them. Berghuis v. Thompkins, 560 U.S. 370 (2010)

It is commonly believed that law enforcement is required to read someone their rights when they are put in handcuffs. However, this is not true – even though it is heavily implied in movies and television shows. A Miranda rights reading is only necessary after someone is taken into police CUSTODY, but before they are INTERROGATED. For more on this, click here.

But what do each of these terms mean? For a person to be considered in custody for purposes of requiring them to be notified of their Miranda rights, both of the following must be true:

• The suspect must have their freedom of movement constrained in a manner consistent with a formal arrest (this includes a formal arrest)
• A reasonable person in the suspect’s position would not feel free to leave (J.G. v. State, 883 So.2d 915 (Fla. 1st DCA 2004))

For someone to be interrogated, law enforcement officers must subject them to questioning or its “functional equivalent” that is reasonably likely to elicit an incriminating response from them. Rhode Island v. Innis, 446 U.S. 291 (1980). For more on interrogation, click here.

When someone is notified of their Miranda rights prior to the start of custodial interrogation, they have two options:

• Invoke their rights by telling law enforcement they will be remaining silent/requesting an attorney (DO THIS!)
• Waive their Miranda rights and agree to speak with law enforcement without an attorney present

It is important to remember that even if someone does not immediately exercise their rights (e.g. waives them and agrees to speak with law enforcement), they can still do so at any time during interrogation itself. 

However, post-waiver invocations must be unequivocal and unambiguous for law enforcement to be required to stop questioning (e.g. saying “I think I may want an attorney” is insufficient – this must be a clear, unambiguous request for questioning to end because the suspect wants to remain silent/get a lawyer (State v. Hineline, 159 So.3d 293 (Fla. 1st DCA 2015)). For more, click here.

Sometimes, law enforcement fails to read someone their Miranda rights at all before custodially interrogating them. In the event this occurs, a subsequent confession is automatically considered unlawfully obtained. For more on this, click here. Evans v. State, 911 So.2d 796 (Fla. 1st DCA 2005)

If someone IS read their Miranda rights, this does not automatically mean a subsequent waiver of those rights and the inculpatory statements that follow are validly obtained. Even if officers read someone their rights when required, a Miranda waiver (e.g. the decision to not invoke and speak with law enforcement) must be knowing, intelligent, and voluntary. For more, click here.

For a Miranda waiver to be considered knowing, intelligent, and voluntary, the following two things must have been true:

• The suspect/defendant understood the nature of their rights (e.g. right to remain silent and right to an attorney, including during questioning)
• The suspect/defendant understood the potential consequences of giving them up (e.g. the fact that their statements may be used against them).

Examples of situations where law enforcement acts in a manner that renders a Miranda waiver (and subsequent confession) involuntary include:

• Law enforcement does not read someone their full Miranda rights (e.g. omits one or more rights when notifying a suspect of them, such as not disclosing the right to an attorney)
• Law enforcement fails to read someone their rights at all before custodially interrogating them (Evans v. State, 911 So.2d 796 (Fla. 1st DCA 2005))
• Law enforcement reads someone their rights in a language that is not their own (e.g. reads a clear Spanish-speaker their rights in English)
• Law enforcement uses threats, coercion, or trickery to get someone to waive their rights – even once they have chosen to exercise them
• Law enforcement minimizes Miranda (e.g. “This is all just a formality…”)

If someone believes their post-Miranda confession was unlawfully obtained, an experienced and aggressive Florida criminal defense attorney can file a MOTION TO SUPPRESS on their behalf. If that motion is granted, those post-Miranda statements cannot be used against them in a court of law (e.g. shown to a jury at trial). For more, click here.

Sometimes, it is difficult to determine whether a Miranda waiver was truly knowing, intelligent, and voluntary. This is especially the case when the defendant asked a “prefatory question” that may have not been fully addressed by law enforcement. 

A prefatory question often deals with the nature of the suspect’s rights/whether they should or should not invoke them. Examples of these may include:

• “Can I have an attorney right now, or later?”
• “Do I need a lawyer right now?”
• “Do these rights kick in now or when I go to trial?”
• “Does this mean I shouldn’t talk to you?”

Prefatory questions are frequently asked before and during interrogation. If police officers do not acknowledge and honestly answer prefatory questions, a subsequent confession is inadmissible in court because it is “contaminated” by the failure to address the prefatory question. Almeida v. State, 737 So. 2d 520 (Fla. 1999)

In one major case heard by Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court), a defendant was accused of burglary-battery and first-degree murder. He was read his Miranda rights and asked an interrogating detective before waiving his rights if he “needed” a lawyer. The detective told him: “I can’t really tell you that stuff.”

The defendant ultimately waived his rights and agreed to speak with law enforcement. Thirteen minutes into the interview, he inquired about the right to counsel for a second time. The detective gave him a similar answer (“I can’t give you legal advice.”).

The interrogation continued for another 90 minutes before the defendant asked if he could “call his lawyer.” The interrogating detective said he “couldn’t tell” the defendant “no.” Eventually, the defendant confessed.

Before trial, the defendant moved to suppress his eventual confession – and this was DENIED by the trial judge. He argued that he tried to invoke his right to an attorney by asking if he could call his lawyer, and that this was ignored. Moreover, he asserted that law enforcement did not answer his “prefatory questions” in a simple, straightforward manner.

The trial judge DENIED the motion to suppress – and the defendant’s confession was played for the jury. He was convicted and appealed to the 1st DCA, arguing the trial judge erred by denying the motion to suppress – and this may have contributed to his convictions (requiring a new trial).

However, the 1st DCA disagreed and AFFIRMED his convictions. Let’s find out why by looking at that case, Washington v. State, 253 So.3d 64 (Fla. 1st DCA 2018), and what it means for your Miranda rights in Florida.

KEY CASE: Washington v. State, 253 So.3d 64 (Fla. 1st DCA 2018) 

In Washington, the defendant (Washington) was arrested and charged with first-degree murder and burglary with an assault/battery. He was convicted after the trial judge DENIED his pretrial motion to suppress his post-Miranda statements (e.g. his confession). At trial (and at the pretrial motion hearing), the following facts were revealed:

• Washington was interviewed as a suspect approximately 6 months after a homicide took place
• Washington was notified of his Miranda rights at the outset
• Before waiving his rights, Washington asked one of the interrogating detectives of the right to an attorney: “Do I need him?”
• Treating this as a request for advice rather than an invocation, the detective replied that he could not provide legal advice and said the decision was up to Washington
• Washington waived his rights and the interrogation commenced
• Thirteen minutes later, Washington asked (when notified that he was a suspect): “Do I need to call my lawyer?”
• The detective again declined to give legal advice and told Washington he wanted to “give him the opportunity to talk”
• Approximately 90 minutes into the interrogation, Washington asked about his custodial status (e.g. if he would be leaving that night)
• Law enforcement did not tell him “yes,” leading him to ask: “Can I call my lawyer?”
• One detective replied that they “couldn’t tell [him] no,” but the other quickly began to deliver a moral appeal to Washington about being a good and honest father and “doing the right thing”
• Washington began to incriminate himself, but the detectives were called out of the room by a supervisor, then reentered
• When they came back in, they readdressed the right to counsel with Washington and said that he COULD call a lawyer, but encouraged him to continue speaking with them “man to man”
• Washington paused and considered this, then proceeded to make incriminating statements without invoking his right to an attorney again at any point

At the hearing on his motion to suppress, Washington argued that his post-Miranda statements were not voluntary, that detectives ignored his prefatory questions and requests for counsel (e.g. “Can I call my lawyer?”), and that officers downplayed his Miranda rights. However, the motion was DENIED by the judge, and Washington was convicted. 

Washington appealed to the 1st DCA, claiming that the trial judge ERRONEOUSLY denied his motion to suppress, and this was “harmful error” (e.g. the jury’s verdict may have been impacted by hearing his confession). Thus, Washington urged the 1st DCA to reverse his convictions and remand the matter for a new trial.

But the 1st DCA disagreed and AFFIRMED Washington’s convictions. Addressing the “disputed statements” in order, the 1st DCA began:

“When Detective Monroe read the statement informing Washington of his right to an attorney, Washington asked, “Do I need that?” and “Do I need him?” Washington asserts that these questions invoked his right to counsel and that the interrogation should have stopped. But we find that these questions were not unequivocal requests for counsel. See Walker v. State, 957 So.2d 560, 571-74 (Fla. 2007) (holding that suspect’s statement, “I think I may need a lawyer,” and question asking detectives whether he needed counsel were not unequivocal requests for counsel). Rather, these questions by Washington amounted to requests for advice about his rights. And Detective Monroe satisfied the requirements of Almeida and Glatzmayer by temporarily stopping the interrogation to explain to Washington that he was not an attorney and could not advise Washington about whether an attorney was needed. Washington did not invoke his right to counsel and indicated his continued willingness to talk to the detectives after being fully advised of his rights. The interview was properly continued.”

Next, the 1st DCA addressed Washington’s second statement (“Do I need to call my lawyer?”), which occurred thirteen minutes into the interrogation. Finding this was a prefatory question that was satisfactorily answered by the interrogating detective, the 1st DCA wrote:

“Almost fifteen minutes after signing the waiver form, Washington asked if he was a suspect and inquired, “do I need to call my lawyer?” Detective Monroe informed Washington that he was not qualified to give legal advice and that he wanted to hear what Washington had to say. Although Washington again asserts that his right to counsel was invoked, we conclude that his question “do I need to call my lawyer?” was not an unequivocal request for counsel. … Rather, it was a prefatory question about his rights. … Again, Detective Monroe satisfied the requirements of Almeida and Glatzmayer by informing Washington that he could not provide legal advice. Washington did not invoke his rights and indicated his continuing willingness to speak to detectives after being fully advised of his rights. The interview was properly resumed.”

Finally, the 1st DCA addressed the statement that it considered the “closest call” – Washington’s request to call his attorney (“Can I call my lawyer?”). Finding that this was a prefatory question rather than a request for counsel, the 1st DCA concluded:

“Here, considering the context surrounding the question, we conclude that Washington did not unequivocally invoke his right to counsel. The detectives had read the Miranda rights over ninety minutes before this point in the interrogation. The detectives had just described incriminating evidence they had against him when Washington asked if he was free to leave and if he was going to “walk outta here tonight.” Immediately after asking those questions, Washington inquired, “Can I call my lawyer?” The question was reasonably interpreted by the detectives to be an inquiry by Washington about whether he could contact an attorney as opposed to expressing a desire to terminate the interview and speak with counsel at that precise moment. In response, the detectives answered Washington’s question simply and directly in compliance with the requirements of Almeida and Glatzmayer. The record, including the unredacted video recording of the interrogation, demonstrates that the detectives did not steamroll Washington, play good cop/bad cop, or talk over him in an effort to coerce his confession.”

“The video recording of the interrogation shows that the detectives paused after answering Washington’s questions to allow him to consider his rights. It was only after a long pause that Detective Monroe resumed the interrogation. Washington did not thereafter invoke his right to counsel and indicated his willingness to speak to the detectives after being fully advised of his rights. Because Washington did not unequivocally invoke his right to counsel, and the detectives provided straightforward and simple answers to Washington’s questions about his rights, we hold that the trial court properly denied Washington’s motion to suppress.”

Put simply, the 1st DCA held that Washington was asking if he COULD contact an attorney (e.g. whether this was allowed) – NOT asking to terminate the interview. As the 1st DCA believed the detectives’ reply to this “prefatory question” was simple and straightforward (“We can’t tell you no”), Washington’s later confession was not rendered invalid. 

In sum, Washington v. State, 253 So.3d 64 (Fla. 1st DCA 2018) marks a significant development in Florida’s corpus of case law surrounding Miranda rights and the line between PREFATORY QUESTIONS and INVOCATIONS of the right to remain silent/right to an attorney. The 1st DCA (North FL’s highest court) held that:

• Washington did not invoke his right to an attorney by asking if he needed a lawyer before waiving his rights
• Washington did not invoke his right to an attorney by asking if he needed to call a lawyer thirteen minutes into interrogation
• Washington did not invoke his right to an attorney when he asked if he could “call [his] lawyer” 90 minutes into interrogation
• All of these were PREFATORY QUESTIONS that were answered simply and candidly by the interrogating detectives
• Washington’s confession was validly obtained (e.g. was not the product of his Miranda rights being violated)
• Because the trial judge was CORRECT to deny Washington’s motion to suppress, his convictions were AFFIRMED

Florida’s criminal defense community should understand Washington v. State, 253 So.3d 64 (Fla. 1st DCA 2018) – as it reveals how courts answer the question of whether someone invoked their rights or asked a prefatory question. 

Moreover, everyday Floridians should take note of the fact that asking “if” they can call a lawyer is insufficient to invoke their rights. Tell law enforcement you WILL BE REMAINING SILENT and WANT an attorney!

If someone is arrested and formally charged in Florida in a case involving a Miranda waiver that was not knowing, intelligent, or voluntary, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting criminal charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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