North FL’s Highest Court: “I Need to Be On the Phone Calling My Lawyer” Was NOT Invocation of Miranda Rights

April 16, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 1st District Court of Appeal ruled that a defendant’s statement, “if I am being held and I’m being charged with something I need to be on the phone calling my lawyer,” was not a clear invocation of his Miranda rights. Why?

CASE: Spivey v. State, 45 So.3d 51 (Fla. 1st DCA 2010)

Charge(s): First-Degree Murder

Outcome: Conviction AFFIRMED, as the defendant’s statement was not an unequivocal and unambiguous invocation of his Miranda rights.

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 officers. These rights, according to the U.S. Supreme Court’s landmark Miranda v. Arizona, 384 U.S. 436 (1966) ruling, 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. Say this out loud, as if you simply sit there quietly after they finish reading your rights, law enforcement has legal permission to keep questioning you. Berghuis v. Thompkins, 560 U.S. 370 (2010)

It is a common misconception that officers must read someone their rights any time they are put in handcuffs. However, this is incorrect. A person must only be notified of their Miranda rights if they are taken into CUSTODY, but BEFORE they are subject to interrogation. For more on this, click here.

Custody for Miranda reading purposes (under State v. Thompson, 193 So. 3d 916 (Fla. 2d DCA 2016)) occurs when both of the following conditions are met:

• Law enforcement is restraining the suspect’s freedom of movement consistent with a formal arrest (this includes a formal arrest)
• A reasonable person in the suspect’s position would not feel free to leave

Interrogation occurs when law enforcement subjects a person to questioning (or its “functional equivalent”) that is reasonably likely to elicit an incriminating response from a suspect. Rhode Island v. Innis, 446 U.S. 291 (1980). For more on interrogation, click here.

If and when someone is taken into custody and is read their Miranda rights in Florida, they have two options:

• Invoke their right to remain silent/to an attorney (DO THIS!)
• Waive their rights and elect to speak with law enforcement (without an attorney present)

Note: A suspect may exercise their Miranda rights at any time during an interrogation, even if they initially waive them. But once interrogation has commenced following an initial waiver, an invocation must be UNEQUIVOCAL and UNAMBIGUOUS for questioning to cease (e.g. “I think I may want a lawyer” is insufficient). For more on this, click here.

If someone does waive their Miranda rights and agrees to speak with law enforcement, this must have been done knowingly, intelligently, and voluntarily. This means that the suspect must have understood BOTH of the following at the time of the waiver (Chavers v. State, 115 So.3d 1017 (Fla. 1st DCA 2013):

• The nature of their Miranda rights (e.g. what they actually were)
• The potential consequences of giving them up (e.g. not exercising them before the start of interrogation)

In the event someone CONFESSES to a crime following a Miranda waiver that wasn’t knowing, intelligent, and voluntary, an experienced and aggressive Florida criminal defense attorney can (and should) file a pretrial motion to suppress the defendant’s inculpatory statements (rendering them inadmissible at trial, if the motion is granted).

When such a motion is filed, the State must prove by a preponderance (majority) of the evidence that the defendant’s waiver WAS knowing, intelligent, and voluntary. If the State is unable to do so, the statements must be suppressed – meaning the jury will not hear them. 

Examples of situations where law enforcement acts in a manner that renders a Miranda waiver  (and a 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 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 any of the above occur, suppression of a defendant’s post-arrest statements is the proper legal remedy. This can fundamentally change the direction of the trial (in a good way for the accused). Ross v. State, 45 So.3d 403 (Fla. 2010)

Sometimes, a defendant may attempt to invoke their right to remain silent or right to counsel. Per Miranda v. Arizona, 384 U.S. 436 (1966), this must be done with enough clarity for a reasonable officer to understand the defendant wishes to remain silent/wants an attorney for interrogation to be required to cease.

In one major Florida case that caused some controversy after its release, a defendant was accused of first-degree murder. He was taken into custody and WAIVED his Miranda rights after he was read them. His waiver triggered the legal requirement that any invocation from that point onward be unequivocal and unambiguous (e.g. clear attempt to exercise his rights).

In the middle of the interrogation, the suspect made a statement to the interrogating officer that read: “I mean if I am being held and I’m being charged with something I need to be on the phone calling my lawyer.” The interrogating officer did not cease interrogation – instead the officer told the defendant he was not formally charged yet (technically true).

The interrogation continued – and the defendant eventually confessed. He was convicted after his statement was played for the jury. Although he moved to suppress the confession, the defendant’s motion was denied by the trial judge.

On appeal to Florida’s 1st District Court of Appeal (Tallahassee and North FL’s highest court), the defendant claimed that the trial judge erred as a matter of law in ruling that his statement did not constitute an unequivocal and unambiguous invocation of his right to an attorney. 

But the 1st DCA disagreed and AFFIRMED his conviction for first-degree murder – finding that the trial judge reasonably concluded this was not an unequivocal and unambiguous invocation of the right to counsel. 

Let’s look at the case – Spivey v. State, 45 So.3d 51 (Fla. 1st DCA 2010) – and discuss what it means for defendants in Florida concerned about their Miranda rights.

KEY CASE: Spivey v. State, 45 So.3d 51 (Fla. 1st DCA 2010)

In Spivey, the defendant (Spivey) was convicted of first-degree murder. At the time he was taken into custody, he was read his Miranda rights and waived them. At trial and the pretrial hearing on Spivey’s motion to suppress, the following was revealed:

• The victim (Jason James) was found shot and buried
• A shotgun was recovered from inside Spivey’s house
• A neighbor testified that he heard two gunshots, after which Spivey called him and said he’d shot a pair of turtles and was starting a fire
• Spivey maintained that another man (Bethune) was the shooter the entire time
• At the start of interrogation, Spivey seemed eager to cooperate and answered a variety of questions the detective asked
• However, approximately 40 minutes in, he grew concerned and said: “I mean if I am being held and I’m being charged with something I need to be on the phone calling my lawyer.”
• The interrogating officer said to Spivey that he she did not yet know whether he would be charged with anything and that the investigation was still ongoing
• After the interrogating officer said this, Spivey agreed to continue the interview and told her that he was “100 percent with her”
• Eventually, he confessed to shooting the victim

Spivey’s pretrial motion to suppress – on the basis that he “unequivocally” invoked his right to an attorney during the interrogation – was DENIED. His confession was ultimately played for the jury at trial, and he was convicted of murder.

On appeal to the 1st DCA, Spivey renewed his argument that interrogation should have ceased immediately when he indicated he wished to contact his lawyer (“I mean if I am being held and I’m being charged with something I need to be on the phone calling my lawyer.”). 

Spivey further argued that because the wrongful admission of his subsequent confession at trial was NOT harmless error (e.g. may have influenced the jury’s verdict), he was entitled to a new trial. 

However, the 1st DCA DISAGREED and AFFIRMED Spivey’s murder conviction, finding the trial judge did not err as a matter of law by admitting Spivey’s confession. Discussing the law surrounding the case, the 1st DCA wrote:

“Miranda and its progeny do not require police officers to stop an interrogation when a suspect, who has made a knowing and voluntary waiver of his rights, thereafter makes an equivocal or ambiguous request for counsel. Davis, 512 U.S. at 459, 114 S.Ct. 2350; see also Berghuis v. Thompkins, ––– U.S. ––––, ––––, 130 S.Ct. 2250, 2259, 176 L.Ed.2d 1098, –––– (2010). On this point, the Florida Supreme Court explained that “police in Florida need not ask clarifying questions if a defendant who has received proper Miranda warnings makes only an equivocal or ambiguous request to terminate an interrogation after having validly waived his or her Miranda rights.” State v. Owen, 696 So.2d 715, 719 (Fla.1997). The suspect must “articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.” Id. at 718; accord Davis, 512 U.S. at 459, 114 S.Ct. 2350.”

Applying the law to the facts of the case, the 1st DCA concluded that Spivey’s remark was not an “unequivocal request” for a lawyer:

“Here, Appellant’s statement that “I mean if I am being held and I’m being charged with something I need to be on the phone calling my lawyer” was not an unequivocal request for counsel. The statement did not clearly indicate that Appellant wanted counsel present at that time or that he would not answer any further questions without counsel. At most, his statement was a conditional request for counsel because he prefaced the statement with “if I’m being held and I’m being charged with something.””

In sum, Spivey v. State, 45 So.3d 51 (Fla. 1st DCA 2010) marks a significant development in Florida’s corpus of case law surrounding Miranda rights. The 1st DCA held that:

• Spivey was not unequivocally invoking his right to an attorney during the interrogation
• It was at most a “conditional” request for counsel
• The interrogating officer told Spivey honestly that he was not charged with anything yet
• Thus, his statement did NOT require the officer to cease questioning
• This meant the trial judge did NOT err by admitting Spivey’s confession into evidence – requiring his murder conviction to be affirmed

Florida’s criminal defense community should take note of Spivey v. State, 45 So.3d 51 (Fla. 1st DCA 2010), as it makes clear invocations of Miranda rights once interrogation has ALREADY STARTED must by unambiguous and unequivocal.

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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