State v. Moya (684 So. 2d 279, 1996)

W. SHARP, Judge.

The state appeals from an order of the trial court which granted Moya’s motion to suppress the tape of an interview with a police officer, made at a police station, on the ground that the interview should have been stopped when Moya indicated she did not want to be questioned further. In granting the motion to suppress the trial court relied upon Deck v. State, 653 So.2d 435 (Fla. 5th DCA 1995). We reverse. We do not think Deck is controlling as the circumstances evolved in this ease.

Moya was interrogated by Officer Berkhardt at the police station, early in the morning (4:30 a.m.). It was clearly a custodial interrogation requiring the giving of Miranda warnings, and as our Florida Supreme Court has interpreted the Florida Constitution, when the suspect indicates that he or she does not want to be interrogated further, the questioning must stop. Traylor v. State, 596 So.2d 957 (Fla.1992).

Berkhardt testified (without any dispute from Moya) that he gave Moya Miranda warnings at the beginning of the interview process. Moya agreed to talk with him. At this point in the interview process, she never told him she did not want to answer his questions. She did so fully.

Berkhardt then asked Moya to repeat the interview on tape. At that stage she became evasive. Berkhardt repeated the Miranda warnings on tape, a step which was probably not necessary, having just done so at the beginning of the interview. He asked her if she wanted to talk with him. She replied: “I don’t know.” He then inquired how far she had progressed in school, in an effort to ascertain her level of intelligence or capacity to understanding the situation. She said she had reached the eleventh grade in school.

Again Berkhardt asked Moya if she understood her Miranda rights, and if she wished to talk to him. Once more she replied, “I don’t know.” These were equivocal responses.

At that point, Berkhardt had two possible options. He could terminate the interview. Or, he could try to get Moya to make a decision about whether or not to continue talking with him. Pursuant to Traylor he could not ask further substantive questions.

Berkhardt chose the second course of action. He said, “Okay. Well, you got to make the decision, yes or no.” Moya replied: ‘Yeah, I guess. What happens, happens.”

In our view, Berkhardt did exactly what this court said in Deck that he must do, in conducting a police interrogation. When faced with an equivocal answer, he stopped the substantive part of the interview, and inquired whether the suspect wanted to stop talking with him. In Deck, the police office continued to ask substantive questions after being told by the suspect that he did not want to talk about it anymore. We faulted the officer in that case because he “made no inquiry as to whether Deck wished to terminate the interview after the latter’s equivocal assertion of his right to remain silent.”

After an equivocal assertion of the right to remain silent (in this case, “I don’t know”), a police officer who tries to get a yes or no response to whether or not the suspect wants to halt the interview, violates neither Miranda nor the Florida Constitution. Moya’s ultimate answers, “Yeah, I guess” and