A person must be informed of Miranda rights when in-custody and subject to interrogation.  Miranda v. Arizona, 384 U.S. 436 (1966).  In Miranda, the United States Supreme Court enunciated a bright line rule to guard against compulsion and the coercive nature and atmosphere of custodial interrogation, “and assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.”  Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999)(citing  Miranda, 384 U.S. at 436).  Miranda requires that police inform suspects that they have the right to remain silent, and that anything they do say can be used against them in court.  Id.  Furthermore, suspects must be told that they have the right to an attorney and if they cannot afford an attorney, one will be appointed for them.  Id.

Custody for the purposes of Miranda includes not only a formal arrest but a restraint on the freedom of movement that is associated with a formal arrest.  McDougle v. State, 828 So. 2d 454 (Fla. 4^th DCA 2002).  The test for determining custody is whether “a reasonable person in the defendant’s position would believe that his freedom of action was curtailed to the degree associated with an actual arrest.”  Ramirez v. State, 739 So. 2d 568, 574 (Fla. 1999).  In determining whether a reasonable person would consider himself to be “in custody,” a court should consider four factors, which include: “(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.”  Id. at 374; see also Louis v. State, 855 So. 2d 253, 255 (Fla. 4th DCA 2003); Pollard v. State, 790 So. 2d 1015, 1017 (Fla. 4th DCA 2001).

The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.  The term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.  Rhode Island v. Innis, 446 U.S. 291, 301-31 (1980).  The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.  Id.  This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.  Id.  A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.  See Traylor v. State, 596 So. 2d 957, 966 (Fla. 1992)(an  “[i]nterrogation takes place… when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response”).  An officer’s act of interjecting questions while “carrying on a conversation” with a defendant qualifies as “interrogation” for Miranda purposes and failure to give warnings requires reversal of trial court’s denial of motion to suppress.  Larson v. State, 753 So. 2d 733 (Fla. 2^nd DCA 2000).

The Fourth Amendment establishes “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures….” U.S. Const. amend. IV.  Indeed, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” United States v. United States Dist. Ct., 407 U.S. 297, 313 (1972), and “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”  Silverman v. United States, 365 U.S. 505, 511 (1961).  As such, entry into a person’s home is not permitted unless the police have obtained a search warrant based on probable cause. Payton v. New York, 445 U.S. 573, 586-87 (1980).  The State bears the “heavy” burden to prove that a warrantless entry into the home, which is presumptively unreasonable, was justified.  Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984).

By analogy, this rule extends to searches in a boarding house – a temporary home that is afforded the same constitutional protections as a private dwelling.  See, e.g., Stoner v. California, 376 U.S. 483, 490 (1964); State v. Titus, 707 So. 2d 706 (Fla.1998)(concerning Fourth Amendment protection of common area of boarding house); Burt v. State, 821 So.2d 437 (Fla. 2^nd DCA 2002)(citing Gnann v. State, 662 So.2d 406, 407 (Fla. 2^nd DCA 1995)([W]e believe that a room in a boarding house is no different from a room in a motel, which “is considered a private dwelling if the occupant is there legally, has paid or arranged to pay, and has not been asked to leave.”).

Warrantless searches of homes and/or boarding houses are not unreasonable “within the framework of a few specifically established and well delineated exceptions.”  Gnann, 662 So.2d at 408; see also Jones v. State, 648 So.2d 669, 674 (Fla. 1994).  However, “the state has the burden of showing that a warrantless search comes within one of the recognized exceptions.”  Id.  The five established exceptions to the warrant requirement are: “(1) consent, (2) incident to a lawful arrest, (3) with probable cause to search but with exigent circumstances, (4) in hot pursuit, and (5) stop and frisk.”

By far the most fragile and painful aspect of a divorce is how to deal with children. They are often treated as collateral damage and blithely overlooked by the courts to be filed away with the paperwork. But they should be the most important responsibility of the parents, and the parents should do whatever they can to make the process as painless and harmless to their children as they can. Though our society holds the lives of its citizens as having the utmost value, the resources and care devoted to the well-being of children is relatively small.

Children are more resilient than you might think. They will be able to survive the divorce process with a minimum of emotional damage if the parents take care to exercise certain precautions during the proceedings.

For example, it is important to remember that children are not the parties in the divorce. Therefore, they should not be part of it. Do not fight in front of or near the children, and do not attempt to bring them into the conflict to win them over to your side. They are not to be used as spies or pawns. A parent who tries to become friends with his or her child will just confuse the child because of the role change that removes the parent, in their eyes, from the role of an authority figure. And they should never be used as bargaining chips, as it treats them like mere property to be divided up.

If you need help with your divorce, contact West Palm Beach family attorney Sabarish P. Neelakanta.

• Try not to make any more major changes for the rest of the year. Switching jobs, changing your town of residency, cashing in on your retirement accounts—all these drastic actions, coupled with the changes arising out of your divorce, can cause major chaos in your life.
• Focus on taking care of your children. Even though divorce can be an emotional time for you, don’t forget to think about your children and their welfare. Try to protect them from the stressful and traumatic fallout of a divorce.
• Take your time. Acknowledge that it might take a while to fully recover from your divorce. Don’t listen to anyone who tells you to “just get over it.” Even though it takes about a year for most people to fully recover, take your time healing. If, however, you find yourself stuck in a rut that you can’t get out of, don’t hesitate to get help.
• Safeguard your job. Don’t do anything to jeopardize your job. Make sure to let your employer know about your divorce, and make up any work you’ve missed. If you feel the need to look for a new job, do so carefully, and don’t ruin any goodwill you may have with your current employer.
• Try to keep out of personal relationships for a year. Don’t enter into a new relationship because you’re needy, grieving, or panicking from your divorce.
• Maintain close relationships with your friends and family. Remember that true friends will stick with you during tough times, and your family members can be your best allies. Be careful not to alienate them, but also don’t let them control everything about your life. It’s OK to get their advice, but make your own decisions and consult with experts before taking their advice.
• Be respectful of your spouse. Your spouse is not just your former romantic partner; he or she is also the father or mother of your children. You will always have that relationship of being parents to the same children, so don’t make an enemy out of your spouse. You do not want to hurt your children as a result.
• Carefully maintain your finances. Get your finances in order, pay your bills, don’t be extravagant, and prioritize your expenses.

Going through a divorce can be a painful process. As you weather the personal storm of your divorce, get the legal help you need from compassionate and dedicated West Palm Beach family lawyer Sabarish Neelakanta.