When Can a Defendant Invoke His Fifth Amendment Right to Counsel ?

In Sapp v. State, 690 So. 2d 581 (Fla. 1997), this Court concluded that a defendant may only invoke his Fifth Amendment right to counsel when two requirements are met: the defendant is in a custodial setting and there is an official interrogation. 690 So. 2d at 585. Sapp had been arrested for a robbery, advised of his Miranda rights, waived them, and agreed to speak to the police. After his arrest, he met with his public defender in a holding room and signed a claim of rights form in which he invoked both his Fifth and Sixth Amendment rights to counsel and to remain silent. One week later, while Sapp was still in jail on the robbery charge, he was taken to the homicide office and questioned about a different robbery-homicide. Sapp was again advised of his rights, waived them in writing, talked to the police without requesting an attorney, and signed a written statement. Twelve hours later Sapp was approached by the police again. At this encounter, Sapp signed a second waiver form, agreed to talk to a detective, and signed a second written statement. Sapp's motion to suppress his statements was denied by the trial court and he was convicted of attempted armed robbery and first-degree felony murder. On appeal, the First District Court of Appeal held that Sapp's attempt to invoke his Fifth Amendment right to counsel through the claim of rights form was not effective because custodial interrogation had not begun and was not imminent when he signed the form. See Sapp v. State, 660 So. 2d 1146 (Fla. 1st DCA 1995), approved, 690 So. 2d 581 (Fla. 1997).