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Clarifying Miranda

Below, Stanford Law School’s Samantha Bateman previews Florida v. Powell, one of two cases to be heard by the Supreme Court on Monday, December 7.  Check the Florida v. Powell (08-1175) SCOTUSwiki page for additional updates.

Over forty years after the Court’s landmark decision in Miranda v. Arizona (1966), the courts are still struggling to determine the exact content of warnings that police must provide to suspects before beginning custodial interrogations.  On December 7, the Court will address one particularly thorny question related to the content of Miranda warnings that has long divided the lower courts: Is it sufficient for police to tell suspects that they have a right to speak with a lawyer before questioning, and that they may “use” that right during questioning, or must officers expressly inform suspects that they have the right to counsel during the interrogation itself?

The test case for the sufficiency of warnings that do not expressly mention suspects’ right to counsel during questioning is Florida v. Powell.  The case stems from Florida’s criminal prosecution of Kevin Dewayne Powell for being a felon in possession of a firearm.  Powell was interrogated by police following his arrest and made several incriminating statements, including admitting that he owned the firearm in question; those statements were introduced at his trial over defense counsel’s objection that the statements were obtained in violation of Miranda.

The police officer who interrogated Powell had provided him with a version of a Miranda warning and had obtained Powell’s signed consent to the interrogation, but defense counsel argued that the warnings were insufficient because they did not explicitly indicate that Powell had a right to consult with counsel during questioning.  The exact text of the standardized Tampa police form used before Powell’s interrogation merely read:

You have the right to remain silent.  If you give up this right to remain silent, anything you say can be used against you in court.  You have the right to talk to a lawyer before answering any of our questions.  If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning.  You have the right to use any of these rights at any time you want during this interview.

Powell was ultimately convicted.  On appeal, the Florida Court of Appeals for the Second District reversed, holding that the Miranda warnings were constitutionally deficient because they did not clearly warn Powell of his right to have an attorney present during questioning.  The Florida Supreme Court affirmed, and the State petitioned for certiorari.

In its petition for certiorari, the state noted a split among the federal and state courts of appeals regarding whether warnings like the one used in Powell’s interrogation “reasonably convey” the required information to criminal defendants.  Four circuits have held that suspects must be expressly informed of the right to have an attorney present during questioning; under that view, the Tampa Police Department’s standardized warning would not pass constitutional muster.  By contrast, however, four other federal courts of appeals have found Miranda warnings sufficient even when those warnings lack explicit statements about the right to counsel during interrogation.  Florida emphasized that these contradictory holdings impose a significant burden on law enforcement officials across the country and therefore asked the Court to clarify exactly what types of warnings Miranda requires.  The Court granted certiorari on June 22, 2009.

In its opening brief on the merits, Florida argues that the Florida Supreme Court’s decision “improperly expanded” Miranda’s reach.  The State emphasizes that because Miranda is merely a prophylactic rule designed to safeguard defendants’ Fifth Amendment freedoms, the Court has never directed officers to use any specific script when advising suspects of their rights.  Instead, the Court’s Miranda jurisprudence requires only that the warnings “reasonably convey” the substance of suspects’ constitutional rights.  Here, Florida argues, the warnings provided to Powell did exactly that; read in context, the State contends, any reasonable person would have understood the officer’s statements – that Powell had the right to speak to an attorney “before questioning” and to “use” that right during questioning – to mean that Powell had the critical right to counsel during interrogations.  The Florida Supreme Court’s holding to the contrary was thus the product of “hypertechnical” reasoning, and allowing it to stand would both impose unnecessary burdens on police investigations and lead to the exclusion of reliable and voluntary confessions.

The United States filed an amicus brief in support of the State in which it similarly contends that although expressly warning suspects about the right to counsel during interrogations may be a sound law enforcement practice, it is not constitutionally required.  Rather, Miranda warnings are legally sufficient when, as here, the totality of the warning reasonably conveys the substance of the Miranda rights.

Powell, however, makes several arguments in response: one procedural, and the rest substantive.  First, as he did in his brief in opposition at the certiorari stage, Powell argues that the Florida Supreme Court’s decision rested on an adequate and independent state constitutional ground.  Specifically, the Florida court’s decision rested not only on its construction of Miranda and the Fifth Amendment to the U.S. Constitution, but also on Article I, Section 9 of the Florida Constitution, as interpreted in light of Florida caselaw.  Powell therefore argues that the writ of certiorari should be dismissed as improvidently granted.

On the merits, Powell contends that the Florida Supreme Court’s decision is fully consistent with Miranda and subsequent decisions interpreting Miranda.  The Court has always required Miranda warnings to “clearly inform” suspects of their rights, including their right to have counsel present during any custodial interrogation.  Powell aligns himself with the decisions of numerous federal courts of appeals which have found that warnings communicating only the right to counsel “before questioning” are inadequate and misleading.  Miranda may not require the use of “magic words,” but it does require that warnings be clear, and the warnings used by the Tampa police force do not clearly communicate the right to have counsel present during questioning.  Finally, Powell argues that affirming the decision below would not burden law enforcement because the vast majority of federal, state, and local law enforcement agencies already use Miranda forms that expressly mention the right to counsel during interrogations.