Must police officers expressly advise a suspect of his or her right to an attorney during questioning?
Kevin Powell was arrested on suspicion of illegally owning a firearm and, after allegedly waiving his rights to counsel as required by Miranda v. Arizona, confessed during questioning. Powell was convicted on the basis of that confession. On appeal, Powell's conviction was overturned on the ground that the warnings read to Powell failed to adequately inform him of his right to have an attorney present during questioning. The Florida Supreme Court affirmed, holding that a suspect must be expressly advised of his or her right to have an attorney present while he or she is being questioned. The Supreme Court's decision will clarify Miranda’s requirements regarding advising a suspect of his or her right to counsel during questioning. This case will resolve a circuit split on the issue and affect law enforcement practices during interrogations.
Questions as Framed for the Court by the Parties
(1) Whether the decision of the Florida Supreme Court holding that a suspect may be expressly advised of his right to counsel during custodial interrogation, conflicts with Miranda v. Arizona and decisions of federal and state appellate courts.
(2) And if so, does the failure to provide express advice of the right to the presence of counsel during questioning vitiate Miranda warnings which advise of both (a) the right to talk to a lawyer “before questioning” and (b) the “right to use” the right to consult a lawyer “at any time” during questioning?
In Miranda v. Arizona, the Supreme Court outlined procedural safeguards to ensure compliance with the Fifth Amendment’s privilege against self-incrimination. The Miranda warnings require an individual who is being interrogated to be informed of (1) his or her right to remain silent, (2) that anything he or she says can be used against him in court, (3) the right to an attorney, and (4) the right to have an attorney appointed for him or her if he or she cannot afford one. Furthermore, the Court has said that if the interrogation takes place without an attorney present, the government has the burden of showing that the defendant knowingly waived his or her privilege against self-incrimination and his or her right to counsel.
On August 10, 2004, two detectives, Salvatore Augeri and Randy Estevez, went to an apartment in Tampa to investigate Respondent, Kevin Dewayne Powell. Shazeena West, Powell's girlfriend, permitted the officers to enter her apartment. The officers searched the bedroom, in which it appeared Powell had been, and found a loaded nine-millimeter handgun under the bed. After being advised of his Miranda rights and following written warning on the standard police department Form 310, Powell was arrested and questioned at Tampa Police headquarters.
The written warning states:
You have the right to remain silent. If you give up the 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. (emphasis added)
At Powell's trial, Detective Augeri further testified that Powell agreed to talk and admitted that the handgun belonged to him.
At trial, the defense counsel objected on the ground that the Miranda warning given to Powell was invalid. In a bench conference, the court ruled that the warnings were adequate and the detective's testimony concerning Powell's admissions was admitted. Powell was convicted of being a felon in possession of a firearm and sentenced to ten years in prison.
On appeal, the Florida Second District Court of Appeal reversed the conviction on the ground that the warnings read to Powell did not comply with Miranda and were deficient under the Fifth Amendment. The court emphasized the fact that the right to talk to an attorney before questioning was not the same as the right to having an attorney present during questioning.
The Supreme Court of Florida affirmed, holding that the warning given to Powell was misleading in qualifying the right to talk to an attorney with the phrase "before answering any of our questions" and finding that a suspect must be expressly informed of his right to have an attorney present during questioning. Circuits have split over this specific issue, with four circuits holding that a general warning of the right to an attorney can satisfy Miranda, while four circuits have held that Miranda requires explicit advice as to the right to an attorney during questioning.
The U.S. Supreme Court granted certiorari to determine whether Miranda requires an express warning of the right to have an attorney present during questioning.
The Fifth Amendment of the Constitution prohibits a criminal suspect’s compelled self-incrimination. In order to prevent this the Supreme Court has held that, before being questioned, suspects must be informed, through “Miranda warnings,” of certain rights, including the right of a suspect to counsel during questioning. At issue in the present case is whether the warning that “you have the right to talk to a lawyer before answering any of our questions” and “the right to use any of these rights at any time you want during this interview” sufficed to inform Respondent, Kevin Powell, of this right.
Petitioner, the State of Florida, argues that the warning is sufficient, disagreeing with the holding of the Florida Supreme Court that “a suspect must be expressly advised of his right to counsel during questioning”. Powell contends that the warning was misleading and did not convey that he had the right to counsel during questioning.
Powell also argues that the case is improperly before the Supreme Court and that as a consequence, the Court should dismiss the case without reaching the merits. However, that argument is not on review before the Supreme Court.
Sufficiency of the Warning
Regarding the sufficiency of the warnings, Florida contends that Miranda only requires that the given warning “reasonably convey” the criminal defendant’s rights. According to Florida, the Miranda warning itself is not a constitutionally protected right, but simply a means to protect against self-incrimination. Thus, Florida maintains that the Constitution does not require a verbatim recitation of the Miranda warning, so long as police procedure adequately protects against compelled self-incrimination.
Powell agrees with Florida that the warning does not have to follow “a single script.” However, Powell argues that the federal Constitution sets a threshold for protecting individual rights. Powell contends that state constitutions may surpass the federal Constitution in providing more stringent protection of individual rights. Powell argues that the warning itself was misleading, pointing to the phrase “before answering any questions” to suggest that the suspect can only speak with an attorney before questioning begins, not that an attorney can also be present during questioning. Powell maintains that the limitation in the warning’s language was misleading, because nothing in the warning suggested an attorney could be there at the questioning. Thus, Powell contends that the warning does not comply with Miranda. Powell further contends that advising a suspect of his right to counsel before questioning is an incomplete and narrower warning than required by Miranda. Thus, Powell argues that while no particular words need be used, Miranda and the Florida Constitution require a suspect to be “clearly informed” of his right to counsel during questioning, which the warning at issue fails to do.
The Warning: The Language at Issue
Florida argues that the warning’s failure to expressly state the suspect’s right to counsel during questioning does not render the warning unconstitutional. Florida contends that by failing to view the warning in its entirety, Powell and the lower court concentrate on a technical parsing of individual words instead of looking to their overall meaning. Florida insists that when looked at in this broader context, the warning only needs to convey to an average person: the importance of statements to the police, the fact that the defendant does not have to speak to police and may consult with an attorney, and if the defendant cannot afford his own attorney, the State will provide legal counsel. Florida maintains that if a person of average intelligence read the warning given to Powell, that person would have concluded that the rights were adequately conveyed.
Powell argues that the last sentence of the warning does not cure its earlier deficiency. Powell contends that the statement, “You have a right to use any of these rights at any time you want during this interview” is useless when the police never mentioned the right to have counsel present during questioning. Thus, Powell maintains that while the “catch-all phrase” reiterated the rights included in the warning, it could not supply a warning that had never been expressed Powell claims that if a suspect does not know when he is entitled to counsel, he will not know that he is able to request counsel during questioning. Powell argues that this situation would circumvent the fundamental privilege against self-incrimination guaranteed by the Fifth Amendment.
Coerced vs. Voluntary Confessions
Florida further argues that there was no error for the Florida Supreme Court to reverse. Florida contends that Powell did not allege any form of coercion by the police, nor did he exercise his right to counsel; in fact, he testified that he understood and waived his rights. Therefore, since Powell affirmatively waived his right to counsel, Florida maintains that failing specifically to inform him that he had a right to counsel during questioning would not have made a difference. Powell, however, argues that warnings are necessary to ensure an environment free from undue pressure, and a warning is necessary to make the defendant aware of his ability to exercise his constitutional rights freely. The United States argues that the main goal of the Miranda warning is to ensure that a suspect is aware of his rights and able to make a conscious choice whether to use them or not. The Florida Association of Criminal Defense Lawyers ("FACDL") says that the Miranda warning serves as a "procedural safeguard" ensuring that custodial interrogations do not compel the defendant to unknowingly or unwillingly incriminate himself or herself. However, FACDL argues that interrogation techniques have become so effective over the years that the line between a coerced and a voluntary confession has blurred, and a clearer warning must be issued if defendants are to sincerely understand it.
Circuit Split in the Specificity of Warnings
Both parties rely on splits between the Federal Circuit Courts to bolster their arguments. Florida argues that the Fifth, Sixth, Ninth, and Tenth Circuits have gone beyond the Court’s application of Miranda by requiring more specific warnings. Florida turns to decisions in the Second, Fourth, Seventh, and Eighth Circuits that have all held warnings that did not specifically tell the defendant of his right to counsel during questioning to be sufficient, so long as they informed the defendant of his right to an attorney. Powell counters that while a Circuit split does exist regarding whether a general or a specific warning satisfies Miranda, all of the Circuit Courts has held misleading warnings to violate Miranda. Powell notes that even those courts that allow general warnings have held warnings that “[suggest] a limitation on access to counsel” to fail the Miranda requirements.
Under Miranda v. Arizona, the right to counsel is among the rights of which a criminal defendant must be advised before undergoing a custodial interrogation by law enforcement. Petitioner, the State of Florida, argues that the test is whether the warnings reasonably convey to a defendant his or her rights as required by Miranda. This case presents the Supreme Court with the opportunity to settle a circuit split as to whether a suspect must be expressly advised of his or her right to have an attorney present during questioning.
Florida argues that Miranda was never intended to impose a rigid formulation of warnings on law enforcement which would unduly burden police. Florida contends law enforcement officials require a certain level of flexibility in the Miranda warnings in order to adapt to the wide variety of different situations in which the warnings would be given, and so the language should not be examined as if "examining a will." Amicus curiae, the United States, also emphasizes the need for flexibility with regard to variations from standard Miranda warnings, because warnings must often be translated into different languages for suspects who do not speak English, and Miranda warnings are also used in overseas interrogations, where they must be tailored to the relevant context. The United States further contends that a narrow focus on the precise wording of the warnings will undermine Miranda’s basic purpose of ensuring that a suspect is informed of his rights by ignoring the substantive question of whether the warning actually does fully warn a suspect.
In contrast, Powell asserts that affirming the Florida Supreme Court's decision would not place an undue burden on law enforcement as the majority of law enforcement agencies already use a printed form that provides express warning of the right to counsel during questioning, already satisfying the proposed requirement.
Florida contends that excluding non-coerced statements made to the police because the suspect was not expressly advised of his right to have an attorney present during questioning would undermine Miranda's purpose: to prevent coerced statements, not those induced voluntarily and which the Court has called inherently desirable.The Florida Public Defender Association ("FPDA") counters that the Florida court has significant reasons for stricter state law rules governing the clarity of Miranda warnings, including limiting time-consuming litigation over the issue and accounting for the varying comprehension levels of suspects.
Powell contends that reversal will actually lead to the negative effect of jurisdictions attempting to narrow their Miranda warnings.The United States counters this notion by contending that the current Miranda rule provides police and prosecutors with clear guidelines as to how pretrial questioning of a suspect must be conducted.The United States further notes that law enforcement officials have reasons not to relax their Miranda practices, because they reduce the risk that a suspect's statement will be excluded by a court due to inadequate warning.
While amicus curiae Professor Richard Leo agrees that law enforcement agencies generally comply with the requirements of Miranda, he asserts that such compliance is due to the Court's continued vigilance in enforcing the Miranda rule and that, otherwise, law enforcement agencies have incentives to obtain confessions through coercive measures.Powell and Professor Leo point to ample evidence that law enforcement agencies do try to increase confessions by inducing waivers of a suspect's Miranda rights.The National Association of Criminal Defense Lawyers and the National Association of Federal Defenders maintain that permitting alternate versions of the Miranda warnings would undermine the Miranda rights by incentivizing law enforcement to use variations of the warnings that would confuse a suspect's understanding of his rights.The Florida Association of Criminal Defense Lawyers ("FACDL") contends that courts must regulate specific language of the warnings to ensure clarity because of the inherently coercive nature of custodial interrogations that reduces a suspect's ability to understand his or her rights.The FACDL emphasizes that clarity in Miranda warnings is especially important given the fact that minorities make up a disproportionate percentage of those in contact with the criminal justice system and also possess an ingrained distrust of law enforcement, preventing them from assuming a right not expressly mentioned to them.
This case will give the Court an opportunity to refine the procedural guidelines set forth in Miranda by deciding whether the warning instruction given to Powell adequately informed him of his right to counsel during questioning. Although various Circuits have held a wide variety of warnings to comply with Miranda, this case allows the Court to settle a Circuit split regarding the specificity of warning instructions. The Court’s decision will likely affect the formality of future arrests and may set a new standard as to how much responsibility the arresting officer has to ensure that the suspect understands his rights. This decision may also affect existing or previously litigated cases regarding claims of inadequate warnings.
· Annotated U.S. Constitution: Fifth Amendment
· Stephen Brunette, Miranda Warning Under Scrutiny, Brunette Law Blogs (Jan. 29, 2009)
· Crawford, Kimberly A. Constitutional Rights to Counsel During Interrogation: Comparing Rights Under the Fifth and Sixth Amendments, 71 The FBI Law Enforcement Bull. 28 (2002)