Courthouse News Service
December 7, 2009
WASHINGTON (CN) – The Supreme Court heard arguments Monday on whether Florida police misread a suspect’s Miranda right to have a lawyer present during questioning when they told the man he had the right to consult a lawyer “before answering any questions.” Justice Sonia Sotamayer asked from the high court bench, “The police here could have chosen to be explicit, but instead they chose to be less explicit. Shouldn’t we assume that that is an intent to deceive or perhaps to confuse?”
Kevin Dewayne Powell, a convicted felon, was arrested when police found him in possession of a loaded handgun – violating a rule forbidding felons to carry guns – and a police officer read Powell his rights. “You have the right to talk to a lawyer before answering any of our questions,” the officer said. “You have the right to use any of these rights at any time you want during this interview.”
Powell then signed a form acknowledging that his rights had been read and that he had understood them, and admitted that the gun was his. He was ultimately sentenced to ten years in prison for the offense.
But now he is claiming that he had misunderstood the Miranda warning. Assistant Public Defender Deborah Brueckheimer, who represented Powell, argued that the Miranda warning was not clear, saying that a suspect might not know he has the right to a lawyer during questioning or that he can consult his lawyer after questioning begins.
Florida Deputy Attorney General Jacquot argued that the warning read to Powell was not misleading, and that the other side was making a case for “hyper technical” wording and was calling for a specific order to the words, despite no requirement in the Constitution for a specific Miranda warning.
He said that any misunderstanding about timing is clarified by the last sentence, assuring detainees that they can apply their rights “at any time during this interview.”
[efoods] The Obama administration supports Florida’s position.
Justice Antonin Scalia appeared to mock Powell by noting that he confessed after he was told he could consult an attorney, and that now he’s suing saying that if he had known a lawyer could be with him during the questioning, he would have acted differently. “Doesn’t that seem to you quite fantastic?” he asked to Powell’s lawyer.
Brueckheimer, perhaps predictably, replied that it doesn’t faze her.
Justice Samuel Alito pointed out a potential discrepancy in the criminal’s argument. “Then I don’t know why saying, ‘you have the right to remain silent,’ isn’t potentially misleading,” he said. “It says you have the right to remain silent. But once you break your silence, there is nothing in there that says you have the right to resume your silence.”
Brueckheimer replied that it might not be misleading because of the “catch all phrase” at the end of the warning that says suspects have a right to apply their rights at any time. But she distinguished between the right to remain silent and the right to an attorney, saying that the catch all phrase does not convey a right that was never stated to begin with- that a suspect has a right to an attorney after questioning begins.
The more liberal justices appeared more skeptical of the Miranda warning’s clarity.
Justice Stephen Breyer remarked that with grand juries, a suspect being interrogated can leave to consult his lawyer, but that the lawyer can’t be with him. “Aren’t you supposed to tell this person, that unlike a grand jury, you have a right to have the lawyer with you during interrogation?” Breyer asked. “Where does it tell him that?”
Sotomayor remarked that there’s a split in the circuit courts over whether the Miranda warning of the Tampa police reasonably conveyed the suspect of his Miranda rights. “Shouldn’t that be enough of an ambiguity for us to conclude it can’t reasonably convey?” Sotomayor asked.
Since the lawsuit, the Florida police in the Tampa area have altered how they read Miranda warnings to more clearly say that the apprehended can have a lawyer at their side during questioning.
Justice Ruth Bader Ginsburg asked about the “danger” that Tampa police will revert to their old Miranda warning if the court rules in Florida’s favor.
Florida’s attorney, Jacquot, replied that it would be unlikely the police would change its warning back because the old warning resulted in a lawsuit.
Scalia appeared to disagree. “Well, once we say this is properly given, my goodness, here’s an instruction approved specifically by this Court,” he said. “You should say, ‘yes, of course they might, and if they did it’s perfectly okay.'”
The Florida appeals court reversed Powell’s conviction, deciding that his incriminating statement came after an unclear Miranda warning. The Florida Supreme Court agreed.