In what is probably America's most famous case, Miranda v. Arizona, the United States Supreme Court decided that before the police interrogate a suspect who is in custody, they must warn the suspect that he has the right to have an attorney present during the interrogation. That has been settled law and the stuff of TV programs since 1966.

But on December 7, 2009, the United States Supreme Court heard arguments in Florida v. Powell (08-1175), a case from Tampa in which the Florida Supreme Court ruled that under both state and federal law, it is not enough to tell a suspect that the has the right to “talk to” an attorney “before answering any [of the officers'] questions.”

Lawyers from the Appellate Division of the Office of the Public Defender in Bartow, Florida successfully represented Mr. Powell in the Florida appellate courts and will continue to represent him in Washington. Appellate Division Chief, Deborah K. Brueckheimer will argue the case for Mr. Powell in the Supreme Court of the United States. The Brief was written by Assistant Public Defender Cynthia Dodge who also wrote the briefs and did the oral arguments in both the Florida appellate and Supreme Courts.

These Assistant Public Defenders have decades of criminal appellate experience between them, but they are thankful for the additional assistance of attorneys Mara V. J. Senn, Anthony J. Franze and other lawyers from the Washington office of Arnold & Porter.

In this case, Kevin Dewayne Powell was convicted for possession of a firearm by a convicted felon after a gun was found in his girlfriend's apartment under a bed in a cluttered bedroom. Although there were three other adults in the apartment, and although Mr. Powell was not living in the apartment, the police assumed the gun was his because they found Mr. Powell in the hall near the bedroom. After his arrest, the police showed Mr. Powell the gun and read him Miranda rights from a printed form. At trial, Mr. Powell admitted he told the police the gun was his, but he explained that the officers told him that if he did not confess, his girlfriend's children would be taken away and she would lose her apartment in a Tampa federally-subsidized housing project. Although Mr. Powell has prior convictions, none of the convictions involved violence or weapons. He was sentenced to 10 years in prison for this offense.

In the 1980s, the Miranda form then used by the Tampa Police Department told a suspect that, “prior to or during” the interview, the suspect had the “right to have an attorney present.” Since then the police changed the form so that the right to the presence of an attorney was not mentioned. Instead, the form in use in 2004 substituted the right to talk to an attorney and added the limiting language “before answering any of our questions.” The Florida court held that the warning was misleading because a reasonable person in Mr. Powell's shoes would have thought that he could only consult with an attorney before questioning because there was nothing in the warning to suggest that an attorney could be present during the actual questioning.

The form read to Mr. Powell also contained a sentence telling him he had “the right to use any of these rights” during the interview; however, the Florida Supreme Court agreed with the intermediate appellate court and ruled that the last sentence did not cure the defect in the warnings because the police had never “clearly” advised Mr. Powell that he had the right to the presence of counsel during questioning. Because the confession was the only thing linking Mr. Powell to the gun, the Florida Supreme Court granted Mr. Powell a new trial. Other Florida convictions have been overturned in response to this ruling, and at some point in the appellate process, the Tampa police revised their Miranda form to add the omitted right.

Although there have been recent U.S. Supreme Court cases deciding issues such as the necessity for Miranda warnings in certain situations or the validity of confessions made after sufficient Miranda warnings, this will be the first case since 1989 that will tackle the sufficiency of the actual wording of the warnings read to a suspect. The State of Florida asked the Supreme Court to review the case because the lower federal courts do not agree about whether the right to the presence of counsel has to be explicitly stated in Miranda warnings, even though almost all agree that Miranda rights cannot imply that the right to counsel is limited to the time before questioning as did the rights read to Mr. Powell. Copies of all of the briefs are available at Florida v. Powell, Docket No.08-1175. They include the parties' briefs and briefs of amici curiae: The Solicitor General of the United States, in support of the State of Florida; and the Florida Public Defender Association, the National Association of Criminal Defense Lawyers, and The Florida Association of Criminal Defense Lawyers. Also filing a Brief in support of Mr. Powell was Professor Richard A. Leo, a nationally recognized Miranda warning expert.

Mr. Powel's brief argues to the Supreme Court that the warnings left out one of the basic Miranda rights. His brief points out that although no exact language is required, almost every federal, state, and local law enforcement agency in the country uses a Miranda form that conveys in some way the right to the presence of counsel during questioning. If the Court finds these warnings sufficient, Mr. Powell argues, law enforcement all over the country will experiment with Miranda rights. This would result in confusion and costly litigation. Mr. Powell also argues that because the Florida Supreme Court based its decision on the requirements of state law, the U.S. Supreme Court should not decide the case because no matter what the Court decides, Florida law would preclude use of Mr. Powell's confession in a new trial.

The State of Florida claims that the form is not misleading and that it sufficiently advises of the right to the presence of counsel during interrogation. The State also maintains that the opinion of the Florida Supreme Court dictates the specific content of Miranda warnings even though the Florida court held only that the warnings must “clearly” convey the omitted right.

For additional information please contact James Marion Moorman the elected Public Defender of the Tenth Judicial Circuit of Florida. Mr. Moorman may be reached at (863) 534-4250; or by e-mail at: mmoorman@pd10.state.fl.us.

Oral Argument Transcript

Florida v. Powell 08-1175.pdf