Brief of respondent for Florida v. Powell, 08-1175 - Oyez

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6 that my, my girlfriend would be charged with the possession of a firearm and that they would call the DCF to get her children take[n] away.” JA 55; accord JA 59, 78, 80-86, 94-95. In addition, he said the police told him that because the gun was found in her apartment, his girlfriend and her three young children would be thrown out of public housing. JA 84-86. Likewise, he stated that he signed the form read to him and purportedly “waived” his rights because of those threats. JA 80. 1 On rebuttal, the police denied making any of these statements. JA 97. 1 During the trial, Powell’s lawyer asked him whether he “waived the right to have an attorney present during your questioning by detectives.” JA 80. Petitioner wrenches this testimony out of context to suggest that, notwithstanding the form read to him, Powell had actual knowledge of his rights. Br. 4 (quoting JA 80). Considered in context, however, Powell’s lawyer, who before asking the question had made explicit objections that the warnings given Powell failed to convey the right to counsel during interrogation, was not asking whether Powell had validly waived a known right. Rather, the portion of the transcript quoted by Petitioner was merely the foundation for questions by Powell’s lawyer concerning why Powell signed the form and spoke with the police: Q. Please explain why to this jury you would sign this consent form admitting that this is and make statements to these detectives that this is your gun if in fact that statement was not true? A. Because of the threat they proceeded after my friend, girlfriend that they were going to try to charge her with the charge of possession of a firearm and take away her kids. . . . JA 81.
7 The jury found Powell guilty of possessing a firearm as a convicted felon and he was sentenced to ten years in prison. JA 127-29, 131. 2. The Warning Form at Issue. The use of forms like the April 2001 version of Form 310 read to Powell, which contain language limiting the right to counsel to the period before interrogation, appears to be very much the exception rather than the rule. Recent studies found that nearly 96% of a sample of over 900 Miranda forms collected nationwide included language informing suspects of the right to have counsel present either during questioning or before and during questioning. See Richard Rogers et al., The Language of Miranda Warnings In American Jurisdictions: A Replication and Vocabulary Analysis, 32 Law & Hum. Behav. 124, 133 table 7 (2008) [hereinafter Rogers et al.]; 2 see also SG Br. 1, 13 n.4. This virtual consensus nationwide appears to be consistent with the trend in Florida as well. See Rigterink v. State, 2 So. 3d 221, 254 (Fla. 2009) (per curiam) (noting that “the vast majority of Florida’s law enforcement agencies already possess and provide adequate warnings . . . that fully inform a person of his or her right to an attorney prior to and 2 Professor Rogers published a code book that summarizes the content of the forms analyzed in the studies. See Richard Rogers & Daniel Shuman, National Survey of Miranda Warnings, 2005-2006, Code Book, Study 23100, Inter-university Consortium for Political and Social Research [hereinafter Rogers & Shuman], available at www.icpsr.umich.edu.
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Page 3 and 4: ii TABLE OF CONTENTS Page QUESTIONS
Page 5 and 6: iv TABLE OF AUTHORITIES Page CASES
Page 7 and 8: vi TABLE OF AUTHORITIES - Continued
Page 9 and 10: viii TABLE OF AUTHORITIES - Continu
Page 11 and 12: 1 INTRODUCTION This case presents a
Page 13 and 14: 3 protections. The Florida Supreme
Page 15: 5 The warning form did not state th
Page 19 and 20: 9 The Florida Supreme Court conclud
Page 21 and 22: 11 SUMMARY OF ARGUMENT I. This Cour
Page 23 and 24: 13 In line with this longstanding j
Page 25 and 26: 15 ARGUMENT I. THE WRIT OF CERTIORA
Page 27 and 28: 17 addressed these separate standar
Page 29 and 30: 19 the Florida Constitution more br
Page 31 and 32: 21 here warrant dismissal. What can
Page 33 and 34: 23 Supreme Court in this case expli
Page 35 and 36: 25 The basis for requiring law enfo
Page 37 and 38: 27 include the right to have counse
Page 39 and 40: 29 Frankson, 83 F.3d 79, 82 (4th Ci
Page 41 and 42: 31 is in the ambiguity of the warni
Page 43 and 44: 33 respecting the denial of the pet
Page 45 and 46: 35 the Fifth Circuit concluded that
Page 47 and 48: 37 For its part, the Solicitor Gene
Page 49 and 50: 39 [T]o advise a suspect that he ha
Page 51 and 52: 41 Fletcher and Mr. Lee signed ‘W
Page 53 and 54: 43 Of the over 900 forms in the stu
Page 55 and 56: 45 the right to counsel “before
Page 57 and 58: 47 Last, Petitioner ultimately retr
Page 59 and 60: 49 Beyond that, Petitioner’s spec
Page 61 and 62: 51 for the United States at *37-38,
Page 63 and 64: 53 decision that Tampa again aligne

Brief of respondent for Florida v. Powell, 08-1175 - Oyez

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