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

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In line with this longstanding jurisprudence,
it also appears that the Miranda forms used by
virtually every law enforcement agency in the country
satisfy the standards applied in the decision below.
See Rogers & Shuman, supra, at 42-63. Of the more
than 900 warning forms collected from 49 states and
various federal law enforcement agencies, only five
advise of a right to talk to a lawyer or to have the
lawyer present “before questioning” without also
articulating the right to counsel during interrogation.
Id. at 42, 43, 48, 52. Of those five, all but one mention
the right to have a lawyer “present.” Id. at 48.
Contrary to Petitioner’s view, the issue in this
case is not one of form, but of substance. The Tampa
Police Department could have conveyed the right to
counsel using any number of formulations, provided
that the warning included the required substance.
Indeed, Florida courts have since held that generalized
warnings such as “you have the right to the
presence of an attorney” are sufficient to convey a
suspect’s right to counsel before and during interrogation
because – unlike the warning given Powell –
they do not misleadingly suggest any temporal
limitation. See, e.g., State v. Smith, 6 So. 3d 652, 653
(Fla. 2d Dist. Ct. App. 2009), review denied, 2009 WL
2989781 (Fla. Sept. 17, 2009).
In the face of all this, Petitioner argues that the
last sentence of the form read to Powell cured any
defect by providing, “[y]ou have the right to use any
of these rights at any time you want during this