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

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is in the ambiguity of the warning, not that the
warning actively misled Caldwell by suggesting a
false limitation of his right to counsel.” Id. at 502.
Likewise, the Seventh Circuit found that a form used
by IRS investigators advising that “you may, if you
wish, seek the assistance of an attorney before
responding” violated Miranda in part because the
defendant “was not told that he could have counsel
present during the questioning.” United States v.
Oliver, 505 F.2d 301, 303, 306 & nn.5-6 (7th Cir.
1974), abrogated on other grounds by United States v.
Fitzgerald, 545 F.2d 578 (7th Cir. 1976) (finding
interviews like the one in Oliver non-custodial).
These cases are consistent with Prysock, where
this Court upheld a warning that provided, “[y]ou
have the right to talk to a lawyer before you are
questioned, have him present with you while you are
being questioned, and all during the questioning” in
part because “nothing in the warnings given respondent
suggested any limitation on the right to the
presence of appointed counsel. . . .” 453 U.S. at 356,
360-61. This Court explained that “[t]his is not a case
in which the defendant was not informed of his right
to the presence of an attorney during questioning.”
Id. at 361 (quoting United States v. Noa, 443 F.2d
144, 146 (9th Cir. 1971)).
The courts of appeals requiring a more explicit
warning of the right to have counsel present during
questioning also have rejected warnings like the ones
read to Powell, not because they affirmatively
mislead, but because they omit a material element of