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

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36 The only other case identified by Petitioner as purportedly upholding warnings comparable to the ones given Powell is State v. Arnold, 496 P.2d 919, 922-23 (Or. Ct. App. 1972). Br. 20 n.4. The court there reasoned that a “prior to any questioning” warning was adequate on the assumption that – because the defendant had not asked for a lawyer before the interrogation – he would not have asked for one during questioning. 10 That, of course, improperly presupposes that suspects who initially waive their right to counsel before questioning never change their minds after the interrogation begins. Experience demonstrates otherwise. 11 10 See Arnold, 496 P.2d at 923 (“Here, defendant was advised of his right to have an attorney present before he answered any questions. He did not request an attorney on that advice. It is reasonable to assume, on these facts, that he would not have requested the presence of any attorney while he answered the police officer’s questions, had he been so advised. The advice was adequate.”). While not expressly rejecting Arnold, the Oregon Court of Appeals has since endorsed an approach like the one taken in the federal cases, which distinguishes general warnings from those that suggest a “qualification” on access to counsel. See State v. Quinn, 831 P.2d 48, 52-53 (Or. Ct. App. 1992) (where a defendant was told “you have the right to an attorney,” the court held that the warning was sufficient to inform the defendant “that his right to an attorney was unconditional”). 11 Police in fact often structure interviews to “soften up” suspects to encourage them to sign Miranda waiver forms. After the form is signed, they become more accusatorial, which may prompt requests for counsel during the interrogation. See Leo, supra, at 132 (“Once the interrogator has obtained the suspect’s implicit or explicit waiver (typically memorialized by his initials (Continued on following page)
37 For its part, the Solicitor General’s brief, while completely ignoring the federal court of appeals decisions, relies on California state court opinions it claims conflict with the decision below. SG Br. 25-27. 12 As in Bridgers, however, the warnings at issue in the California decisions advised of the right to have a lawyer physically “present” rather than the right just to “talk to” an attorney. In any event, at best, these Oregon and California decisions are the exceptions that prove the rule. at the bottom of a Miranda advisement form), the tone, content, and force of the interrogation may change dramatically. It is typically after the Miranda moment that the interrogation process becomes accusatorial. . . .”). Though police use various tactics to avoid such mid-interrogation requests, they happen. See id. at 278-83; accord, e.g., United States v. Smith, No. CR09- 5088, 2009 WL 1121091, at *3 (W.D. Wash. Apr. 27, 2009) (holding that defendant who initially signed waiver form later properly invoked the right to counsel during interrogation). 12 People v. Wash, 861 P.2d 1107, 1118-19 (Cal. 1993); see also People v. Lujan, 112 Cal. Rptr. 2d 769, 778-79 (Cal. Ct. App. 2001); People v. Valdivia, 226 Cal. Rptr. 144, 146-47 (Cal. Ct. App. 1986). Although not cited by Petitioner or the Solicitor General, courts in at least one other state appear in accord with Wash. See People v. Gilleylem, 191 N.W.2d 96, 97 (Mich. Ct. App. 1971) (concluding that a warning providing “[y]ou may have this attorney present here before answering any questions” was sufficient under Miranda).
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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 and 16: 5 The warning form did not state th
Page 17 and 18: 7 The jury found Powell guilty of p
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: 35 the Fifth Circuit concluded that
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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