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

44
Shuman, supra, at 42-63. Most warnings expressly
advise of the right to have counsel “present” or
“present with you,” although many inform of the right
to have a lawyer “with you.” Id.
E. Petitioner and the Solicitor General’s
Defense of the Warnings Here Is Without
Merit
Petitioner dedicates very little attention to
defending the actual content of the warning given
Powell. When it does, it appears to make two main
arguments: (1) the warning stating that Powell had a
right to talk to a lawyer before questioning implied
the right to have counsel present during questioning
but, if not, (2) the warning’s last sentence – “[y]ou
have the right to use any of these rights at any time
you want during this interview” – cured any defect.
Both arguments are incorrect and employ the very
“strained, literalistic,” Br. 23, approach this Court has
condemned.
First, Petitioner argues that “common sense”
indicates that a person advised of the right to talk to
a lawyer before interrogation would presume the
right to counsel during the questioning because “it
would be incredible to suggest that an attorney would
have been squired out the door once questioning
began.” Br. 25; see also SG Br. 24-25. While Petitioner
and the Solicitor General consider their view of Form
310 as the “common sense” interpretation, Br. 16-18;
SG Br. 24, they ignore that numerous federal and
Florida judges have interpreted warnings advising of