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

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the right to counsel “before” or “prior to” interrogation
to be misleading. They also ignore the real world
reality that warnings are not given in comfortable
surroundings where a suspect can parse the words in
the manner employed by Petitioner and the Solicitor
General. Rather, “[a]n individual swept from familiar
surroundings into police custody, surrounded by
antagonistic forces, and subjected to the techniques of
persuasion . . . cannot be otherwise than under
compulsion to speak.” Miranda, 384 U.S. at 461. 14
Second, Petitioner and the Solicitor General
argue that – because the last sentence of the form
read to Powell stated that “[y]ou have a right to use
any of these rights at any time you want during this
interview” – “[t]hat warning eliminated any inference
that counsel could not be present after the interview
commenced.” SG Br. 26; accord Br. 8, 18. This was
easily answered by the Florida Supreme Court:
14
Like Petitioner, the Solicitor General argues that it is
inappropriate to “[f ]ocus[ ] on the precise wording of the
warning at the expense of their substance.” SG Br. 15. Yet the
Solicitor General’s brief engages in exactly that sort of
formalistic argument. It closely parses the words of the warning
and claims that the phrase “before answering any of our
questions” clearly conveys that a suspect could request a lawyer
before each of the police’s questions during the course of the
interrogation. SG Br. 23. The Solicitor General’s argument
depends on the formalistic premise that “before answering any
of our questions” does not have the same meaning as “before any
questioning” or “before questioning.” SG Br. 23, 26. In the rush to
analyze the warning word-for-word, the Solicitor General ignores
that Petitioner repeatedly characterized that part of the warning as
being equivalent to “before questioning.” See, e.g., Br. 6, 10, 18.