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

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46 This last sentence could not effectively convey a right the defendant was never told he had. In other words, how can a defendant exercise at any time during an interrogation a right he did not know existed? The catchall phrase did not supply the missing warning of the right to have counsel present during police questioning because a right that has never been expressed cannot be reiterated. JA 172. 15 15 A federal district court in Florida rejected a similar argument. In United States v. Taylor, federal agents reading from a standard form then used by the Department of Homeland Security, advised the defendants that “[y]ou have the right to talk to a lawyer for advice before we ask you any questions.” No. 05-60072, at 5 (S.D. Fla. July 26, 2005) (magistrate judge’s report and recommendation). The magistrate judge found the warning invalid under Miranda, concluding that most criminal attorneys, to say nothing of “a suspect unschooled in the law,” would construe the form as impermissibly limiting access to counsel to the period before interrogation. Id. at 12. Notably, the government in that case, like here, argued that other clauses in the form – a provision providing that “[i]f you decide to answer questions now without a lawyer present, you have the right to stop answering at any time” and a waiver provision providing “[a]t this time, I am willing to answer questions without a lawyer present” – were sufficient to support a “reasonable inference” of the right to have an attorney present during questioning. Id. at 6, 11. The magistrate judge rejected the government’s parsing of the form, concluding that the “waiver portion of the form incorporates the statement of rights portion, which sets forth the right to counsel before questioning only. Moreover, there is no indication in the form that the right to terminate questioning implies a right to request counsel or (Continued on following page)
47 Last, Petitioner ultimately retreats from the warning itself and, like the Oregon Court of Appeals case upon which it relies, Br. 20 n.4, suggests that it does not matter whether the warning here was deficient. It argues that “Powell never unequivocally exercised his right to an attorney; therefore, it begs the question how any failure to specifically inform him that he had a right to an attorney during questioning would have made any difference to Powell’s exercise of a known right to an attorney.” Br. 23 n.7; see also id. 25. Petitioner’s demand that Powell should have made an “unequivocal” request for counsel, however, serves only to illustrate the need for a clear warning. When suspects seek to invoke their right to counsel during an interrogation they are required to do so clearly and explicitly: [I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the consult with counsel during the interrogation process.” Id. at 11- 12. In adopting the magistrate judge’s recommendation, the district court “note[d] that no objections to the Report & Recommendation have been filed by the United States.” Taylor, No. 05-60072 (S.D. Fla. Aug. 9, 2005) (order adopting report and recommendation); see also Paula McMahon & Ihosvani Rodriguez, Feds Make Miranda Blunder, S. Fla. Sun-Sentinel, Aug. 6, 2005, at 1B (reporting that the Bureau of Immigration and Customs Enforcement determined that the form used in Taylor differed from the approved form used nationwide and that after the form was held invalid “[t]he agency took immediate action to ensure that every field office in the country” was using the proper form), available at 2005 WLNR 23613777.
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No. 08-1175 =======================
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 and 46: 35 the Fifth Circuit concluded that
Page 47 and 48: 37 For its part, the Solicitor Gene
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: 45 the right to counsel “before
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
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Brief of respondent for Florida v. Powell, 08-1175 - Oyez

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