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

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50 F. Affirming the Decision Below Will Not Burden Law Enforcement Finally, affirming the decision below will not “unduly burden” law enforcement. Br. 12; see also id. 22, 27. As noted, all federal law enforcement agencies and virtually all state and local agencies appear already to use printed forms that satisfy the standards set forth in the decision below. And Petitioner notes that the Tampa Police Department has since modified its form. Br. 21 n.5. Thus, affirming the decision below will do little more than confirm the status quo. But if the Court finds the warning here sufficient under Miranda, the overwhelming majority of jurisdictions now using forms that comply with the current state of Miranda law would be tempted to narrow their warnings to advise only of the right to talk to counsel before interrogation or otherwise modify their forms. As the Solicitor General acknowledges, such changes would “increase . . . the litigation costs of defending any statement.” SG Br. 17 n.7. To be sure, the Solicitor General states that “law enforcement agencies generally have little incentive to replace the conventional warnings with some other phrasing.” Id. But that confidence is not shared by those who have studied modern police practices. See, e.g., Leo, supra, at 124 (“Perhaps the most fundamental police strategy to successfully negotiate Miranda is to do an end run around its requirements by taking advantage of the definitions, exceptions, and ambiguities in Miranda doctrine.”); see also Brief
51 for the United States at *37-38, Dickerson v. United States, 530 U.S. 428 (2000) (No. 99-5525), 2000 WL 141075 (Jan. 28, 2000) (“Although many law enforcement agencies would continue to observe the Miranda procedures to help ensure the admissibility of confessions they obtain, it is likely that some police departments would become less rigorous in requiring warnings, others might significantly modify them. . . .” (emphasis added)). 18 Thus, while advocating that state and local jurisdictions “model their Miranda warnings on the federal formulation,” SG Br. 6; accord id. 9, 13, adopting the Solicitor General’s view would have the opposite effect. 18 Upholding the warnings used here also could impede the ability of courts to determine whether defendants have clearly waived their Sixth Amendment rights. This Court has held that advising a defendant of the right “to have counsel present during the questioning” provides sufficient information to secure a “knowing and intelligent” waiver of the right to counsel. Patterson v. Illinois, 487 U.S. 285, 293 (1988). Last Term, this Court recognized that when “a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick [to waive the Sixth Amendment right to counsel], even though the Miranda rights purportedly have their source in the Fifth Amendment.” Montejo, 129 S. Ct. at 2085 (emphasis added). Thus, a clear Miranda warning provides a bright-line means for courts to assess Sixth Amendment waivers. The warning advocated by Petitioner here, however, does not provide the clarity afforded by the warnings underlying the Montejo and Patterson decisions. If law enforcement agencies adopt watered down warnings, that could spur litigation over the sufficiency of Sixth Amendment waivers.
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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 and 56: 45 the right to counsel “before
Page 57 and 58: 47 Last, Petitioner ultimately retr
Page 59: 49 Beyond that, Petitioner’s spec
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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