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

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That police departments and other law enforcement
agencies modify forms to try to increase
confessions is supported by the circumstances that
led to the present case. In 1984, Tampa Form 310
stated clearly, “I further understand that prior to or
during this interview that I have the right to have an
attorney present.” Thompson v. State, 595 So. 2d 16,
17 n.3 (Fla. 1992) (quoting Form 310) (emphasis
added). Despite uniform federal court of appeals
decisions to the contrary, Tampa changed its form to
suggest an inappropriate limitation on the right to
counsel. And Tampa continued to use the misleading
form read to Powell even after Florida courts had
found a comparable form used in another Florida
jurisdiction defective. 19
It was only after the Powell
19
In the months immediately preceding Powell’s interrogation,
the Fourth District Court of Appeal had held that
warnings comparable to the ones at issue here were defective.
See Roberts v. State, 874 So. 2d 1225, 1228-29 (Fla. 4th Dist. Ct.
App. 2004) (holding that a warning providing “[y]ou have the
right to talk with a lawyer and have a lawyer present before any
questioning” was invalid); accord West v. State, 876 So. 2d 614,
615-16 (Fla. 4th Dist. Ct. App. 2004); Franklin v. State, 876 So.
2d 607, 608 (Fla. 4th Dist. Ct. App. 2004); President v. State, 884
So. 2d 126, 127 (Fla. 4th Dist. Ct. App. 2004) (per curiam). The
record does not reflect why the Tampa form was not changed in
light of these decisions (or exactly when the form was
subsequently changed to conform with Miranda and Florida
Constitutional requirements). What is apparent is that at the
time of Powell’s arrest and interrogation Petitioner was seeking
review of the Roberts, West, and President decisions in the
Florida Supreme Court. Further, in the months after Powell’s
interrogation, Petitioner sought review of the Franklin decision
in this Court, which was denied. See Franklin, 543 U.S. 1081
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