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

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52 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 (Continued on following page)
53 decision that Tampa again aligned its form with existing law. See Br. 21 n.5. * * * In the end, most law enforcement agencies have not had difficulty following the guideposts courts have provided concerning Miranda warning forms. That the Tampa Police Department decided that it was willing to risk using a non-compliant warning is no reason to upset longstanding lower court decisions and settled law enforcement practices used across the country. The Florida Supreme Court correctly held that the form here was at odds with both Article I, Section 9 of the Florida Constitution and Miranda. --------------------------------- ♦ --------------------------------- (Jan. 10, 2005); see also Petition for Writ of Certiorari, State v. Franklin, 543 U.S. 1081 (2005) (No. 04-568), 2004 WL 2418918 (Oct. 20, 2004).
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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 and 60: 49 Beyond that, Petitioner’s spec
Page 61: 51 for the United States at *37-38,
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Brief of respondent for Florida v. Powell, 08-1175 - Oyez

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