What does Miranda require?
on Apr 3, 2009 at 3:55 pm
If police have a suspect in custody, and tell him that he has a right to talk to a lawyer before being questioned, is that enough to satisfy the right-to-counsel warning that is  required by Miranda v. Arizona (1966)? It is an issue that has long split the lower courts, and it is one that some members of the Supreme Court have been leaning toward hearing. Now, a new case that could test the issue has reached the Court, and Justice Clarence Thomas and some of his colleagues have given at least a tentative sign that it may be reviewed.
The Florida Supreme Court, in a decision last September, ruled that it is not enough merely to tell a suspect that his right to a lawyer applies before he is asked any questions by police. Rather, it must tell him explicitly, the state court said, that he has a right to have that lawyer with him while the questioning proceeds. (The opinion can be found here.)
In an order issued Thursday, Justice Thomas, as Circuit Justice for the area that includes Florida, put the state court’s ruling on hold until after the Court acts on a newly filed petition by Florida officials (Florida v. Powell, 08-1175). While the Justice did not explain the order, one of the factors a Justice considers is whether a case is likely to attract the votes of at least four Justices to hear the case and whether it has a good chance of a reversal of the lower court after the decision is reviewed. (The response to the petition is now due on April 22. The Court may act on it before the end of the current Term in late June.)
In an even stronger indication that the Court is moving closer to taking on the issue, the Justices, by a 5-4 vote on March 25, temporarily blocked another, more recent ruling by the Florida Supreme Court in a case, Florida v. Rigterink, in which the state court had applied its Powell ruling in ordering a new death penalty hearing for convicted murderer Thomas William Rigterink. The four dissenting Justices — Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens — did not explain their votes. (The state on Thursday filed its petition for review in the Rigterink case; it has not yet been assigned a docket number.)
In the background is a further factor: In May 2001, when the Court passed up a chance to review the issue in a case from a Texas state court (Bridger v. Texas, docket 00-8942), three Justices commented that a warning without reference to counsel’s presence during interrogation left out “an essential Miranda element.” The brief statement, by Justice Breyer, joined by Justices Souter and Stevens, said that “if the problem purportedly present here proves to be a recurring one, I believe that it may well warrant this Court’s attention.” (Their dissenting votes last month in the Rigterink order may cast some doubt on whether those three are ready to consider the issue, but, in fact, their votes may not be needed.)
The state of Florida, in its new appeal in the Powell case, argued that the problem Breyer cited eight years ago does in fact continue, “and there is clearly a need for a resolution from this Court to the existing division among the courts across the country.”
 The petition said that four Circuit Courts have “found sufficient Miranda warnings that did not specifically advise a suspect of his right to have an attorney present during interrogation.” By contrast, it added, four other Circuit Courts “have held that a suspect is entitled to be expressly informed of the right to have an attorney present during questioning.”
The Florida state court, agreeing with the broader view of what Miranda requires, issued its ruling in the case of Kevin DeWayne Powell of Tampa. He was convicted of being a felon who had a gun, and was sentenced to ten years in prison. His guilty verdict was based on part on a confession he had given to police that a gun found in the home Powell shared with a girlfriend belonged to him.
When he was taken by Tampa police to headquarters for questioning, he was given Miranda warnings. Detectives, reading from a standard form, included this warning in their recital: “You have a right to talk to a lawyer before answering any of our questions.” Powell agreed to talk to them, and then provided the incriminating statement. He appealed his conviction, challenging the adequacy of that warning.
The Florida Supreme Court took on the issue, treating it as a matter of “great public importance.” In its ruling, that Court remarked: “In this case the warning was misleading. The warning said ‘before answering any questions.’ The ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.” That, it said, is a direct violation of the Supreme Court’s Miranda decision.
