A State-Law Escape Hatch?

By Anna Christensen
on Dec 9, 2009 at 1:33 pm

Below, Sam Bateman of Stanford Law School recaps Florida v. Powell, one of two cases heard by the Court on Monday. Sam previewed the case here on Sunday, and Lyle’s post-argument analysis is available here. Check the Florida v. Powell (08-1175) SCOTUSwiki page for additional updates.

At oral argument on December 7 in Florida v. Powell, the Court grappled with how far a “Miranda warning” can deviate from the standard content typically included in such warnings – particularly an admonition regarding a suspect’s right to have counsel present “during” questioning – before it ceases to comply with Miranda.  The inquiry was complicated not only by the inherent difficulty of drawing lines in the sand in a doctrine that is not supposed to require “magic words,” but also by contradictory indications in the forty-three-year-old Miranda decision itself.

Lyle Denniston has already ably and extensively chronicled the main substance of the arguments on whether the standardized Tampa police form used in Powell’s case complies with the strictures of Miranda.  This post will focus, therefore, on a collateral procedural matter which several of the Justices nevertheless seemed interested in exploring at the argument: whether the Florida Supreme Court’s decision striking down the Tampa warning rested on an adequate and independent state law ground.

The answer to that question may well be significant in the case, because if the Florida court rested its decision on independent Florida law in addition to federal law, the Court’s adequate and independent state ground doctrine would require it to refrain from issuing a decision.  And at the start of the State’s argument, several Justices pressed the State’s counsel on whether that doctrine should come into play in this case.  As Justice Ginsburg put it, could the Florida court on remand “say: Well, that’s very nice, but we have a Florida Constitution [and] we are putting [the requirement that warnings include the phrase ‘during questioning’] squarely under the Florida Constitution” – thereby rendering any Supreme Court decision effectively advisory?  But counsel for Florida, Joseph Jacquot, responded that the theoretical possibility that the state court could do so was irrelevant; the adequate and independent state ground doctrine only bars review when the state court has clearly indicated that its decision rests on an independent state ground, while in this case the Florida Supreme Court “interwove Federal law” into its discussion of its own precedent.

Powell’s counsel then returned to the argument during her allotted time, arguing that “the Florida Supreme Court must have referred to its constitutional provision . . . at least five times.”  She encountered heavy skepticism from the bench, however, as to whether that would strip the Court of the ability to hear this case.  Justice Kennedy pointed out both that the Florida court always discussed its own precedent in connection with Miranda, and that no Florida Supreme Court case has ever stated that Florida has a warning requirement that is more rigorous than Miranda itself.  Justice Scalia, meanwhile, noted that the Florida court was only asked to decide the certified question of whether the Tampa warning complied with Miranda, not the Florida Constitution, though Justice Stevens responded that the use of the generic term “Miranda warnings” could encompass both federal and state constitutional law.

Ultimately, it was unclear whether Powell could find five votes willing to dismiss the case on adequate and independent state law grounds.  Instead, it seemed more likely that the Court will reach the merits and finally provide some added clarity to law enforcement regarding the precise wording that Miranda requires.