More Guidance from the Supreme Court on the Adequacy of Miranda Warnings: Florida v. Powell

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu

            In the famous (or infamous, depending on your point of view) case of Miranda v. Arizona,¹ the Supreme Court held that, prior to custodial interrogation, a suspect must be advised of certain rights and voluntarily waive those rights if the government wants to use any statements made by the suspect at the suspect’s criminal trial.  Specifically, the Court indicated that a suspect in custody “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

            When Miranda was first decided, police officers typically carried with them a card that contained the so-called Miranda warnings and read those warnings to every arrested suspect to insure that none of the warnings were omitted and that all of the warnings were stated properly.  As police officers became more accustomed to giving the warnings, they became less inclined to read from a card, relying instead on their memories.  This sometimes resulted in officers stating the warnings in their own words.  This led inevitably, of course, to legal challenges arguing that a paraphrased Miranda warning given to a particular suspect failed to adequately inform the suspect of one of the rights as specified in the language of the original Miranda decision.

            It was fifteen years after Miranda was decided that the Supreme Court first dealt with such an argument, in California v. Prysock.²  In that case, the Court established the general principle that the warnings given a suspect do not have to track precisely the language used in Miranda, so long as the warnings given are a “fully effective equivalent” of those required by Miranda.  In Prysock, the officer had told the suspect:  “You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning.”  A little later, the suspect was told that he had a right to an appointed attorney if he could not afford one.  The defendant argued that this was insufficient because he was not specifically informed that this court-appointed lawyer was available to him prior to any questioning.

            The Court rejected this argument, concluding that the warnings given were indeed a “fully effective equivalent” of the warnings as stated in Miranda.  However, the opinion included language implying that if the manner in which the warnings were stated gave the impression that appointed counsel would only be available at some future time, the warnings would be problematic.

            The Court backed away from this language in the next case dealing with the adequacy of the warnings given a suspect.  In Duckworth v. Eagan,³ the suspect was given these warnings:

“Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you've talked to a lawyer.” [Emphasis added by the Court of Appeals].

            Of course, these warnings did seem to imply that the suspect could not have access to court-appointed counsel prior to questioning.  This would be the reasonable conclusion to draw from the language indicating that a lawyer would be appointed “if and when you go to court.”  The Court of Appeals in the case concluded that this language “suggested that only those accused who can afford an attorney have the right to have one present before answering any questions.”

            Nevertheless, the Court held (5-4) that these warnings “touched all the bases required by Miranda.”  The majority noted that one option available to the police (and the procedure followed in Indiana, where this case arose) when a suspect requests counsel is to cease questioning until a lawyer is provided at a later stage in the criminal process.  In Indiana, this would have occurred at the suspect’s initial appearance before a judicial officer.  The dissenters noted that it is unrealistic to expect that a person uneducated in the law would understand from the warnings given that if he could not afford an attorney, he could avoid questioning by requesting one.

            Prysock and Duckworth were the only Supreme Court cases dealing with the adequacy of Miranda warnings until the Court re-visited the issue on February 23, 2010 when it decided Florida v. Powell.  When Powell was arrested for illegal possession of a handgun by a convicted felon, he was read his rights from a form that stated:

“You have the right to remain silent.  If you give up the right to remain silent, anything you say can be used against you in court.  You have the right to talk to a lawyer before answering any of our questions.  If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning.  You have the right to use any of these rights at any time you want during this interview.”

            Powell argued that this description of his rights failed to inform him that he could have a lawyer present during any questioning.  The Court rejected this argument (7-2) by concluding that the police did not “entirely omit any information Miranda required them to impart.”  Because Powell was told that he had a right to talk to an attorney before any questioning and then was informed that he could assert any of his rights at any time, the reasonable conclusion that a suspect in Powell’s situation should have drawn was that he could have his attorney with him during any questioning.

            In order to conclude that he could not have a lawyer with him during the questioning, the majority indicated that Powell:

“would have to imagine an unlikely scenario:  To consult counsel, he would be obliged to exit and reenter the interrogation room between each query.  A reasonable suspect in a custodial setting who has just been read his rights, we believe, would not come to the counterintuitive conclusion that he is obligated, or allowed, to hop in and out of the holding area to seek his attorney’s advice.  Instead, the suspect would likely assume that he must stay put in the interrogation room and that his lawyer would be there with him the entire time.”

            Justice Stevens argued in his dissenting opinion that “[t]he more natural reading of the warning Powell was given, which (1) contained a temporal limit and (2) failed to mention his right to the presence of counsel in the interrogation room, is that Powell only had the right to consult with an attorney before the interrogation began, not that he had the right to have an attorney with him during questioning.”  Stevens failed to see how “the catchall clause” (informing Powell that he could exercise any of the rights he had been informed of at any time) clarified Powell’s situation.  “Informing Powell that he could exercise, at any time during the interview, the right to talk to a lawyer before answering any questions did not reasonably convey the right to talk to a lawyer after answering some questions, much less implicitly inform Powell of his right to have a lawyer with him at all times during interrogation.”

            The combined effect of Prysock, Duckworth, and Powell is to give the police substantial leeway to deviate from the precise enunciation of the Miranda warnings as stated by the Supreme Court in Miranda.  This is the good news for law enforcement officers.  The bad news may be that these cases can lull the police into a false sense of security.  These cases certainly do not mean that the police are free to be as creative as they would like when they state the Miranda warnings.  The police still deviate from the language used in Miranda at their own risk.  They never know how the trial judge presiding over their case will view a deviation that occurred in that particular case, because the deviation is never going to be exactly the same as the deviations in Prysock, Duckworth, and Powell.  Certainly, police officers should not view these cases as an invitation to be creative.  The safest course of action for law enforcement officers advising a suspect of his rights is to state the rights in language very similar to the language used in Miranda.

[1] 384 U.S. 436 (1966).

[2] 453 U.S. 355 (1981).

[3] 492 U.S. 195 (1989).

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.