WASHINGTON – “You have the right to remain silent.” Most people only hear those words while watching cop shows on TV. They usually zone out for the rest of the now familiar Miranda warning to people under arrest.
But in the real world, the Supreme Court is still listening to the words that follow. It agreed Monday to hear another case over just how explicit that phrasing must be.
In its landmark 1966 Miranda v. Arizona ruling, the high court set out to protect the constitutional right of people not to incriminate themselves once in custody. They dealt a blow to those officers who bullied or beat false confessions out of suspects. The justices said the police have to tell defendants they can have a lawyer represent them, even if they can’t afford one.
Since 1966, dozens of prosecutors and defendants have asked the court to clarify its ruling. The court has addressed many of those appeals and reaffirmed its basic ruling in 2000.
Along the way, the justices made clear they don’t insist that every police officer use precisely the same words, so long as the important details are clear, even to people with no legal training or little or no schooling.
Monday they agreed to examine what the Tampa, Fla., police told Kevin Dewayne Powell after his arrest on Aug. 10, 2004. Powell was convicted of possessing a firearm. As a convicted felon, he wasn’t allowed to have one. Powell told Tampa officer Salvatore Augeri he bought the weapon “off the street” for $150 for his protection.
But the Florida Supreme Court overturned the conviction on grounds the Tampa police didn’t adequately convey to Powell that he was allowed to have a lawyer with him during questioning.
Florida law enforcement, in the person of chief assistant attorney general Robert J. Krauss, asked the Supreme Court to decide the Tampa police gave Powell a clear enough Miranda warning. On behalf of Powell, Cynthia Dodge, an assistant public defender in Polk County, Fla., argued in a brief that the justices should let the Florida ruling stand because it conformed to previous Miranda rulings and also relied on Florida‘s own constitution.
Before he confessed to Augeri, Powell signed a statement that said he could remain silent and, if he did talk, what he said could be used against him in court. The statement added:
“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.”
The Supreme Court’s original Miranda ruling said whatever words the police used they had to make clear that a suspect could “have the lawyer with him during interrogation.”
Florida’s highest court found the Tampa warning fell short of this essential element because Powell was “never unequivocally informed that he had the right to have an attorney present at all times” during the police interview and limited the narrower right “to talk to” counsel to the period “before answering any of our questions.” The Florida justices ruled that the last sentence of what Powell signed “did not supply the missing warning of the right to have counsel present during police questioning because a right that has never been expressed cannot be reiterated.”
Dodge said the warning to Powell implied that his right to counsel was limited to a conversation before the police began questioning.
For the state, Krauss argued that only “a strained, literalistic reading, inattentive to context” could conclude Powell could not have a lawyer present during questioning. “While the warning at issue may not be the most elegant formulation of Miranda warnings,” Krauss wrote, “the test is reasonable clarity, not elegance.”
Krauss said the Supreme Court should resolve differences between federal circuit courts of appeals on how explicit police must be that a lawyer can sit in on their interrogations.
The case is 08-1175, Florida v. Powell.
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