Florida v. Powell

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FLORIDA v. POWELL
CERTIORARI TO THE SUPREME COURT OF FLORIDA
No. 08–1175. Argued December 7, 2009—Decided February 23, 2010
In a pathmarking decision, Miranda v. Arizona, 384 U. S. 436, 471, this
Court held that an individual must be “clearly informed,” prior to
custodial questioning, that he has, among other rights, “the right to
consult with a lawyer and to have the lawyer with him during inter
rogation.”
After arresting respondent Powell, but before questioning him,
Tampa Police read him their standard Miranda form, stating, inter
alia: “You have the right to talk to a lawyer before answering any of
our questions” and “[y]ou have the right to use any of these rights at
any time you want during this interview.” Powell then admitted he
owned a handgun found in a police search. He was charged with pos
session of a weapon by a convicted felon in violation of Florida law.
The trial court denied Powell’s motion to suppress his inculpatory
statements, which was based on the contention that the Miranda
warnings he received did not adequately convey his right to the pres
ence of an attorney during questioning. Powell was convicted of the
gun-possession charge, but the intermediate appellate court held that
the trial court should have suppressed the statements. The Florida
Supreme Court agreed. It noted that both Miranda and the State
Constitution require that a suspect be clearly informed of the right to
have a lawyer present during questioning. The advice Powell re
ceived was misleading, the court believed, because it suggested that
he could consult with an attorney only before the police started to
question him and did not convey his entitlement to counsel’s presence
throughout the interrogation.
Held:
1. This Court has jurisdiction to hear this case. Powell contends
that jurisdiction is lacking because the Florida Supreme Court relied
on the State’s Constitution as well as Miranda, hence the decision
2 FLORIDA v. POWELL
Syllabus
rested on an adequate and independent state ground. See Coleman
v. Thompson, 501 U. S. 722, 729. Under Michigan v. Long, 463 U. S.
1032, 1040–1041, however, when a state court decision fairly appears
to rest primarily on federal law, or to be interwoven with federal law,
and the adequacy and independence of any possible state-law ground
is not clear from the face of its opinion, this Court presumes that fed
eral law controlled the state court’s decision. Although invoking Flor
ida’s Constitution and precedent in addition to this Court’s decisions,
the Florida court did not expressly assert that state-law sources gave
Powell rights distinct from, or broader than, those delineated in
Miranda. See Long, 463 U. S., at 1044. The state-court opinion con
sistently trained on what Miranda demands, rather than on what
Florida law independently requires. This Court therefore cannot
identify, “from the face of the opinion,” a clear statement that the de
cision rested on a state ground separate from Miranda. See Long,
463 U. S., at 1041. Because the opinion does not “indicat[e] clearly
and expressly that it is alternatively based on bona fide separate,
adequate, and independent [state] grounds,” Long, 463 U. S., at 1041,
this Court has jurisdiction. Pp. 4–7.
2. Advice that a suspect has “the right to talk to a lawyer before
answering any of [the law enforcement officers’] questions,” and that
he can invoke this right “at any time . . . during th[e] interview,” sat
isfies Miranda. Pp. 7–13.
(a) Miranda requires that a suspect “be warned prior to any
questioning . . . that he has the right to the presence of an attorney.”
384 U. S., at 479. This Miranda warning addresses the Court’s par
ticular concern that “[t]he circumstances surrounding in-custody in
terrogation can operate very quickly to overbear the will of one
merely made aware of his privilege [to remain silent] by his interro
gators.” Id., at 469. Responsive to that concern, the Court stated, as
“an absolute prerequisite to interrogation,” that an individual held
for questioning “must be clearly informed that he has the right to
consult with a lawyer and to have the lawyer with him during inter
rogation.” Id., at 471. While the warnings prescribed by Miranda
are invariable, this Court has not dictated the words in which the es
sential information must be conveyed. See, e.g., California v. Pry
sock, 453 U. S. 355, 359. In determining whether police warnings
were satisfactory, reviewing courts are not required to “examine
[them] as if construing a will or defining the terms of an easement.
The inquiry is simply whether the warnings reasonably ‘conve[y] to
[a suspect] his rights as required by Miranda.’ ” Duckworth v.
Eagan, 492 U. S. 195, 203. Pp. 7–9.
(b) The warnings Powell received satisfy this standard. By in
forming Powell that he had “the right to talk to a lawyer before an
Cite as: 559 U. S. ____ (2010) 3
Syllabus
swering any of [their] questions,” the Tampa officers communicated
that he could consult with a lawyer before answering any particular
question. And the statement that Powell had “the right to use any of
[his] rights at any time [he] want[ed] during th[e] interview” con
firmed that he could exercise his right to an attorney while the inter
rogation was underway. In combination, the two warnings reasona
bly conveyed the right to have an attorney present, not only at the
outset of interrogation, but at all times. To reach the opposite con
clusion, i.e., that the attorney would not be present throughout the
interrogation, the suspect would have to imagine the counterintuitive
and unlikely scenario that, in order to consult counsel, he would be
obliged to exit and reenter the interrogation room between each
query. Likewise unavailing is the Florida Supreme Court’s conclu
sion that the warning was misleading because the temporal language
that Powell could “talk to a lawyer before answering any of [the offi
cers’] questions” suggested he could consult with an attorney only be
fore the interrogation started. In context, the term “before” merely
conveyed that Powell’s right to an attorney became effective before he
answered any questions at all. Nothing in the words used indicated
that counsel’s presence would be restricted after the questioning
commenced. Powell suggests that today’s holding will tempt law en
forcement agencies to end-run Miranda by amending their warnings
to introduce ambiguity. But, as the Federal Government explains, it
is in law enforcement’s own interest to state warnings with maxi
mum clarity in order to reduce the risk that a court will later find the
advice inadequate and therefore suppress a suspect’s statement. The
standard warnings used by the Federal Bureau of Investigation are
admirably informative, but the Court declines to declare their precise
formulation necessary to meet Miranda’s requirements. Different
words were used in the advice Powell received, but they communi
cated the same message. Pp. 9–13.
998 So. 2d 531, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, ALITO, and SOTOMAYOR, JJ.,
joined, and in which BREYER, J., joined as to Part II. STEVENS, J., filed a
dissenting opinion, in which BREYER, J., joined as to Part II.
Cite as: 559 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1175
_________________
FLORIDA, PETITIONER v. KEVIN DEWAYNE POWELL
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
FLORIDA
[February 23, 2010]
JUSTICE GINSBURG delivered the opinion of the Court.
In a pathmarking decision, Miranda v. Arizona, 384
U. S. 436, 471 (1966), the Court held that an individual
must be “clearly informed,” prior to custodial questioning,
that he has, among other rights, “the right to consult with
a lawyer and to have the lawyer with him during interro
gation.” The question presented in this case is whether
advice that a suspect has “the right to talk to a lawyer
before answering any of [the law enforcement officers’]
questions,” and that he can invoke this right “at any time
. . . during th[e] interview,” satisfies Miranda. We hold
that it does.
I
On August 10, 2004, law enforcement officers in Tampa,
Florida, seeking to apprehend respondent Kevin Dewayne
Powell in connection with a robbery investigation, entered
an apartment rented by Powell’s girlfriend. 969 So. 2d
1060, 1063 (Fla. App. 2007). After spotting Powell coming
from a bedroom, the officers searched the room and dis
covered a loaded nine-millimeter handgun under the bed.
Ibid.The officers arrested Powell and transported him to the
2 FLORIDA v. POWELL
Opinion of the Court
Tampa Police headquarters. Ibid. Once there, and before
asking Powell any questions, the officers read Powell the
standard Tampa Police Department Consent and Release
Form 310. Id., at 1063–1064. The form states:
“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 ap
pointed for you without cost and before any question
ing. You have the right to use any of these rights at
any time you want during this interview.” App. 3.
See also 969 So. 2d, at 1064.
Acknowledging that he had been informed of his rights,
that he “underst[oo]d them,” and that he was “willing to
talk” to the officers, Powell signed the form. App. 3. He
then admitted that he owned the handgun found in the
apartment. Powell knew he was prohibited from possess
ing a gun because he had previously been convicted of a
felony, but said he had nevertheless purchased and car
ried the firearm for his protection. See 969 So. 2d, at
1064; App. 29.
Powell was charged in state court with possession of a
weapon by a prohibited possessor, in violation of Fla. Stat.
Ann. §790.23(1) (West 2007). Contending that the
Miranda warnings were deficient because they did not
adequately convey his right to the presence of an attorney
during questioning, he moved to suppress his inculpatory
statements. The trial court denied the motion, concluding
that the officers had properly notified Powell of his right to
counsel. 969 So. 2d, at 1064; App. 28. A jury convicted
Powell of the gun-possession charge. 969 So. 2d, at 1064.
On appeal, the Florida Second District Court of Appeal
held that the trial court should have suppressed Powell’s
statements. Id., at 1067. The Miranda warnings, the
Cite as: 559 U. S. ____ (2010) 3
Opinion of the Court
appellate court concluded, did not “adequately inform
[Powell] of his . . . right to have an attorney present
throughout [the] interrogation.” 969 So. 2d, at 1063.
Considering the issue to be “one of great public impor
tance,” the court certified the following question to the
Florida Supreme Court:
“Does the failure to provide express advice of the right
to the presence of counsel during questioning vitiate
Miranda warnings which advise of both (A) the right
to talk to a lawyer ‘before questioning’ and (B) the
‘right to use’ the right to consult a lawyer ‘at any time’
during questioning?” Id., at 1067–1068 (some capi
talization omitted).
Surveying decisions of this Court as well as Florida
precedent, the Florida Supreme Court answered the certi
fied question in the affirmative. 998 So. 2d 531, 532
(2008). “Both Miranda and article I, section 9 of the Flor
ida Constitution,”1 the Florida High Court noted, “require
that a suspect be clearly informed of the right to have a
lawyer present during questioning.” Id., at 542. The court
found that the advice Powell received was misleading
because it suggested that Powell could “only consult with
an attorney before questioning” and did not convey Pow
ell’s entitlement to counsel’s presence throughout the
interrogation. Id., at 541. Nor, in the court’s view, did the
final catchall warning—“[y]ou have the right to use any of
these rights at any time you want during this interview”—
cure the defect the court perceived in the right-to-counsel
advice: “The catch-all phrase did not supply the missing
warning of the right to have counsel present during police
questioning,” the court stated, for “a right that has never
been expressed cannot be reiterated.” Ibid.——————
1 Article I, §9 of the Florida Constitution states that “[n]o person shall
. . . be compelled in any criminal matter to be a witness against one
self.”
4 FLORIDA v. POWELL
Opinion of the Court
Justice Wells dissented. He considered it “unreasonable
to conclude that the broad, unqualified language read to
Powell would lead a person of ordinary intelligence to
believe that he or she had a limited right to consult with
an attorney that could only be exercised before answering
the first question posed by law enforcement.” Id., at 544.
The final sentence of the warning, he stressed, “avoid[ed]
the implication—unreasonable as it may [have] be[en]—
that advice concerning the right of access to counsel before
questioning conveys the message that access to counsel is
foreclosed during questioning.” Ibid. (internal quotation
marks omitted). Criticizing the majority’s “technical
adherence to language . . . that has no connection with
whether the person who confessed understood his or her
rights,” id., at 545, he concluded that “[t]he totality of the
warning reasonably conveyed to Powell his continuing
right of access to counsel,” id., at 544.
We granted certiorari, 557 U. S. ___ (2009), and now
reverse the judgment of the Florida Supreme Court.
II
We first address Powell’s contention that this Court
lacks jurisdiction to hear this case because the Florida
Supreme Court, by relying not only on Miranda but also
on the Florida Constitution, rested its decision on an
adequate and independent state ground. Brief for Peti
tioner 15–23. See Coleman v. Thompson, 501 U. S. 722,
729 (1991) (“This Court will not review a question of fed
eral law decided by a state court if the decision . . . rests
on a state law ground that is independent of the federal
question and adequate to support the judgment.”). “It is
fundamental,” we have observed, “that state courts be left
free and unfettered by us in interpreting their state con
stitutions.” Minnesota v. National Tea Co., 309 U. S. 551,
557 (1940). “But it is equally important that ambiguous or
obscure adjudications by state courts do not stand as
Cite as: 559 U. S. ____ (2010) 5
Opinion of the Court
barriers to a determination by this Court of the validity
under the federal constitution of state action.” Ibid.To that end, we announced, in Michigan v. Long, 463
U. S. 1032, 1040–1041 (1983), the following presumption:
“[W]hen . . . a state court decision fairly appears to
rest primarily on federal law, or to be interwoven with
the federal law, and when the adequacy and inde
pendence of any possible state law ground is not clear
from the face of the opinion, we will accept as the
most reasonable explanation that the state court de
cided the case the way it did because it believed that
federal law required it to do so.”
At the same time, we adopted a plain-statement rule to
avoid the presumption: “If the state court decision indi
cates clearly and expressly that it is alternatively based on
bona fide separate, adequate, and independent grounds,
we, of course, will not undertake to review the decision.”
Id., at 1041.2
Under the Long presumption, we have jurisdiction to
entertain this case. Although invoking Florida’s Constitu
tion and precedent in addition to this Court’s decisions,
the Florida Supreme Court treated state and federal law
as interchangeable and interwoven; the court at no point
——————
2 Dissenting in Michigan v. Long, 463 U. S. 1032 (1983), JUSTICE
STEVENS did not urge, as he now does, inspection of state-court deci
sions to count the number of citations to state and federal provisions
and opinions, or heroic efforts to fathom what the state court really
meant. See post, at 3–7 (dissenting opinion). Instead, his preferred
approach was as clear as the Court’s. In lieu of “presuming that
adequate state grounds are not independent unless it clearly appears
otherwise,” he would have “presum[ed] that adequate state grounds are
independent unless it clearly appears otherwise.” Long, 463 U. S., at
1066; see post, at 2, n. 1. Either presumption would avoid arduous
efforts to detect, case by case, whether a state ground of decision is
truly “independent of the [state court’s] understanding of federal law.”
Long, 463 U. S., at 1066. Today, however, the dissent would require
this Court to engage in just that sort of inquiry.
6 FLORIDA v. POWELL
Opinion of the Court
expressly asserted that state-law sources gave Powell
rights distinct from, or broader than, those delineated in
Miranda. See Long, 463 U. S., at 1044.
Beginning with the certified question—whether the
advice the Tampa police gave to Powell “vitiate[d]
Miranda,” 998 So. 2d, at 532 (some capitalization omit
ted)—and continuing throughout its opinion, the Florida
Supreme Court trained on what Miranda demands, rather
than on what Florida law independently requires. See,
e.g., 998 So. 2d, at 533 (“The issue before this Court is
whether the failure to provide express advice of the right
to the presence of counsel during custodial interrogation
violates the principles espoused in Miranda v. Arizona,
384 U. S. 436.”); id., at 538 (“[T]he issue of [what] Miranda
requires . . . has been addressed by several of the Florida
district courts of appeal.”); id., at 542 (Powell received a
“narrower and less functional warning than that required
by Miranda.”).3 We therefore cannot identify, “from the
face of the opinion,” a clear statement that the decision
rested on a state ground separate from Miranda. See
Long, 463 U. S., at 1041 (the state court “need only make
clear by a plain statement in its judgment or opinion that
the federal cases are being used only for the purpose of
guidance, and do not themselves compel the result that
the court has reached”).4 “To avoid misunderstanding, the
——————
3 JUSTICE STEVENS suggests that these statements refer to Miranda
only in a “generic” sense to mean “the warnings suspects must be given
before interrogation.” Post, at 6. This explanation fails to account for
the Florida Supreme Court’s repeated citations to the opinion in
Miranda. In context, it is obvious that the court was attempting to
home in on what that opinion—which, of course, interpreted only the
Federal Constitution and not Florida law—requires. See, e.g., 998
So. 2d 531, 533, 534, 537, 538, 539, 540, 541, 542 (2008).
4 JUSTICE STEVENS agrees that the Florida Supreme Court’s decision
is interwoven with federal law, post, at 7, and lacks the plain statement
contemplated by Long, post, at 3. Nevertheless, he finds it possible to
discern an independent state-law basis for the decision. As Long makes
Cite as: 559 U. S. ____ (2010) 7
Opinion of the Court
[Florida] Supreme Court must itself speak with the clarity
it sought to require of its State’s police officers.” Ohio v.
Robinette, 519 U. S. 33, 45 (1996) (GINSBURG, J., concur
ring in judgment).
Powell notes that “ ‘state courts are absolutely free to
interpret state constitutional provisions to accord greater
protection to individual rights than do similar provisions
of the United States Constitution.’ ” Brief for Respondent
19–20 (quoting Arizona v. Evans, 514 U. S. 1, 8 (1995)).
See also, e.g., Oregon v. Hass, 420 U. S. 714, 719 (1975);
Cooper v. California, 386 U. S. 58, 62 (1967). Powell is
right in this regard. Nothing in our decision today, we
emphasize, trenches on the Florida Supreme Court’s
authority to impose, based on the State’s Constitution, any
additional protections against coerced confessions it deems
appropriate. But because the Florida Supreme Court’s
decision does not “indicat[e] clearly and expressly that it is
alternatively based on bona fide separate, adequate, and
independent [state] grounds,” Long, 463 U. S., at 1041, we
have jurisdiction to decide this case.
III
A
To give force to the Constitution’s protection against
compelled self-incrimination, the Court established in
Miranda “certain procedural safeguards that require
——————
clear, however, “when . . . [the] state court decision fairly appears to . . .
be interwoven with . . . federal law,” the only way to avoid the jurisdic
tional presumption is to provide a plain statement expressing inde
pendent reliance on state law. 463 U. S., at 1040. It is this plain
statement that makes “the adequacy and independence of any possible
state law ground . . . clear from the face of the opinion.” Id., at 1040–
1041. See also Ohio v. Robinette, 519 U. S. 33, 44 (1996) (GINSBURG, J.,
concurring in judgment) (“Long governs even when, all things consid
ered, the more plausible reading of the state court’s decision may be
that the state court did not regard the Federal Constitution alone as a
sufficient basis for its ruling.”).
8 FLORIDA v. POWELL
Opinion of the Court
police to advise criminal suspects of their rights under the
Fifth and Fourteenth Amendments before commencing
custodial interrogation.” Duckworth v. Eagan, 492 U. S.
195, 201 (1989). Intent on “giv[ing] concrete constitutional
guidelines for law enforcement agencies and courts to
follow,” 384 U. S., at 441–442, Miranda prescribed the
following four now-familiar warnings:
“[A suspect] must be warned prior to any questioning
[1] that he has the right to remain silent, [2] that any
thing he says can be used against him in a court of
law, [3] that he has the right to the presence of an at
torney, and [4] that if he cannot afford an attorney
one will be appointed for him prior to any questioning
if he so desires.” Id., at 479.
Miranda’s third warning—the only one at issue here—
addresses our particular concern that “[t]he circumstances
surrounding in-custody interrogation can operate very
quickly to overbear the will of one merely made aware of
his privilege [to remain silent] by his interrogators.” Id.,
at 469. Responsive to that concern, we stated, as “an
absolute prerequisite to interrogation,” that an individual
held for questioning “must be clearly informed that he has
the right to consult with a lawyer and to have the lawyer
with him during interrogation.” Id., at 471. The question
before us is whether the warnings Powell received satis
fied this requirement.
The four warnings Miranda requires are invariable, but
this Court has not dictated the words in which the essen
tial information must be conveyed. See California v.
Prysock, 453 U. S. 355, 359 (1981) (per curiam) (“This
Court has never indicated that the rigidity of Miranda
extends to the precise formulation of the warnings given a
criminal defendant.” (internal quotation marks omitted));
Rhode Island v. Innis, 446 U. S. 291, 297 (1980) (safe
guards against self-incrimination include “Miranda warn
Cite as: 559 U. S. ____ (2010) 9
Opinion of the Court
ings . . . or their equivalent”). In determining whether
police officers adequately conveyed the four warnings, we
have said, reviewing courts are not required to examine
the words employed “as if construing a will or defining the
terms of an easement. The inquiry is simply whether the
warnings reasonably ‘conve[y] to [a suspect] his rights as
required by Miranda.’ ” Duckworth, 492 U. S., at 203(quoting Prysock, 453 U. S., at 361).
B
Our decisions in Prysock and Duckworth inform our
judgment here. Both concerned a suspect’s entitlement to
adequate notification of the right to appointed counsel. In
Prysock, an officer informed the suspect of, inter alia, his
right to a lawyer’s presence during questioning and his
right to counsel appointed at no cost. 453 U. S., at 356–
357. The Court of Appeals held the advice inadequate to
comply with Miranda because it lacked an express state
ment that the appointment of an attorney would occur
prior to the impending interrogation. See 453 U. S., at358–359. We reversed. Id., at 362. “[N]othing in the
warnings,” we observed, “suggested any limitation on the
right to the presence of appointed counsel different from
the clearly conveyed rights to a lawyer in general, includ
ing the right to a lawyer before [the suspect is] questioned,
. . . while [he is] being questioned, and all during the
questioning.” Id., at 360–361 (internal quotation marks
omitted).
Similarly, in Duckworth, we upheld advice that, in
relevant part, communicated the right to have an attorney
present during the interrogation and the right to an ap
pointed attorney, but also informed the suspect that the
lawyer would be appointed “if and when [the suspect goes]
to court.” 492 U. S., at 198 (emphasis deleted; internal
quotation marks omitted). “The Court of Appeals thought
th[e] ‘if and when you go to court’ language suggested that
10 FLORIDA v. POWELL
Opinion of the Court
only those accused who can afford an attorney have the
right to have one present before answering any ques
tions. ” Id., at 203 (some internal quotation marks omit
ted). We thought otherwise. Under the relevant state
law, we noted, “counsel is appointed at [a] defendant’s
initial appearance in court.” Id., at 204. The “if and when
you go to court” advice, we said, “simply anticipate[d]” a
question the suspect might be expected to ask after receiv
ing Miranda warnings, i.e., “when [will he] obtain coun
sel.” 492 U. S., at 204. Reading the “if and when” lan
guage together with the other information conveyed, we
held that the warnings, “in their totality, satisfied
Miranda.” Id., at 205.
We reach the same conclusion in this case. The Tampa
officers did not “entirely omi[t],” post, at 9, any informa
tion Miranda required them to impart. They informed
Powell that he had “the right to talk to a lawyer before
answering any of [their] questions” and “the right to use
any of [his] rights at any time [he] want[ed] during th[e]
interview.” App. 3. The first statement communicated
that Powell could consult with a lawyer before answering
any particular question, and the second statement con
firmed that he could exercise that right while the interro
gation was underway. In combination, the two warnings
reasonably conveyed Powell’s right to have an attorney
present, not only at the outset of interrogation, but at all
times.5
——————
5 JUSTICE STEVENS asserts that the Court today approves, for “the
first time[,] . . . a warning which, if given its natural reading, entirely
omitted an essential element of a suspect’s rights.” Post, at 9. See also
post, at 12 (“[T]he warning entirely failed to inform [Powell] of the
separate and distinct right ‘to have counsel present during any ques
tioning.’ ”). We find the warning in this case adequate, however, only
because it communicated just what Miranda prescribed. JUSTICE
STEVENS ascribes a different meaning to the warning Powell received,
but he cannot credibly suggest that the Court regards the warning to
have omitted a vital element of Powell’s rights.
Cite as: 559 U. S. ____ (2010) 11
Opinion of the Court
To reach the opposite conclusion, i.e., that the attorney
would not be present throughout the interrogation, the
suspect 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.6
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.7
The Florida Supreme Court found the warning mislead
ing because it believed the temporal language—that Pow
ell could “talk to a lawyer before answering any of [the
officers’] questions”—suggested Powell could consult with
an attorney only before the interrogation started. 998
So. 2d, at 541. See also Brief for Respondent 28–29. In
context, however, the term “before” merely conveyed when
Powell’s right to an attorney became effective—namely,
before he answered any questions at all. Nothing in the
words used indicated that counsel’s presence would be
restricted after the questioning commenced. Instead, the
warning communicated that the right to counsel carried
forward to and through the interrogation: Powell could
seek his attorney’s advice before responding to “any of [the
officers’] questions” and “at any time . . . during th[e]
——————
6 It is equally unlikely that the suspect would anticipate a scenario of
this order: His lawyer would be admitted into the interrogation room
each time the police ask him a question, then ushered out each time the
suspect responds.
7 Although it does not bear on our decision, Powell seems to have
understood the warning this way. The following exchange between
Powell and his attorney occurred when Powell testified at his trial:
“Q. You waived the right to have an attorney present during your
questioning by detectives; is that what you’re telling this jury?
“A. Yes.” App. 80.
12 FLORIDA v. POWELL
Opinion of the Court
interview.” App. 3 (emphasis added). Although the warn
ings were not the clearest possible formulation of
Miranda’s right-to-counsel advisement, they were suffi
ciently comprehensive and comprehensible when given a
commonsense reading.
Pursuing a different line of argument, Powell points out
that most jurisdictions in Florida and across the Nation
expressly advise suspects of the right to have counsel
present both before and during interrogation. Brief for
Respondent 41–44. If we find the advice he received ade
quate, Powell suggests, law enforcement agencies, hoping
to obtain uninformed waivers, will be tempted to end-run
Miranda by amending their warnings to introduce ambi
guity. Brief for Respondent 50–53. But as the United
States explained as amicus curiae in support of the State
of Florida, “law enforcement agencies have little reason to
assume the litigation risk of experimenting with novel
Miranda formulations,” Brief for United States as Amicus
Curiae 6; instead, it is “desirable police practice” and “in
law enforcement’s own interest” to state warnings with
maximum clarity, id., at 12. See also id., at 11 (“By using
a conventional and precise formulation of the warnings,
police can significantly reduce the risk that a court will
later suppress the suspect’s statement on the ground that
the advice was inadequate.”).
For these reasons, “all . . . federal law enforcement
agencies explicitly advise . . . suspect[s] of the full contours
of each [Miranda] right, including the right to the pres
ence of counsel during questioning.” Id., at 12. The stan
dard warnings used by the Federal Bureau of Investiga
tion are exemplary. They provide, in relevant part: “You
have the right to talk to a lawyer for advice before we ask
you any questions. You have the right to have a lawyer
with you during questioning.” Ibid., n. 3 (internal quota
tion marks omitted). This advice is admirably informa
tive, but we decline to declare its precise formulation
Cite as: 559 U. S. ____ (2010) 13
Opinion of the Court
necessary to meet Miranda’s requirements. Different
words were used in the advice Powell received, but they
communicated the same essential message.
* * *
For the reasons stated, the judgment of the Supreme
Court of Florida is reversed, and the case is remanded for
further proceedings not inconsistent with this opinion.
It is so ordered.
Cite as: 559 U. S. ____ (2010) 1
STEVENS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–1175
_________________
FLORIDA, PETITIONER v. KEVIN DEWAYNE POWELL
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
FLORIDA
[February 23, 2010]
JUSTICE STEVENS, with whom JUSTICE BREYER joins as
to Part II, dissenting.
Today, the Court decides a case in which the Florida
Supreme Court held a local police practice violated the
Florida Constitution. The Court’s power to review that
decision is doubtful at best; moreover, the Florida Su
preme Court has the better view on the merits.
I
In this case, the Florida Supreme Court concluded that
“[b]oth Miranda and article I, section 9 of the Florida
Constitution require that a suspect be clearly informed of
the right to have a lawyer present during questioning,”
and that the warnings given to Powell did not satisfy
either the State or the Federal Constitution. 998 So. 2d
531, 542 (2008). In my view, the Florida Supreme Court
held on an adequate and independent state-law ground
that the warnings provided to Powell did not sufficiently
inform him of the “ ‘right to a lawyer’s help’ ” under the
Florida Constitution, id., at 535. This Court therefore
lacks jurisdiction to review the judgment below, notwith
standing the failure of that court to include some express
sentence that would satisfy this Court’s “plain-statement
rule,” ante, at 5.
The adequate-and-independent-state-ground doctrine
rests on two “cornerstones”: “[r]espect for the independ
2 FLORIDA v. POWELL
STEVENS, J., dissenting
ence of state courts” and “avoidance of rendering advisory
opinions.” Michigan v. Long, 463 U. S. 1032, 1040 (1983).
In Long, the Court adopted a novel presumption in favor
of jurisdiction when the independence of a state court’s
state-law judgment is not clear. But we only respect the
independence of state courts and avoid rendering advisory
opinions if we limit the application of that presumption to
truly ambiguous cases.1 This is not such a case.
“[I]f the same judgment would be rendered by the state
court after we corrected its views of federal laws, our
review could amount to nothing more than an advisory
opinion.” Herb v. Pitcairn, 324 U. S. 117, 126 (1945). In
Long we advised every state court of a formula by which it
could assure us that our review would indeed amount to
nothing more than an advisory opinion. The state court
“need only make clear by a plain statement in its judg
ment or opinion that the federal cases are being used only
for the purpose of guidance, and do not themselves compel
the result that the court has reached.” 463 U. S., at 1041.
That advice has sometimes been misunderstood as a com
mand that unless such a plain statement is included in a
state-court opinion, the court’s ruling cannot have rested
on an adequate and independent state ground. But the
real question is whether “the adequacy and independence
of any possible state law ground is . . . clear from the face
——————
1 In my view, this Court would better respect the independence of
state courts by applying the opposite presumption, as it did in the years
prior to 1983. See Long, 463 U. S., at 1066–1067 (STEVENS, J., dissent
ing). But accepting Long as the law, we can limit its negative effects—
unnecessary intrusion into the business of the state courts and unnec
essary advisory opinions—only if we limit its application to cases in
which the independence of the state-law ground is in serious doubt.
See Pennsylvania v. Labron, 518 U. S. 938, 950 (1996) (STEVENS, J.,
dissenting) (“[T]he unfortunate effects of [its] rule” are “exacerbate[d]
. . . to a nearly intolerable degree” when the Long presumption is
applied to cases in which “the state-law ground supporting th[e] judg
men[t] is so much clearer than has been true on most prior occasions”).
Cite as: 559 U. S. ____ (2010) 3
STEVENS, J., dissenting
of the opinion.” Id., at 1040–1041. Even if a state court
opinion does not include the magic words set forth in
Long, or some similarly explicit sentence, we lack jurisdic
tion if it is nonetheless apparent that the decision is in
deed supported by an adequate and independent state
ground. Contrary to the assumption made by the Court,
we have no power to assume jurisdiction that does not
otherwise exist simply because the Florida Supreme Court
did not include in its decision some express statement that
its interpretation of state law is independent.
In my view, we can tell from the face of the Florida
Supreme Court’s opinion that “the decision rested on a
state ground separate from Miranda,” ante, at 6. This
case is easily distinguished from Long in that regard. In
Long, although the Michigan Supreme Court had twice
cited the Michigan Constitution in its opinion, it “relied
exclusively on its understanding of Terry [v. Ohio, 392
U. S. 1 (1968),] and other federal cases. Not a single state
case was cited to support the state court’s holding that the
search of the passenger compartment was unconstitu
tional.” 463 U. S., at 1043. There was, in short, nothing
to “indicate that the decision below rested on grounds in
any way independent from the state court’s interpretation
of federal law.” Id., at 1044.
Other cases in which we have applied the Long pre
sumption have been similarly devoid of independent state
law analysis. We typically apply the Long presumption
when the state court’s decision cited a state constitutional
provision only a few times or not at all, and rested exclu
sively upon federal cases or upon state cases that them
selves cited only federal law.2 We have also applied Long
——————
2 See, e.g., Illinois v. Fisher, 540 U. S. 544, 547, n. (2004) (per curiam)
(describing decision below as relying upon the portion of a state prece
dent that solely discussed due process under the Federal Constitution);
Ohio v. Robinette, 519 U. S. 33, 37 (1996) (“[T]he only cases [the opin
ion] discusses or even cites are federal cases, except for one state case
4 FLORIDA v. POWELL
STEVENS, J., dissenting
when the state court’s decision indicated that under state
law, the relevant state constitutional provision is consid
ered coextensive with the federal one.3 This case shares
none of those features.4
——————
which itself applies the Federal Constitution”); Illinois v. Rodriguez,
497 U. S. 177, 182 (1990) (“The opinion does not rely on (or even men
tion) any specific provision of the Illinois Constitution, nor even the
Illinois Constitution generally. Even the Illinois cases cited by the
opinion rely on no constitutional provisions other than the Fourth and
Fourteenth Amendments of the United States Constitution”); Florida v.
Riley, 488 U. S. 445, 448, n. 1 (1989) (plurality opinion) (finding Florida
Supreme Court mentioned the State Constitution three times but the
discussion “focused exclusively on federal cases dealing with the Fourth
Amendment”); Michigan v. Chesternut, 486 U. S. 567, 571, n. 3 (1988)
(describing state court as resting its holding on two state cases that
each relied upon federal law); New York v. P. J. Video, Inc., 475 U. S.
868, 872, n. 4 (1986) (“Here, the New York Court of Appeals cited the
New York Constitution only once, near the beginning of its opinion . . .
[and] repeatedly referred to the ‘First Amendment’ and ‘Fourth
Amendment’ during its discussion of the merits of the case”); Oliver v.
United States, 466 U. S. 170, 175, n. 5 (1984) (“The Maine Supreme
Judicial court referred only to the Fourth Amendment . . . [and] the
prior state cases that the court cited also construed the Federal Consti
tution”).
3 See, e.g., Fitzgerald v. Racing Assn. of Central Iowa, 539 U. S. 103,
106 (2003) (“The Iowa Supreme Court’s opinion . . . says that ‘Iowa
courts are to “apply the same analysis in considering the state equal
protection clause as . . . in considering the federal equal protection
claim” ’ ”); Pennsylvania v. Muniz, 496 U. S. 582, 588, n. 4 (1990) (state
court explained that relevant state constitutional provision “offers a
protection against self-incrimination identical to that provided by the
Fifth Amendment” (internal quotation marks omitted)); Maryland v.
Garrison, 480 U. S. 79, 83–84 (1987) (state-court opinion relied on state
cases but indicated “that the Maryland constitutional provision is
construed in pari materia with the Fourth Amendment”).
4 I do not mean to suggest that this Court has never reached out be
yond these bounds in order to decide a case. For example, in Labron,
518 U. S. 938, we found that a state court decision resting on the
“Commonwealth’s jurisprudence of the automobile exception,” Com
monwealth v. Labron, 543 Pa. 86, 100, 669 A. 2d 917, 924 (1995), was
not so clearly based on state law that the Long presumption did not
apply, even though only “some” of the state cases discussed in the state
Cite as: 559 U. S. ____ (2010) 5
STEVENS, J., dissenting
The Florida Supreme Court did not merely cite the
Florida Constitution a time or two without state-law
analysis.5 Rather, the court discussed and relied on the
separate rights provided under Art. I, §9 of the Florida
Constitution. For example, after a paragraph describing
the general scope of Miranda warnings under federal law,
the Court explained the general scope of warnings under
state law. 998 So. 2d, at 534–535 (“[T]o ensure the volun
tariness of confessions as required by article I, section 9 of
the Florida Constitution, this Court in Traylor v. State,
596 So. 2d 957 (Fla. 1992), outlined the . . . rights Florida
suspects must be told of prior to custodial interrogation,”
which includes “ ‘that they have a right to a lawyer’s
help’ ”). The court consistently referred to these state-law
rights as separate and distinct from Miranda, noting that
in its earlier cases, it had explained that “the require
ments of both the Fifth Amendment, as explained in
Miranda, and the Florida Constitution, as explained in
Traylor,” include “the requirement that a suspect be in
formed of the right to have counsel present during ques
tioning.” 998 So. 2d, at 537–538. And when applying the
law to the specific facts of this case, the Florida Supreme
Court again invoked the specific and distinct “right to a
——————
court’s opinion analyzed federal law. 518 U. S., at 939. The Court’s
analysis proved wrong; on remand, the Pennsylvania Supreme Court
reaffirmed its prior holding and “explicitly note[d] that it was, in fact,
decided upon independent grounds, i.e., Article I, Section 8 of the
Pennsylvania Constitution.” Commonwealth v. Labron, 547 Pa. 344,
345, 690 A. 2d 228 (1997). That we have overreached before is no
reason to repeat the mistake again.
5 In examining what the state-court opinion said regarding state law,
and whether the state precedent cited in the opinion relied upon state
law, I am undertaking no effort more arduous than what the Court has
typically undertaken in order to determine whether the Long presump
tion applies: examining how frequently a state-court opinion cited state
law, whether state law is coextensive with federal law, and whether the
cited state cases relied upon federal law. See nn. 2–3, supra.
6 FLORIDA v. POWELL
STEVENS, J., dissenting
lawyer’s help” under the Florida Constitution. Id., at 540.
Moreover, the state cases relied upon by the Florida
Supreme Court did not themselves rely exclusively on
federal law. The primary case relied upon for the state
law holding, Traylor, rested exclusively upon state law.
See 596 So. 2d, at 961. In that decision, the Florida Su
preme Court embraced the principle that “[w]hen called
upon to decide matters of fundamental rights, Florida’s
state courts are bound under federalist principles to give
primacy to our state Constitution and to give independent
legal import to every phrase and clause contained
therein.” Id., at 962. Elaborating upon the meaning of
Art. I, §9 of the Florida Constitution, the Florida Supreme
Court explained the roots of Florida’s commitment to
protecting its citizens from self-incrimination. Florida has
long “required as a matter of state law that one charged
with a crime be informed of his rights prior to rendering a
confession.” Id., at 964. It has required warnings before
some interrogations since at least 1889, and has for that
long excluded confessions obtained in violation of those
rules. Ibid. In sum, this case looks quite different from
those cases in which we have applied the Long presump
tion in the past.
The Court concludes otherwise by relying primarily
upon the formulation of the certified question and re
statements of that question within the Florida Supreme
Court’s opinion. See ante, at 6. Yet while the certified
question asks whether particular phrases “vitiate[d]
Miranda warnings,” 998 So. 2d, at 532 (capitalization and
footnote omitted), Miranda has become a generic term to
refer to the warnings suspects must be given before inter
rogation, see Merriam-Webster’s Collegiate Dictionary 792
(11th ed. 2003) (defining “Miranda” as “of, relating to, or
being the legal rights of an arrested person to have an
attorney and to remain silent so as to avoid self
incrimination”). Thus, its invocation of Miranda in the
Cite as: 559 U. S. ____ (2010) 7
STEVENS, J., dissenting
certified question and in its statement of the issue
presented is entirely consistent with the fact that the
state-law basis for its decision is fully adequate and
independent.
That said, I agree with the Court that the decision below
is interwoven with federal law. In reaching its state-law
holding, the Florida Supreme Court found Miranda and
our other precedents instructive.6 But that alone is insuf
ficient to assure our jurisdiction, even under Long. In my
view, the judgment—reversal of Powell’s conviction—is
supported by the Florida Supreme Court’s independent
and carefully considered holding that these warnings were
inadequate under the Florida Constitution. See 998
So. 2d, at 534–535, 537–538, 540, 542.
The Court acknowledges that nothing in today’s decision
“trenches on the Florida Supreme Court’s authority to
impose, based on the State’s Constitution, any additional
protections against coerced confessions it deems appropri
ate.” Ante, at 7. As the Florida Supreme Court has noted
on more than one occasion, its interpretation of the Flor
ida Constitution’s privilege against self-incrimination need
not track our construction of the parallel provision in the
——————
6 The Florida Supreme Court need not have decided that state-law
sources “gave Powell rights . . . broader than . . . those delineated in
Miranda,” ante, at 6, in order for its judgment to have rested upon an
independent state-law ground. The independence of a state-law ground
may be especially clear when a state court explicitly finds that the state
constitution is more protective of a certain right than the national
charter, but a state constitutional provision is no less independent for
providing the same protection in a given case as does the federal
provision, so long as the content of the state-law right is not compelled
by or dependent upon federal law. Unlike other provisions of Art. I of
the Florida Constitution, §9 does not contain an express proviso requir
ing that the right be construed in conformity with the analogous federal
provision. Compare Fla. Const., Art. I, §9, with Fla. Const., Art I, §12.
Furthermore, under Florida law the scope of Art. I, §9 is clearly not
dependent upon federal law. Rigterink v. State, 2 So. 3d 221, 241 (Fla.
2009); Traylor v. State, 596 So. 2d 957, 962 (Fla. 1992).
8 FLORIDA v. POWELL
STEVENS, J., dissenting
Federal Constitution. See Rigterink v. State, 2 So. 3d 221,
241 (2009) (“[T]he federal Constitution sets the floor, not
the ceiling, and this Court retains the ability to interpret
the right against self-incrimination afforded by the Florida
Constitution more broadly than that afforded by its fed
eral counterpart”); Traylor, 596 So. 2d, at 961–963. In this
very case, the Florida Supreme Court may reinstate its
judgment upon remand. If the Florida Supreme Court
does so, as I expect it will, this Court’s opinion on the
merits will qualify as the sort of advisory opinion that we
should studiously seek to avoid.
II
The Court’s decision on the merits is also unpersuasive.
As we recognized in Miranda, “the right to have counsel
present at [an] interrogation is indispensable to the pro
tection of the Fifth Amendment privilege.” Miranda v.
Arizona, 384 U. S. 436, 469 (1966). Furthermore, “the
need for counsel to protect the Fifth Amendment privilege
comprehends not merely a right to consult with counsel
prior to questioning, but also to have counsel present
during any questioning.” Id., at 470. Because the “ac
cused who does not know his rights and therefore does not
make a request may be the person who most needs coun
sel,” id., at 470–471, a defendant “must be clearly in
formed” regarding two aspects of his right to consult an
attorney: “the right to consult with a lawyer and to have
the lawyer with him during interrogation,” id., at 471.
In this case, the form regularly used by the Tampa
police warned Powell that he had “the right to talk to a
lawyer before answering any of our questions.” App. 3.
This informed him only of the right to consult with a
lawyer before questioning, the very right the Miranda
Court identified as insufficient to protect the Fifth
Amendment privilege. The warning did not say anything
about the right to have counsel present during interroga
Cite as: 559 U. S. ____ (2010) 9
STEVENS, J., dissenting
tion. Although we have never required “rigidity in the
form of the required warnings,” California v. Prysock, 453
U. S. 355, 359 (1981) (per curiam), this is, I believe, the
first time the Court has approved a warning which, if
given its natural reading, entirely omitted an essential
element of a suspect’s rights.
Despite the failure of the warning to mention it, in the
Court’s view the warning “reasonably conveyed” to Powell
that he had the right to a lawyer’s presence during the
interrogation. Ante, at 10. The Court cobbles together
this conclusion from two elements of the warning. First,
the Court assumes the warning regarding Powell’s right
“to talk to a lawyer before answering any of [the officers’]
questions,” App. 3, conveyed that “Powell could consult
with a lawyer before answering any particular question,”
ante, at 10 (emphasis added).7 Second, in the Court’s
view, the addition of a catchall clause at the end of the
recitation of rights “confirmed” that Powell could use his
right to consult an attorney “while the interrogation was
underway.” Ibid.The 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. Even those few Courts of Appeals
that have approved warnings that did not expressly men
——————
7 Thisassumption makes it easier for the Court to conclude the warn
ing conveyed a right to have a lawyer present. If a suspect is told he
has the right to consult with an attorney before answering any particu
lar question, the Court may be correct that he would reasonably con
clude he has the right to a lawyer’s presence because otherwise he
would have to imagine he could consult his attorney in some unlikely
fashion (e.g., by leaving the interrogation room between every ques
tion).
10 FLORIDA v. POWELL
STEVENS, J., dissenting
tion the right to an attorney’s presence during interroga
tion8 have found language of the sort used in Powell’s
warning to be misleading. For instance, petitioner cites
the Second Circuit’s decision in United States v. Lamia,
429 F. 2d 373 (1970), as an example of a court applying
the properly flexible approach to Miranda. But in that
case, the Second Circuit expressly distinguished a warning
that a suspect “ ‘could consult an attorney prior to any
question,’ ” which was “affirmatively misleading since it
was thought to imply that the attorney could not be pre
sent during questioning.” 429 F. 2d, at 377.9 That even
——————
8 Several Courts of Appeals have held that warnings that did not
expressly inform a suspect of his right to have counsel present during
interrogation did not adequately inform a suspect of his Miranda
rights. See, e.g., United States v. Tillman, 963 F. 2d 137, 141 (CA6
1992); United States v. Bland, 908 F. 2d 471, 474 (CA9 1990); United
States v. Anthon, 648 F. 2d 669, 672–673 (CA10 1981); Windsor v.
United States, 389 F. 2d 530, 533 (CA5 1968). And most of the Circuits
that have not required express mention of the right to an attorney’s
presence have approved only general warnings regarding the right to
an attorney; that is, warnings which did not specifically mention the
right to counsel’s presence during interrogation but which also con
tained no limiting words that might mislead a suspect as to the broad
nature of his right to counsel. See, e.g., United States v. Frankson, 83
F. 3d 79, 82 (CA4 1996); United States v. Caldwell, 954 F. 2d 496, 502
(CA8 1992); United States v. Adams, 484 F. 2d 357, 361–362 (CA7
1973). I am doubtful that warning a suspect of his “right to counsel,”
without more, reasonably conveys a suspect’s full rights under
Miranda, but at least such a general warning does not include the same
sort of misleading temporal limitation as in Powell’s warning.
9 Petitioner also cites Bridgers v. Dretke, 431 F. 3d 853 (CA5 2005), in
which the Fifth Circuit held the Texas Court of Criminal Appeals did
not unreasonably apply clearly established federal law in finding
adequate a warning in which a suspect was informed that “he had the
right to the presence of an attorney before any questioning commenced.”
Id., at 857 (internal quotation marks omitted). But even assuming that
warning would sufficiently apprise an individual of his right to an
attorney’s presence during interrogation, the fact that the warning
mentioned an attorney’s presence materially distinguishes it from the
warning Powell received. The Fifth Circuit quoted with approval the
Cite as: 559 U. S. ____ (2010) 11
STEVENS, J., dissenting
the Courts of Appeals taking the most flexible approach to
Miranda have found warnings like Powell’s misleading
should caution the Court against concluding that such a
warning reasonably conveyed Powell’s right to have an
attorney with him during the interrogation.
When the relevant clause of the warning in this case is
given its most natural reading, the catchall clause does
not meaningfully clarify Powell’s rights. It communicated
that Powell could exercise the previously listed rights at
any time. Yet the only previously listed right was the
“right to talk to a lawyer before answering any of [the
officers’] questions.” App. 3 (emphasis added). 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. An intelligent
suspect could reasonably conclude that all he was provided
was a one-time right to consult with an attorney, not a
right to have an attorney present with him in the interro
gation room at all times.10
——————
state court’s assessment that warning a suspect solely that “he had the
right to consult or speak to an attorney before questioning . . . might
have created the [impermissible] impression that the attorney could not
be present during interrogation.” Ibid. (internal quotation marks
omitted).
10 The Court supports its analysis by taking note of Powell’s testi
mony at trial, given after the trial judge had overruled his lawyer’s
objection that the warning he received was inadequate. In my view, the
testimony in context is not probative of what Powell thought the
warnings meant. It did not explore what Powell understood the warn
ings to mean, but simply established, as a prelude to Powell’s testimony
explaining his prior statement, that he had waived his rights. Regard
less, the testimony is irrelevant, as the Court acknowledges. “No
amount of circumstantial evidence that a person may have been aware
of [the right to have a lawyer with him during interrogation] will suffice
to stand” in the stead of an adequate warning. Miranda v. Arizona, 384
12 FLORIDA v. POWELL
STEVENS, J., dissenting
The Court relies on Duckworth v. Eagan, 492 U. S. 195(1989), and Prysock, 453 U. S. 355, but in neither case did
the warning at issue completely omit one of a suspect’s
rights. In Prysock, the warning regarding the right to an
appointed attorney contained no temporal limitation, see
id., at 360–361, which clearly distinguishes that case from
Powell’s. In Duckworth, the suspect was explicitly in
formed that he had the right “to talk to a lawyer for advice
before we ask you any questions, and to have him with you
during questioning,” and that he had “this right to the
advice and presence of a lawyer even if you cannot afford
to hire one.” 492 U. S., at 198 (emphasis deleted; internal
quotation marks omitted). The warning thus conveyed in
full the right to appointed counsel before and during the
interrogation. Although the warning was arguably under
cut by the addition of a statement that an attorney would
be appointed “if and when you go to court,” the Court
found the suspect was informed of his full rights and the
warning simply added additional, truthful information
regarding when counsel would be appointed. Ibid. (em
phasis deleted; internal quotation marks omitted). Unlike
the Duckworth warning, Powell’s warning did not convey
his Miranda rights in full with the addition of some ar
guably misleading statement. Rather, the warning en
tirely failed to inform him of the separate and distinct
right “to have counsel present during any questioning.”
Miranda, 384 U. S., at 470.
In sum, the warning at issue in this case did not rea
sonably convey to Powell his right to have a lawyer with
him during the interrogation. “The requirement of warn
ings . . . [is] fundamental with respect to the Fifth
Amendment privilege and not simply a preliminary ritual
to existing methods of interrogation.” Id., at 476. In
determining that the warning implied what it did not say,
——————
U. S. 436, 471–472 (1966).
Cite as: 559 U. S. ____ (2010) 13
STEVENS, J., dissenting
it is the Court “that is guilty of attaching greater impor
tance to the form of the Miranda ritual than to the sub
stance of the message it is intended to convey.” Prysock,
453 U. S., at 366 (STEVENS, J., dissenting).
III
Whether we focus on Powell’s particular case, or the use
of the warning form as the standard used in one jurisdic
tion, it is clear that the form is imperfect. See ante, at 12.
As the majority’s decision today demonstrates, reasonable
judges may well differ over the question whether the
deficiency is serious enough to violate the Federal Consti
tution. That difference of opinion, in my judgment, falls
short of providing a justification for reviewing this case
when the judges of the highest court of the State have
decided the warning is insufficiently protective of the
rights of the State’s citizens. In my view, respect for the
independence of state courts, and their authority to set the
rules by which their citizens are protected, should result
in a dismissal of this petition.
I respectfully dissent.