Wednesday, December 9, 2009

U.S. Supreme Court to decide: Were Tampa police clear about suspect's Miranda rights?

Nation follows Tampa case

By John Frank, Times/Herald Tallahassee Bureau

Published Sunday, December 6, 2009

Inside a small interview room at the Tampa Police Department in August 2004, an officer read Kevin Dewayne Powell his rights.

Among them: "You have the right to talk to a lawyer before answering any of our questions. … You have the right to use any of these rights at any time you want during this interview."

It's a portion of the ubiquitous Miranda warning, a fundamental element of the criminal justice system and one now ingrained in the American psyche thanks to television cop dramas.

But it's a little more complicated than what is shown on TV. The Supreme Court, which required that suspects be made aware of their rights through its Miranda ruling in 1966, has resisted establishing a template for the warning. So different jurisdictions have various, though similar, Miranda warnings.

"On the surface it seems like a simple rule, but it has spawned a lot of litigation over the meaning of the words," said Richard Leo, a law professor and author on the issue.

Powell's case is no different. The U.S. Supreme Court will hear oral arguments today about whether the Tampa Police Department adequately advised Powell of his right to an attorney.

Law enforcement agencies nationwide are expected to closely watch the hearing and subsequent decision, which could affect an untold number of cases.

Police arrested Powell on a charge of possession of a firearm by a convicted felon when they saw him leaving a room where they found a gun hidden under a bed. Powell signed a form acknowledging his rights and confessed to owning the gun.

At trial, he reversed himself, explaining that the police officers threatened to arrest his girlfriend and take away her children if he didn't take responsibility. A jury convicted him and the judge sentenced him to 10 years in prison.

The state's highest court, in its September 2008 ruling, said authorities needed to expressly convey the right to have an attorney present during questioning. The Tampa police's warning "suggests to a reasonable person in the suspect's shoes that he or she can only consult with an attorney before questioning," the opinion stated.

Florida Attorney General Bill McCollum asked the U.S. Supreme Court to intervene, calling clarification of the issue "crucial."

"The Florida Supreme Court … is demanding more from law enforcement than (the U.S. Supreme Court) ever envisioned or deemed necessary in Miranda," the state's argument reads, citing the landmark decision.

Tampa police no longer use the exact warning in question. But a handful of cases in Florida, including the death penalty case of Thomas Rigterink of Winter Haven, are pending a clarification of the Miranda standard.

McCollum's chief of staff, Joe Jacquot, 39, will argue the state's case in Washington. He is asking the court to determine that the spirit of the warning is more important than the actual language.

"The goal of Miranda is to ensure voluntary confessions," said Jacquot (pronounced Jay-co). "I would imagine that in law enforcement agencies across the nation every day there is a missed word or inconsistent translation … those confessions need to be protected."

The case is Jacquot's first before the high court, but he will get support from the U.S. Solicitor General's Office, whose interest in the case suggests its importance for the law enforcement community.

Attorneys in Florida and criminal law experts are looking to the Supreme Court to distill the necessary wording.

"There's not much clarity here," said Wayne Logan, a law professor at Florida State University. "What we need here is something more structural to get rid of the word parsing."

The view is echoed by Leo, the professor at the University of San Francisco and an expert on Miranda law. He conducted a study that found 89 out of 90 law enforcement agencies in Florida included the words "during questioning" in their warnings.

He filed a brief in the case supporting Powell, that argued if the state wins the case, it would create incentives for law enforcement to experiment with the Miranda warnings to generate more confessions.

"The Supreme Court has completely emasculated the law in the past and created a number of loopholes for law enforcement."

John Frank can be reached at or (850) 224-7263.

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