Justices debate clarity of Miranda warning

WASHINGTON - The Supreme Court seemed headed yesterday toward telling police they must explicitly advise criminal suspects that their lawyer can be present during any interrogation.

The arguments in Florida v. Powell were the latest over how explicit Miranda warning rights have to be, as the justices debated whether the warnings that Tampa, Fla., police gave Kevin Dwayne Powell made clear that he could have a lawyer present while being interrogated by police.

Powell was convicted of illegally possessing a firearm after telling police he bought the weapon "off the street" for $150 for his protection. Before his confession, he signed a Miranda statement that included: "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 Florida Supreme Court overturned the conviction on the ground that Tampa police didn't adequately convey to Powell that he was allowed to have a lawyer with him during questioning.

Joseph W. Jacquot, Florida deputy attorney general, argued that the warning Powell got "expresses all the rights required under Miranda."

Justice Stephen G. Breyer clearly disagreed.

"Aren't you supposed to tell this person that, unlike a grand jury, you have a right to have the lawyer with you during interrogation?" Breyer said. "I mean, it isn't as if that was said in passing in Miranda. They wrote eight paragraphs about it."

Different courts have come down on different sides on what exactly should be said, Justice Sonia Sotomayor said.

"We've got a split of circuit courts and state courts on whether this reasonably conveys or not," she said. "Shouldn't that be enough of an ambiguity for us to conclude it can't reasonably convey, if there's this many courts holding that it doesn't?"

Powell's lawyer, Deborah K. Brueckheimer, said the warning he got from the police gave him the impression that "once questioning starts, that he has no right to consult with a lawyer anymore, and it certainly doesn't tell him that he has the right to the presence of an attorney with him in an interrogation room, where the coercion takes on a highly new meaning."

Justice Antonin Scalia called Brueckheimer's argument "angels dancing on the head of a pin."

"You are saying: 'Oh, if he had only known. Oh, if I knew that I could have an attorney present during the interview, well, that would have been a different kettle of fish and I would never have confessed,' " Scalia said. "I mean, doesn't that seem to you quite fantastic?"

Miranda rights have been litigated since they first came into being in 1966. The courts require police to tell suspects they have the right to remain silent and the right to have a lawyer represent them, even if they can't afford one.

This is the third Miranda case the court has heard this year. Decisions in all three cases are expected next year.

Read a transcript of the court arguments in the police-warning case via http://go.philly.com/mirandaEndText