Lessons from today's Supreme Court Miranda ruling

The Fourth and Fifth Amendment protections against unreasonable search and seizure and self-incrimination are widely known. But there is always also a state corollary. (For instance, Article 1, sect. 7 of the Hawaii Constitution closely tracks, with an additional clause, the federal Constitution's Fourth Amendment). Sometimes, even if the state statute is not discernible from the federal, state courts nonetheless rule that a state protection is more protective than its federal counterpart (it can never be less so). Attorneys should always make state law arguments in suppression motions. And try to get the court to rule (in your favor) based on state law. Always give the court - especially in the appellate context - the opportunity to establish that state law dictates the outcome. That way, you first of all give the court the opportunity to establish a state protection in excess of federal protections, and second, to the extent you can get the state appellate court to couch in state law terms even those protections not in excess of federal law you succeed in inoculating the protection from the vicissitudes of federal court interpretations of the federal protections.

This is a longish introduction to a short comment I have about today's U.S. Supreme Court decision in Florida v. Powell in which a 7-2 court overturned the Florida Supreme Court and held that officers adequately warn a criminal suspect of his Miranda rights when they advise him that “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.” (The defendant argued that the warning did not adequately inform him that he could have an attorney with him during questioning). I don't think it's a particularly controversial development, nor does it appear to me to trim Miranda protections (though the dissent argues, not frivolously in my judgment, that it could entice departments to indulge in more ambiguously worded warnings).

What caught my eye was that the court took the Florida case in the first place. The Florida court said, “[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 the defendant did not satisfy either the State or the Federal Constitution.

There's a doctrine that says the Supreme Court lacks jurisdiction to review state decisions that rest on adequate and independent state grounds. I would have thought that a decision that announces that its ruling is based on both federal and state grounds would fall under the state grounds doctrine, even if its federal analysis turns out to have been erroneous.

However, the court felt that the lower court didn't really analyze the question on state grounds -

Although invoking Florida’s Constitution 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 expressly asserted that state-law sources gave [the defendant] rights distinct from, or broader than, those delineated in Miranda.

Beginning with the certified question—whether the advice the Tampa police gave to [the defendant] “vitiate[d] Miranda,” and continuing throughout its opinion, the Florida Supreme Court trained on what Miranda demands, rather than on what Florida law independently requires.

[Citation omitted]. In the long run, this might not be terrible for the defendant. The Florida court might on remand say, "fine. We were wrong about Miranda. Nevertheless, the fact remains, under Florida law, the warning has to be clearer." However, there's always the danger the Florida court won't do that but will instead say, "really? Oh, we thought... never mind. The defendant is guilty after all."

Which brings me back to my original point. Attorneys have to get the state courts to address state guarantees. Talk up the state constitutional section and state cases. Background to the extent you can the federal analysis. Sure, it makes suppression motions and appeals a little more challenging. But you know what? It also makes 'em more fun.