PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 10-1598
________________
UNITED STATES OF AMERICA
v.
JERMAINE ANTWON WARREN,
Appellant
________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 1-08-cr-00046-001)
District Judge: The Honorable Sean J. McLaughlin
_______________
ARGUED OCTOBER 20, 2010
BEFORE: HARDIMAN, GREENAWAY, JR., and
NYGAARD, Circuit Judges.
(Filed: April 21, 2011)
Adam B. Cogan, Esq. (Argued)
One Northgate Square
Greensburg, PA 15601
Counsel for Appellant
Robert L. Eberhardt, Esq. (Argued)
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
NYGAARD, Circuit Judge.
Warren was indicted on charges of intent to distribute
fifty or more grams of crack cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A)(iii), and possession of a
firearm by a person previously convicted of a felony in
violation of 18 U.S.C. § 922(g)(1). He filed a pretrial motion
to, inter alia, suppress evidence allegedly obtained in
violation of his Miranda rights. Miranda v. Arizona, 384
U.S. 436, 471 (1966). The District Court granted Warren‟s
motion in part, as to statements Warren made at his home to
2
his state parole agent, but denied it as to statements Warren
made at the police station after receiving the Miranda
warning. Warren appeals this ruling. We will affirm.
Warren later entered into a plea agreement in which he
pleaded guilty to the drug charge. In this agreement, the
government states that it will refrain from filing, pursuant to
21 U.S.C. § 851, an information to increase the penalty based
upon a prior conviction. On appeal, Warren contends that the
government breached this provision of the agreement. We
will dismiss the breach of plea agreement claim.
I.
We will first address the Miranda issue.1 At the police
station, Warren signaled that he wished to talk. The police
officer‟s testimony at the suppression hearing gives an
account of what happened next.
I told [Warren] that he had the
right to remain silent. Anything
you say can and will be used
against you in a court of law.
You have the right to an attorney.
If you cannot afford to hire an
attorney, one will be appointed to
represent you without charge
1
“This Court reviews the District Court's denial of a motion
to suppress for clear error as to the underlying factual
findings and exercises plenary review of the District Court's
application of the law to those facts.” United States v. Perez,
280 F.3d 318, 336 (3d Cir. 2002).
3
before any questioning if you
wish. Should you decide to talk
to me, you can stop the
questioning any time.
Suppression Hearing 12, ECF No. 60. The record makes
clear that the officer did not read this warning from a card,
but rather recited it from memory. Warren does not challenge
the accuracy of the officer‟s testimony. Instead, Warren
argues that the officer‟s testimony evinces a deficient
Miranda warning because it failed to advise him of his right
to an attorney after questioning commenced.
The Supreme Court stated in Miranda, that authorities
are obligated to advise a person taken into custody of “the
right to consult with a lawyer and to have the lawyer with him
during interrogation.” Miranda, 384 U.S. at 471. Yet, in the
years since Miranda, the Supreme Court has consistently
refrained from constructing a particular formula for the
warning. In Duckworth, the Court held the following.
Reviewing courts are not required
to examine Miranda warnings 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 (1989) (quoting
California v. Prysock, 453 U.S. 355, 361 (1981)). The Court
4
recently reaffirmed this standard in Florida v. Powell, 130 S.
Ct. 1195, 1198 (U.S. 2010). 2
After Powell was arrested, but before the Tampa,
Florida, police questioned him, an officer recited the Miranda
warning from a pre-printed card. The officer told Powell,
inter alia, “[y]ou have the right to talk to a lawyer before
answering any of our questions” and then that Powell had
“the right to use any of these rights at any time you want
during this interview.” Id. at 1197. At issue was whether the
lack of any specific reference to Powell‟s right to an attorney
during questioning rendered statements he made during the
interview inadmissible. Powell argued that Miranda was
clear in its requirement that a person in custody must be
advised of the right to counsel during questioning. He
asserted that, by qualifying the language about counsel with
the phrase “before answering any of our questions” the
warning was deficient because it communicated that his right
terminated when questioning began. The Supreme Court
disagreed.
Miranda requires that a suspect be informed of the
right to have counsel present during questioning. Miranda,
384 at 471. Yet, as was highlighted in questioning by Justice
2
The warning at issue in Prysock was the following. The
suspect had “the right to talk to a lawyer before you are
questioned, have him present with you while you are being
questioned, and all during the questioning . . . .” Prysock,
453 U.S. at 356. In Duckworth, the police said the following.
“[Y]ou have a right to talk to a lawyer for advice before we
ask you any questions, and to have him with you during
questioning.” Duckworth, 492 U.S. at 198 (italics omitted).
5
Ginsburg at oral argument, Miranda regarded the warning
used at that time by the Federal Bureau of Investigation—
which did not explicitly state any right to counsel at the time
of questioning—as consistent with its holding. Oral
Argument at 6:20, Id. at 483 (No. 08-1175), available at
http://www.oyez.org/cases/2000-2009/2009/2009_08_1175.
That warning was characterized in Miranda as stating the
following.
[The person in custody] is not
required to make a statement, that
any statement may be used
against him in court, that the
individual may obtain the services
of an attorney of his own choice
and . . . that he has a right to free
counsel if he is unable to pay.
Miranda, 384 U.S. at 483. The Court went on to state that
this warning could be “emulated by state and local
enforcement agencies.” Id. at 486. Therefore, it cannot be
said that the Miranda court regarded an express reference to
the temporal durability of this right as elemental to a valid
warning. Rather, as the Powell decision underscores in
quoting Prysock, attention must be focused upon whether
anything in the warning „“suggested any limitation on the
right to the presence of appointed counsel different from the
clearly conveyed rights to a lawyer in general, including the
right to a lawyer before [the suspect is] questioned, . . . while
[he is] being questioned, and all during the questioning.‟”
Powell, 130 S. Ct. at 1204 (quoting Prysock, 453 U.S. at 360-
361) (internal quotation marks in Prysock omitted) (emphasis
added).
6
Powell argued that the warning he received contained
such a limitation because it informed him that he had a right
to counsel “before questioning.” The Court, however, did
not regard this language as fatal to the validity of the warning
for two reasons. First, the “before” language, which is similar
to the language of Duckworth, “merely conveyed when
Powell‟s right to an attorney became effective-namely, before
he answered any questions at all.” Powell, 130 S. Ct. at
1205.3 Including these additional words did not vitiate the
essential information given to the suspect that a right to
counsel exists. Additionally, the Powell court took note of a
“catch all” statement included in the warning at issue, to wit:
“[you] have the right to use any of these rights at any time
you want during this interview.” Id. at 1201. Therefore, the
Powell court said, “[i]n 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.” Id. at 1205. Elaborating upon its assessment of the
term “reasonably conveyed,” the Court said the following.
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
3
The Court also concluded that these words responded
merely to a typical question that a suspect might have after
receiving a Miranda warning: when might counsel be
appointed? Id. at 1204 (citing Duckworth, 492 U.S. at 204).
7
seek his attorney's advice.
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.
Id. (footnotes omitted). Importantly, the Court concluded that
the warning was sufficient because “[n]othing in the words
used indicated that counsel's presence would be restricted
after the questioning commenced.” Id. at 1205 (emphasis
added).
Turning to the warning used in this case, we note
that—unlike Powell—the police officer warned Warren of his
right to counsel without any reference to whether it
commenced or ceased at any particular time. Warren was
told in a straightforward manner: “[y]ou have the right to an
attorney.” Therefore, it cannot be said that the instant
warning explicitly stated a temporally-limited right to
counsel. Yet, in light of Powell, we find it necessary to
address whether the lack of any express reference to the right
to counsel during interrogation, coupled with the lack of a
“catch all” statement like that used in Powell, undermines the
validity of the warning. We conclude that it does not.
As a starting point, it is of interest that the officer‟s
Miranda statement on the right to counsel here is remarkably
similar to the warning used by the Federal Bureau of
Investigation, which was regarded by the Miranda court as
8
consistent with its holding. 384 U.S. at 483.4 As noted
earlier, that warning did not make any mention of the right to
an attorney during questioning. While not dispositive, this
observation is instructive since our analysis turns upon
whether the officer‟s statement in this case “reasonably
conveyed” the rights set out in Miranda.
Warren asserts that the warning could be reasonably
interpreted only as limiting his right to counsel. Unlike
Powell, Warren offers no rationale for a reasonable person‟s
belief that the clear, unmodified statement “[y]ou have the
right to an attorney” would be regarded as time-limited.
We note that the officer did, next, state “[i]f you
cannot afford to hire an attorney one will be appointed to
represent you without charge before any questioning if you
wish.” Yet, we do not find that such a statement—referring
only to the appointment of pro bono counsel on his behalf—
can be reasonably interpreted to modify the prior, unqualified
declaration of his general right to counsel.5
4
We are aware that the Federal Bureau of Investigation has
changed its warning to state that the person in custody has the
right to counsel before any questions are asked and also to
have counsel present during questioning. Powell, 130 S. Ct.
at 1206. However, as the Powell Court stated, “[t]his advice
is admirably informative, but we decline to declare its precise
formulation necessary to Miranda’s requirements. Id.
5
See United States v. Frankson, 83 F.3d 79, 82 (4th Cir.
1996). (“Given the common sense understanding that an
unqualified statement lacks qualifications, all that police
9
Moreover, it is counterintuitive to conclude from this
warning that while the general right to counsel is unrestricted,
the right to appointed counsel exists only in the moments
prior to questioning and ceases the moment that the interview
commences. Again, the officer said: “[i]f you cannot afford
to hire an attorney, one will be appointed to represent you
without charge before any questioning if you wish.” Like
Powell and Duckworth, we read the officer‟s words as
indicating merely that Warren‟s right to pro bono counsel
became effective before he answered any questions. Powell,
130 S. Ct. at 1205. It does not restrict the right to counsel,
but rather addresses when the right to appointed counsel is
triggered. See Duckworth, 492 U.S. at 204. Taken as a
whole, then, the warning reasonably conveys the substance of
the rights expressed in Miranda.
With that said, as in Powell, we do not regard the
warning delivered in this case as the “clearest possible”
officers need do is convey the general rights enumerated in
Miranda.”); U.S. v. Caldwell, 954 F.2d 496, 502 (8th Cir.
1992), cert. denied, 113 S. Ct. 65 (1992)(“When the only
claimed deficiency is that of generality, the teaching of
Duckworth that we are not construing a will or defining the
terms of an easement convinces us that we cannot hold the
warning in this case amounts to plain error.”); United States
v. Adams, 484 F.2d 357, 361-362 (7th Cir. 1973) (The warning
was sufficient in which officers stated that the suspect had
“the right to remain silent, right to counsel, and if they
haven‟t got funds to have counsel, that the court will see that
they are properly defended.”).
10
statement that could be given. Powell, 130 S. Ct. at 1205.
Moreover, the fact that this exchange occurred in the police
station—a setting where a card imprinted with the Miranda
warning should be readily available—is disconcerting,
considering the resources that have been expended to
consider a claim that could have been preempted with
minimal care and effort. Nonetheless, we examine the
warning objectively within the totality of the circumstances.
Id. From this perspective, we conclude, as in Powell, that
“[n]othing in the words used indicated that counsel's presence
would be restricted after the questioning commenced.” Id.
Therefore, we will affirm the order of the District Court.
II.
We now turn to the breach of plea agreement claim.6
Warren admitted to his career offender status at the change of
plea hearing, and neither the maximum statutory sentence
(life imprisonment) or the Guidelines range attributable to his
crack cocaine offense (292 to 365 months) is disputed. 7
6
In determining whether the Government has breached its
plea agreement with a defendant, we apply the de novo
standard of review. United States v. Rivera, 357 F.3d 290,
293-94 (3d Cir. 2004).
7
The plea agreement stipulates the following. “JERMAIN
ANTWON WARREN and the United States Attorney further
understand and agree to the following: 1. The penalty that
may be imposed upon JERMAIN ANTWON WARREN is:
(a) A term of imprisonment of not less than ten years to a
maximum of life . . . .” Plea Agreement § C.1.(a), ECF No.
55. Moreover, at oral argument Warren conceded that the
11
Rather, Warren has argued that the District Court should use
the Guidelines relating to a powder cocaine offense, yielding
a range—he asserts—of 168 to 210 months.
At the sentencing hearing, the government disagreed
with the range stated by Warren noting that, with Warren‟s
career offender status, the applicable range would be 210 to
262 months. Warren alleges that the government‟s argument
constituted breach of the plea agreement, in which the
government agreed not to file an information pursuant to 21
U.S.C. § 851.8 Warren‟s argument confuses the issue.
It is irrelevant to the breach of plea agreement analysis
that the government disagreed with Warren‟s argument.
Warren argued for the application of a powder cocaine
Guidelines range. The point of reference here is the
undisputed sentencing range applicable to Warren‟s crack
cocaine offense. See United States v. Whitaker, 938 F.2d
1551, 1552 (2d Cir. 1991) (“[A] § 851(a)(1) notice is required
only where the statutory minimum or maximum penalty
under Part D of Title 21 is sought to be enhanced, not where a
defendant, by virtue of his criminal history, receives an
increased sentence under the Sentencing Guidelines within
Guidelines range of 292 to 365 months was applicable to the
crack cocaine offense.
8
“The United States Attorney agrees not to file an
information, pursuant to 21 U.S.C. § 851, stating prior
convictions as a basis for increased punishment.” Plea
Agreement § B.4., ECF No. 55.
12
the statutory range.”).9 Warren concedes that the government
did not file an information under section 851 to increase the
crack cocaine sentence based upon prior convictions.
Finally, as a factual matter, the District Court sentenced
Warren to 248 months, below the recommended range.
We, therefore, conclude that Warren‟s assertion of the
government‟s breach of the plea agreement is meritless.
Accordingly, we will enforce the appellate waiver provision
of the agreement and dismiss this claim. Plea Agreement §
A.8, ECF No. 55.
III.
For the reasons stated above, we will affirm the order
of the District Court denying Warren‟s motion to suppress,
and we will dismiss the remaining breach of plea agreement
issue.
9
At the sentencing hearing, the District Court considered and
rejected Warren‟s request to use the powder cocaine
Guidelines range as the basis to calculate the sentence, stating
“even if it were correct, I would consider it under these
circumstances to be substantially inadequate, given this
Defendant‟s background.” Sentencing Hearing 39, ECF No.
73. The District Court, instead, determined that the disparity
between sentencing for crack cocaine and powder cocaine
was appropriately considered, within the District Court‟s
discretion under 18 U.S.C. § 3553(a), as one of a
“constellation of factors” to support a mitigative variance
from the Guidelines range. Id. at 38.
13
GREENAWAY, JR., Circuit Judge, dissenting in part,1
Ernesto Miranda lived an unremarkable life, but his
surname stands for what has become one of our most
fundamental constitutional rights. Indeed, Miranda has
become embedded in our national culture. See Dickerson v.
United States, 530 U.S. 428, 443-44 (2000). The majority
concludes that a police warning to a suspect in custody, given
from memory at a station house, of his “right to an attorney,”
and right to an appointed attorney “before any questioning”
satisfies the Miranda requirement to inform him of his right to
counsel at all times throughout questioning. For the reasons
that follow, and because I believe that Miranda and the
Supreme Court‟s most recent iterations require more, I
respectfully dissent.
Miranda repeatedly emphasizes the importance of
informing a suspect in custody of the right to counsel during
questioning. It requires, as recognized by the Supreme Court
in Florida v. Powell, 130 S.Ct. 1195 (2010), that “as an
absolute prerequisite to interrogation,” 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.” Miranda v. Arizona, 384 U.S. 436, 469
(1966). The Court found this “right to have counsel present
at [an] interrogation . . . indispensable to the protection of the
Fifth Amendment privilege.” Id. The Court‟s “aim [wa]s to
assure that the individual‟s right to choose between silence
and speech remains unfettered throughout the interrogation
1
I join Part II of the majority opinion, the 21 U.S.C. § 851
analysis, in full.
1
process.” Id. at 471. Thus, the practical right to the presence
of an attorney addresses the 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.” Powell, 130
S.Ct. at 1203 (quoting Miranda, 384 U.S. at 469) (internal
quotation marks omitted).
As Powell recognized, the Court has not “dictated the
words in which the essential information must be conveyed.”
Id. at 1204. In reviewing Miranda warnings, courts are “not
required to examine Miranda warnings as if construing a will
or defining the terms of an easement.” Duckworth v. Eagan,
492 U.S. 195, 204 (1989). The inquiry, according to
Duckworth, California v. Prysock, 453 U.S. 355 (1981), and
Powell, “is simply whether the warnings reasonably conve[y]
to [a suspect] his rights as required by Miranda.” Powell, 130
S.Ct. at 1204 (quoting Duckworth, 492 U.S. at 203) (citations
and quotation marks omitted).
In Powell, the Supreme Court‟s most recent iteration
of Miranda, the Court reviewed whether a warning with an
explicit temporal limitation on the right to an attorney
withstood Miranda‟s requirements. In rejecting the
defendant‟s argument that the warning, as a whole, failed to
convey his continuous right to counsel, the Court held that
They informed Powell that he had
the „right to talk to a lawyer
before answering [their]
questions‟ and „the right to use
any of [his] rights at any time [he]
want[ed] during th[e] interview.‟
2
The first statement communicated
that Powell could consult with a
lawyer before answering any
particular question, and the
second statement confirmed that
he could exercise that right while
the interrogation was underway.
In combination, the two warnings
reasonably conveyed Powell‟s
right to have an attorney present,
not only at the outset of the
interrogation, but at all times.
Id. at 1204-05 (alterations in original). The Court not only
took note of the catch all statement, but also relied on it in
combination with the “before” language in concluding that
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.
Id. at 1205. The Court found that the “words used”2 did not
2
To the extent the majority views the reference in Powell to
“the words used” as only alluding to the “right to speak to an
attorney before” and not the catch all statement, I disagree
with that interpretation. The combination of phrases in
3
indicate that the presence of Powell‟s counsel would be
restricted after the questioning commenced because
“[i]nstead, 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] interview.” Id. at 1205 (internal quotation marks
omitted). “The warning” included the catch all statement—
“[y]ou have the right to use any of these rights at any time
you want during this interview” Id. at 1200. Thus, it appears
that if Powell had not been told that he could invoke the
rights read to him at any time during questioning, his right to
the presence of counsel during the interrogation would not
have been reasonably conveyed.
This is the crux of my disagreement with the majority.
Powell speaks specifically to the clarity with which the
warnings inform the accused of his right to counsel
throughout the interrogative process. On its face, an iteration
of the warnings with no elucidation on this point cannot be
constitutionally sound.
Ultimately, Powell examines language different than
that before us. In this case, the police officer, without a
Miranda card and from memory, warned Warren of his
general right to counsel without reference to whether it
commenced or ceased at any particular time. Unlike Powell,
Warren did not receive an explicit warning that all of the
rights dictated to him could be invoked at any time during the
entirety of the interview. Although there is no catch all
Powell made evident that the term “before” was not
restrictive and it only conveyed when the right began.
4
statement in Warren‟s case, Powell stands for the proposition
that being told that your right to counsel persists throughout
interrogation is at the core of Miranda.
The majority concludes that, in light of Powell, the
lack of any express reference to the right to counsel during
interrogation, coupled with the lack of a catch all statement
like that in Powell, does not undermine the validity of the
warning. However, simply because the general right to
counsel here does not contain a qualifier does not mean that
the warning makes clear that the right to counsel exists both
before and during questioning. As we look at the application
of Miranda, and now Powell, we cannot pare down the
constitutional prerequisites with wily veterans of our justice
system in mind. “[T]he accused who does not know his
rights and therefore does not make a request may be the
person who most needs counsel[.]” Powell, 130 S.Ct. at 1210
(Stevens, J., dissenting) (citing Miranda, 384 U.S. at 470-71)
(internal quotation marks omitted). Our charge is to make
sure the words spoken are plain and not subject to conjecture,
intuition, or speculation.
The majority also points to Duckworth and Prysock
because in those cases, the Court found that the warnings, in
their totality, did not limit the right to appointed counsel. In
both cases, the Court looked to the language of the warnings
to discern any temporal limitation on the suspect‟s rights that
may have been communicated to him. Although the language
used in both is distinguishable, these decisions provide
guidance as to what constitutes adequate notice of the right to
counsel and its scope.
In Prysock, the Court reviewed a warning that
5
informed the suspect of his right to “have hi[s] [lawyer]
present with [him] while . . . being questioned, and all during
the questioning[.]” 453 U.S. at 361. The defendant
complained that the warning was inadequate because it
included “the right to have a lawyer appointed . . . at no cost,”
id. at 358, but did not explicitly inform him of the right to
appointed counsel before questioning. The Court rejected this
argument, holding that “nothing in the warnings suggested
any limitation of the right to the presence of appointed
counsel different from the conveyed rights to a lawyer in
general, including the right to a lawyer before [the suspect is]
questioned . . . while [he is] being questioned, and all during
the questioning.” Id. at 360-61.
In Duckworth, the Court similarly found sufficient a
warning that informed the suspect of the right “to talk to a
lawyer for advice before . . . any questions, and to have him
with [the suspect] during questioning” but also stated that a
lawyer would be appointed “if and when [the suspect goes] to
court.” 492 U.S at 198. The Court held that the statements,
“in their totality,” conveyed the proper warnings because the
“if and when” statement did not suggest that only those
suspects who go to court would be afforded an attorney, but
“simply anticipate[d] [the suspect‟s] question.” Id. at 204-05.
In the context of both cases, the warnings reasonably
conveyed to the suspect, through their language of the right to
counsel during questioning, that the right to counsel indeed
existed during the time of interrogation.
Although the Court has not “dictated the words in
which the essential information must be conveyed,” Powell,
130 S.Ct. at 1204, the language used in the Prysock,
Duckworth, and Powell is instructive. Each contained
6
language that the suspect could invoke, at any time during
questioning, either his right to counsel or all the rights that
had been dictated to him (including the right to talk to counsel
before questioning). Warren‟s warning of his “right to an
attorney,” in context, does not, in my view, reasonably
convey to a reasonable person in his position that he has a
right to counsel throughout any custodial questioning.
Additionally, the notice to Warren that if he could not afford
an attorney, one would be appointed to him before
questioning does not and cannot be said to have reasonably
conveyed that the general right to an attorney continues
during questioning.
I believe that Miranda and its progeny compel a
finding that the conveyance of a general right to an attorney,
without contextual notification that this right exists during
questioning, does not meet the requirements of Miranda.
Many of our sister Circuits have come to similar conclusions.
See, e.g., United States v. Noti, 731 F.2d 610, 614 (9th Cir.
1984) (the advisement of “the right to have counsel present
during questioning . . . is not left to the option of the police; it
is mandated by the Constitution.”);3 see also, Powell, 130
3
See also United States v. Tillman, 963 F.2d 137, 140-42 (6th
Cir. 1992) (suppressing statements made to police where
suspect was told that he had the right to the presence of an
attorney, but police “failed to convey to defendant that he had
the right to an attorney both before, during and after
questioning” and failed to warn that statements could be used
against him); United States v. Anthon, 648 F.2d 669, 672-74
(10th Cir. 1981), cert. denied, 454 U.S. 1164 (1981) (finding
Miranda warning insufficient where suspect was not advised
that “right to counsel encompassed the right to have counsel
7
S.Ct. at 1212 n.8 (Stevens, J., dissenting) (“I am doubtful that
warning a suspect of his „right to counsel,‟ without more,
reasonably conveys a suspect‟s full rights under Miranda . . .
.”).
In my view, telling a defendant that he will be
appointed an attorney before questioning if he cannot afford
one and that he has the right to an attorney does not
reasonably convey his continued right to counsel during
questioning. Looking to the entire warning and what it
reasonably conveyed, the warning in Powell did not “entirely
omi[t] any information Miranda required [the officers] to
impart.” Id. at 1204 (internal quotation marks and citation
omitted). I believe such an omission was made in this case.
Because I conclude that the warning here was inadequate and
violated Warren‟s constitutional rights under the Fifth
Amendment, I believe that his statements made subsequent to
the warning should be suppressed. I would therefore vacate
the judgment of conviction and remand to the District Court.
present during any questioning,” but admitting statement as
harmless error); Windsor v. United States, 389 F.2d 530, 533
(5th Cir. 1968) (“Merely telling him that he could speak with
an attorney or anyone else before he said anything at all is not
the same as informing him that he is entitled to the presence
of an attorney during interrogation . . . .”).
8