FILED BY CLERK
IN THE COURT OF APPEALS NOV 30 2011
STATE OF ARIZONA
DIVISION TWO COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2010-0382
Appellant, ) DEPARTMENT A
)
v. ) OPINION
)
MICHAEL JONATHON CARLSON, )
)
Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20092426001
Honorable Christopher C. Browning, Judge
AFFIRMED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines Tucson
Attorneys for Appellant
Harley Kurlander Tucson
Attorney for Appellee
E C K E R S T R O M, Presiding Judge.
¶1 Following a suppression hearing, the trial court granted the defendant
Michael Carlson‟s motion to suppress statements he had made to law enforcement
officers, finding they were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966).
The state appealed the suppression order pursuant to A.R.S. § 13-4032(6). We affirm.
¶2 When reviewing a suppression order entered after a hearing, we consider
only the evidence presented at the hearing, which we view in the light most favorable to
upholding the trial court‟s order. State v. Hummons, 227 Ariz. 78, ¶ 2, 253 P.3d 275, 276
(2011); State v. Szpyrka, 220 Ariz. 59, ¶ 2, 202 P.3d 524, 526 (App. 2008); State v.
Sinclair, 158 Ariz. 493, 494, 768 P.2d 655, 656 (App. 1988). Here, the facts relevant to
the state‟s appeal are undisputed.
¶3 On June 16, 2009, Carlson had been arrested and was being held in custody
in a police station when he was interrogated by a detective from the Pima County
Sheriff‟s Department. Before questioning began, the detective attempted to recite the
Miranda advisory, and the following exchange occurred:
[Detective]: . . . I wanna talk to you about this, um,
case. . . . And because of the conditions that we‟re under here
I‟m gonna read you your rights.
[Carlson]: I waive my rights. I know my rights. I
have the right to remain silent. Anything that I say can and
will be used. And I do have the right to remain silent.
Anything that I say can and will be used against me in a court
of law. An attorney will be appointed to represent me if I
cannot afford one. I waive my rights.
[Detective]: All right, sir. I think you understand.
2
A lengthy interrogation followed in which Carlson was never given the Miranda
advisory. In the course of the interrogation, Carlson made numerous incriminating
statements.
¶4 Relying primarily on State v. Moorman, 154 Ariz. 578, 744 P.2d 679
(1987), and United States v. Bland, 908 F.2d 471 (9th Cir. 1990), the trial court found
that the detective “failed to fulfill her obligation to affirmatively advise the Defendant of
his Miranda warnings before she began questioning him” and that she did not alert
Carlson to the critical information that he had the right to an attorney to be present during
questioning. As it argued below, the state contends Carlson‟s own “recitation of his
Miranda rights [was] adequate” and “the absence of a specific warning about the
presence of counsel during questioning [was] not fatal.”
¶5 Given the wholesale absence of a Miranda advisory by law enforcement
officers here, the precise issue to be decided on appeal is not, as the state maintains,
whether the “warnings” reasonably conveyed the suspect‟s rights. See Duckworth v.
Eagan, 492 U.S. 195, 203 (1989). The officer conveyed no warnings. Rather, we must
address whether the suspect‟s own recitation demonstrated he knew the rights protected
by Miranda such that he voluntarily and intelligently could waive those rights even
without an advisory having been given by law enforcement officials. See Maryland v.
Shatzer, ___U.S. ___, ___, 130 S. Ct. 1213, 1219 (2010) (waiver of rights protected by
Miranda must be knowing, voluntary, and intelligent). In short, this case is not about the
adequacy of Miranda warnings; instead, we focus on whether Carlson‟s statements
displayed knowledge that obviated the need for the warnings being given at all.
3
¶6 In Florida v. Powell, the Supreme Court recently reaffirmed that Miranda
created “„procedural safeguards that require police to advise criminal suspects of their
rights under the Fifth and Fourteenth Amendments before commencing custodial
interrogation.‟” ___U.S. ___, ___, 130 S. Ct. 1195, 1203 (2010), quoting Duckworth,
492 U.S. at 201. It is “„an absolute prerequisite to interrogation,‟” the Court stated, “that
an individual held for questioning . . . „be clearly informed that he has the right to consult
with a lawyer and to have the lawyer with him during interrogation.‟” Powell, ___U.S. at
___, 130 S. Ct. at 1203, quoting Miranda, 384 U.S. at 471. Given the simplicity and
importance of the advisory, Miranda declared that “we will not pause to inquire in
individual cases whether the defendant was aware of his rights without a warning being
given.” 384 U.S. at 468. Further, the Miranda Court provided that “[n]o effective waiver
of the right to counsel during interrogation can be recognized unless specifically made
after the warnings we here delineate have been given.” Id. at 470.
¶7 In light of the foregoing, there should be little question but that law
enforcement officers must affirmatively discharge their duties under Miranda whenever
conducting a custodial interrogation. Miranda was meant to provide a clear rule, see id.
at 441-42, and the Supreme Court has determined that the advisory it prescribed is “too
simple” and “too important” to invite “ex post facto inquiries” into whether it was
required in the circumstances of a particular case. Id. at 473 n.43. Notwithstanding this
unambiguous directive from our highest court, we assume without deciding that a suspect
theoretically could demonstrate full knowledge of the rights protected by Miranda and
execute a valid waiver thereof even in the absence of an advisory by state officials. See
4
United States v. Patane, 542 U.S. 630, 641 (2004) (plurality opinion) (“[A] mere failure
to give Miranda warnings does not, by itself, violate a suspect‟s constitutional rights or
even the Miranda rule.”). Even allowing such an assumption, suppression of Carlson‟s
statements was required here.
¶8 The essential information that must be conveyed to a suspect in a Miranda
advisory is
[1] that he has the right to remain silent, [2] that anything he
says can be used against him in a court of law, [3] that he has
the right to the presence of an attorney, and [4] that if he
cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.
Powell, ___U.S. at ___, 130 S. Ct. at 1203, quoting Miranda, 384 U.S. at 479 (alterations
in Powell). Here, Carlson unnecessarily repeated the first two components of the
Miranda advisory, which suggested his knowledge of the law and his confidence in such
knowledge were not commensurate. As to the third and fourth components, he stated
only that “[a]n attorney will be appointed to represent me if I cannot afford one.” This
lone statement both failed to demonstrate an awareness that he had a right to the presence
of an attorney (as distinguished from mere eventual representation by an attorney), and
that the right applied before, and continued during, any questioning. See Moorman, 154
Ariz. at 585, 744 P.2d at 686 (“[T]he warning must inform the defendant that the right to
counsel exists before and during interrogation.”). Rather than confirming his knowledge
of the Miranda warnings, therefore, Carlson‟s statements arguably demonstrated his
incomplete understanding of his rights and highlighted the need for the advisory.
5
¶9 We recognize, of course, that there is “no talismanic incantation” required
by Miranda, California v. Prysock, 453 U.S. 355, 359 (1981) (per curiam), and courts
will not construe the words used in a Miranda advisory as we might the language in a
will or an easement. Duckworth, 492 U.S. at 203. If the sum total of statements in a
Miranda advisory reasonably conveys the essential information, the warning will be
deemed constitutionally adequate. Powell, ___U.S. at ___, 130 S. Ct. at 1204. But even
under this standard, a Miranda advisory may not be reduced to a right to silence and
appointed counsel coupled with a warning that anything said will be admissible in court.
When any element of Miranda is omitted, we do not presume it is common knowledge.
See United States v. Tillman, 963 F.2d 137, 141 (6th Cir. 1992). While different words or
phrasings may be used to communicate the necessary information, “[t]he four warnings
Miranda requires are invariable.” Powell, ___U.S. at ___, 130 S. Ct. at 1204; accord
Moorman, 154 Ariz. at 585, 744 P.2d at 686.
¶10 Although Carlson‟s attempted recitation of Miranda certainly demonstrated
some familiarity with the warnings, it omitted essential information, most importantly the
right to the presence of an attorney both before and during questioning. The Supreme
Court authority cited by the state is thus readily distinguishable. In each of those cases,
the suspects were informed of their right to the presence of an attorney during
questioning. See Powell, ___U.S. at ___, 130 S. Ct. at 1200 (suspect advised of right to
talk to appointed attorney “before any questioning” and informed he could exercise “any
of these rights at any time” during interview); Duckworth, 492 U.S. at 198 (suspect
informed: “You have a right to talk to a lawyer for advice before we ask you any
6
questions, and to have him with you during questioning.”); Prysock, 453 U.S. at 356
(suspect advised, “You have 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.”).
In contrast, Carlson‟s statement that “[a]n attorney will be appointed to represent me if I
cannot afford one” was accompanied by nothing clarifying the substance of his right to
counsel as it related to the imminent interrogation. Accordingly, a knowing waiver of
Miranda rights was not demonstrated here. See Shatzer, ___U.S. at ___, 130 S. Ct. at
1219.
¶11 Relying on United States v. Frankson, 83 F.3d 79, 82 (4th Cir. 1996);
United States v. Caldwell, 954 F.2d 496, 498, 502 (8th Cir. 1992); United States v.
Adams, 484 F.2d 357, 361-62 (7th Cir. 1973); and United States v. Lamia, 429 F.2d 373,
374-75, 376-77 (2d Cir. 1970), the state maintains a general statement about the right to
counsel is sufficient to satisfy Miranda, at least when no other statement is given
suggesting a temporal limitation on the right.1 But see United States v. Noti, 731 F.2d
610, 615 (9th Cir. 1984) (general statement insufficient to alert suspect of right to counsel
before and during questioning); United States v. Anthon, 648 F.2d 669, 672-73 (10th Cir.
1981) (same); Sanchez v. Beto, 467 F.2d 513, 514-15 (5th Cir. 1972) (same). But even
those cases each involved an affirmative, unqualified advisory, albeit a general one, about
1
We note that Caldwell‟s appellate challenge to the Miranda warning was not
preserved in the trial court, Caldwell, 954 F.2d at 500; hence, the holding of Caldwell is
simply that the warnings he received did not “amount[] to plain error.” 954 F.2d at 502.
The Caldwell majority allowed that the detective in that case “could, and arguably
should, have been more explicit in advising Caldwell of his right to an attorney.” Id. at
503.
7
the right to the presence of an attorney and are distinguishable on that basis. See
Frankson, 83 F.3d at 81 (suspect told, “You have the right to an attorney.”); Caldwell,
954 F.2d at 498 (suspect informed, “You have a right for an attorney.”); Adams, 484 F.2d
at 361 (suspect advised of “right to counsel”); Lamia, 429 F.2d at 374 (suspect informed
“he had a right to an attorney”).
¶12 Here, by contrast, Carlson‟s acknowledgement of his right to counsel was
more limited. It demonstrated only an understanding of his right to the appointment of
counsel, as distinguished from a right to the presence of counsel.2 And, because it was
immediately preceded by his statements regarding the admission of evidence “in a court
of law,” Carlson‟s comment in context clarified only his belief that he would be entitled
to appointment of counsel at some unspecified stage in the criminal proceedings.
¶13 In any event, we reject the state‟s suggestion that it need not specifically
articulate the right to counsel before and during questioning in light of the Supreme
Court‟s recent opinion in Powell. There, the suspect was advised that he had “the right to
talk to a lawyer before answering any . . . questions” and that he could “use any of these
rights at any time you want during the interview.” ___U.S. at ___, 130 S. Ct. at 1200.
On appeal, the Florida state courts held these warnings to be inadequate on the ground
they did not inform the suspect of his right to the presence of an attorney throughout the
interrogation. Id. at ___, 130 S. Ct. at 1200-01. The Supreme Court characterized the
issue before it as “whether the warnings Powell received satisfied th[e] requirement” that
2
Under our rules of criminal procedure, appointment of counsel occurs during the
defendant‟s initial appearance. Ariz. R. Crim. P. 4.2(a)(3), (5).
8
a suspect be informed of “„the right to consult with a lawyer and to have the lawyer with
him during interrogation.‟” Id. at ___, 130 S. Ct. at 1203, quoting Miranda, 384 U.S. at
471.
¶14 Answering this question in the affirmative, the Court held that “[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 ___, 130 S. Ct. at
1205. “We find the warning in this case adequate,” Powell emphasized, “only because it
communicated just what Miranda prescribed.” Id. at ___ n.5, 130 S. Ct. at 1205 n.5.
Powell went on to describe the standard advisory used by the Federal Bureau of
Investigation as “exemplary” insofar as it conveys “the same essential message” of
Miranda that suspects can “„talk to a lawyer . . . before . . . any question[ing]‟” and
“„have the right to have a lawyer with [them] during questioning.‟” Id. at ___, 130 S. Ct.
at 1206. Indeed, the two members of the Powell Court not joining the majority opinion
on the merits of the issue, Justices Stevens and Breyer, expressed “doubt[] that warning a
suspect of his „right to counsel,‟ without more, reasonably conveys a suspect‟s full rights
under Miranda.” ___U.S. at ___ n.8, 130 S. Ct. at 1211 n.8 (Stevens, J., dissenting). We
therefore regard any controversy about the existence of a temporal requirement in
Miranda as being settled by Powell. Both the majority and dissenting opinions
emphasized the requirement that suspects be alerted that the right to counsel attaches
before and during questioning. In Moorman, our own supreme court came to the same
conclusion: a suspect must be advised “that the right to counsel exists before and during
interrogation.” 154 Ariz. at 585, 744 P.2d at 686.
9
¶15 The state next argues that Carlson‟s dealings with law enforcement years
ago, his past experience with the Miranda warnings, and his training as a paralegal
should be considered when determining whether he knew his rights. The state does not
cite any legal authority for this proposition or otherwise develop its argument on this
point. A policy argument certainly may be made that such considerations should
determine the adequacy of or need for a Miranda warning. See Thomas P. Windom, The
Writing On The Wall: Miranda’s “Prior Criminal Experience” Exception, 92 Va. L.
Rev. 327, 328 (2006) (arguing actual knowledge of rights should “dispositively
foreclose[] any Miranda-based suppression motions”). But this court is not at liberty to
adopt a rule so at odds with the purpose and clear requirements of Miranda.
¶16 Miranda explains that its advisory was not created solely for “the
subnormal or woefully ignorant” but was designed, in part, to overcome the inherent
pressures of an interrogation and to “show the individual that his interrogators are
prepared to recognize his privilege should he choose to exercise it.” 384 U.S. at 468,
469. The need for the warning does not depend on a suspect‟s personal history or
occupation. See United States v. Longbehn, 850 F.2d 450, 451, 453 (8th Cir. 1988)
(requiring suppression of statements by police officer suspected of crime when officer not
given Miranda warnings). And in the absence of an adequate warning—or an equivalent
recitation by a suspect—we will not inquire whether the suspect nevertheless was aware
of his or her rights. See United States v. Bland, 908 F.2d 471, 472, 474 (9th Cir. 1990)
(requiring suppression of statements based on inadequate warning even though parolee
interrupted advisory to say he had heard Miranda warnings “a million times before”);
10
State v. Verdugo, 164 P.3d 966, 970, 972 (N.M. Ct. App. 2007) (requiring suppression
when detective gave incomplete warnings to suspect who interrupted advisory to say he
understood his rights).3
¶17 As noted above, Carlson‟s own recitation was deficient because it did not
acknowledge the right to the presence of counsel before and during interrogation. And
although Carlson generally claimed to know his rights, we adhere to “the better view . . .
that such an ambiguous assertion does not foreclose the need for specification of those
rights by the police.” 2 Wayne R. LaFave et al., Criminal Procedure § 6.8(a), at 572 (2d
ed. 1999).
¶18 Finally, we note the state has not challenged Carlson‟s motion on an
estoppel theory. Several courts have made statements suggesting that a defendant‟s
interference with a Miranda advisory will preclude later challenges to it. See People v.
Nitschmann, 41 Cal. Rptr. 2d 325, 328 (Ct. App. 1995) (“A suspect may not „out
Mirandize‟ the police by reciting his Miranda rights before the officer has admonished
him and later claim the admonition was defective.”); State v. Perez, 157 N.W.2d 162, 164
(Neb. 1968) (“A police officer is not required to give a ritualistic warning of a right the
defendant already knew of and which he refused to hear the repetition of.”); State v.
Walden, 336 N.W.2d 629, 632 (N.D. 1983) (“Where . . . the State has made a reasonable
3
We emphasize that our decision here “does not foreclose consideration of the
particular suspect‟s knowledge based, for example, upon his prior contacts with the
police, when the issue is whether the warnings given were understood by him.” 2 Wayne
R. LaFave et al., Criminal Procedure § 6.8(a), at 571-72 (2d ed. 1999); see, e.g., State v.
Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988).
11
effort to inform the defendant of his rights in accordance with the dictates of Miranda
and the defendant has refused to listen, the defendant has waived his right to be
informed.”). Because the state has not presented such an argument, we do not address
whether Carlson meaningfully obstructed the detective‟s efforts to provide the advisory
or whether, in that event, the detective was entitled to proceed with her questioning
without a proper advisory.
¶19 Where, as here, a defendant‟s pretrial motion makes a prima facie case for
the suppression of his statements to law enforcement, the state carries the burden to prove
“the lawfulness in all respects of the acquisition” of the evidence. Ariz. R. Crim. P.
16.2(b). Accordingly, we will not disturb a trial court‟s suppression order based on a
ground or theory not asserted below by the state. State v. Brita, 158 Ariz. 121, 124, 761
P.2d 1025, 1028 (1988); State v. Barnes, 215 Ariz. 279, n.2 & n.6, 159 P.3d 589, 591 n.2,
593 n.6 (App. 2007); State v. Main, 159 Ariz. 96, 99, 764 P.2d 1155, 1158 (App. 1988);
see also State v. Hendrix, 165 Ariz. 580, 582, 583, 799 P.2d 1354, 1356, 1357 (App.
1990) (reversing order denying defendant‟s motion to suppress and finding state‟s
alternative argument for upholding order waived by failure to present below).
¶20 If the recitation of the Miranda advisory Carlson offered here were given
by a law enforcement officer to a suspect, we would find it inadequate as a matter of law.
See United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002). We therefore
uphold the trial court‟s implicit determination that the same recitation did not
demonstrate Carlson‟s knowledge of the rights protected by Miranda so as to effectuate a
12
valid waiver. See State v. Villalobos, 225 Ariz. 74, ¶ 11, 235 P.3d 227, 231 (2010); State
v. Newell, 212 Ariz. 389, ¶ 22 & n.6, 132 P.3d 833, 840 & n.6 (2006).
¶21 The trial court‟s suppression order is affirmed.
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Presiding Judge
CONCURRING:
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge
13