Tuesday, April 26, 2011

General right to counsel with no temporal reference informs suspect he has a right to an attorney during questioning

In United States v. Warren, No. 10-1598 (April 21, 2011), the Third Circuit affirmed denial of a motion to suppress statements and dismissed Warren’s claim that the government breached the plea agreement.

The Court analyzed whether the Miranda warnings given to Warren informed him of his right to have counsel present during questioning. The Third Circuit looked to the recent United States Supreme Court case Florida v. Powell, 130 S.Ct. 1195 (2010), for guidance. In Powell, the officer advised the suspect he had the right “to talk to a lawyer before answering any of our questions” and“to use any of these rights at any time you want to during this interview.” The Supreme Court reasoned that the combination of these statements reasonably conveyed the requirements of Miranda: the first statement advised when the right to an attorney became effective and the catch-all clarified that the right could be used at all times.

Here, the officer told Warren:

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 before any questioning if you wish. Should you decide to talk to me, you can stop the questioning at any time.

The Third Circuit found the Miranda warning was valid even though there was no express reference to the right to have counsel present throughout interrogation and no catch-all statement. An unqualified declaration of the general right to counsel – with no temporal reference to when the right to counsel becomes effective or ceased – although not the “clearest possible” warning, is sufficient.

Judge Greenaway filed a dissenting opinion, finding that “the conveyance of a general right to an attorney, without a contextual notification that this right exists during questioning,” does not reasonably convey a continuing right to counsel.

The entire panel agreed that the government did not breach its plea agreement that it would not file an information to enhance Warren’s sentence, pursuant to 21 U.S.C. § 851, by arguing for a different Guidelines range. The Court explained that no § 851 was filed so it was irrelevant that the government calculated and argued for a Guidelines range based on crack-cocaine while Warren argued for a range based on powder cocaine.

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