OPINION OF THE COURT FLORIDA V. POWELL 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1175 FLORIDA, PETITIONER v. KEVIN DEWAYNE
POWELL

															on writ of certiorari to the supreme court of
florida

															[February 23, 2010]

															   Justice Ginsburg delivered the
opinion of the Court.

															   In a pathmarking decision, Miranda v. Arizona , 384 U. S. 436 , 471 (1966), the Court
held that an individual must be “clearly informed,” prior to
custodial questioning, that he has, among other rights, “the right
to consult with a lawyer and to have the lawyer with him during
interrogation.” The question presented in this case is whether
advice that a suspect has “the right to talk to a lawyer before
answering any of [the law enforcement officers’] questions,” and
that he can invoke this right “at any time … during th[e]
interview,” satisfies Miranda . We hold that it does.

															I

															   On August 10, 2004, law
enforcement officers in Tampa, Florida, seeking to apprehend
respondent Kevin Dewayne Powell in connection with a robbery
investigation, entered an apartment rented by Powell’s girlfriend.
969 So. 2d 1060, 1063 (Fla. App. 2007). After spotting Powell
coming from a bedroom, the officers searched the room and
discovered a loaded nine-millimeter handgun under the bed. Ibid. The officers arrested Powell
and transported him to the Tampa Police headquarters. Ibid. Once there, and before asking Powell any questions, the officers
read Powell the standard Tampa Police Department Consent and
Release Form 310. Id. , at 1063–1064. The form states:

															“You have the right to remain silent. If you give
up the right to remain silent, anything you say can be used against
you in court. 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.” App. 3. See also 969
So. 2d, at 1064.

															   Acknowledging that he had been
informed of his rights, that he “underst[oo]d them,” and that he
was “willing to talk” to the officers, Powell signed the form. App.
3. He then admitted that he owned the handgun found in the
apartment. Powell knew he was prohibited from possessing a gun
because he had previously been convicted of a felony, but said he
had nevertheless purchased and carried the firearm for his
protection. See 969 So. 2d, at 1064; App. 29.

															   Powell was charged in state court with
possession of a weapon by a prohibited possessor, in violation of
Fla. Stat. Ann. §790.23(1) (West 2007). Contending that the Miranda warnings were deficient because they did not
adequately convey his right to the presence of an attorney during
questioning, he moved to suppress his inculpatory statements. The
trial court denied the motion, concluding that the officers had
properly notified Powell of his right to counsel. 969 So. 2d, at
1064; App. 28. A jury convicted Powell of the gun-possession
charge. 969 So. 2d, at 1064.

															   On appeal, the Florida Second District Court
of Appeal held that the trial court should have suppressed Powell’s
statements. Id. , at 1067. The Miranda warnings,
the appellate court concluded, did not “adequately inform [Powell]
of his . . . right to have an attorney present throughout [the]
interrogation.” 969 So. 2d, at 1063. Considering the issue to
be “one of great public importance,” the court certified the
following question to the Florida Supreme Court:

															“Does the failure to provide express advice of the
right to the presence of counsel during questioning vitiate Miranda warnings which advise of both (A) the right to
talk to a lawyer ‘before questioning’ and (B) the ‘right to use’
the right to consult a lawyer ‘at any time’ during questioning?” Id. , at 1067–1068 (some capitalization omitted).

															   Surveying decisions of this Court
as well as Florida precedent, the Florida Supreme Court answered
the certified question in the affirmative. 998 So. 2d 531, 532
(2008). “Both Miranda and article I, section 9 of the
Florida Constitution,”[ Footnote
1 ] the Florida High Court noted, “require that a suspect be
clearly informed of the right to have a lawyer present during
questioning.” Id. , at 542. The court found that the advice
Powell received was misleading because it suggested that Powell
could “only consult with an attorney before questioning” and did
not convey Powell’s entitlement to counsel’s presence throughout
the interrogation. Id. , at 541. Nor, in the court’s view,
did the final catchall warning—“[y]ou have the right to use any of
these rights at any time you want during this interview”—cure the
defect the court perceived in the right-to-counsel advice: “The
catch-all phrase did not supply the missing warning of the right to
have counsel present during police questioning,” the court stated,
for “a right that has never been expressed cannot be reiterated.” Ibid .

															   Justice Wells dissented. He considered it
“unreasonable to conclude that the broad, unqualified language read
to Powell would lead a person of ordinary intelligence to believe
that he or she had a limited right to consult with an attorney that
could only be exercised before answering the first question posed by law enforcement.” Id. , at 544. The final
sentence of the warning, he stressed, “avoid[ed] the
implication—unreasonable as it may [have] be[en]—that advice
concerning the right of access to counsel before questioning conveys the message that access to counsel is
foreclosed during questioning.” Ibid. (internal
quotation marks omitted). Criticizing the majority’s “technical
adherence to language … that has no connection with whether the
person who confessed understood his or her rights,” id. ,
at 545, he concluded that “[t]he totality of the warning reasonably
conveyed to Powell his continuing right of access to counsel,” id. , at 544.

															   We granted certiorari, 557 U. S. ___ (2009),
and now reverse the judgment of the Florida Supreme Court.

															II We first address
Powell’s contention that this Court lacks jurisdiction to hear this
case because the Florida Supreme Court, by relying not only on Miranda but also on the Florida Constitution, rested its
decision on an adequate and independent state ground. Brief for
Petitioner 15–23. See Coleman v. Thompson , 501 U. S. 722 ,
729 (1991) (“This Court will not review a question of federal law
decided by a state court if the decision … rests on a state law
ground that is independent of the federal question and adequate to
support the judgment.”). “It is fundamental,” we have observed,
“that state courts be left free and unfettered by us in
interpreting their state constitutions.” Minnesota v. National Tea Co. , 309 U. S. 551 , 557
(1940). “But it is equally important that ambiguous or obscure
adjudications by state courts do not stand as barriers to a
determination by this Court of the validity under the federal
constitution of state action.” Ibid. To that end, we
announced, in Michigan v. Long , 463 U. S. 1032 , 1040–1041 (1983), the
following presumption: “[W]hen . . . a state court decision
fairly appears to rest primarily on federal law, or to be
interwoven with the federal law, and when the adequacy and
independence of any possible state law ground is not clear from the
face of the opinion, we will accept as the most reasonable
explanation that the state court decided the case the way it did
because it believed that federal law required it to do
so.” At the same time, we adopted a
plain-statement rule to avoid the presumption: “If the state court
decision indicates clearly and expressly that it is alternatively
based on bona fide separate, adequate, and independent grounds, we,
of course, will not undertake to review the decision.” Id. , at 1041.[ Footnote
2 ] Under the Long presumption, we have jurisdiction to entertain this case. 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 Powell rights
distinct from, or broader than, those delineated in Miranda . See Long , 463 U. S., at 1044. Beginning with the certified
question—whether the advice the Tampa police gave to Powell
“vitiate[d] Miranda ,” 998 So. 2d, at 532 (some
capitalization omitted)—and continuing throughout its opinion, the
Florida Supreme Court trained on what Miranda demands,
rather than on what Florida law independently requires. See, e.g., 998 So. 2d, at 533 (“The issue before this
Court is whether the failure to provide express advice of the right
to the presence of counsel during custodial interrogation violates
the principles espoused in Miranda v. Arizona , 384 U. S. 436 .”); id. , at 538
(“[T]he issue of [what] Miranda requires … has been
addressed by several of the Florida district courts of appeal.”); id. , at 542 (Powell received a “narrower and less
functional warning than that required by Miranda .”).[ Footnote
3 ] We therefore cannot identify, “from the face of the
opinion,” a clear statement that the decision rested on a state
ground separate from Miranda . See Long , 463 U.
S., at 1041 (the state court “need only make clear by a plain
statement in its judgment or opinion that the federal cases are
being used only for the purpose of guidance, and do not themselves
compel the result that the court has reached”).[ Footnote 4 ] “To avoid misunderstanding, the
[Florida] Supreme Court must itself speak with the clarity it
sought to require of its State’s police officers.” Ohio v. Robinette , 519 U. S. 33 , 45 (1996) (Ginsburg, J.,
concurring in judgment). Powell notes that “ ‘state
courts are absolutely free to interpret state constitutional
provisions to accord greater protection to individual rights than
do similar provisions of the United States Constitution.’ ”
Brief for Respondent 19–20 (quoting Arizona v. Evans , 514 U.
S. 1 , 8 (1995)). See also, e.g. , Oregon v. Hass , 420
U. S. 714 , 719 (1975); Cooper v. California , 386 U. S. 58 , 62
(1967). Powell is right in this regard. Nothing in our decision
today, we emphasize, trenches on the Florida Supreme Court’s
authority to impose, based on the State’s Constitution, any
additional protections against coerced confessions it deems
appropriate. But because the Florida Supreme Court’s decision does
not “indicat[e] clearly and expressly that it is alternatively
based on bona fide separate, adequate, and independent [state]
grounds,” Long , 463 U. S., at 1041, we have jurisdiction
to decide this case. III A To give
force to the Constitution’s protection against compelled
self-incrimination, the Court established in Miranda “certain procedural safeguards that require police to advise
criminal suspects of their rights under the Fifth and Fourteenth
Amendments before commencing custodial interrogation.” Duckworth v. Eagan , 492 U. S. 195 , 201
(1989). Intent on “giv[ing] concrete constitutional guidelines for
law enforcement agencies and courts to follow,” 384 U. S., at
441–442, Miranda prescribed the following four
now-familiar warnings: “[A suspect] must be warned
prior to any questioning [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.” Id. , at 479. Miranda ’s third warning—the only one
at issue here—addresses our particular 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.” Id. ,
at 469. Responsive to that concern, we stated, as “an absolute
prerequisite to interrogation,” that 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.” Id. , at 471. The question before us is
whether the warnings Powell received satisfied this
requirement. The four warnings Miranda requires are invariable, but this Court has not
dictated the words in which the essential information must be
conveyed. See California v. Prysock , 453 U. S. 355 , 359
(1981) (per curiam) (“This Court has never indicated that
the rigidity of Miranda extends to the precise formulation
of the warnings given a criminal defendant.” (internal quotation
marks omitted)); Rhode Island v. Innis , 446 U. S. 291 , 297
(1980) (safeguards against self-incrimination include
“ Miranda warnings . . . or their equivalent”). In
determining whether police officers adequately conveyed the four
warnings, we have said, reviewing courts are not required to
examine the words employed “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 , 492 U. S., at 203
(quoting Prysock , 453 U. S., at 361). B Our
decisions in Prysock and Duckworth inform our
judgment here. Both concerned a suspect’s entitlement to adequate
notification of the right to appointed counsel. In Prysock , an officer informed the suspect of, inter
alia , his right to a lawyer’s presence during questioning and
his right to counsel appointed at no cost. 453 U. S., at 356–357.
The Court of Appeals held the advice inadequate to comply with Miranda because it lacked an express statement that the
appointment of an attorney would occur prior to the impending
interrogation. See 453 U. S., at 358–359. We reversed. Id. , at 362. “[N]othing in the warnings,” we observed,
“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.” Id. , at 360–361 (internal quotation marks
omitted). Similarly, in Duckworth , we upheld
advice that, in relevant part, communicated the right to have an
attorney present during the interrogation and the right to an
appointed attorney, but also informed the suspect that the lawyer
would be appointed “if and when [the suspect goes] to court.” 492
U. S., at 198 (emphasis deleted; internal quotation marks omitted).
“The Court of Appeals thought th[e] ‘if and when you go to court’
language suggested that only those accused who can afford an
attorney have the right to have one present before answering any
questions. ” Id. , at 203 (some internal quotation
marks omitted). We thought otherwise. Under the relevant state law,
we noted, “counsel is appointed at [a] defendant’s initial
appearance in court.” Id., at 204. The “if and when you go
to court” advice, we said, “simply anticipate[d]” a question the
suspect might be expected to ask after receiving Miranda warnings, i.e. , “ when [will he] obtain counsel.”
492 U. S., at 204. Reading the “if and when” language together with
the other information conveyed, we held that the warnings, “in
their totality, satisfied Miranda .” Id. , at
205. We reach the same
conclusion in this case. The Tampa officers did not “entirely
omi[t],” post , at 9, any information Miranda required them to impart. They informed Powell that he had “the
right to talk to a lawyer before answering any of [their]
questions” and “the right to use any of [his] rights at any time
[he] want[ed] during th[e] interview.” App. 3. 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 interrogation, but at all times.[ Footnote 5 ] To reach the opposite
conclusion, i.e. , that the attorney would not be present
throughout the interrogation, the suspect would have to imagine an
unlikely scenario: To consult counsel, he would be obliged to exit
and reenter the interrogation room between each query. 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 seek his attorney’s advice.[ Footnote 6 ] 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.[ Footnote 7 ] The Florida Supreme
Court found the warning misleading because it believed the temporal
language—that Powell could “talk to a lawyer before answering any
of [the officers’] questions”—suggested Powell could consult with
an attorney only before the interrogation started. 998 So. 2d,
at 541. See also Brief for Respondent 28–29. 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. Instead, 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.” App. 3 (emphasis added). Although the warnings were not
the clearest possible formulation of Miranda ’s
right-to-counsel advisement, they were sufficiently comprehensive
and comprehensible when given a commonsense
reading. Pursuing a different
line of argument, Powell points out that most jurisdictions in
Florida and across the Nation expressly advise suspects of the
right to have counsel present both before and during interrogation.
Brief for Respondent 41–44. If we find the advice he received
adequate, Powell suggests, law enforcement agencies, hoping to
obtain uninformed waivers, will be tempted to end-run Miranda by amending their warnings to introduce ambiguity.
Brief for Respondent 50–53. But as the United States explained as amicus curiae in support of the State of Florida, “law
enforcement agencies have little reason to assume the litigation
risk of experimenting with novel Miranda formulations,”
Brief for United States as Amicus Curiae 6; instead, it is
“desirable police practice” and “in law enforcement’s own interest”
to state warnings with maximum clarity, id. , at 12. See
also id. , at 11 (“By using a conventional and precise
formulation of the warnings, police can significantly reduce the
risk that a court will later suppress the suspect’s statement on
the ground that the advice was inadequate.”). For these reasons,
“all … federal law enforcement agencies explicitly advise …
suspect[s] of the full contours of each [Miranda] right,
including the right to the presence of counsel during questioning.” Id. , at 12. The standard warnings used by the Federal
Bureau of Investigation are exemplary. They provide, in relevant
part: “You have the right to talk to a lawyer for advice before we
ask you any questions. You have the right to have a lawyer with you
during questioning.” Ibid. , n. 3 (internal quotation
marks omitted). This advice is admirably informative, but we
decline to declare its precise formulation necessary to meet Miranda ’s requirements. Different words were used in the
advice Powell received, but they communicated the same essential
message. *  *  * For the
reasons stated, the judgment of the Supreme Court of Florida is
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion. It is so
ordered. Footnote
1 Article I, §9 of the
Florida Constitution states that “[n]o person shall … be compelled
in any criminal matter to be a witness against
oneself.” Footnote
2 Dissenting in Michigan v. Long , 463 U. S. 1032 (1983), Justice
Stevens did not urge, as he now does, inspection of state-court
decisions to count the number of citations to state and federal
provisions and opinions, or heroic efforts to fathom what the state
court really meant. See post , at 3–7 (dissenting opinion).
Instead, his preferred approach was as clear as the Court’s. In
lieu of “presuming that adequate state grounds are not independent unless it clearly appears otherwise,” he would have
“presum[ed] that adequate state grounds are independent unless it
clearly appears otherwise.” Long , 463 U. S., at 1066; see post , at 2, n. 1. Either presumption would avoid
arduous efforts to detect, case by case, whether a state ground of
decision is truly “independent of the [state court’s] understanding
of federal law.” Long , 463 U. S., at 1066. Today, however,
the dissent would require this Court to engage in just that sort of
inquiry. Footnote
3 Justice Stevens
suggests that these statements refer to Miranda only in a
“generic” sense to mean “the warnings suspects must be given before
interrogation.” Post , at 6. This explanation fails to
account for the Florida Supreme Court’s repeated citations to the opinion in Miranda . In context, it is obvious
that the court was attempting to home in on what that
opinion—which, of course, interpreted only the Federal Constitution
and not Florida law—requires. See, e.g. , 998 So. 2d
531, 533, 534, 537, 538, 539, 540, 541, 542
(2008). Footnote
4 Justice Stevens
agrees that the Florida Supreme Court’s decision is interwoven with
federal law, post , at 7, and lacks the plain statement
contemplated by Long , post , at 3. Nevertheless,
he finds it possible to discern an independent state-law basis for
the decision. As Long makes clear, however, “when . . .
[the] state court decision fairly appears to … be interwoven with …
federal law,” the only way to avoid the jurisdictional presumption
is to provide a plain statement expressing independent reliance on
state law. 463 U. S., at 1040. It is this plain statement that
makes “the adequacy and independence of any possible state law
ground … clear from the face of the opinion.” Id. , at
1040–1041. See also Ohio v. Robinette , 519 U. S. 33 , 44 (1996) (Ginsburg, J.,
concurring in judgment) (“ Long governs even when, all
things considered, the more plausible reading of the state court’s
decision may be that the state court did not regard the Federal
Constitution alone as a sufficient basis for its
ruling.”). Footnote
5 Justice Stevens
asserts that the Court today approves, for “the first time[,] … a
warning which, if given its natural reading, entirely omitted an
essential element of a suspect’s rights.” Post , at 9. See
also post , at 12 (“[T]he warning entirely failed to inform
[Powell] of the separate and distinct right ‘to have counsel
present during any questioning.’ ”). We find the warning in
this case adequate, however, only because it communicated just what Miranda prescribed. Justice Stevens ascribes a different
meaning to the warning Powell received, but he cannot credibly
suggest that the Court regards the warning to have omitted
a vital element of Powell’s rights. Footnote
6 It is equally unlikely that
the suspect would anticipate a scenario of this order: His lawyer
would be admitted into the interrogation room each time the police
ask him a question, then ushered out each time the suspect
responds. Footnote
7 Although it does not
bear on our decision, Powell seems to have understood the warning
this way. The following exchange between Powell and his attorney
occurred when Powell testified at his trial: “Q. You waived the right to have an
attorney present during your questioning by detectives; is that
what you’re telling this jury? “A. Yes.” App. 80. STEVENS, J., DISSENTING FLORIDA V. POWELL 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1175 FLORIDA, PETITIONER v. KEVIN DEWAYNE
POWELL

															on writ of certiorari to the supreme court of
florida

															[February 23, 2010]

															   Justice Stevens, with whom
Justice Breyer joins as to Part II, dissenting.

															   Today, the Court decides a case
in which the Florida Supreme Court held a local police practice
violated the Florida Constitution. The Court’s power to review that
decision is doubtful at best; moreover, the Florida Supreme Court
has the better view on the merits.

															I

															   In this case, the Florida Supreme
Court concluded that “[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 Powell did not satisfy
either the State or the Federal Constitution. 998 So. 2d 531,
542 (2008). In my view, the Florida Supreme Court held on an
adequate and independent state-law ground that the warnings
provided to Powell did not sufficiently inform him of the
“ ‘right to a lawyer’s help’ ” under the Florida
Constitution, id. , at 535. This Court therefore lacks
jurisdiction to review the judgment below, notwithstanding the
failure of that court to include some express sentence that would
satisfy this Court’s “plain-statement rule,” ante , at
5.

															   The
adequate-and-independent-state-ground doctrine rests on two
“cornerstones”: “[r]espect for the independence of state courts”
and “avoidance of rendering advisory opinions.” Michigan v. Long , 463 U. S. 1032 , 1040
(1983). In Long , the Court adopted a novel presumption in
favor of jurisdiction when the independence of a state court’s
state-law judgment is not clear. But we only respect the
independence of state courts and avoid rendering advisory opinions
if we limit the application of that presumption to truly ambiguous
cases.[ Footnote 1 ] This is not
such a case.

															   “[I]f the same judgment would be rendered by
the state court after we corrected its views of federal laws, our
review could amount to nothing more than an advisory opinion.” Herb v. Pitcairn , 324 U. S. 117 , 126
(1945). In Long we advised every state court of a formula
by which it could assure us that our review would indeed amount to
nothing more than an advisory opinion. The state court “need only
make clear by a plain statement in its judgment or opinion that the
federal cases are being used only for the purpose of guidance, and
do not themselves compel the result that the court has reached.”
463 U. S. , at 1041. That advice has sometimes been
misunderstood as a command that unless such a plain statement is
included in a state-court opinion, the court’s ruling cannot have
rested on an adequate and independent state ground. But the real
question is whether “the adequacy and independence of any possible
state law ground is … clear from the face of the opinion.” Id. , at 1040–1041. Even if a state court opinion does not
include the magic words set forth in Long , or some
similarly explicit sentence, we lack jurisdiction if it is
nonetheless apparent that the decision is indeed supported by an
adequate and independent state ground. Contrary to the assumption
made by the Court, we have no power to assume jurisdiction that
does not otherwise exist simply because the Florida Supreme Court
did not include in its decision some express statement that its
interpretation of state law is independent.

															   In my view, we can tell from the face of the
Florida Supreme Court’s opinion that “the decision rested on a
state ground separate from Miranda ,” ante , at
6 . This case is easily distinguished from Long in
that regard. In Long , although the Michigan Supreme Court
had twice cited the Michigan Constitution in its opinion, it
“relied exclusively on its understanding of Terry [v. Ohio , 392
U. S. 1 (1968),] and other federal cases. Not a single state
case was cited to support the state court’s holding that the search
of the passenger compartment was unconstitutional.” 463 U.
S. , at 1043. There was, in short, nothing to “indicate
that the decision below rested on grounds in any way independent from the state court’s interpretation of
federal law.” Id., at 1044.

															   Other cases in which we have applied the Long presumption have been similarly devoid of independent
state-law analysis. We typically apply the Long presumption when the state court’s decision cited a state
constitutional provision only a few times or not at all, and rested
exclusively upon federal cases or upon state cases that themselves
cited only federal law.[ Footnote
2 ] We have also applied Long when the state court’s
decision indicated that under state law, the relevant state
constitutional provision is considered coextensive with the federal
one.[ Footnote 3 ] This case
shares none of those features.[ Footnote 4 ]

															   The Florida Supreme Court did not merely cite
the Florida Constitution a time or two without state-law
analysis.[ Footnote 5 ] Rather,
the court discussed and relied on the separate rights provided
under Art. I, §9 of the Florida Constitution. For example,
after a paragraph describing the general scope of Miranda warnings under federal law, the Court explained the general scope
of warnings under state law. 998 So. 2d, at 534–535 (“[T]o
ensure the voluntariness of confessions as required by article I,
section 9 of the Florida Constitution, this Court in Traylor v. State , 596 So. 2d 957 (Fla.
1992), outlined the … rights Florida suspects must be told of prior
to custodial interrogation,” which includes “ ‘that they have
a right to a lawyer’s help’ ”). The court consistently
referred to these state-law rights as separate and distinct from Miranda , noting that in its earlier cases, it had
explained that “the requirements of both the Fifth Amendment, as
explained in Miranda , and the Florida Constitution, as
explained in Traylor ,” include “the requirement that a
suspect be informed of the right to have counsel present during
questioning.” 998 So. 2d, at 537–538. And when applying the law to
the specific facts of this case, the Florida Supreme Court again
invoked the specific and distinct “right to a lawyer’s help” under
the Florida Constitution. Id. , at 540.

															   Moreover, the state cases relied upon by the
Florida Supreme Court did not themselves rely exclusively on
federal law. The primary case relied upon for the state-law
holding, Traylor , rested exclusively upon state law. See
596 So. 2d, at 961. In that decision, the Florida Supreme
Court embraced the principle that “[w]hen called upon to decide
matters of fundamental rights, Florida’s state courts are bound
under federalist principles to give primacy to our state
Constitution and to give independent legal import to every phrase
and clause contained therein.” Id. , at 962. Elaborating
upon the meaning of Art. I, §9 of the Florida Constitution,
the Florida Supreme Court explained the roots of Florida’s
commitment to protecting its citizens from self-incrimination.
Florida has long “required as a matter of state law that one
charged with a crime be informed of his rights prior to rendering a
confession.” Id. , at 964. It has required warnings before
some interrogations since at least 1889, and has for that long
excluded confessions obtained in violation of those rules. Ibid. In sum, this case looks quite different from those
cases in which we have applied the Long presumption in the
past.

															   The Court concludes otherwise by relying
primarily upon the formulation of the certified question and
restatements of that question within the Florida Supreme Court’s
opinion. See ante , at 6. Yet while the certified question
asks whether particular phrases “vitiate[d] Miranda warnings,” 998 So. 2d, at 532 (capitalization and footnote
omitted), Miranda has become a generic term to refer to
the warnings suspects must be given before interrogation, see
Merriam-Webster’s Collegiate Dictionary 792 (11th ed. 2003)
(defining “Miranda” as “of, relating to, or being the legal rights
of an arrested person to have an attorney and to remain silent so
as to avoid self-incrimination”). Thus, its invocation of Miranda in the certified question and in its statement of
the issue presented is entirely consistent with the fact that the
state-law basis for its decision is fully adequate and
independent.

															   That said, I agree with the Court that the
decision below is interwoven with federal law. In reaching its
state-law holding, the Florida Supreme Court found Miranda and our other precedents instructive.[ Footnote 6 ] But that alone is insufficient to assure our
jurisdiction, even under Long . In my view, the
judgment—reversal of Powell’s conviction—is supported by the
Florida Supreme Court’s independent and carefully considered
holding that these warnings were inadequate under the Florida
Constitution. See 998 So. 2d, at 534–535, 537–538, 540,
542.

															   The Court acknowledges that nothing in today’s
decision “trenches on the Florida Supreme Court’s authority to
impose, based on the State’s Constitution, any additional
protections against coerced confessions it deems appropriate.” Ante , at 7. As the Florida Supreme Court has noted on more
than one occasion, its interpretation of the Florida Constitution’s
privilege against self-incrimination need not track our
construction of the parallel provision in the Federal Constitution.
See Rigterink v. State , 2 So. 3d 221, 241 (2009)
(“[T]he federal Constitution sets the floor, not the ceiling, and
this Court retains the ability to interpret the right against
self-incrimination afforded by the Florida Constitution more
broadly than that afforded by its federal counterpart”); Traylor , 596 So. 2d, at 961–963. In this very case,
the Florida Supreme Court may reinstate its judgment upon remand.
If the Florida Supreme Court does so, as I expect it will, this
Court’s opinion on the merits will qualify as the sort of advisory
opinion that we should studiously seek to avoid.

															II

															   The Court’s decision on the
merits is also unpersuasive. As we recognized in Miranda ,
“the right to have counsel present at [an] interrogation is
indispensable to the protection of the Fifth Amendment privilege.” Miranda v. Arizona , 384 U. S. 436 , 469 (1966).
Furthermore, “the need for counsel to protect the Fifth Amendment
privilege comprehends not merely a right to consult with counsel
prior to questioning, but also to have counsel present during any
questioning.” Id. , at 470. Because the “accused who does
not know his rights and therefore does not make a request may be
the person who most needs counsel,” id. , at 470–471, a
defendant “must be clearly informed” regarding two aspects of his
right to consult an attorney: “the right to consult with a lawyer
and to have the lawyer with him during interrogation,” id. , at 471.

															   In this case, the form regularly
used by the Tampa police warned Powell that he had “the right to
talk to a lawyer before answering any of our questions.” App. 3.
This informed him only of the right to consult with a lawyer before
questioning, the very right the Miranda Court identified
as insufficient to protect the Fifth Amendment privilege. The
warning did not say anything about the right to have counsel
present during interrogation. Although we have never required
“rigidity in the form of the required warnings,” California v. Prysock , 453 U. S. 355 , 359 (1981) (per
curiam) , this is, I believe, the first time the Court has
approved a warning which, if given its natural reading, entirely
omitted an essential element of a suspect’s rights.

															   Despite the failure of the warning to mention
it, in the Court’s view the warning “reasonably conveyed” to Powell
that he had the right to a lawyer’s presence during the
interrogation. Ante , at 10. The Court cobbles together
this conclusion from two elements of the warning. First, the Court
assumes the warning regarding Powell’s right “to talk to a lawyer
before answering any of [the officers’] questions,” App. 3,
conveyed that “Powell could consult with a lawyer before answering
any particular question,” ante , at 10 (emphasis
added).[ Footnote 7 ] Second, in
the Court’s view, the addition of a catchall clause at the end of
the recitation of rights “confirmed” that Powell could use his
right to consult an attorney “while the interrogation was
underway.” Ibid .

															   The more natural reading of the warning Powell
was given, which (1) contained a temporal limit and (2) failed to
mention his right to the presence of counsel in the interrogation
room, is that Powell only had the right to consult with an attorney
before the interrogation began, not that he had the right to have
an attorney with him during questioning. Even those few Courts of
Appeals that have approved warnings that did not expressly mention
the right to an attorney’s presence during interrogation[ Footnote 8 ] have found language of the
sort used in Powell’s warning to be misleading. For instance,
petitioner cites the Second Circuit’s decision in United
States v. Lamia , 429 F. 2d 373 (1970), as an
example of a court applying the properly flexible approach to Miranda . But in that case, the Second Circuit expressly
distinguished a warning that a suspect “ ‘could consult an
attorney prior to any question,’ ” which was “affirmatively
misleading since it was thought to imply that the attorney could
not be present during questioning.” 429 F. 2d, at
377.[ Footnote 9 ] That even the
Courts of Appeals taking the most flexible approach to Miranda have found warnings like Powell’s misleading
should caution the Court against concluding that such a warning
reasonably conveyed Powell’s right to have an attorney with him
during the interrogation.

															   When the relevant clause of the warning in
this case is given its most natural reading, the catchall clause
does not meaningfully clarify Powell’s rights. It communicated that
Powell could exercise the previously listed rights at any time. Yet
the only previously listed right was the “right to talk to a lawyer before answering any of [the officers’] questions.” App. 3
(emphasis added). Informing Powell that he could exercise, at any
time during the interview, the right to talk to a lawyer before answering any questions did not reasonably convey
the right to talk to a lawyer after answering some
questions, much less implicitly inform Powell of his right to have
a lawyer with him at all times during interrogation. An intelligent
suspect could reasonably conclude that all he was provided was a
one-time right to consult with an attorney, not a right to have an
attorney present with him in the interrogation room at all
times.[ Footnote 10 ]

															   The Court relies on Duckworth v. Eagan , 492
U. S. 195 (1989), and Prysock , 453 U. S. 355 , but in neither case did
the warning at issue completely omit one of a suspect’s rights. In Prysock , the warning regarding the right to an appointed
attorney contained no temporal limitation, see id. , at
360–361, which clearly distinguishes that case from Powell’s. In Duckworth , the suspect was explicitly informed that he had
the right “to talk to a lawyer for advice before we ask you any
questions, and to have him with you during questioning,” and that
he had “this right to the advice and presence of a lawyer even if
you cannot afford to hire one.” 492 U. S., at 198 (emphasis
deleted; internal quotation marks omitted). The warning thus
conveyed in full the right to appointed counsel before and during
the interrogation. Although the warning was arguably undercut by
the addition of a statement that an attorney would be appointed “if
and when you go to court,” the Court found the suspect was informed
of his full rights and the warning simply added additional,
truthful information regarding when counsel would be appointed. Ibid . (emphasis deleted; internal quotation marks
omitted). Unlike the Duckworth warning, Powell’s warning
did not convey his Miranda rights in full with the
addition of some arguably misleading statement. Rather, the warning
entirely failed to inform him of the separate and distinct right
“to have counsel present during any questioning.” Miranda ,
384 U. S., at 470.

															   In sum, the warning at issue in this case did
not reasonably convey to Powell his right to have a lawyer with him
during the interrogation. “The requirement of warnings … [is]
fundamental with respect to the Fifth Amendment privilege and not
simply a preliminary ritual to existing methods of interrogation.” Id. , at 476. In determining that the warning implied what
it did not say, it is the Court “that is guilty of attaching
greater importance to the form of the Miranda ritual than
to the substance of the message it is intended to convey.” Prysock, 453 U. S., at 366 (Stevens, J., dissenting).

															III

															   Whether we focus on Powell’s
particular case, or the use of the warning form as the standard
used in one jurisdiction, it is clear that the form is imperfect.
See ante , at 12. As the majority’s decision today
demonstrates, reasonable judges may well differ over the question
whether the deficiency is serious enough to violate the Federal
Constitution. That difference of opinion, in my judgment, falls
short of providing a justification for reviewing this case when the
judges of the highest court of the State have decided the warning
is insufficiently protective of the rights of the State’s citizens.
In my view, respect for the independence of state courts, and their
authority to set the rules by which their citizens are protected,
should result in a dismissal of this petition.

															   I respectfully dissent. Footnote 1 In my view, this Court would better respect
the independence of state courts by applying the opposite
presumption, as it did in the years prior to 1983. See Long , 463 U. S., at 1066–1067 (Stevens, J., dissenting).
But accepting Long as the law, we can limit its negative
effects—unnecessary intrusion into the business of the state courts
and unnecessary advisory opinions—only if we limit its application
to cases in which the independence of the state-law ground is in
serious doubt. See Pennsylvania v. Labron , 518 U. S. 938 , 950 (1996) (Stevens,
J., dissenting) (“[T]he unfortunate effects of [its] rule” are
“exacerbate[d] … to a nearly intolerable degree” when the Long presumption is applied to cases in which “the
state-law ground supporting th[e] judgmen[t] is so much clearer
than has been true on most prior occasions”). Footnote 2 See, e.g. , Illinois v. Fisher , 540
U. S. 544 , 547, n. (2004) (per curiam) (describing
decision below as relying upon the portion of a state precedent
that solely discussed due process under the Federal Constitution); Ohio v. Robinette , 519 U. S. 33 , 37 (1996)
(“[T]he only cases [the opinion] discusses or even cites are
federal cases, except for one state case which itself applies the
Federal Constitution”); Illinois v. Rodriguez , 497 U. S. 177 ,
182 (1990) (“The opinion does not rely on (or even mention) any
specific provision of the Illinois Constitution, nor even the
Illinois Constitution generally. Even the Illinois cases cited by
the opinion rely on no constitutional provisions other than the
Fourth and Fourteenth Amendments of the United States
Constitution”); Florida v. Riley , 488 U. S. 445 , 448, n. 1
(1989) (plurality opinion) (finding Florida Supreme Court mentioned
the State Constitution three times but the discussion “focused
exclusively on federal cases dealing with the Fourth Amendment”); Michigan v. Chesternut , 486 U. S. 567 , 571, n. 3
(1988) (describing state court as resting its holding on two state
cases that each relied upon federal law); New York v. P. J. Video, Inc. , 475 U. S. 868 , 872, n. 4
(1986) (“Here, the New York Court of Appeals cited the New York
Constitution only once, near the beginning of its opinion … [and]
repeatedly referred to the ‘First Amendment’ and ‘Fourth Amendment’
during its discussion of the merits of the case”); Oliver v. United States , 466 U. S. 170 , 175, n. 5
(1984) (“The Maine Supreme Judicial court referred only to the
Fourth Amendment … [and] the prior state cases that the court cited
also construed the Federal Constitution”). Footnote 3 See, e.g. , Fitzgerald v. Racing Assn. of Central Iowa , 539 U. S. 103 , 106
(2003) (“The Iowa Supreme Court’s opinion … says that ‘Iowa courts
are to “apply the same analysis in considering the state equal
protection clause as … in considering the federal equal protection
claim” ’ ”); Pennsylvania v. Muniz , 496 U. S. 582 ,
588, n. 4 (1990) (state court explained that relevant state
constitutional provision “offers a protection against
self-incrimination identical to that provided by the Fifth
Amendment” (internal quotation marks omitted)); Maryland v. Garrison, 480 U. S. 79 , 83–84
(1987) (state-court opinion relied on state cases but indicated
“that the Maryland constitutional provision is construed in
pari materia with the Fourth Amendment”). Footnote 4 I do not mean to suggest that this Court has
never reached out beyond these bounds in order to decide a case.
For example, in Labron , 518 U. S. 938 , we found that a state
court decision resting on the “Commonwealth’s jurisprudence of the
automobile exception,” Commonwealth v. Labron ,
543 Pa. 86, 100, 669 A. 2d 917, 924 (1995), was not so clearly
based on state law that the Long presumption did not
apply, even though only “some” of the state cases discussed in the
state court’s opinion analyzed federal law. 518 U. S., at 939. The
Court’s analysis proved wrong; on remand, the Pennsylvania Supreme
Court reaffirmed its prior holding and “explicitly note[d] that it
was, in fact, decided upon independent grounds, i.e., Article I,
Section 8 of the Pennsylvania Constitution.” Commonwealth v. Labron , 547 Pa. 344, 345, 690 A. 2d 228 (1997).
That we have overreached before is no reason to repeat the mistake
again. Footnote 5 In examining what the state-court opinion
said regarding state law, and whether the state precedent cited in
the opinion relied upon state law, I am undertaking no effort more
arduous than what the Court has typically undertaken in order to
determine whether the Long presumption applies: examining
how frequently a state-court opinion cited state law, whether state
law is coextensive with federal law, and whether the cited state
cases relied upon federal law. See nn. 2–3, supra . Footnote 6 The Florida Supreme Court need not have
decided that state-law sources “gave Powell rights … broader than …
those delineated in Miranda ,” ante , at 6, in
order for its judgment to have rested upon an independent state-law
ground. The independence of a state-law ground may be especially
clear when a state court explicitly finds that the state
constitution is more protective of a certain right than the
national charter, but a state constitutional provision is no less
independent for providing the same protection in a given case as
does the federal provision, so long as the content of the state-law
right is not compelled by or dependent upon federal law. Unlike
other provisions of Art. I of the Florida Constitution, §9 does not
contain an express proviso requiring that the right be construed in
conformity with the analogous federal provision. Compare Fla.
Const., Art. I, §9, with Fla. Const., Art I, §12. Furthermore,
under Florida law the scope of Art. I, §9 is clearly not dependent
upon federal law. Rigterink v. State , 2 So. 3d
221, 241 (Fla. 2009); Traylor v. State , 596
So. 2d 957, 962 (Fla. 1992). Footnote 7 This assumption makes it easier for the Court
to conclude the warning conveyed a right to have a lawyer present.
If a suspect is told he has the right to consult with an attorney
before answering any particular question, the Court may be correct
that he would reasonably conclude he has the right to a lawyer’s
presence because otherwise he would have to imagine he could
consult his attorney in some unlikely fashion ( e.g. , by
leaving the interrogation room between every question). Footnote 8 Several Courts of Appeals have held that
warnings that did not expressly inform a suspect of his right to
have counsel present during interrogation did not adequately inform
a suspect of his Miranda rights. See, e.g. , United States v. Tillman , 963 F. 2d 137, 141
(CA6 1992); United States v. Bland , 908
F. 2d 471, 474 (CA9 1990); United States v. Anthon , 648 F. 2d 669, 672–673 (CA10 1981); Windsor v. United States , 389 F. 2d 530, 533
(CA5 1968). And most of the Circuits that have not required express
mention of the right to an attorney’s presence have approved only
general warnings regarding the right to an attorney; that is,
warnings which did not specifically mention the right to counsel’s
presence during interrogation but which also contained no limiting
words that might mislead a suspect as to the broad nature of his
right to counsel. See, e.g. , United States v. Frankson , 83 F. 3d 79, 82 (CA4 1996); United
States v. Caldwell , 954 F. 2d 496, 502 (CA8
1992); United States v. Adams , 484 F. 2d
357, 361–362 (CA7 1973). I am doubtful that warning a suspect of
his “right to counsel,” without more, reasonably conveys a
suspect’s full rights under Miranda , but at least such a
general warning does not include the same sort of misleading
temporal limitation as in Powell’s warning. Footnote 9 Petitioner also cites Bridgers v. Dretke , 431 F. 3d 853 (CA5 2005), in which the Fifth
Circuit held the Texas Court of Criminal Appeals did not
unreasonably apply clearly established federal law in finding
adequate a warning in which a suspect was informed that “he had the
right to the presence of an attorney before any
questioning commenced.” Id. , at 857 (internal quotation
marks omitted). But even assuming that warning would sufficiently
apprise an individual of his right to an attorney’s presence during interrogation, the fact that the warning mentioned
an attorney’s presence materially distinguishes it from the warning
Powell received. The Fifth Circuit quoted with approval the state
court’s assessment that warning a suspect solely that “he had the
right to consult or speak to an attorney before questioning … might
have created the [impermissible] impression that the attorney could
not be present during interrogation.” Ibid. (internal
quotation marks omitted). Footnote 10 The Court supports its analysis by taking
note of Powell’s testimony at trial, given after the trial judge
had overruled his lawyer’s objection that the warning he received
was inadequate. In my view, the testimony in context is not
probative of what Powell thought the warnings meant. It did not
explore what Powell understood the warnings to mean, but simply
established, as a prelude to Powell’s testimony explaining his
prior statement, that he had waived his rights. Regardless, the
testimony is irrelevant, as the Court acknowledges. “No amount of
circumstantial evidence that a person may have been aware of [the
right to have a lawyer with him during interrogation] will suffice
to stand” in the stead of an adequate warning. Miranda v. Arizona , 384 U. S. 436 , 471–472 (1966).