Friday, we looked at Florida v. Powell in which the Supreme Court looked at a version of the Miranda warnings that did not clearly state that an arrestee had the right to have an attorney in the room with him/her while being interrogated while in custody.

Today we look at whether the Supreme Court should have considered Powell in the first place. Powell is an appeal from the Florida Supreme Court which ruled the version of the Miranda warnings used by the Tampa police is unconstitutional. The version used by Tampa police 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

The Florida Supreme Court held: “[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 Kevin Dewayne Powell did not satisfy either the State or the Federal Constitution.

The question is whether the Florida Supreme Court found “independent state grounds” to reverse Powell’s conviction. The Bill of Rights guarantees certain rights. For the most part these rights, under the Fourteenth Amendment, are binding upon the states. But nothing in the Constitution or the Bill of Rights limits the states from granting its citizens greater rights than are guaranteed in the Constitution. For example while the Supreme Court may have found the Tampa version of the Miranda warnings sufficient to protect Fifth Amendment rights against self incrimination, the Florida Supreme Court has every right to hold the Tampa version of the Miranda Rights insufficient to protect rights granted in the Florida Constitution.

On remand the Florida Supreme Court has every right to say that confessions made after being read the Tampa version of the Miranda inadmissible as a violation of the Florida Constitution. Therefore the Supreme Court as a rule refuses to consider cases where the state court has ruled on the issue and found that it violates the state Constitution. The Florida Supreme Court like any other state court may find that a particular act violates both the state constitution and the Federal Constitution as the Florida Supreme Court did in this case, according to Justice Stevens in his dissent. But since the Supreme Court decision will not have any effect upon Powell if the Florida Supreme Court finds that Powell is protected under the Florida state constitution, the Supreme Court does not take cases where

[t]he state court ‘make[s] 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.’ . . . [T]he real question is whether ‘the adequacy and independence of any possible state law ground is … clear from the face of the opinion.”

The U. S. Supreme Court’s majority opinion written by Justice Ginsburg, and joined by every justice except Stevens, states that

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

But as Justice Stevens points out that the Florida Supreme Court said that the Tampa version of the Miranda rights under neither the United States Constitution or the Florida Constitution provided the arrestee with sufficient notice that he/she could have an attorney present during any interrogation it implicitly stated that there are independent state grounds for excluding the confession under the State Constitution. Therefore the Supreme Court’s decision is no more than an advisory opinion and the Court should not have accepted the case.

This is the type of activism that members of the majority would reject under other circumstances. The Supreme Court, they would argue, should only accept cases where their opinion would mean something and where they were not interfering with the State Courts rulings on state law.