The nation's highest court is considering an appeal that has the potential to affect every arrest and criminal case in the country, including those in Indiana.

Justices heard arguments today in Florida v. Kevin Dewayne Powell, No. 08-1175, a test case from Florida's highest court that could clarify exactly what kind of attorney warning police must give suspects before starting interrogations.

More than 40 years after the Supreme Court of the United States issued the landmark decision of Miranda v. Arizona 384 U.S. 436 (1966), deciding that defendants must be informed of their right to counsel before and during questioning, courts have continued struggling to determine the exact content of the warnings that police must provide to suspects before beginning custodial interrogations. This case tests the sufficiency of Miranda warnings that don't specifically mention a person's right to an attorney during questioning.

In this case, defendant Kevin Dewayne Powell was prosecuted for being a felon in possession of a firearm. Police interrogated him post-arrest and he made several incriminating statements, including admitting that he owned the firearm in question. Those statements were introduced at trial over defense counsel's objection that they were improperly obtained in violation of Miranda.

Specifically, police gave Powell a form and obtained his signature before starting the questioning: "You have the right to remain silent. If you give up this 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."

Powell was ultimately convicted, but on appeal the state's appellate courts reversed on grounds that the Miranda warnings were constitutionally deficient for not clearly warning Powell of his right to have an attorney present during questioning. The state petitioned for certiorari and the SCOTUS granted it.

In its merit brief, the Florida Attorney General's Office notes a split among the federal Circuits and various state appellate courts about whether warnings "reasonably convey" the required information to criminal defendants. Four Circuits have held that suspects must be expressly informed of the right to have an attorney present during questioning; while four other Circuits - including the 7th Circuit Court of Appeals - have found Miranda warnings sufficient even when those warnings lack explicit statements about the right to counsel during interrogation. That 7th Circuit ruling came in U.S. v. Adams, 484 F.2d 357 (7th Cir. 1973), which held that a suspect had been Mirandized effectively despite the fact that warnings he received didn't inform him of his right to have an attorney present during questioning.

Florida emphasized that these contradictory holdings impose a significant burden on law enforcement officials across the country, and the state is asking the court to clarify exactly what types of warnings Miranda requires.

On the merits, Powell contends that the Florida Supreme Court's decision is fully consistent with Miranda and the subsequent decisions interpreting Miranda. The court has always required Miranda warnings to "clearly inform" suspects of their rights, including their right to have counsel present during any custodial interrogation. Powell argues that numerous federal decisions that have found that warnings communicating only the right to counsel "before questioning" are inadequate and misleading, and that affirming the state decision would not burden law enforcement because most federal, state, and local law enforcement agencies already use Miranda forms that expressly mention the right to counsel during interrogations.

Several organizations have filed amicus briefs in the case, including the U.S. government, the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders.

The defense attorney groups argue that if the justices overturn the Florida decision and allow police to use form warnings like used in this Tampa situation, widespread abuse by law enforcement would follow.

"A 'race to the bottom' would inevitably ensue, as States and municipalities test the limits again and again with their form warnings, in an effort to skirt the edges of the Fifth Amendment while still minimizing the presence of lawyers who they believe may interfere with their information-gathering function," the brief says. "The result would be the same sort of abuses that led this Court to adopt Miranda in the first place."