Florida v. Powell and Maryland v. Shatzer: Why Criminal Suspects Should Never Talk to the Police Without an Attorney
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
In December 2008 police officer Timothy Abernethy was chasing a suspect through a Houston apartment complex when the suspect, M. J. Landor, reportedly fired several shots at the officer. According to official reports, one of the bullets knock the 11-year police veteran to the ground at which time Landor approached him and shot him in the head. A massive police manhunt was undertaken to apprehend Landor, a parole violator, who was captured several hours later. Landor reportedly gave the police a detailed confession to the crime during several hours of police questioning.
Landor’s capital murder trial got underway recently with the Harris County District Attorney’s Office seeking the death penalty. Laine Lindsey, Landor’s attorney, filed a motion to suppress the videotaped confession his client gave to the police. Evidence presented at the hearing, and reported in the Houston Chronicle, revealed that the police questioned Landor for approximately four hours before they actually began to videotape the suspect’s statement. Landor told the court he falsely confessed to shooting Abernethy because he was afraid the police were going to kill him. Assistant District Attorney Maria McAnulty dismissed Landor’s testimony as being untruthful, telling the court the videotape clearly shows the suspect was advised of right to remain silent.
Lindsey pressed the court to suppress the confession because the police, three of whom were in the interrogation room and a larger group standing outside the room, questioned Landor for more than four hours before turning on the recorder and videotaping just 20 minutes of the interrogation. During the 20-minute taped session, Landor said the shooting of Abernethy was a “freak accident;” that he fell while being chased by the officer and the gun went off at which time he kept shooting. McAnulty called several police officers who testified about what Landor reportedly told them when the interrogation session was not being taped; specifically, that Landor admitted he walked over and shot Abernethy in the head as he lay wounded on the ground.
Given the discrepancies between what Landor told the police during the 20-minute videotaped session and what he reportedly told the police during the four-hour non-taped session, Lindsey had every reason to press for the suppression of the all statements made by his client. Not unexpectedly, however, State District Judge Michael McSpadden denied the defense attorney’s suppression motion.
The Chronicle report pointed out that McAnulty informed the court that Landor could be heard on the videotape waiving his right to remain silent. The Chronicle report did not indicate whether Landor had been advised of his right to counsel. We will assume he was so advised since the police advised him of his right to remain silent. But that assumption is made with the observation that the right to silence must be accompanied by three additional rights: 2) anything a suspect says can be used against him in a court of law; 3) that he has a right to the presence of an attorney; and 4) that if he cannot afford an attorney, one will be appointed to him prior to any questioning if he so desires. These rights attach to a suspect prior to questioning once he is placed in a custodial setting under Miranda v. Arizona. 1/
These prophylactic measures were put in place by the U.S. Supreme Court to ensure that criminal suspects are not compelled to give evidence against themselves in violation of the Fifth Amendment to the United States Constitution—an amendment made applicable to the States through the Fourteenth Amendment. 2/
The Supreme Court in Miranda pointed out that there are “inherently compelling pressures” in a custodial interrogation like the one Landor was subjected to. The Court added that the “unfamiliar” and “police-dominated atmosphere” associated with such custodial interrogations invariably triggers psychological pressures (such as four hours of intense grueling by three officers as in Landor’s case) “which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely,” 3/
Miranda has been one of the most controversial decisions ever rendered by the Supreme Court. Law enforcement hate it, prosecutors have consistently tried to overrule it, and the High Court itself has in recent years taken every legal opportunity to undermine it. That is precisely what the Court did this session in two cases: Florida v. Powell and Maryland v. Shatzer. 4/
Both of these cases involve situations where the State’s highest courts found a Miranda violation and the Supreme Court elected to overturn those decisions. Significantly, the opinions of the Supreme Court were delivered by its most conservative and liberal justices: Justice Scalia in the Shatzer case and Justice Ginsburg in the Powell case.
Of the two cases, Powell is the most damaging to the Landor’s claim of a Miranda violation. Kevin Dwayne Powell was arrested in Tampa, Florida in August 2004 in connection with a robbery investigation. The suspect was taken to the local police headquarters where he was read the standard Miranda rights form: right to silence and right to “talk to a lawyer before answering any of our questions.” Powell signed the waiver form and agreed to talk to the officers. He thereafter told the officers the handgun found in his girlfriend’s apartment was his, and as a convicted felon, he knew it was a crime to possess it. He was charged and subsequently convicted of illegal possession of a firearm by a convicted felon. 5/
The trial court denied Powell’s attempt to have the statements made to the police suppressed under Miranda. Relying upon a line of Miranda-related decisions, its own decisions, and the Florida Constitution, the Florida Supreme Court overruled the trial court and reversed Powell’s conviction. 6/
The Florida high court based its reversal on the fact that a suspect has a right to be “clearly informed” of his to an attorney’s presence “during questioning.” 7/ The Court concluded the advice given to Powell about his right to an attorney had been misleading and added “a right that has never been expressed cannot be reiterated.” 8/
The State appealed to the U.S. Supreme Court and the court granted certiorari review. 9/
Powell argued the High Court lacked jurisdiction in the case because the Florida Supreme Court had relied not only upon Miranda but had also upon the Florida Constitution to find a Miranda violation. The Court brushed aside this argument, saying the Florida Supreme Court had not made it “clear” that Miranda was only being used “for the purpose of guidance” or that its decision was grounded in the Florida Constitution. 10/
The Court added that while the Florida Supreme Court is free to attach additional Miranda-like protections under the Florida Constitution, it must do so “clearly and expressly.” 11/
The Supreme Court then turned its attention to the third Miranda warning protection: the right to consult and have an attorney present during an interrogation. The Court pointed out it had never adopted a “precise formulation” or the exact words necessary to convey this right to suspects. 12/
The Court then concluded the advice the Tampa police had given to Powell was sufficient to reasonably convey to the suspect that he had a “right to have an attorney present, not only at the onset of the interrogation, but at all times.” 13/
The Shatzer case involved a situation where an inmate, Michael Blaine Shatzer, was serving time in a Maryland penal facility for a sex offense. In August 2003 the Hagerstown Police Department received information that Shatzer had sexually molested his three-year-old son prior to his incarceration.
A police detective visited Shatzer at the prison to question him about the allegation concerning his son. After being apprised of his Miranda rights, Shatzer refused to talk to the detective without an attorney being present. The police closed the case. Three years later additional information was developed linking Shatzer to the sexual abuse of his son. Another detective was sent to the prison to question him about the case.
This time after being read his Miranda rights Shatzer signed a waiver and agreed to speak with the detective. After about thirty minutes of questioning, Shatzer implicated himself in sexual impropriety with his son. A second interview was conducted with Shatzer during which he further incriminated himself by telling the police he didn’t force his son into the sexual impropriety. Shatzer was charged and convicted of sexual child abuse of his son. 14/
The U.S. Supreme Court nearly three decades ago held in Edwards v. Arizona that absent a “break in custody,” the Miranda rights remain intact throughout the custodial interrogation process. 15/
Shatzer moved to suppress his 2006 statements under Edwards, arguing that his return to the general prison population did not constitute a break in the custodial interrogation process. The Maryland Court of Appeals agreed, saying “the passage of time alone is insufficient to [end] the protections afforded by Edwards,” and that Shatzer’s release back into general population between the 2003 and 2006 interrogations did not constitute a break in custody within any of the Edwards exceptions. 16/
The State of Maryland appealed to the Supreme Court, prompting the Court to decide exactly what constitutes a “break in custody” within the purview of Edwards. 17/
The Court confronted the issue with the following questions: “If Shatzer’s return to the general prison population qualified as a break in custody … there is no doubt that it lasted long enough (2 ½ years) to meet that durational [Edwards] requirement. But what about a break that has lasted only one year? Or only one week? It is impractical to leave the answer to that question for clarification in future case-by-case adjudication; law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful.” 18/
The Court then set a 14-day period as the precise “break in custody” requirement within the Edwards custodial interrogation framework. In effect, a suspect held in actual custody on a criminal charge who invokes his right to silence and counsel is protected for 14 days. Any statements the suspect gives to the police after that 14-day period is not protected by the four Miranda rights should he elect to give the police a confession. 19/
The Landor case exemplifies the problems so frequently faced by defense attorneys retained or appointed after a defendant has been interrogated by the police. Landor was intensely question by at least three detectives for four hours during which time, accordingly to the police, he made incriminating statements that he walked over and shot Abernethy in the head as he lay wounded and helpless on the ground. However, in the 20-minute videotaped session Landor can be seen answering questions in a halting manner, crying, and telling the detectives the shooting was a “freak accident.” The inevitable question glares at any defense attorney: why would a suspect tell the police he shot the officer in cold blood as he lay on the ground during an un-taped four-hour interrogation session and then tell them it was a “freak accident” during a 20-minute videotaped interrogation session?
Because of the restrictive implications of the recent Powell decision, this question may never be factually resolved in the Landor case. Given the assumption that Landor was advised of his right to have an attorney present during the interrogation process, Powell would allow for the admission of any statements the defendant subsequently gave to the police—taped or not.
The Landor, Powell and Shatzer cases all illustrate why criminal suspects should never talk to the police in any investigative setting, either custodial or otherwise, without an attorney being present. There are no “explaining” things to the police. The whole purpose of a law enforcement investigation is to secure incriminating evidence against someone—and when the police find it necessary to speak to anyone for any purpose, they are trying to discover incriminating evidence. The police control these interviews, and they do so in a manner designed to intimidate and prompt a suspect to incriminate himself. It may not be easier but it is certainly safer to keep your mouth shut than to try to explain things to the cops.
1/ 384 U.S. 436 (1966)
2/ Malloy v. Hogan, 378 U.S. 1 (1964)
3/ 384 U.S. at 456-58
4/ 175 L.Ed.2d 1009, 2010 U.S. LEXIS 1898 (Feb. 23, 2010); 175 L.Ed.2d 1045, 2010 U.S. LEXIS 1899 (Feb. 24, 2010)
5/ 175 L.Ed.2d at 1014-15
6/ 998 So.2d 531, 532 (Fla. 2008)
7/ Id., at 542
8/ Id., at 541
9/ 129 S.Ct. 2827, 174 L.Ed.2d 551 (2009)
10/ 175 L.Ed.2d at 1017-18
11/ Id., at 1018
12/ California v. Prysock, 453 U.S. 355 (1981); Rhode Island v. Innis, 446 U.S. 291 (1980)
13/ 175 L.Ed.2d at 1019-20
14/ 175 L.Ed.2d at 1051-52
15/ 451 U.S. 477 (1981)
16/ 954 A.2d 1118, 1131 (Md. 2008)
17/ 129 S.Ct. 1043, 173 L.Ed.2d 468 (2009)
18/ 175 L.Ed.2d at 1056
19/ 175 L.Ed,2d at 1057
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair