2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-21-2011

USA v. Jermaine Warren

Precedential or Non-Precedential: Precedential

Docket No. 10-1598

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 10-1598

________________

UNITED STATES OF AMERICA

v.

JERMAINE ANTWON WARREN,

 Appellant

________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 1-08-cr-00046-001)

District Judge: The Honorable Sean J. McLaughlin

_______________

ARGUED OCTOBER 20, 2010

BEFORE: HARDIMAN, GREENAWAY, JR., and 

NYGAARD, Circuit Judges.

(Filed: April 21, 2011)
2

Adam B. Cogan, Esq. (Argued)

One Northgate Square

Greensburg, PA 15601

Counsel for Appellant

Robert L. Eberhardt, Esq. (Argued)

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

NYGAARD, Circuit Judge.

Warren was indicted on charges of intent to distribute 

fifty or more grams of crack cocaine in violation of 21 U.S.C. 

§§ 841(a)(1) and 841(b)(1)(A)(iii), and possession of a 

firearm by a person previously convicted of a felony in 

violation of 18 U.S.C. § 922(g)(1). He filed a pretrial motion 

to, inter alia, suppress evidence allegedly obtained in 

violation of his Miranda rights. Miranda v. Arizona, 384 

U.S. 436, 471 (1966). The District Court granted Warren‟s 

motion in part, as to statements Warren made at his home to 
3

his state parole agent, but denied it as to statements Warren 

made at the police station after receiving the Miranda

warning. Warren appeals this ruling. We will affirm.

 

Warren later entered into a plea agreement in which he 

pleaded guilty to the drug charge. In this agreement, the 

government states that it will refrain from filing, pursuant to 

21 U.S.C. § 851, an information to increase the penalty based 

upon a prior conviction. On appeal, Warren contends that the 

government breached this provision of the agreement. We 

will dismiss the breach of plea agreement claim. 

I.

We will first address the Miranda issue.1 At the police 

station, Warren signaled that he wished to talk. The police 

officer‟s testimony at the suppression hearing gives an 

account of what happened next. 

I told [Warren] that 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 

 

1

“This Court reviews the District Court's denial of a motion 

to suppress for clear error as to the underlying factual 

findings and exercises plenary review of the District Court's 

application of the law to those facts.” United States v. Perez, 

280 F.3d 318, 336 (3d Cir. 2002).
4

before any questioning if you 

wish. Should you decide to talk 

to me, you can stop the 

questioning any time.

Suppression Hearing 12, ECF No. 60. The record makes 

clear that the officer did not read this warning from a card, 

but rather recited it from memory. Warren does not challenge 

the accuracy of the officer‟s testimony. Instead, Warren 

argues that the officer‟s testimony evinces a deficient

Miranda warning because it failed to advise him of his right 

to an attorney after questioning commenced. 

The Supreme Court stated in Miranda, that authorities 

are obligated to advise a person taken into custody of “the 

right to consult with a lawyer and to have the lawyer with him 

during interrogation.” Miranda, 384 U.S. at 471. Yet, in the 

years since Miranda, the Supreme Court has consistently 

refrained from constructing a particular formula for the 

warning. In Duckworth, the Court held the following. 

Reviewing courts are not required 

to examine Miranda warnings 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 v. Eagan, 492 U.S. 195, 203 (1989) (quoting 

California v. Prysock, 453 U.S. 355, 361 (1981)). The Court 
5

recently reaffirmed this standard in Florida v. Powell, 130 S.

Ct. 1195, 1198 (U.S. 2010). 2 

After Powell was arrested, but before the Tampa, 

Florida, police questioned him, an officer recited the Miranda

warning from a pre-printed card. The officer told Powell, 

inter alia, “[y]ou have the right to talk to a lawyer before 

answering any of our questions” and then that Powell had

“the right to use any of these rights at any time you want 

during this interview.” Id. at 1197. At issue was whether the 

lack of any specific reference to Powell‟s right to an attorney 

during questioning rendered statements he made during the 

interview inadmissible. Powell argued that Miranda was 

clear in its requirement that a person in custody must be 

advised of the right to counsel during questioning. He 

asserted that, by qualifying the language about counsel with 

the phrase “before answering any of our questions” the 

warning was deficient because it communicated that his right 

terminated when questioning began. The Supreme Court 

disagreed.

Miranda requires that a suspect be informed of the 

right to have counsel present during questioning. Miranda, 

384 at 471. Yet, as was highlighted in questioning by Justice 

 

2

The warning at issue in Prysock was the following. The 

suspect had “the right to talk to a lawyer before you are 

questioned, have him present with you while you are being 

questioned, and all during the questioning . . . .” Prysock,

453 U.S. at 356. In Duckworth, the police said the following. 

“[Y]ou have a right to talk to a lawyer for advice before we 

ask you any questions, and to have him with you during 

questioning.” Duckworth, 492 U.S. at 198 (italics omitted).
6

Ginsburg at oral argument, Miranda regarded the warning 

used at that time by the Federal Bureau of Investigation—

which did not explicitly state any right to counsel at the time 

of questioning—as consistent with its holding. Oral 

Argument at 6:20, Id. at 483 (No. 08-1175), available at

http://www.oyez.org/cases/2000-2009/2009/2009_08_1175. 

That warning was characterized in Miranda as stating the 

following. 

[The person in custody] is not 

required to make a statement, that 

any statement may be used 

against him in court, that the 

individual may obtain the services 

of an attorney of his own choice 

and . . . that he has a right to free 

counsel if he is unable to pay. 

Miranda, 384 U.S. at 483. The Court went on to state that 

this warning could be “emulated by state and local 

enforcement agencies.” Id. at 486. Therefore, it cannot be 

said that the Miranda court regarded an express reference to 

the temporal durability of this right as elemental to a valid 

warning. Rather, as the Powell decision underscores in

quoting Prysock, attention must be focused upon whether 

anything in the warning „“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.‟” 

Powell, 130 S. Ct. at 1204 (quoting Prysock, 453 U.S. at 360-

361) (internal quotation marks in Prysock omitted) (emphasis 

added). 
7

Powell argued that the warning he received contained

such a limitation because it informed him that he had a right 

to counsel “before questioning.” The Court, however, did 

not regard this language as fatal to the validity of the warning 

for two reasons. First, the “before” language, which is similar 

to the language of Duckworth, “merely conveyed when

Powell‟s right to an attorney became effective-namely, before 

he answered any questions at all.” Powell, 130 S. Ct. at 

1205.

3

 Including these additional words did not vitiate the 

essential information given to the suspect that a right to 

counsel exists. Additionally, the Powell court took note of a 

“catch all” statement included in the warning at issue, to wit: 

“[you] have the right to use any of these rights at any time 

you want during this interview.” Id. at 1201. Therefore, the 

Powell court said, “[i]n 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.” Id. at 1205. Elaborating upon its assessment of the 

term “reasonably conveyed,” the Court said the following.

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 

 

3

The Court also concluded that these words responded 

merely to a typical question that a suspect might have after 

receiving a Miranda warning: when might counsel be 

appointed? Id. at 1204 (citing Duckworth, 492 U.S. at 204). 
8

seek his attorney's advice. 

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.

Id. (footnotes omitted). Importantly, the Court concluded that 

the warning was sufficient because “[n]othing in the words 

used indicated that counsel's presence would be restricted

after the questioning commenced.” Id. at 1205 (emphasis 

added).

Turning to the warning used in this case, we note 

that—unlike Powell—the police officer warned Warren of his

right to counsel without any reference to whether it 

commenced or ceased at any particular time. Warren was 

told in a straightforward manner: “[y]ou have the right to an 

attorney.” Therefore, it cannot be said that the instant 

warning explicitly stated a temporally-limited right to 

counsel. Yet, in light of Powell, we find it necessary to 

address whether the lack of any express reference to the right 

to counsel during interrogation, coupled with the lack of a 

“catch all” statement like that used in Powell, undermines the 

validity of the warning. We conclude that it does not. 

As a starting point, it is of interest that the officer‟s 

Miranda statement on the right to counsel here is remarkably 

similar to the warning used by the Federal Bureau of 

Investigation, which was regarded by the Miranda court as 
9

consistent with its holding. 384 U.S. at 483.4 As noted 

earlier, that warning did not make any mention of the right to 

an attorney during questioning. While not dispositive, this 

observation is instructive since our analysis turns upon 

whether the officer‟s statement in this case “reasonably 

conveyed” the rights set out in Miranda. 

Warren asserts that the warning could be reasonably 

interpreted only as limiting his right to counsel. Unlike 

Powell, Warren offers no rationale for a reasonable person‟s 

belief that the clear, unmodified statement “[y]ou have the 

right to an attorney” would be regarded as time-limited. 

We note that the officer did, next, state “[i]f you 

cannot afford to hire an attorney one will be appointed to 

represent you without charge before any questioning if you 

wish.” Yet, we do not find that such a statement—referring 

only to the appointment of pro bono counsel on his behalf—

can be reasonably interpreted to modify the prior, unqualified 

declaration of his general right to counsel.5 

 

4 We are aware that the Federal Bureau of Investigation has 

changed its warning to state that the person in custody has the 

right to counsel before any questions are asked and also to 

have counsel present during questioning. Powell, 130 S. Ct. 

at 1206. However, as the Powell Court stated, “[t]his advice 

is admirably informative, but we decline to declare its precise 

formulation necessary to Miranda’s requirements. Id.

5

See United States v. Frankson, 83 F.3d 79, 82 (4th Cir. 

1996). (“Given the common sense understanding that an 

unqualified statement lacks qualifications, all that police 
10

Moreover, it is counterintuitive to conclude from this 

warning that while the general right to counsel is unrestricted, 

the right to appointed counsel exists only in the moments 

prior to questioning and ceases the moment that the interview 

commences. Again, the officer said: “[i]f you cannot afford 

to hire an attorney, one will be appointed to represent you 

without charge before any questioning if you wish.” Like 

Powell and Duckworth, we read the officer‟s words as 

indicating merely that Warren‟s right to pro bono counsel 

became effective before he answered any questions. Powell, 

130 S. Ct. at 1205. It does not restrict the right to counsel, 

but rather addresses when the right to appointed counsel is 

triggered. See Duckworth, 492 U.S. at 204. Taken as a 

whole, then, the warning reasonably conveys the substance of 

the rights expressed in Miranda.

With that said, as in Powell, we do not regard the 

warning delivered in this case as the “clearest possible” 

 

officers need do is convey the general rights enumerated in 

Miranda.”); U.S. v. Caldwell, 954 F.2d 496, 502 (8th Cir. 

1992), cert. denied, 113 S. Ct. 65 (1992)(“When the only 

claimed deficiency is that of generality, the teaching of 

Duckworth that we are not construing a will or defining the 

terms of an easement convinces us that we cannot hold the 

warning in this case amounts to plain error.”); United States 

v. Adams, 484 F.2d 357, 361-362 (7

th Cir. 1973) (The warning 

was sufficient in which officers stated that the suspect had 

“the right to remain silent, right to counsel, and if they 

haven‟t got funds to have counsel, that the court will see that 

they are properly defended.”).
11

statement that could be given. Powell, 130 S. Ct. at 1205. 

Moreover, the fact that this exchange occurred in the police 

station—a setting where a card imprinted with the Miranda

warning should be readily available—is disconcerting,

considering the resources that have been expended to 

consider a claim that could have been preempted with

minimal care and effort. Nonetheless, we examine the 

warning objectively within the totality of the circumstances. 

Id. From this perspective, we conclude, as in Powell, that 

“[n]othing in the words used indicated that counsel's presence 

would be restricted after the questioning commenced.” Id. 

Therefore, we will affirm the order of the District Court.

II.

We now turn to the breach of plea agreement claim.6 

Warren admitted to his career offender status at the change of 

plea hearing, and neither the maximum statutory sentence

(life imprisonment) or the Guidelines range attributable to his 

crack cocaine offense (292 to 365 months) is disputed.

7

 

 

6

In determining whether the Government has breached its 

plea agreement with a defendant, we apply the de novo 

standard of review. United States v. Rivera, 357 F.3d 290, 

293-94 (3d Cir. 2004).

7

The plea agreement stipulates the following. “JERMAIN 

ANTWON WARREN and the United States Attorney further 

understand and agree to the following: 1. The penalty that 

may be imposed upon JERMAIN ANTWON WARREN is: 

(a) A term of imprisonment of not less than ten years to a 

maximum of life . . . .” Plea Agreement § C.1.(a), ECF No. 

55. Moreover, at oral argument Warren conceded that the 
12

Rather, Warren has argued that the District Court should use 

the Guidelines relating to a powder cocaine offense, yielding 

a range—he asserts—of 168 to 210 months. 

At the sentencing hearing, the government disagreed 

with the range stated by Warren noting that, with Warren‟s 

career offender status, the applicable range would be 210 to 

262 months. Warren alleges that the government‟s argument 

constituted breach of the plea agreement, in which the

government agreed not to file an information pursuant to 21 

U.S.C. § 851.

8

 Warren‟s argument confuses the issue. 

It is irrelevant to the breach of plea agreement analysis 

that the government disagreed with Warren‟s argument. 

Warren argued for the application of a powder cocaine 

Guidelines range. The point of reference here is the 

undisputed sentencing range applicable to Warren‟s crack 

cocaine offense. See United States v. Whitaker, 938 F.2d 

1551, 1552 (2d Cir. 1991) (“[A] § 851(a)(1) notice is required 

only where the statutory minimum or maximum penalty 

under Part D of Title 21 is sought to be enhanced, not where a 

defendant, by virtue of his criminal history, receives an 

increased sentence under the Sentencing Guidelines within 

 

Guidelines range of 292 to 365 months was applicable to the 

crack cocaine offense.

8

“The United States Attorney agrees not to file an 

information, pursuant to 21 U.S.C. § 851, stating prior 

convictions as a basis for increased punishment.” Plea 

Agreement § B.4., ECF No. 55.
13

the statutory range.”).9 Warren concedes that the government 

did not file an information under section 851 to increase the 

crack cocaine sentence based upon prior convictions. 

Finally, as a factual matter, the District Court sentenced 

Warren to 248 months, below the recommended range. 

We, therefore, conclude that Warren‟s assertion of the 

government‟s breach of the plea agreement is meritless. 

Accordingly, we will enforce the appellate waiver provision 

of the agreement and dismiss this claim. Plea Agreement §

A.8, ECF No. 55. 

III.

For the reasons stated above, we will affirm the order 

of the District Court denying Warren‟s motion to suppress, 

and we will dismiss the remaining breach of plea agreement 

issue.

 

9 At the sentencing hearing, the District Court considered and 

rejected Warren‟s request to use the powder cocaine 

Guidelines range as the basis to calculate the sentence, stating 

“even if it were correct, I would consider it under these 

circumstances to be substantially inadequate, given this 

Defendant‟s background.” Sentencing Hearing 39, ECF No. 

73. The District Court, instead, determined that the disparity 

between sentencing for crack cocaine and powder cocaine 

was appropriately considered, within the District Court‟s 

discretion under 18 U.S.C. § 3553(a), as one of a 

“constellation of factors” to support a mitigative variance 

from the Guidelines range. Id. at 38.
1

GREENAWAY, JR., Circuit Judge, dissenting in part,

1

Ernesto Miranda lived an unremarkable life, but his 

surname stands for what has become one of our most 

fundamental constitutional rights. Indeed, Miranda has 

become embedded in our national culture. See Dickerson v. 

United States, 530 U.S. 428, 443-44 (2000). The majority 

concludes that a police warning to a suspect in custody, given 

from memory at a station house, of his “right to an attorney,”

and right to an appointed attorney “before any questioning” 

satisfies the Miranda requirement to inform him of his right to 

counsel at all times throughout questioning. For the reasons 

that follow, and because I believe that Miranda and the 

Supreme Court‟s most recent iterations require more, I

respectfully dissent. 

Miranda repeatedly emphasizes the importance of 

informing a suspect in custody of the right to counsel during 

questioning. It requires, as recognized by the Supreme Court 

in Florida v. Powell, 130 S.Ct. 1195 (2010), that “as an 

absolute prerequisite to interrogation,” 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.” Miranda v. Arizona, 384 U.S. 436, 469

(1966). The Court found this “right to have counsel present 

at [an] interrogation . . . indispensable to the protection of the 

Fifth Amendment privilege.” Id. The Court‟s “aim [wa]s to 

assure that the individual‟s right to choose between silence 

and speech remains unfettered throughout the interrogation 

 

1

I join Part II of the majority opinion, the 21 U.S.C. § 851 

analysis, in full. 
2

process.” Id. at 471. Thus, the practical right to the presence 

of an attorney addresses the 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.” Powell, 130

S.Ct. at 1203 (quoting Miranda, 384 U.S. at 469) (internal 

quotation marks omitted). 

As Powell recognized, the Court has not “dictated the 

words in which the essential information must be conveyed.” 

Id. at 1204. In reviewing Miranda warnings, courts are “not 

required to examine Miranda warnings as if construing a will 

or defining the terms of an easement.” Duckworth v. Eagan, 

492 U.S. 195, 204 (1989). The inquiry, according to

Duckworth, California v. Prysock, 453 U.S. 355 (1981), and 

Powell, “is simply whether the warnings reasonably conve[y] 

to [a suspect] his rights as required by Miranda.” Powell, 130 

S.Ct. at 1204 (quoting Duckworth, 492 U.S. at 203) (citations 

and quotation marks omitted). 

In Powell, the Supreme Court‟s most recent iteration 

of Miranda, the Court reviewed whether a warning with an 

explicit temporal limitation on the right to an attorney

withstood Miranda‟s requirements. In rejecting the 

defendant‟s argument that the warning, as a whole, failed to 

convey his continuous right to counsel, the Court held that

They informed Powell that he had 

the „right to talk to a lawyer 

before answering [their] 

questions‟ and „the right to use 

any of [his] rights at any time [he] 

want[ed] during th[e] interview.‟ 
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 the 

interrogation, but at all times. 

Id. at 1204-05 (alterations in original). The Court not only 

took note of the catch all statement, but also relied on it in 

combination with the “before” language in concluding that

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.

Id. at 1205. The Court found that the “words used”

2

did not 

 

2 To the extent the majority views the reference in Powell to 

“the words used” as only alluding to the “right to speak to an 

attorney before” and not the catch all statement, I disagree 

with that interpretation. The combination of phrases in 
4

indicate that the presence of Powell‟s counsel would be 

restricted after the questioning commenced because 

“[i]nstead, 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.” Id. at 1205 (internal quotation marks 

omitted). “The warning” included the catch all statement—

“[y]ou have the right to use any of these rights at any time 

you want during this interview” Id. at 1200. Thus, it appears 

that if Powell had not been told that he could invoke the 

rights read to him at any time during questioning, his right to 

the presence of counsel during the interrogation would not 

have been reasonably conveyed. 

This is the crux of my disagreement with the majority. 

Powell speaks specifically to the clarity with which the 

warnings inform the accused of his right to counsel 

throughout the interrogative process. On its face, an iteration 

of the warnings with no elucidation on this point cannot be 

constitutionally sound. 

Ultimately, Powell examines language different than

that before us. In this case, the police officer, without a 

Miranda card and from memory, warned Warren of his 

general right to counsel without reference to whether it 

commenced or ceased at any particular time. Unlike Powell, 

Warren did not receive an explicit warning that all of the 

rights dictated to him could be invoked at any time during the 

entirety of the interview. Although there is no catch all

 

Powell made evident that the term “before” was not 

restrictive and it only conveyed when the right began.
5

statement in Warren‟s case, Powell stands for the proposition 

that being told that your right to counsel persists throughout 

interrogation is at the core of Miranda. 

The majority concludes that, in light of Powell, the 

lack of any express reference to the right to counsel during 

interrogation, coupled with the lack of a catch all statement 

like that in Powell, does not undermine the validity of the 

warning. However, simply because the general right to 

counsel here does not contain a qualifier does not mean that 

the warning makes clear that the right to counsel exists both 

before and during questioning. As we look at the application 

of Miranda, and now Powell, we cannot pare down the 

constitutional prerequisites with wily veterans of our justice 

system in mind. “[T]he accused who does not know his 

rights and therefore does not make a request may be the 

person who most needs counsel[.]” Powell, 130 S.Ct. at 1210 

(Stevens, J., dissenting) (citing Miranda, 384 U.S. at 470-71) 

(internal quotation marks omitted). Our charge is to make 

sure the words spoken are plain and not subject to conjecture, 

intuition, or speculation.

The majority also points to Duckworth and Prysock

because in those cases, the Court found that the warnings, in 

their totality, did not limit the right to appointed counsel. In 

both cases, the Court looked to the language of the warnings

to discern any temporal limitation on the suspect‟s rights that 

may have been communicated to him. Although the language 

used in both is distinguishable, these decisions provide 

guidance as to what constitutes adequate notice of the right to 

counsel and its scope. 

In Prysock, the Court reviewed a warning that 
6

informed the suspect of his right to “have hi[s] [lawyer]

present with [him] while . . . being questioned, and all during 

the questioning[.]” 453 U.S. at 361. The defendant

complained that the warning was inadequate because it 

included “the right to have a lawyer appointed . . . at no cost,” 

id. at 358, but did not explicitly inform him of the right to 

appointed counsel before questioning. The Court rejected this 

argument, holding that “nothing in the warnings suggested 

any limitation of the right to the presence of appointed 

counsel different from the 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 360-61. 

In Duckworth, the Court similarly found sufficient a 

warning that informed the suspect of the right “to talk to a 

lawyer for advice before . . . any questions, and to have him 

with [the suspect] during questioning” but also stated that a 

lawyer would be appointed “if and when [the suspect goes] to 

court.” 492 U.S at 198. The Court held that the statements, 

“in their totality,” conveyed the proper warnings because the 

“if and when” statement did not suggest that only those 

suspects who go to court would be afforded an attorney, but 

“simply anticipate[d] [the suspect‟s] question.” Id. at 204-05. 

In the context of both cases, the warnings reasonably 

conveyed to the suspect, through their language of the right to 

counsel during questioning, that the right to counsel indeed 

existed during the time of interrogation.

 

Although the Court has not “dictated the words in 

which the essential information must be conveyed,” Powell, 

130 S.Ct. at 1204, the language used in the Prysock, 

Duckworth, and Powell is instructive. Each contained 
7

language that the suspect could invoke, at any time during 

questioning, either his right to counsel or all the rights that 

had been dictated to him (including the right to talk to counsel 

before questioning). Warren‟s warning of his “right to an 

attorney,” in context, does not, in my view, reasonably 

convey to a reasonable person in his position that he has a 

right to counsel throughout any custodial questioning. 

Additionally, the notice to Warren that if he could not afford 

an attorney, one would be appointed to him before 

questioning does not and cannot be said to have reasonably 

conveyed that the general right to an attorney continues 

during questioning. 

I believe that Miranda and its progeny compel a 

finding that the conveyance of a general right to an attorney, 

without contextual notification that this right exists during 

questioning, does not meet the requirements of Miranda. 

Many of our sister Circuits have come to similar conclusions. 

See, e.g., United States v. Noti, 731 F.2d 610, 614 (9th Cir. 

1984) (the advisement of “the right to have counsel present 

during questioning . . . is not left to the option of the police; it 

is mandated by the Constitution.”);

3

see also, Powell, 130 

 

3

See also United States v. Tillman, 963 F.2d 137, 140-42 (6th 

Cir. 1992) (suppressing statements made to police where 

suspect was told that he had the right to the presence of an 

attorney, but police “failed to convey to defendant that he had 

the right to an attorney both before, during and after 

questioning” and failed to warn that statements could be used 

against him); United States v. Anthon, 648 F.2d 669, 672-74 

(10th Cir. 1981), cert. denied, 454 U.S. 1164 (1981) (finding 

Miranda warning insufficient where suspect was not advised 

that “right to counsel encompassed the right to have counsel 
8

S.Ct. at 1212 n.8 (Stevens, J., dissenting) (“I am doubtful that 

warning a suspect of his „right to counsel,‟ without more, 

reasonably conveys a suspect‟s full rights under Miranda . . .

.”).

In my view, telling a defendant that he will be 

appointed an attorney before questioning if he cannot afford 

one and that he has the right to an attorney does not 

reasonably convey his continued right to counsel during 

questioning. Looking to the entire warning and what it 

reasonably conveyed, the warning in Powell did not “entirely 

omi[t] any information Miranda required [the officers] to 

impart.” Id. at 1204 (internal quotation marks and citation 

omitted). I believe such an omission was made in this case. 

Because I conclude that the warning here was inadequate and 

violated Warren‟s constitutional rights under the Fifth 

Amendment, I believe that his statements made subsequent to 

the warning should be suppressed. I would therefore vacate

the judgment of conviction and remand to the District Court.

 

present during any questioning,” but admitting statement as 

harmless error); Windsor v. United States, 389 F.2d 530, 533 

(5th Cir. 1968) (“Merely telling him that he could speak with 

an attorney or anyone else before he said anything at all is not 

the same as informing him that he is entitled to the presence 

of an attorney during interrogation . . . .”).