                                                                   FILED BY CLERK
                          IN THE COURT OF APPEALS                     NOV 30 2011
                              STATE OF ARIZONA
                                DIVISION TWO                           COURT OF APPEALS
                                                                         DIVISION TWO

THE STATE OF ARIZONA,          )
                               )                  2 CA-CR 2010-0382
                    Appellant, )                  DEPARTMENT A
                               )
         v.                    )                  OPINION
                               )
MICHAEL JONATHON CARLSON,      )
                               )
                     Appellee. )
                               )


          APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                            Cause No. CR20092426001

                     Honorable Christopher C. Browning, Judge

                                   AFFIRMED


Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                          Tucson
                                                            Attorneys for Appellant

Harley Kurlander                                                              Tucson
                                                                Attorney for Appellee


E C K E R S T R O M, Presiding Judge.
¶1            Following a suppression hearing, the trial court granted the defendant

Michael Carlson‟s motion to suppress statements he had made to law enforcement

officers, finding they were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966).

The state appealed the suppression order pursuant to A.R.S. § 13-4032(6). We affirm.

¶2            When reviewing a suppression order entered after a hearing, we consider

only the evidence presented at the hearing, which we view in the light most favorable to

upholding the trial court‟s order. State v. Hummons, 227 Ariz. 78, ¶ 2, 253 P.3d 275, 276

(2011); State v. Szpyrka, 220 Ariz. 59, ¶ 2, 202 P.3d 524, 526 (App. 2008); State v.

Sinclair, 158 Ariz. 493, 494, 768 P.2d 655, 656 (App. 1988). Here, the facts relevant to

the state‟s appeal are undisputed.

¶3            On June 16, 2009, Carlson had been arrested and was being held in custody

in a police station when he was interrogated by a detective from the Pima County

Sheriff‟s Department. Before questioning began, the detective attempted to recite the

Miranda advisory, and the following exchange occurred:

                      [Detective]: . . . I wanna talk to you about this, um,
              case. . . . And because of the conditions that we‟re under here
              I‟m gonna read you your rights.

                     [Carlson]: I waive my rights. I know my rights. I
              have the right to remain silent. Anything that I say can and
              will be used. And I do have the right to remain silent.
              Anything that I say can and will be used against me in a court
              of law. An attorney will be appointed to represent me if I
              cannot afford one. I waive my rights.

                     [Detective]: All right, sir. I think you understand.




                                             2
A lengthy interrogation followed in which Carlson was never given the Miranda

advisory.     In the course of the interrogation, Carlson made numerous incriminating

statements.

¶4             Relying primarily on State v. Moorman, 154 Ariz. 578, 744 P.2d 679

(1987), and United States v. Bland, 908 F.2d 471 (9th Cir. 1990), the trial court found

that the detective “failed to fulfill her obligation to affirmatively advise the Defendant of

his Miranda warnings before she began questioning him” and that she did not alert

Carlson to the critical information that he had the right to an attorney to be present during

questioning. As it argued below, the state contends Carlson‟s own “recitation of his

Miranda rights [was] adequate” and “the absence of a specific warning about the

presence of counsel during questioning [was] not fatal.”

¶5             Given the wholesale absence of a Miranda advisory by law enforcement

officers here, the precise issue to be decided on appeal is not, as the state maintains,

whether the “warnings” reasonably conveyed the suspect‟s rights. See Duckworth v.

Eagan, 492 U.S. 195, 203 (1989). The officer conveyed no warnings. Rather, we must

address whether the suspect‟s own recitation demonstrated he knew the rights protected

by Miranda such that he voluntarily and intelligently could waive those rights even

without an advisory having been given by law enforcement officials. See Maryland v.

Shatzer, ___U.S. ___, ___, 130 S. Ct. 1213, 1219 (2010) (waiver of rights protected by

Miranda must be knowing, voluntary, and intelligent). In short, this case is not about the

adequacy of Miranda warnings; instead, we focus on whether Carlson‟s statements

displayed knowledge that obviated the need for the warnings being given at all.

                                             3
¶6            In Florida v. Powell, the Supreme Court recently reaffirmed that Miranda

created “„procedural safeguards that require police to advise criminal suspects of their

rights under the Fifth and Fourteenth Amendments before commencing custodial

interrogation.‟” ___U.S. ___, ___, 130 S. Ct. 1195, 1203 (2010), quoting Duckworth,

492 U.S. at 201. It is “„an absolute prerequisite to interrogation,‟” the Court stated, “that

an individual held for questioning . . . „be clearly informed that he has the right to consult

with a lawyer and to have the lawyer with him during interrogation.‟” Powell, ___U.S. at

___, 130 S. Ct. at 1203, quoting Miranda, 384 U.S. at 471. Given the simplicity and

importance of the advisory, Miranda declared that “we will not pause to inquire in

individual cases whether the defendant was aware of his rights without a warning being

given.” 384 U.S. at 468. Further, the Miranda Court provided that “[n]o effective waiver

of the right to counsel during interrogation can be recognized unless specifically made

after the warnings we here delineate have been given.” Id. at 470.

¶7            In light of the foregoing, there should be little question but that law

enforcement officers must affirmatively discharge their duties under Miranda whenever

conducting a custodial interrogation. Miranda was meant to provide a clear rule, see id.

at 441-42, and the Supreme Court has determined that the advisory it prescribed is “too

simple” and “too important” to invite “ex post facto inquiries” into whether it was

required in the circumstances of a particular case. Id. at 473 n.43. Notwithstanding this

unambiguous directive from our highest court, we assume without deciding that a suspect

theoretically could demonstrate full knowledge of the rights protected by Miranda and

execute a valid waiver thereof even in the absence of an advisory by state officials. See

                                              4
United States v. Patane, 542 U.S. 630, 641 (2004) (plurality opinion) (“[A] mere failure

to give Miranda warnings does not, by itself, violate a suspect‟s constitutional rights or

even the Miranda rule.”). Even allowing such an assumption, suppression of Carlson‟s

statements was required here.

¶8            The essential information that must be conveyed to a suspect in a Miranda

advisory is

              [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.

Powell, ___U.S. at ___, 130 S. Ct. at 1203, quoting Miranda, 384 U.S. at 479 (alterations

in Powell).   Here, Carlson unnecessarily repeated the first two components of the

Miranda advisory, which suggested his knowledge of the law and his confidence in such

knowledge were not commensurate. As to the third and fourth components, he stated

only that “[a]n attorney will be appointed to represent me if I cannot afford one.” This

lone statement both failed to demonstrate an awareness that he had a right to the presence

of an attorney (as distinguished from mere eventual representation by an attorney), and

that the right applied before, and continued during, any questioning. See Moorman, 154

Ariz. at 585, 744 P.2d at 686 (“[T]he warning must inform the defendant that the right to

counsel exists before and during interrogation.”). Rather than confirming his knowledge

of the Miranda warnings, therefore, Carlson‟s statements arguably demonstrated his

incomplete understanding of his rights and highlighted the need for the advisory.



                                             5
¶9            We recognize, of course, that there is “no talismanic incantation” required

by Miranda, California v. Prysock, 453 U.S. 355, 359 (1981) (per curiam), and courts

will not construe the words used in a Miranda advisory as we might the language in a

will or an easement. Duckworth, 492 U.S. at 203. If the sum total of statements in a

Miranda advisory reasonably conveys the essential information, the warning will be

deemed constitutionally adequate. Powell, ___U.S. at ___, 130 S. Ct. at 1204. But even

under this standard, a Miranda advisory may not be reduced to a right to silence and

appointed counsel coupled with a warning that anything said will be admissible in court.

When any element of Miranda is omitted, we do not presume it is common knowledge.

See United States v. Tillman, 963 F.2d 137, 141 (6th Cir. 1992). While different words or

phrasings may be used to communicate the necessary information, “[t]he four warnings

Miranda requires are invariable.” Powell, ___U.S. at ___, 130 S. Ct. at 1204; accord

Moorman, 154 Ariz. at 585, 744 P.2d at 686.

¶10           Although Carlson‟s attempted recitation of Miranda certainly demonstrated

some familiarity with the warnings, it omitted essential information, most importantly the

right to the presence of an attorney both before and during questioning. The Supreme

Court authority cited by the state is thus readily distinguishable. In each of those cases,

the suspects were informed of their right to the presence of an attorney during

questioning. See Powell, ___U.S. at ___, 130 S. Ct. at 1200 (suspect advised of right to

talk to appointed attorney “before any questioning” and informed he could exercise “any

of these rights at any time” during interview); Duckworth, 492 U.S. at 198 (suspect

informed: “You have a right to talk to a lawyer for advice before we ask you any

                                            6
questions, and to have him with you during questioning.”); Prysock, 453 U.S. at 356

(suspect advised, “You have 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.”).

In contrast, Carlson‟s statement that “[a]n attorney will be appointed to represent me if I

cannot afford one” was accompanied by nothing clarifying the substance of his right to

counsel as it related to the imminent interrogation. Accordingly, a knowing waiver of

Miranda rights was not demonstrated here. See Shatzer, ___U.S. at ___, 130 S. Ct. at

1219.

¶11           Relying on United States v. Frankson, 83 F.3d 79, 82 (4th Cir. 1996);

United States v. Caldwell, 954 F.2d 496, 498, 502 (8th Cir. 1992); United States v.

Adams, 484 F.2d 357, 361-62 (7th Cir. 1973); and United States v. Lamia, 429 F.2d 373,

374-75, 376-77 (2d Cir. 1970), the state maintains a general statement about the right to

counsel is sufficient to satisfy Miranda, at least when no other statement is given

suggesting a temporal limitation on the right.1 But see United States v. Noti, 731 F.2d

610, 615 (9th Cir. 1984) (general statement insufficient to alert suspect of right to counsel

before and during questioning); United States v. Anthon, 648 F.2d 669, 672-73 (10th Cir.

1981) (same); Sanchez v. Beto, 467 F.2d 513, 514-15 (5th Cir. 1972) (same). But even

those cases each involved an affirmative, unqualified advisory, albeit a general one, about


        1
        We note that Caldwell‟s appellate challenge to the Miranda warning was not
preserved in the trial court, Caldwell, 954 F.2d at 500; hence, the holding of Caldwell is
simply that the warnings he received did not “amount[] to plain error.” 954 F.2d at 502.
The Caldwell majority allowed that the detective in that case “could, and arguably
should, have been more explicit in advising Caldwell of his right to an attorney.” Id. at
503.
                                             7
the right to the presence of an attorney and are distinguishable on that basis.        See

Frankson, 83 F.3d at 81 (suspect told, “You have the right to an attorney.”); Caldwell,

954 F.2d at 498 (suspect informed, “You have a right for an attorney.”); Adams, 484 F.2d

at 361 (suspect advised of “right to counsel”); Lamia, 429 F.2d at 374 (suspect informed

“he had a right to an attorney”).

¶12           Here, by contrast, Carlson‟s acknowledgement of his right to counsel was

more limited. It demonstrated only an understanding of his right to the appointment of

counsel, as distinguished from a right to the presence of counsel.2 And, because it was

immediately preceded by his statements regarding the admission of evidence “in a court

of law,” Carlson‟s comment in context clarified only his belief that he would be entitled

to appointment of counsel at some unspecified stage in the criminal proceedings.

¶13            In any event, we reject the state‟s suggestion that it need not specifically

articulate the right to counsel before and during questioning in light of the Supreme

Court‟s recent opinion in Powell. There, the suspect was advised that he had “the right to

talk to a lawyer before answering any . . . questions” and that he could “use any of these

rights at any time you want during the interview.” ___U.S. at ___, 130 S. Ct. at 1200.

On appeal, the Florida state courts held these warnings to be inadequate on the ground

they did not inform the suspect of his right to the presence of an attorney throughout the

interrogation. Id. at ___, 130 S. Ct. at 1200-01. The Supreme Court characterized the

issue before it as “whether the warnings Powell received satisfied th[e] requirement” that


       2
       Under our rules of criminal procedure, appointment of counsel occurs during the
defendant‟s initial appearance. Ariz. R. Crim. P. 4.2(a)(3), (5).
                                             8
a suspect be informed of “„the right to consult with a lawyer and to have the lawyer with

him during interrogation.‟” Id. at ___, 130 S. Ct. at 1203, quoting Miranda, 384 U.S. at

471.

¶14           Answering this question in the affirmative, the Court held that “[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 ___, 130 S. Ct. at

1205. “We find the warning in this case adequate,” Powell emphasized, “only because it

communicated just what Miranda prescribed.” Id. at ___ n.5, 130 S. Ct. at 1205 n.5.

Powell went on to describe the standard advisory used by the Federal Bureau of

Investigation as “exemplary” insofar as it conveys “the same essential message” of

Miranda that suspects can “„talk to a lawyer . . . before . . . any question[ing]‟” and

“„have the right to have a lawyer with [them] during questioning.‟” Id. at ___, 130 S. Ct.

at 1206. Indeed, the two members of the Powell Court not joining the majority opinion

on the merits of the issue, Justices Stevens and Breyer, expressed “doubt[] that warning a

suspect of his „right to counsel,‟ without more, reasonably conveys a suspect‟s full rights

under Miranda.” ___U.S. at ___ n.8, 130 S. Ct. at 1211 n.8 (Stevens, J., dissenting). We

therefore regard any controversy about the existence of a temporal requirement in

Miranda as being settled by Powell.          Both the majority and dissenting opinions

emphasized the requirement that suspects be alerted that the right to counsel attaches

before and during questioning. In Moorman, our own supreme court came to the same

conclusion: a suspect must be advised “that the right to counsel exists before and during

interrogation.” 154 Ariz. at 585, 744 P.2d at 686.

                                              9
¶15          The state next argues that Carlson‟s dealings with law enforcement years

ago, his past experience with the Miranda warnings, and his training as a paralegal

should be considered when determining whether he knew his rights. The state does not

cite any legal authority for this proposition or otherwise develop its argument on this

point.   A policy argument certainly may be made that such considerations should

determine the adequacy of or need for a Miranda warning. See Thomas P. Windom, The

Writing On The Wall: Miranda’s “Prior Criminal Experience” Exception, 92 Va. L.

Rev. 327, 328 (2006) (arguing actual knowledge of rights should “dispositively

foreclose[] any Miranda-based suppression motions”). But this court is not at liberty to

adopt a rule so at odds with the purpose and clear requirements of Miranda.

¶16          Miranda explains that its advisory was not created solely for “the

subnormal or woefully ignorant” but was designed, in part, to overcome the inherent

pressures of an interrogation and to “show the individual that his interrogators are

prepared to recognize his privilege should he choose to exercise it.” 384 U.S. at 468,

469. The need for the warning does not depend on a suspect‟s personal history or

occupation. See United States v. Longbehn, 850 F.2d 450, 451, 453 (8th Cir. 1988)

(requiring suppression of statements by police officer suspected of crime when officer not

given Miranda warnings). And in the absence of an adequate warning—or an equivalent

recitation by a suspect—we will not inquire whether the suspect nevertheless was aware

of his or her rights. See United States v. Bland, 908 F.2d 471, 472, 474 (9th Cir. 1990)

(requiring suppression of statements based on inadequate warning even though parolee

interrupted advisory to say he had heard Miranda warnings “a million times before”);

                                           10
State v. Verdugo, 164 P.3d 966, 970, 972 (N.M. Ct. App. 2007) (requiring suppression

when detective gave incomplete warnings to suspect who interrupted advisory to say he

understood his rights).3

¶17           As noted above, Carlson‟s own recitation was deficient because it did not

acknowledge the right to the presence of counsel before and during interrogation. And

although Carlson generally claimed to know his rights, we adhere to “the better view . . .

that such an ambiguous assertion does not foreclose the need for specification of those

rights by the police.” 2 Wayne R. LaFave et al., Criminal Procedure § 6.8(a), at 572 (2d

ed. 1999).

¶18           Finally, we note the state has not challenged Carlson‟s motion on an

estoppel theory. Several courts have made statements suggesting that a defendant‟s

interference with a Miranda advisory will preclude later challenges to it. See People v.

Nitschmann, 41 Cal. Rptr. 2d 325, 328 (Ct. App. 1995) (“A suspect may not „out

Mirandize‟ the police by reciting his Miranda rights before the officer has admonished

him and later claim the admonition was defective.”); State v. Perez, 157 N.W.2d 162, 164

(Neb. 1968) (“A police officer is not required to give a ritualistic warning of a right the

defendant already knew of and which he refused to hear the repetition of.”); State v.

Walden, 336 N.W.2d 629, 632 (N.D. 1983) (“Where . . . the State has made a reasonable


       3
        We emphasize that our decision here “does not foreclose consideration of the
particular suspect‟s knowledge based, for example, upon his prior contacts with the
police, when the issue is whether the warnings given were understood by him.” 2 Wayne
R. LaFave et al., Criminal Procedure § 6.8(a), at 571-72 (2d ed. 1999); see, e.g., State v.
Tapia, 159 Ariz. 284, 287, 767 P.2d 5, 8 (1988).

                                            11
effort to inform the defendant of his rights in accordance with the dictates of Miranda

and the defendant has refused to listen, the defendant has waived his right to be

informed.”). Because the state has not presented such an argument, we do not address

whether Carlson meaningfully obstructed the detective‟s efforts to provide the advisory

or whether, in that event, the detective was entitled to proceed with her questioning

without a proper advisory.

¶19           Where, as here, a defendant‟s pretrial motion makes a prima facie case for

the suppression of his statements to law enforcement, the state carries the burden to prove

“the lawfulness in all respects of the acquisition” of the evidence. Ariz. R. Crim. P.

16.2(b). Accordingly, we will not disturb a trial court‟s suppression order based on a

ground or theory not asserted below by the state. State v. Brita, 158 Ariz. 121, 124, 761

P.2d 1025, 1028 (1988); State v. Barnes, 215 Ariz. 279, n.2 & n.6, 159 P.3d 589, 591 n.2,

593 n.6 (App. 2007); State v. Main, 159 Ariz. 96, 99, 764 P.2d 1155, 1158 (App. 1988);

see also State v. Hendrix, 165 Ariz. 580, 582, 583, 799 P.2d 1354, 1356, 1357 (App.

1990) (reversing order denying defendant‟s motion to suppress and finding state‟s

alternative argument for upholding order waived by failure to present below).

¶20           If the recitation of the Miranda advisory Carlson offered here were given

by a law enforcement officer to a suspect, we would find it inadequate as a matter of law.

See United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002). We therefore

uphold the trial court‟s implicit determination that the same recitation did not

demonstrate Carlson‟s knowledge of the rights protected by Miranda so as to effectuate a



                                            12
valid waiver. See State v. Villalobos, 225 Ariz. 74, ¶ 11, 235 P.3d 227, 231 (2010); State

v. Newell, 212 Ariz. 389, ¶ 22 & n.6, 132 P.3d 833, 840 & n.6 (2006).

¶21          The trial court‟s suppression order is affirmed.


                                             /s/ Peter J. Eckerstrom
                                             PETER J. ECKERSTROM, Presiding Judge

CONCURRING:


/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge


/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge




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