[*] Lieutenant, JAGC, U.S. Navy. The author thanks his wife, Julie, for her encouragement and patience, and Professor John Yetter, who taught him about criminal procedure and provided the inspiration for this Comment. Return to text.

[1] U.S. CONST. amend. VI. Return to text.

[2] See FLA. CONST. art. I, 16(a) ("In all criminal prosecutions the accused . . . shall have the right . . . to be heard in person, by counsel or both . . . ."). Return to text.

[3] Gideon v. Wainwright, 372 U.S. 335, 338 (1963). Return to text.

[4] Id. at 339. Return to text.

[5] Powell v. Alabama, 287 U.S. 45, 68-69 (1932). Powell was the first major Supreme Court discussion of the right to counsel. See WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 11.1(a), at 519 (2d ed. 1992). Though not specifically grounded in the Sixth Amendment right to counsel, the decision has significantly influenced the Court's right-to-counsel jurisprudence. See id.; see also Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938) (holding that the Sixth Amendment guarantees the right to appointed counsel, as well as the right to retained counsel); Gideon, 372 U.S. at 341-44 (extending the right to appointed counsel in state cases to all indigent felony defendants). Return to text.

[6] E.g., OFFICE OF LEGAL POL'Y, DEP'T OF JUSTICE, REPORT TO THE ATTORNEY GENERAL ON THE SIXTH AMENDMENT RIGHT TO COUNSEL UNDER THE MASSIAH LINE OF CASES 4-5 (1986). Return to text.

[7] 596 So. 2d 957 (Fla. 1992). Return to text.

[8] 384 U.S. 436 (1966). Return to text.

[9] See id. at 469. Return to text.

[10] The Miranda Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444. The custody prong is determined using an objective standard that asks whether a reasonable person would have understood that his or her freedom of action was restricted to a "degree associated with formal arrest" and that he or she was not free to leave. Berkemer v. McCarty, 468 U.S. 420, 440 (1984). Return to text.

[11] Miranda, 384 U.S. at 471. The Court found that "[a] mere warning given by the interrogators" is insufficient because "[e]ven advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process." Id. at 469-70. Rather, the accused is entitled to have an attorney present during the interrogation. See id. at 470. Return to text.

[12] 417 U.S. 433 (1974). Return to text.

[13] See id. at 444. The Court discussed the Miranda warnings and explained:

[T]hese procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected. . . . The suggested safeguards were not intended to "create a constitutional straitjacket," but rather to provide practical reinforcement for the right against compulsory self-incrimination.
Id. (citation omitted). This rejection of a constitutional nexus for the Miranda warnings is paradoxical. The Court had previously found that the Fifth Amendment's privilege against self-incrimination was a fundamental right made applicable to the states through the Fourteenth Amendment. See Malloy v. Hogan, 378 U.S. 1, 6 (1964). Although the Miranda Court held that the rule was not grounded in the Fifth Amendment, it nonetheless made use of the warnings mandatory for the states. See 384 U.S. at 490. Without some constitutional basis for the rules, however, they could not be made applicable to the states through the Fourteenth Amendment. See LAFAVE & ISRAEL, supra note 5, 6.5(e), at 317. Return to text.

[14] Craig R. Johnson, Note, McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation, 1992 WIS. L. REV. 1643, 1658. Return to text.

[15] See Connecticut v. Barrett, 479 U.S. 523, 528 (1987) ("[P]rohibition on further questioning . . . is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose."). Return to text.

[16] See Miranda, 384 U.S. at 474 ("[T]he individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning."). Return to text.

[17] See id. Police may resume questioning after a suspect invokes the right to remain silent as long as interrogators "scrupulously honor" the suspect's right to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 103-04 (1975) (finding that the suspect's right was scrupulously honored where the subsequent questioning was initiated by a different officer, concerned an unrelated offense, and took place more than two hours after the initial interrogation). Conversely, following invocation of the Miranda right to counsel, police may not initiate any interrogation without counsel present. See Edwards v. Arizona, 451 U.S. 477, 484 (1981) ("[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police."). Return to text.

[18] See, e.g., Davis v. United States, 114 S. Ct. 2350, 2356 (1994). The Edwards rule was derived from Edwards v. Arizona, 451 U.S. 477 (1981), which expanded the scope of Miranda by requiring law enforcement officers to immediately cease interrogation when an accused has clearly asserted the right to have counsel present during the interrogation. See id. at 485. Return to text.

[19] See Fare v. Michael C., 442 U.S. 707, 718 (1979). The Court justified this harshness by stating:

[T]his relatively rigid requirement that interrogation must cease upon the accused's request for an attorney . . . has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity . . . has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence.
Id. Return to text.

[20] Miranda, 384 U.S. at 444-45. Return to text.

[21] See id. at 477-78; see also supra note 10. Interrogation refers to express action or questioning by a state agent that a reasonable person would conclude is designed to elicit an incriminating response. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). Thus, custodial interrogation is based upon the perception of the accused. See id. Return to text.

[22] McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). Invocation of the Sixth Amendment right to counsel does not prohibit police from interrogating the suspect regarding crimes with which he or she has not yet been charged. See id. (holding that the Sixth Amendment right "cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced"). The Fifth Amendment right to counsel, by comparison, protects the suspect against any custodial interrogation and thus is not offense-specific. See id. at 178. Return to text.

[23] Kirby v. Illinois, 406 U.S. 682, 689 (1972). The Court explained that a person is entitled to counsel once "the adverse positions of government and defendant have solidified." Id. Return to text.

[24] See Brewer v. Williams, 430 U.S. 387, 404 (1977). Return to text.

[25] Massiah v. United States, 317 U.S. 201, 206-07 (1964) (holding that statements deliberately elicited in the absence of counsel violated the Sixth Amendment). Return to text.

[26] See Miranda, 384 U.S. at 475 ("[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel."). Return to text.

[27] See United States v. Wade, 388 U.S. 218, 227 (1967) (holding that the absence of counsel at a post-indictment lineup violated the Sixth Amendment). Return to text.

[28] See McNeil v. Wisconsin, 501 U.S. 171, 178 (1991); see also, e.g., Rick Madden & Cheryl M. Miller, Project: Twenty-Third Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1992-1993, 82 GEO. L.J. 1007, 1009-10 (1994). Return to text.

[29] See United States v. Gouveia, 467 U.S. 180, 189 (1984). Return to text.

[30] See Moran v. Burbine, 475 U.S. 412, 429 (1986). Return to text.

[31] See infra Part II.B. Return to text.

[32] 388 U.S. 218 (1967). Wade involved the use of a post-indictment lineup conducted for the purpose of identification without notice to the accused's counsel. See id. at 220. Return to text.

[33] Id. at 227. Return to text.

[34] See id. at 226. Return to text.

[35] See Hamilton v. Alabama, 368 U.S. 52, 53 (1961). Arraignment is the "[p]rocedure whereby the accused is brought before the court to plead to the criminal charges against him in the indictment or information." BLACK'S LAW DICTIONARY 109 (6th ed. 1990). Accordingly, it necessarily occurs only after the initiation of adversary judicial proceedings. Return to text.

[36] See Coleman v. Alabama, 399 U.S. 1, 10 (1970). Return to text.

[37] See Brewer v. Williams, 430 U.S. 387, 401 (1977). Return to text.

[38] See United States v. Henry, 447 U.S. 264, 274-75 (1980) (finding that post-indictment statements deliberately elicited by an undercover inmate outside the presence of counsel violated the Sixth Amendment). Return to text.

[39] See Kirby v. Illinois, 406 U.S. 682, 689-90 (1972) (holding that a pre-indictment lineup did not constitute a critical stage because the right to counsel had not yet attached). Return to text.

[40] See United States v. Ash, 413 U.S. 300, 312 (1973) (holding that counsel need not be present when police show photographs of the defendant and others to witnesses, even when the defendant has already been indicted); cf. Wade, 388 U.S. at 228 (concluding that a post-indictment lineup raises concerns because lineups are "riddled with innumerable dangers and variable factors" that can only be prevented by counsel's presence). Return to text.

[41] The Wade Court recognized that "today's law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality." 388 U.S. at 224. Return to text.

[42] See FLA. CONST. art. I. Return to text.

[43] Traylor v. State, 596 So. 2d 957, 963 (Fla. 1992). Return to text.

[44] Compare FLA. CONST. art. I, 9 (preserving right against self-incrimination) with U.S. CONST. amend. V (same). Return to text.

[45] FLA. CONST. art. I, 9. Return to text.

[46] Id. art. I, 16(a). Return to text.

[47] See, e.g., Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 (1980). Return to text.

[48] See LAFAVE & ISRAEL, supra note 5, 2.10(a), at 93. Return to text.

[49] See id. Return to text.

[50] See id. 2.10(a), at 95 ("In many instances, the state courts have adopted the reasoning urged by dissenting opinions in the Supreme Court. In others, state courts have adopted a quite different analytical mode for a particular guarantee . . . ."). Return to text.

[51] See id. 2.10(c), at 99. Article I, section 12 of the Florida Constitution expressly states that its prohibition against unreasonable searches and seizures is to be "construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." FLA. CONST. art. I, 12. Return to text.

[52] See LAFAVE & ISRAEL, supra note 5, 2.10(c), at 100. Return to text.

[53] See id. Return to text.

[54] See Traylor v. State, 596 So. 2d 957, 960 (Fla. 1992). Return to text.

[55] See id. Return to text.

[56] See id. Return to text.

[57] See id. Return to text.

[58] See id. Return to text.

[59] See id. Return to text.

[60] See id. Florida police desired to use evidence of the Alabama murder as "similar fact" evidence in the Florida murder trial. See id. at 960 n.1. Return to text.

[61] See id. at 960. Return to text.

[62] See id. Return to text.

[63] See id. Return to text.

[64] See id. Return to text.

[65] See id. Return to text.

[66] Id. Return to text.

[67] See id. Return to text.

[68] See id. Return to text.

[69] See id. Return to text.

[70] See id. at 961. Return to text.

[71] Id. Return to text.

[72] See id. at 962. For a discussion of state courts' divergent interpretation of their respective state constitutions, see supra Part II.C. Return to text.

[73] See 596 So. 2d at 964. Return to text.

[74] Id. at 965. Return to text.

[75] See id. Return to text.

[76] Id. at 966 (citing FLA. CONST. art. I, 9) (emphasis added). Return to text.

[77] See id. Return to text.

[78] Cf. United States v. Wade, 388 U.S. 218, 237 (1967) (holding that the Sixth Amendment right to counsel applies to each "critical stage" of the prosecution). Return to text.

[79] Traylor, 596 So. 2d at 968. Return to text.

[80] Id. Return to text.

[81] Id. The term "charge-specific" refers to the rule that invocation of the right to counsel as to one charge imposes no restriction on police inquiry as to separate charges for which the section 16 right has not attached. See id. Return to text.

[82] McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); see also supra note 22. Return to text.

[83] FLA. CONST. art. I, 2. Return to text.

[84] See Traylor, 596 So. 2d at 970 ("[T]he procedural rights of nonindigents under section 16 are at least coextensive with those of indigents."). Return to text.

[85] The Florida Rules of Criminal Procedure require that an arrested individual be brought before a magistrate within 24 hours of being detained. See FLA. R. CRIM. P. 3.130(a). This "first appearance" generally occurs prior to indictment or the filing of formal charges, and thus would constitute an earlier attachment of the right to counsel than is provided by the Sixth Amendment. Return to text.

[86] FLA. R. CRIM. P. 3.111(a). Return to text.

[87] Traylor, 596 So. 2d at 970 n.38. Booking is an "[a]dministrative step taken after an arrested person is brought to the police station, which involves entry of the person's name, the crime for which the arrest was made, and other relevant facts on the police 'blotter.' " BLACK'S LAW DICTIONARY 183 (6th ed. 1990). Return to text.

[88] See Traylor, 596 So. 2d at 970. Return to text.

[89] Id. at 970 n.42 (quoting 1 ABA STANDARDS FOR CRIMINAL JUSTICE 5-5.1 (1980)). Return to text.

[90] See id. at 970-71. Return to text.

[91] See id. Return to text.

[92] See id. at 971. The court found that there was competent substantial evidence to support the finding that the request did not result from any communication between Traylor and his counsel, but rather from defense counsel's routine request that the police refrain from interrogating his clients. See id. This finding is troublesome. Because Traylor met with his counsel before the police interrogation, it is possible that Traylor requested his counsel to invoke his privilege. Such a communication between the lawyer and client would be protected. See id. at 975-79 (Kogan, J., concurring in part and dissenting in part). Return to text.

[93] See id. at 971. Return to text.

[94] See id. at 972. Return to text.

[95] Id. Return to text.

[96] See id. Return to text.

[97] See id. at 972-73. Return to text.

[98] See id. Return to text.

[99] See id. Return to text.

[100] See id. at 974-75 (Barkett, J., concurring in part and dissenting in part). Return to text.

[101] See id. at 974. Return to text.

[102] 487 U.S. 285 (1988). Return to text.

[103] Traylor, 596 So. 2d at 974 (Barkett, J., concurring in part and dissenting in part) (citing Patterson, 487 U.S. at 300). In Patterson, the U.S. Supreme Court held that warnings provided by law enforcement personnel under Miranda suffice to advise an accused of both the Fifth and Sixth Amendment rights to counsel. See 487 U.S. at 293. Furthermore, waiver of the right pursuant to Miranda constitutes waiver of the right under both provisions. See id. at 300. Return to text.

[104] See Traylor, 596 So. 2d at 974-75 (Barkett, J., concurring in part and dissenting in part). Return to text.

[105] See id. Return to text.

[106] See id. at 975. Return to text.

[107] See id. at 975-85 (Kogan, J., concurring in part and dissenting in part). Return to text.

[108] See id. Return to text.

[109] See id. at 976. Return to text.

[110] See id. at 975. Return to text.

[111] 114 S. Ct. 2350 (1994). For a discussion of Davis, see infra Part IV.C. Return to text.

[112] 560 So. 2d 207 (Fla. 1990). The state would request reconsideration of the issue in light of Davis in State v. Owen, 654 So. 2d 200 (Fla. 4th DCA), review granted, 662 So. 2d 933 (Fla. 1995) (Owen II). See infra text accompanying notes 182-89. Return to text.

[113] See Owen I, 560 So. 2d at 209. Return to text.

[114] See id. at 210. Return to text.

[115] Id. at 211. Return to text.

[116] See id. Return to text.

[117] Id. Return to text.

[118] See id. Return to text.

[119] See id. Return to text.

[120] See id. at 209. Return to text.

[121] The Florida Constitution provides that the Supreme Court "[s]hall hear appeals from final judgments of trial courts imposing the death penalty." FLA. CONST. art. V, 3(b)(1). Such appeals bypass the district courts of appeal. Return to text.

[122] Owen I, 560 So. 2d at 211. Although Owen I referred to the provisions of the U.S. Constitution, the Traylor court reaffirmed the Owen I holding as it related to the article I, section 9 right against self-incrimination. See Traylor, 596 So. 2d at 966. Return to text.

[123] See Owen I, 560 So. 2d at 211. Return to text.

[124] Id. at 213 (Barkett, J., concurring) (alteration in original) (quoting Miranda, 384 U.S. at 473-74). Return to text.

[125] See id. at 213 (Grimes, J., dissenting). Return to text.

[126] See 384 U.S. at 444-45, 467-79. Return to text.

[127] See id. at 444-45. Return to text.

[128] See Nancy M. Kennelly, Note, Davis v. United States: The Supreme Court Rejects a Third Layer of Prophylaxis, 26 LOY. U. CHI. L.J. 589, 597-98 (1995). Return to text.

[129] See, e.g., John J. Tomkovicz, Standards for Invocation and Waiver of Counsel in Confession Contexts, 71 IOWA L. REV. 975, 1010 (1986). The Supreme Court has reached this same conclusion. See Davis v. United States, 114 S. Ct. 2350, 2356 (1994) (concluding that the per se bar would "transform the Miranda safeguards into wholly irrational obstacles to legitimate investigative activity because it would needlessly prevent the police from questioning a suspect in the absence of counsel, even if the suspect does not wish to have a lawyer present"). Return to text.

[130] See, e.g., Maglio v. Jago, 580 F.2d 202, 205 (6th Cir. 1978); People v. Superior Court, 542 P.2d 1390, 1395 (Cal. 1975); see also Tom Chen, Note, Davis v. United States: "Maybe I Should Talk to a Lawyer" Means Maybe Miranda Is Unraveling, 23 PEPP. L. REV. 607, 618 (1996). Return to text.

[131] See, e.g., United States v. March, 999 F.2d 456, 461 (10th Cir. 1993); United States v. Mendoza-Cecelia, 963 F.2d 1467, 1472 (11th Cir. 1992); United States v. D'Antoni, 856 F.2d 975, 980-81 (7th Cir. 1988); United States v. Gotay, 844 F.2d 971, 975 (2d Cir. 1988); United States v. Fouche, 833 F.2d 1284, 1287 (9th Cir. 1987); United States v. Porter, 776 F.2d 370, 370 (1st Cir. 1985) (en banc); Nash v. Estelle, 597 F.2d 513, 517 (5th Cir. 1979) (en banc); United States v. Riggs, 537 F.2d 1219, 1222 (4th Cir. 1976). Return to text.

[132] See, e.g., Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 YALE L.J. 259, 311-12 (1993) (arguing that both the clarification and threshold standard of clarity approaches disadvantage women and minorities, who are more likely to use less direct and assertive patterns of speech). Return to text.

[133] See 560 So. 2d at 211 (citing Long v. State, 517 So. 2d 664, 667 (Fla. 1987)). Return to text.

[134] See, e.g., People v. Krueger, 412 N.E.2d 537, 540 (Ill. 1980); Bane v. State, 587 N.E.2d 97, 103 (Ind. 1992). Return to text.

[135] See Davis v. United States, 114 S. Ct. 2350, 2355 (1994). Return to text.

[136] 451 U.S. at 485 (emphasis added). Return to text.

[137] See, e.g., Krueger, 412 N.E.2d at 540. Return to text.

[138] See Tomkovicz, supra note 129, at 1010; see also Davis, 114 S. Ct. at 2360-61 (Souter, J., concurring). Justice Souter criticized the threshold standard of clarity rule as "requiring criminal suspects to speak with the discrimination of an Oxford don." Id. at 2364. Return to text.

[139] See Miranda, 384 U.S. at 445-58. Return to text.

[140] 114 S. Ct. 2350 (1994). Return to text.

[141] See id. at 2054. Return to text.

[142] See id. at 2053. Return to text.

[143] Id. Return to text.

[144] See id. Return to text.

[145] See id. Return to text.

[146] See Petitioner's Brief at 29-30, Davis (No. 92-1949). Because the investigators attempted to clarify Davis's desires with respect to his reference to counsel, advocating the clarification approach would not have benefited Davis on appeal. Return to text.

[147] See Respondent's Brief at 20, Davis (No. 92-1949); see also Davis, 114 S. Ct. at 2359 n.2 (Souter, J., concurring). Return to text.

[148] See Davis, 114 S. Ct. at 2355. Return to text.

[149] Id. Return to text.

[150] See id. at 2356. Return to text.

[151] Id. Return to text.

[152] See id. at 2359 (Souter, J., concurring). Justice Souter was joined in his opinion by Justices Blackmun, Stevens, and Ginsburg. See id. at 2358. Return to text.

[153] See id. at 2359. Return to text.

[154] See id. Return to text.

[155] See id. Return to text.

[156] See, e.g., Scott M. Lang, Self Incrimination: It Now Takes a Law Degree to Know How to Properly Invoke One's Right to Counsel, 42 NAVAL L. REV. 145, 163 (1995); Samira Sadeghi, Hung Up on Semantics: A Critique of Davis v. United States, 23 HASTINGS CONST. L.Q. 313, 315-16 (1995); Chen, supra note 130, at 609; Kennelly, supra note 128, at 592. Return to text.

[157] See, e.g., Ainsworth, supra note 132, at 320. Return to text.

[158] 114 S. Ct. at 2360-61 (Souter, J., concurring) (citations omitted). Return to text.

[159] See, e.g., Sadeghi, supra note 156, at 349. Return to text.

[160] See 384 U.S. at 455 (suggesting that it is naive to place blind trust in all police officers). Return to text.

[161] See Sadeghi, supra note 156, at 348-49 (arguing that police may now give inexact readings of Miranda warnings without any reprisal). Return to text.

[162] See, e.g., Christo Lassiter, The Stop and Frisk of Criminal Street Gang Members, 14 NAT'L BLACK L.J. 1, 47 n.169 (1995) (highlighting retired Los Angeles police detective Mark Fuhrman as an example of the potential for corruption among law enforcement officers). Return to text.

[163] 653 So. 2d 435 (Fla. 5th DCA 1995). Return to text.

[164] Id. at 435. Return to text.

[165] See id. at 436. Return to text.

[166] See id. Return to text.

[167] See id. Return to text.

[168] See id. ("The answer to this question was readily apparent prior to the advent of the decision of the United States Supreme Court in Davis v. United States."). Return to text.

[169] See id. Return to text.

[170] See id. Return to text.

[171] 670 So. 2d 1084 (Fla. 4th DCA), review granted, 679 So. 2d 774 (Fla. 1996). Return to text.

[172] See id. at 1085. Return to text.

[173] See State v. Skyles, 679 So. 2d 774 (Fla. 1996). Return to text.

[174] See Telephone Interview with Sid White, Clerk of Court, Fla. Sup. Ct. (Jan. 27, 1997). Return to text.

[175] See Skyles v. State, 670 So. 2d at 1084. Return to text.

[176] See id. Return to text.

[177] See id. Return to text.

[178] Id. at 1084-85. Return to text.

[179] See id. Return to text.

[180] See id. at 1084. Return to text.

[181] See id. at 1086. Return to text.

[182] See 662 So. 2d 933 (Fla. 1995). Return to text.

[183] 654 So. 2d 200 (Fla. 4th DCA), review granted, 662 So. 2d 933 (Fla. 1995). Owen I set the precedent for the Florida Supreme Court's treatment of equivocal invocation of Miranda rights. For a review of the case's facts, see supra text accompanying notes 113-120. Return to text.

[184] See Owen II, 654 So. 2d at 201. Return to text.

[185] Owen I, 560 So. 2d at 211. Return to text.

[186] See id. at 200. Return to text.

[187] See State v. Owen, 662 So. 2d 933 (Fla. 1995). Return to text.

[188] See White, supra note 174. Return to text.

[189] Id. Return to text.

[190] This same approach was embraced by Justice Souter in his concurrence in Davis. See 114 S. Ct. at 2359 (Souter, J., concurring). Return to text.

[191] See supra Part III.D. Return to text.

[192] See FLA. STAT. 316.1932(1)(a) (Supp. 1996) (providing that "failure to submit to any lawful test of his or her breath or urine, or both, will result in the suspension of the person's privilege to operate a motor vehicle for a period of one year"). Return to text.

[193] See id. For a description of the technology associated with breathalyzer tests, see California v. Trombetta, 467 U.S. 479, 481-82 (1984). Return to text.

[194] See FLA. STAT. 316.1932(1)(a) (Supp. 1996). Return to text.

[195] See id. Return to text.

[196] See Schmerber v. California, 384 U.S. 757, 764 (1966) (concluding that a blood alcohol test is not testimonial in nature and does not violate a suspect's right against self-incrimination). Testimonial evidence is limited to that which would confront the suspect with the "cruel trilemma" of silence, lying, or telling the truth. See Pennsylvania v. Muniz, 496 U.S. 582, 595-97 (1990). Return to text.

[197] See Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (holding that temporary traffic stops do not constitute custody for Miranda purposes despite the fact that a citizen likely would understand that he or she is not free to leave). Return to text.

[198] See id. at 442. Return to text.

[199] See, e.g., State v. Palmer, 191 N.W.2d 188, 190-91 (Minn. 1971) (reasoning that because chemical testing is civil in nature, "[t]he defendant . . . is not clothed with those substantive constitutional rights associated with criminal matters"); Commonwealth Dep't of Transp., Bureau of Driver Licensing v. Ingram, 648 A.2d 285, 294-95 (Pa. 1994) (refusing to extend the right to counsel before chemical testing, but requiring that officers inform the individual that his or her Miranda rights do not apply). Return to text.

[200] See Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991) (allowing a limited right to counsel prior to chemical testing because it constitutes a "crucial stage" in criminal proceedings). Return to text.

[201] See, e.g., Sites v. State, 481 A.2d 192, 196-97 (Md. 1984) (listing cases which have addressed the issue). Return to text.

[202] See State v. Burns, 661 So. 2d 842, 845 (Fla. 5th DCA 1995); see also State v. Hoch, 500 So. 2d 597, 598 (Fla. 3d DCA 1986). Return to text.

[203] See Burns, 661 So. 2d at 845-46. Return to text.

[204] See Traylor, 596 So. 2d at 970. Return to text.

[205] 661 So. 2d 842 (Fla. 5th DCA 1995). Return to text.

[206] See id. at 847. Return to text.

[207] See id. Return to text.

[208] Id. Return to text.

[209] See id. at 848 ("[A]dministering a breathalyzer and having a defendant perform the field sobriety test on videotape are really nothing more than the collection and preservation of physical evidence, as is done in every type of case, and do not constitute a crucial confrontation requiring the presence of defense counsel."). Return to text.

[210] See id. Post-indictment lineups have been deemed to be critical stages requiring the presence of counsel because they are riddled with the danger of unreliable identification and cannot be effectively questioned at trial without counsel's presence to note problems. See United States v. Wade, 388 U.S. 218, 228 (1967). The Wade Court differentiated lineups from purely physical tests such as blood tests. See id. ("[T]here is minimal risk that his counsel's absence at such stages might derogate from his right to a fair trial."); cf. United States v. Ash, 413 U.S. 300, 312 (1973) (holding that the Sixth Amendment does not require the presence of counsel at a post-indictment photographic identification because the defendant is not present and confronted by his or her professional adversary). Return to text.

[211] 596 So. 2d at 968. Return to text.

[212] The Traylor court identified a crucial stage as "any stage that may significantly affect the outcome of the proceedings." Id. Return to text.

[213] The U.S. Supreme Court has held that the Sixth Amendment right to counsel applies to each "critical stage" of the prosecution. See Wade, 388 U.S. at 237. Return to text.

[214] See 596 So. 2d at 968 n.24. Return to text.

[215] See id. at 970. Return to text.

[216] See Louis W. Schack, Motorist Confusion: The Unfortunate By-Product of Pennsylvania's Implied Consent Law, 68 TEMP. L. REV. 931, 949 (1994). Return to text.

[217] See, e.g., Copelin v. State, 659 P.2d 1206, 1208 (Alaska 1983); Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 502 (Minn. Ct. App. 1992); Bickler v. North Dakota State Highway Comm'r, 423 N.W.2d 146, 147 (N.D. 1988); Siegwald v. Curry, 319 N.E.2d 381, 386 (Ohio Ct. App. 1974); State v. George, 640 A.2d 26, 27 (Vt. 1994). Return to text.

[218] See Schack, supra note 216, at 948. This limited right permits the motorist a reasonable time to consult an attorney by telephone. See id. The right does not guarantee actual consultation. See id. Return to text.

[219] See John R. Tunheim, Criminal Justice: Expanded Protections Under the Minnesota Constitution, 20 WM. MITCHELL L. REV. 465, 485-86 (1994); see also Nyflot v. Minnesota Comm'r of Pub. Safety, 474 U.S. 1027, 1030 (1985) (White, J., dissenting) (arguing that the Court should not have dismissed the appeal where lower courts have divided over the availability of the Sixth Amendment right to counsel before consenting to chemical testing). Return to text.

[220] See, e.g., Heles v. South Dakota, 530 F. Supp. 646, 654 (D.S.D. 1982), vacated as moot, 682 F.2d 201 (8th Cir. 1982); State v. Welch, 376 A.2d 351, 355 (Vt. 1977). Return to text.

[221] See Nyflat, 474 U.S. 1027 (1985) (dismissing the appeal for want of a substantial federal question). Return to text.

[222] See People v. Gursey, 239 N.E.2d 351, 353 (N.Y. 1968) (allowing consultation with an attorney prior to breath analysis provided that the delay does not "palpably impair" the statutory procedure for testing). Return to text.

[223] See Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 837 (Minn. 1991) (requiring a limited right to counsel on state constitutional grounds). Return to text.

[224] See State v. Spencer, 750 P.2d 147, 156 (Or. 1988) (holding that a driver has a right to consult an attorney prior to breath analysis, but the state need not wait a long period of time). Return to text.

[225] See Sites v. State, 481 A.2d 192, 196-97 (Md. 1984) (finding the Sixth Amendment right to counsel had not yet attached and citing cases); see also Tunheim, supra note 219, at 483-84 (noting Minnesota's rationale for attachment). Return to text.

[226] 496 U.S. 292 (1990). Return to text.

[227] See id. at 296-97. Return to text.

[228] Id. at 296 (citations omitted). Return to text.

[229] See id. at 294. Return to text.

[230] See id. at 296. Return to text.

[231] See id. at 299. Return to text.

[232] Id.; see also Maine v. Moulton, 474 U.S. 159, 176-80 (1985) (holding that the State violated a defendant's Sixth Amendment right to counsel by arranging a recording of a conversation between the defendant and a co-defendant who was a government informant); United States v. Henry, 447 U.S. 264, 274-75 (1980) (holding that statements made by the defendant to a paid informant, while in jail, were "deliberately elicited" and an inadmissible violation of the defendant's Sixth Amendment right to counsel); Massiah v. United States, 377 U.S. 201, 206 (1964) (finding a violation of the Sixth Amendment right to counsel where the government obtained a confession secretly by recording a conversation between the defendant and co-defendant by placing a radio transmitter in the co-defendant's ear). Return to text.

[233] See supra notes 182-89 and accompanying text. Return to text.

[234] See supra notes 171-81 and accompanying text. Return to text.

[235] See supra note 85. Return to text.