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I Feel Safer With Miranda Than Ortiz

Carmen Ortiz, the US Attorney for Massachusetts, announced in a news conference following the capture of Boston Marathon bombing suspect Dzhokhar Tsarnaev that he would not be mirandized under the public safety exception. Ortiz you will remember is the ambitious political climber whose prosecutorial abuse drove public access advocate and internet activist Aaron Swartz to suicide.

As Charlie Savage reported back in May 2010, Attorney General Eric Holder was proposing not mirandizing terrorism suspects under the public safety exception to Miranda. Holder argued interrogation of terrorism suspects required more latitude than afforded by Miranda. The proposed mechanism for this suspension of Miranda was the public safety exception.

Miranda was decided in 1966, and almost anyone who has ever watched a police procedural on the big screen or TV can recite its two essential points: "You have the right to an attorney … You have the right to remain silent …" An important exception was made in 1984 in New York vs. Benjamin Quarles . A police officer, chasing an armed rape suspect (Quarles) into a store, briefly lost sight of the suspect before apprehending him. Noting that the suspect had an empty holster, the officer asked where the gun was. The suspect indicated where he had tossed the gun. The officer then mirandized him. The Burger Court in a 6-3 decision written by Rehnquist ruled that a loose gun posed a danger and that the overriding concern for public safety justified the momentary departure from Miranda.

Rehnquist noted the limited nature of the exception but argued that theambiguity it introduced to Miranda would likewise be limited:

In recognizing a narrow exception to the Miranda rule in this case, we acknowledge that, to some degree, we lessen the desirable clarity of that rule.… As we have in other contexts, we recognize here the importance of a workable rule "to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront." Dunaway v. New York, 442 U. S. 200, 442 U. S. 213-214 (1979). But as we have pointed out, we believe that the exception which we recognize today lessens the necessity of that on-the-scene balancing process. The exception will not be difficult for police officers to apply, because, in each case, it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.
The facts of this case clearly demonstrate that distinction and an officer's ability to recognize it. Officer Kraft asked only the question necessary to locate the missing gun before advising respondent of his rights. It was only after securing the loaded revolver and giving the warnings that he continued with investigatory questions about the ownership and place of purchase of the gun. The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety

In his dissent, Thurgood Marshall noted that finding the gun was not exigent in the Quarles case, that Rehnquist's quest for public safety was chimerical, and that

"a public safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary. The Court's candor cannot mask what a serious loss the administration of justice has incurred."

Marshall went on to challenge Rehnquist's argument that there was a balancing act between public safety and the 5th Amendment protection against self-incrimination:

But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public's safety are less likely to be coercive than other interrogations, the majority cannot endorse the "public safety" exception and remain faithful to the logic of Miranda v. Arizona.

This would never happen because, as Marshall noted, "custodial interrogations are inherently coercive".

Fast forward to the War on Terror, another chimerical quest and inestimable gift to the authoritarian opponents of the Bill of Rights who comprise our elites. In December 2009, the Nigerian underwear bomber Umar Farouk Abdulmutallab was interrogated for 50 minutes before being mirandized. In May 2010, Times Square bomber Faisal Shahzad, a US citizen, was interrogated for three to four hours before he was read his Miranda rights. It was at this time that Holder began his push to suspend Miranda notifications indefinitely in terrorism cases. We see the implementation of this policy with Dzhokhar Tsarnaev, the Boston Marathon bombing suspect.

This is not just a question of Tsarnaev's rights but about the degradation and loss of all our rights. The public safety exception was never anything more than a plausible lie, or as Marshall more diplomatically termed it a "chimerical quest". Quarles was in custody. The police had control of the scene. There was no emergency to find the gun. There was no public safety issue. But the Court manufactured a public safety exception anyway in order to carve out another space where Miranda did not apply. That was the real object of the exercise. The War on Terror simply provided an excuse for the Executive, that is Obama, Holder, and Ortiz, to morph the public safety exception into a complete abrogation of Miranda and the 5th Amendment in terrorism cases. As in the original Quarles case, with Tsarnaev in custody, there are no longer any exigent circumstances. The public safety exception no longer applies, but Obama, Holder, and Ortiz don't care. They want to engage in the coercive interrogation of Tsarnaev and the public safety exception gives them the excuse to do so. This has nothing to do with law or justice. It is all about Jack Bauer and not having time for niceties like the rule of law. And don't look to the Supreme Court to challenge them on this. The Court now is far more conservative, even reactionary, than under Burger. It defers almost completely to the Executive on national security cases (as long as Kennedy the swing vote feels a modicum of deference is paid to judicial turf). The Court for its part has also futhered its own attack on Miranda in Berghuis vs. Thompkins (2010) where it decided that Miranda rights did not presumptively apply to suspects but had to be actively invoked by them. This stood Miranda on its head. Miranda does not confer rights. It is a reminder of rights one already has. One has them whether they are actively invoked or not, only not now due to Berghuis. Only not now due to "public safety".

As Benjamin Franklin is reputed to have said, "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety."

Average: 5 (1 vote)


tom allen's picture
Submitted by tom allen on

"Is not this a lamentable thing, that
of the skin of an innocent lamb should be made parchment, that
parchment, being scribbl'd o'er, should undo a man? Some say the
bee stings; but I say 't is the bee's wax, for I did but seal
once to a thing, and I was never mine own man since."

Submitted by jawbone on

Realizing Ortiz would try this case, and then the announcement of no Miranda rights for a seriously wounded prisoner made me nervous. Oh, my.

When will this denial of Miranda become even more common? What is done about terrists tends to move into the general law enforcement bag of tactics.

Thanks also for your concise and very good history of the use of the "public safety exception." Looks like the naysayers were spot on in their predictions of this would be used by government to lessen rights of the accused. Dang, too bad they were prescient.

Submitted by Lex on

Miranda only requires law enforcement to inform a suspect of his rights, it is not the basis for those rights. Under the public safety exemption, the prosecution can use pre-Miranda confessions in court. Otherwise, anything the suspect says is inadmissible.

However, if the suspect knows that the 5th amendment applies to him, he may still remain silent. In fact, he should remain silent whether Miranda rights have been read or not. I'm like a broken record on this, but any attorney worth the paper his law degree is printed on will tell you to never speak to the police. Not as a suspect, witness or even a victim. No lawyer, no talk.

While it's despicable that the government spends so much time trying to end run and/or eviscerate our rights, the fact remains that it's up to individuals to know the score and behave accordingly. If you refuse to speak to the police prior to being read Miranda, there's nothing they can use in court. Given that they are trained to compel you to give up your rights, the only sure answer is silence. Call it civil disobedience.

Submitted by Hugh on

The crux of the matter is between custodial and non-custodial interrogation. Miranda established that once one is in custody, the Miranda warnings should be given immediately. What Quarles did was carve out a "public safety" exception to custodial interrogation. Rehnquist's reasoning is really pretty awful when you think about it. Unlike Miranda, it is not based on any legal or Constitutional principle but on the "instincts" of police officers, whatever that means. Worse, even in the hallmark case, the instincts were, in fact, wrong. As Marshall noted, there were no exigent circumstances. Rehnquist simply accepted that there were because it made his point.

Miranda, on the other hand, was not only workable but useful. It led to greater professionalism in law enforcement. The public safety exception did just the opposite. It began life as a cover for an officer's error. But it was also the thin tip of the wedge to split Miranda from the very area it was meant to control, custodial interrogation. Ortiz's announcement is the culmination of this process. As Marshall correctly foresaw, the bright line of Miranda has been erased.

Miranda was about the Constitutional duties that government has toward its citizens and those covered by its laws. In a kleptocracy with its two tiered justice system, it may well be that the onus has been returned to individuals to invoke their rights, but at the same time we must all realize that government may very well ignore those rights anyway.

Submitted by Lex on

I agree that the public safety exception is bunk. I also agree that Miranda is important because it's one of the portions of police training that doesn't produce law enforcement behavior that runs counter to Constitutional principles.

The government's been ignoring those rights for a long time. I had a friend taken into custody who wasn't read Miranda. He pointed it out to the cops during his processing and they laughed at him. Told him that it "wasn't the fucking movies." And how was he going to prove that they didn't? His word against the cops, who are essentially an organized crime syndicate. No cop would turn on another over something like that.

The first words out of a cop's mouth during a traffic stop are always, "Do you know why I pulled you over?" That's a designed attempt to get you to waive your 5th amendment rights. Pretend that it's just gone bad if you like, but the Boston example is no more than showing how bad it's gotten and how brazen the disregard for Constitutional obligations within law enforcement and the DoJ has gotten.

We are on our own.

Submitted by jawbone on

Lots of push back, but with so many terrist cases using the public safety exception, and this SCOTUS, it will be difficult to knock down the Bush and Obama administrations' use of it.

Some good comments as well over at the post. OldFatGuy at #50 makes the point that the SCOTUS likes to establish narrow ruling which can be then push wider and wider by the Powers That Be in government.