Abandoning Miranda in Terrorism Cases Contrary to Constitution and Beginning of Slippery Slope towards Neo-Con Police State

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair


The United States Supreme Court in 1966 handed down Miranda v. Arizonawhich mandated to every law enforcement agency in this country that they advise all criminal suspects their right to silence; that anything they say can and may be used against them in a court of law; and that they have a right to an attorney. Findlaw columnist and former White House counsel John Dean has written two (here and here) recent columns in response to comments made by U.S. Attorney General Eric Holder on May 9, 2010 on several Sunday morning news/talk shows that the “Miranda warnings” given to terror suspects should perhaps be modified. Dean warned the Obama administration that, if the Holder comments represented possible “new policy,” it is navigating down a constitutional “slippery slope” by “messing with Miranda rights to fight terrorism.”


Dean pointed out that simple Google research will reveal study after study which has shown that Miranda has never impeded legitimate law enforcement efforts to solve crimes and that there is “no evidence” it has been a serious problem in producing results through the many terrorism investigations the government has conducted over the last two decades. Since the Christmas Day airline bombing attempt by Farouck Abdulmuttalab, the Miranda warnings have become the rallying linchpin for conservatives in this country who want any person, American citizen or not, who is arrested for any terrorist act or suspected terrorist act against this country, to be treated as an “unprivileged enemy belligerent” under the Military Commissions Act of 2009 so that “harsh interrogation techniques” can be employed to extract whatever information the suspect may know about other possible terror attacks against the country. As Dean pointed out: “… the only people complaining about Mirandizing terrorists are Republicans.”


The modifications proposed by Attorney General Holder deal with the “public safety exception” to Miranda. This exception was carved out by the Supreme Court in 1984 in the case of New York v. Quarles. In that case Benjamin Quarles was convicted of possessing a gun. The conviction stemmed from a series of events in which a woman stopped two New York policemen and told them she had been raped. She said her attacker had fled into a nearby supermarket carrying a gun.  One of the officers entered the store and saw Quarles, He ordered him to stop, placed his hands over his head, frisked him, and found only an empty shoulder holster. When the officer asked he suspect where the gun was, he nodded toward some empty cartons and said “over there.” The officer retrieved the gun and formally placed the suspect under arrest. The lower courts threw out Quarles statement about the gun and the gun itself because the officer had not given him the Miranda warnings. The U.S. Supreme Court reversed the lower courts, finding that there are situations where “public safety” trump the “prophylactic rules” of Miranda.


The “public safety exception”—sometimes called the “rescue” or “emergency” rule—has been used many times since. Coleen Rowley recently posted the following example on Huffington Post:


“One spring morning in the mid 1990s, a man whose last name was Liberatore rang a doorbell pretending to be a delivery man. Threatening a weapon, he gained entrance to the home somewhere in the Quad Cities, Illinois, tying up a teen-aged babysitter along with the young boy the babysitter was watching. Then he left, kidnapping the family’s 11 month old baby. Eventually the young boy was able to free himself and call for help. The hysterical parents rushed home and quickly notified the police and FBI.


“Later that day, the kidnapper called the parents and made a large ransom demand, threatening the baby’s life if the authorities were notified or the money was not paid. After the ransom drop was completed according to the kidnapper’s elaborate scheme, FBI agents apprehended the perpetrator. When asked where the baby was, the first words out of the kidnapper’s mouth were vulgar but amounted to a ‘clear legal invocation’ of his right to an attorney under the Miranda protocol. The FBI agent on the scene, however, reasonably feared that following the Miranda invocation in that circumstance, not asking the kidnapper any further questions, would mean the baby would likely die. So the agent used his persuasive skills without any threats or physical force to convince the kidnapper to voluntarily tell the FBI where he had hidden the baby. After a short time of talking with the agent, Liberatore described having put the baby in a duffel bag and then hiding the bag and baby in the middle of a forest that morning shortly after he had taken the baby. Police and FBI rushed to search the forest that night and were able to find the baby still alive and rescue it, although it had managed to crawl out of the duffel bag.”


Given those kinds of real-life circumstances, no one can reasonably refute the law enforcement need, and social value, of this “public safety exception” to Miranda. The California Supreme Court aptly put it this way: “While life hangs in the balance, there is no room to require [Miranda] admonitions.”


The Quarles decision give law enforcement the clear authority to suspend the Miranda warnings and question suspects when they have good reason to believe a life can be saved, serious injury prevented, or a substantial threat to property can be neutralized. In deciding whether the law enforcement officers make the right call by invoking the “public safety” exception, courts use what’s called the “reasonable belief” test—a test which essentially says that if a “reasonable officer” under the circumstances believes a life can be saved, injury prevented, or property protected, he/she is justified in questioning a suspect without the Miranda warnings and any statements obtained from the suspect can be used in a court of law.


The California appellate courts, which have been the judicial beacon in this area of the law, have upheld the following public safety exceptions:


  • Danger to the Public: 1) officer reasonably believed a suspect had tossed a gun in a supermarket and had right to question him about it; and 2) suspect who shot a woman was arrested short distance away and officers had right to question him about what he had did with the gun.
  • Danger to the Victim: 1) FBI had right to question suspect immediately after kidnapping about location of victim without Miranda warnings; and 2) Officers negotiated with barricaded suspect holding a hostage.
  • Danger to the Suspect: Officers had authority to question suspect without Miranda warnings because they believed he had just swallowed crack cocaine.
  • Danger to the Officers: 1) Officers have right to ask arrested suspect if he has any syringes or needles in his possession; 2) officer has right to ask drug dealer, “do you have anything on you that can hurt me?”; 3) Officers have right to ask an “armed and dangerous” suspect, “where are the guns?”; 4) officer arresting suspect who had fired shots at a house has right to ask, “do you have any guns or sharp objects on you?”; 5) Officer who found shotgun shell on arrested suspect had right to ask where the weapon was located and if the suspect had any other guns; 6) officers preparing to execute search warrant of house for cocaine had right to ask arrested occupant if there were any guns or weapons on the premises; and 7) officer who arrested suspect outside a burglarized sporting goods store had right to ask suspect if he had any accomplices still in the building.


Clearly, as these examples point out, law enforcement officers have a great deal of latitude in questioning suspects, whether criminal or terrorist, outside the Miranda warnings when a “reasonable” basis exists. But Attorney General Holder opened the proverbial “Pandora’s box” when he told NBC’s Meet the Press host David Gregory on May 9 that “I think that we have to think about perhaps modifying the rules (public safety exception) that the investigators have and somehow coming up with something that is flexible and is more consistent with the [terror] that we now face.” The Attorney General was promptly summoned before House Judiciary Committee but did not elaborate any further on his comments to Gregory. John Dean theorized—and we hope he is correct–that Holder may have been speaking off the cuff and the Obama administration really does not favor any radical change to Miranda, although there is some troubling evidence to the contrary.
Dean pointed out that Sam Stein, of the Huffington Post, on May 25th reported that South Carolina Senator Lindsey Graham has been in undisclosed talks with Obama administration officials about how to “statutorily codify the public-safety provision.” This revelation is particularly troubling because Sen. Graham has long advocated that anyone suspected of any sort of terror activity be denied the Miranda warnings entirely. He has been at the forefront of Republican demands that all terror suspects, American citizens or foreign born, be kept out of the criminal justice system and treated harshly as “unprivileged enemy belligerents.” Sen. Graham reiterated this position at a May 5th Senate hearing shortly after the arrest of Times Square attempted bomber Faisal Shahzad: “[When] a suspect … represents a threat to our country even though they’re a citizen, [we must] be able to gather intelligence before you [do] anything else.” As Dean appropriate noted, Graham advocates lesser rights for suspected terrorists than he does for “run-of-the-mill serial killers.”
We strongly suggest that the Obama administration not trust either Sen. Graham or Sen. John McCain on this issue. Both lawmakers are committed to a political agenda of treating all terror suspects as “unprivileged enemy belligerents” before any factual determination is made in support of that designation. Dean made the excellent observation about the Obama administration which seemed to undercut Attorney General Holder’s suggestion that the public safety exception be modified:
“I am told that the Obama Administration fully understands that it cannot ever please the Republicans who were unhappy that George Bush pulled back from the efforts of his Vice President to think about waterboarding terror suspects first, and asking questions later. President Bush realized the damage he was doing to the image of America throughout the world—and his father no doubt had a few choice words to say about his concern about the excesses his son’s presidency was employing in the name of fighting terrorists.
“Obama’s administration has, in fact, largely picked up where the Bush Administration left off, which is to abandon Dick Cheney’s policies—but not George Bush’s. While this approach had provoked squeals of displeasure from the former Vice President, Obama has been praised by the rest of the world. In fact, he has largely made public George Bush’s approach, which he has only slightly modified. Obama appears totally uninterested, for the good of the nation, in the sort of world-wrath that Cheney’s thinking produces, for Cheney’s over-reaction not only hurts us, but was counterproductive to our goal of fighting terrorism. What Lindsey Graham and those who share his view are doing is to continue to embrace the Cheney approach. However, rather than lessening the risk of terrorism, those tactics in the past proved to be remarkably good recruiting tools for terrorists’ leaders. The Obama team is not going to go there again.”
We hope not. But we have every reason to fear that if the Obama administration joins with Graham in trying to have the judicially carved out public safety exception codified by Congress, there will be no controlling the damage that will be done to the exception. Amendment after amendment will be introduced, each more extreme than the last, and partisan compromise will ultimately allow for the “lesser of two evils” to become law. Thus, the public safety exception, which was born of sound constitutional reasoning and legitimate law enforcement need, would codify the “Dick Cheney approach” and allow terror suspects to be water boarded first and questioned later.
A society can be measured by its laws. Laws that refuse to recognize this nation’s constitutional history erode its standing as a free nation. Those horrible airliners brought down more than the Twin Towers on September 11, 2001; they crippled our right to truly call ourselves a free and open society. We have transformed ourselves into a nation under siege, carelessly giving away the Constitutional rights our founding fathers thought so precious. When our elected leaders begin to play politics with our fundamental constitutional way of life to the extent that they would legitimize the “Dick Cheney approach” for fighting terrorism, we are in real danger of destroying our historical birthright of “life, liberty and pursuit of happiness.”
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair