A.G. discusses changes to Miranda for terror suspects

Speaking Sunday on ABC's "This Week," Attorney General Eric Holder says modifying the public safety exception may be considered


WASHINGTON — During an appearance on the weekly television program ‘This Week’ on ABC TV, U.S. Attorney General Eric Holder said he wants to work with Congress to make changes in the law as it relates to questioning people suspected of terrorist activities.

The Obama administration “has been criticized for reading Miranda rights to the suspect in the Times Square bombing attempt and to the suspect in the Christmas Day attempt to blow up an airliner over Detroit,” according to a report by the Associated Press. That AP report went on to say that the “administration needs to consider at least modifying the public safety exception for reading a suspect his rights to ensure law enforcement can act with flexibility and within constitutional bounds.”

Upon seeing this news, PoliceOne consulted with one of our Legal Columnists, Terry Dwyer, who said he thinks this to be “a double-edged sword and an unlikely constitutional path the administration wants to travel.”

“The criticism from conservatives, as I read it, was that the Obama administration came under fire for the police reading the Times Square terror suspect his rights. We can’t forget that first and foremost the police were investigating a crime and had to proceed as if they were preparing a case for trial. I think the comments of the Attorney General and the administration are a bit of a knee jerk reaction to the criticism.”

Dwyer said further that there already is a ‘public safety exception’ in place from the U.S. Supreme Court case New York v. Quarles, 467 U.S. 649 (1984). That decision provides a limited exception which ends once the public safety concern is over, much like exigent circumstances exceptions to the 4th Amendment requirements. The problem with the administration’s position, Dwyer said, is what shall be defined as ‘terrorism?’

Dwyer pointed out that the USA Patriot Act expanded the definition to include domestic acts, so the potential of any changes to impact U.S. citizens is not remote.

“Again, it begs the question, what is to be defined as ‘terrorism?’ The government and prosecutors have been all too willing in the past to expand definitions and groups never intended to come within the purview of a statute have been prosecuted by it, such as anti-abortion protestors and RICO statute. Let’s not forget that after all these years of Miranda, suspects still confess and the Times Square suspect was extremely talkative from all accounts.”

Dwyer said that two things have to be highlighted here — first, that U.S. Supreme Court is not going to rubber-stamp any legislative changes. Dwyer explains that in the case of Dickerson v. U.S., in which the specific issue was whether Congress can overrule the U.S. Supreme Court decision in Miranda v. Arizona, the response from the Court was a resounding, ‘No.’

The second issue to be highlighted, explained Dwyer, is the Court’s decision in Chavez v. Martinez, 538 U.S. 760 (2003) in which the issue was whether a suspect’s 5th Amendment right against self-incrimination and 14th Amendment due process rights were violated when he was questioned without Miranda warnings while in custody in the hospital with treatment being delayed.

“The Court said there is no 5th Amendment violation if the coerced statements are not being used against the suspect at criminal trial. The Court did not address the 14th Amendment substantive due process claim and sent it back on remand to the lower court. I don’t know what happened at the lower court on remand, but as far as the Chavez Court left it, there is no 5th Amendment self-incrimination violation if coerced statements aren’t used in a criminal trial.”

In conclusion, Dwyer also said that we must consider the holding of the U.S. Supreme Court in U.S. v. Patane, 542 U.S. 630 (2004) in which the Court stated, ‘[T]he Self-Incrimination Clause, however, is not implicated by the admission into evidence of the physical fruit of a voluntary statement.

This indicates, said Dwyer, that evidence obtained from an un-Mirandized statement can be admitted into evidence at trial against a defendant since ‘the core protection afforded by the Self-Incrimination Clause is a prohibition on compelling a criminal defendant to testify against himself at trial.

“Now,” explained Dwyer, “this goes solely to non-compelled statements, from a ‘negligent or even deliberate failure’ to provide Miranda warnings. If compelled then suppression of evidence at trial would be the remedy. The creeping vine of executive overreach continues into this administration and though police may at first welcome any watering down of the Miranda protections they must also be mindful that the privilege against self-incrimination applies to them as well. Police are subject to investigation, even duty-related events, such as the use of force, carry potential criminal repercussions for the officer. I'd be concerned about the ‘trickle-down effect’ — to borrow a Reaganism — of any dilution of rights and how it may impact officers when they rely on those protections.”

Dwyer concluded, “To me it is all just politics and a band-aid on a bigger problem the administration is unwilling to address when it comes to terrorism and that is support for enforcement initiatives and military operations as well as a solution to the immigration system. The immigration problem has, since 9/11, been placed on the backs of local law enforcement and it is simply not there job, immigration enforcement is a federal matter.”

What do you think? Add your comments below.


The Associated Press contributed to this report.

About the author

Doug Wyllie is Editor in Chief of PoliceOne, responsible for setting the editorial direction of the website and managing the planned editorial features by our roster of expert writers. An award-winning columnist — he is the 2014 Western Publishing Association "Maggie Award" winner in the category of Best Regularly Featured Digital Edition Column — Doug has authored more than 800 feature articles and tactical tips on a wide range of topics and trends that affect the law enforcement community. Doug is a member of International Law Enforcement Educators and Trainers Association (ILEETA), an Associate Member of the California Peace Officers' Association (CPOA), and a member of the Public Safety Writers Association (PSWA). Even in his "spare" time, he is active in his support for the law enforcement community, contributing his time and talents toward police-related charitable events as well as participating in force-on-force training, search-and-rescue training, and other scenario-based training designed to prepare cops for the fight they face every day on the street.

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