07 May 2010

The Public Safety Exception to Miranda: A Comparative Analysis

Much is being reported in the media this week about the public safety exception to the requirements set forth by the U.S. Supreme Court in U.S. v. Miranda – specifically in the recent case of Faisal Shahzad. (Even Charles Krauthammer is getting in on the act.) This is actually a topic with interesting implications in comparative law and a topic which has interested me for some time. As such, it takes up quite a few pages in my book as I explore and expound upon the different ways in which suspects can be interrogated abroad. (I again link an online copy of my book’s general discussion of the public safety doctrine here for those doing research on a fixed income.)

As I noted in my last post, during the interrogation process, U.K. legislation grants such suspects the right to a legal advisor, but this right can be suspended for up to forty-eight hours and, when it is allowed, it can be ordered that a detained suspect is only to receive legal advice in the sight and hearing of a police officer. In France, similarly, an individual in garde à vue―under normal circumstances―only has a right to consult with an attorney at the very beginning of the period of detention and then again, in cases of prolongation, after the twenty-fourth hour of detention. In cases of terrorism and narcotrafficking, however, the individual may not consult with an attorney until the seventy-second hour (after the second prolongation of detention). Further, criminal suspects in France do not have to be informed of their right to remain silent. In both the United Kingdom and France, therefore, terrorist suspects have diminished legal protections while in custody―granting investigators greater access to them and increasing the ability of investigators to conduct interrogations.

Although there are many more protections in U.S. law, those protections are not absolute. The Supreme Court’s decision in Miranda held that incriminatory statements are inadmissible unless a suspect, prior to giving the statement, has been read his or her rights and freely decided to forego them. (These Miranda warnings are not rights in themselves but merely measures designed to insure that the right against self-incrimination is protected.) The rule of Miranda is not, however, absolute and can be a bit more elastic in cases of “public safety.”

In New York v. Quarles, the Supreme Court faced a scenario in which a police officer went to apprehend a rape suspect who was said to be carrying a firearm. The arrest took place in a crowded grocery store. When the officer arrested the suspect, he frisked him and found an empty shoulder holster. The officer, thereafter, handcuffed the suspect and asked him where the gun was. The suspect nodded in the direction of the gun (which was near some empty cartons) and said, “The gun is over there.”

At trial, the suspect successfully moved to exclude both the statement and the gun from evidence because the officer had not given the suspect his Miranda rights before asking him where the gun was. The Supreme Court, however, found that this was “a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.”

We hold that on these facts there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the police officer.
Thus, in cases where public safety is paramount, the Court has allowed for the limited interrogation of a suspect without advisement of that suspect’s rights―and without a lawyer. While this exception is quite limited and case-specific, given the enormous impact of Miranda on the prospect of investigative detention, it is worthy of attention.

It must be noted that Miranda cannot be overturned legislatively. See Dickerson v. United States, 530 U.S. 428, 437 (2000). The Supreme Court has expressly held that “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.” This indicates that walls surrounding Miranda and the rights afforded suspects in police custody are too high to allow for extensive legislative intrusion. The right against self-incrimination, the right to counsel, and the prophylactic warnings mandated by the Supreme Court, are constitutional in nature and simply far too resistant to legislative alteration.

But the possibility does exist for legislative modification within the narrow confines of the existing, judicially recognized zone of permissive “unadvised” interrogation. Given the enormous danger terrorists pose to national security and the lives of citizens (a clear issue of public safety), a statute could be drafted which declares information of a terrorist attack a matter of utmost public safety and which allows on-the-scene interrogation of terrorist suspects immediately upon their apprehension without rights advisement in order to determine what attacks are being planned, where other terrorists are located, and similar information.

Such modifications would put into legislation what is now only a somewhat nebulous jurisprudential rule. This would also give U.S. law enforcement something similar to what is currently available to their counterparts in the United Kingdom and France. Comparativist food for thought.


Note: Any opinion expressed in this post is solely that of the author and not necessarily that of any agency of the United States government. Moreover, if you knew the position occupied by the author in said government, you would understand how ridiculous any assumption to the contrary would be.

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