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Now that the "Armchair" lawyers and forensic specialists are out in full force, can we actually have a discussion (as opposed to a debate) about the continued efforts to dilute our fundamental rights embodied in the Bill of Rights? I mean, now that suspected terrorist Dzhorkhar Tzarnaev has been apprehended, attention has suddenly shifted not to what would cause anyone holding U.S. Citizenship to murder maim, and terrorize innocent Americans, but instead on whether he should have been afforded his "Miranda Rights." I say "Armchair" lawyers because so many folks think they know criminal procedure, law and the Constitution based upon television shows like CSI, or rely upon alleged anonymous "experts" posting inane comments on the Internet.
Just last night, I responded to a message posted online claiming the entire Boston Bombing was a hoax and was none other than a "government conspiracy" proven by the fact the apprehended suspect was not read his Miranda rights! When I pointed out an exception exists wherein Miranda does not have to be immediately read to a suspect, the response was swift, "That's what's wrong with you Teabaggers, you know nothing!" Wow, I've been called a lot of things, but having someone call me a "Teabagger" was definitely a first!
A simple review of Miranda and subsequent court rulings reveals that although self-incriminating speech under the 5th Amendment is generally protected, the collection of physical evidence may not be so protected. For over two decades, Courts have ruled that criminal defendants, even though they may have the right to remain silent, have no right to decline having evidence collected without a warrant that might incriminate them of a crime. Gee, do you think an arresting officer of a drunk driver needs to obtain a search warrant when seeking to use a breathalyzer? Or draw blood or hair samples without a warrant? This has been happening for years, and only now the Supreme Court is reviewing whether law enforcement must obtain a search warrant before obtaining such samples. But what if the suspect refuses to allow samples to be taken? Does he have the right to "remain silent" and refuse any DNA or blood evidence to be collected? Thus far, State Supreme Court's have ruled suspects do not have such a right (see the case of Missouri v. McNeely, 11-1425). But what is this alleged "Public Exception" anyway? Is it something new? Did authorities just make it up this week? No, the exception has been used in law enforcement since as early as 1984!
According to the Supreme Court, the "Public Safety" exception is triggered when law enforcement have an objectively reasonable need to protect the police or the public from immediate danger. Because the standard is objective, the availability of the exception must not depend on subjective motivation of the officers, but instead, upon objective standards relating to public safety. Legitimate concerns for officer safety or public safety prompting unwarned custodial questioning arise in a variety of contexts. A common factor that can be gleaned from the courts addressing this issue is the prior knowledge or awareness of specific facts or circumstances that give rise to the imminent safety concern that prompted the questioning verbally and physically.
But what is then the exception to Miranda that has so many folks "deeply" concerned? Has the United States Supreme Court ever ruled on whether such an exception to the 5th Amendment exists? Yes, they have, and the exception has been upheld. And this is exactly where I get exasperated by the "armchair" lawyers. They are quick to scream "there ought to be a law" when the Supreme Court has already ruled on its validity. Since Marbury v. Madison (1803), the Supreme Court is the sole arbiter of what is constitutional and they have so ruled. So what did they decide? What is "The Public Safety Exception?" According to the Supreme Court,
"The Public Safety Exception" comes into play when law enforcement have an objectively reasonable need to protect themselves or the public from immediate danger. Since it is an objective standard, the circumstances of every case will dictate whether the exception to Miranda may apply. The Court further ruled that the exception does not allow law enforcement to compel a statement from a suspect, it simply allows questioning before providing a suspect his Miranda rights. All the exception requires is a reasonable concern of an imminent threat to public safety. Once the questioning turns from imminent threats to public safety, to those that can lead to incrimination only, Miranda must then be read to the suspect (see New York v. Quarles, 467 U.S. 649, 654 (1984) and Miranda v. Arizona, 384 U.S. 436, 460-461, 467 (1966). In the case at hand, evidence of body vests with explosives existed, making the arrest itself dangerous. The existence of Improvised Explosion Devices would make any reasonable person nervous as well. What did it mean before the second suspect was apprehended when his father proclaimed "If my son dies, all hell is going to break loose?" Was he referring to the existence of a "cell" that would go into immediate action if he should die? Where might additional evidence be obtained detailing imminent terror attacks in the United States? But "armchair" lawyers knew all about the exception as established by the Supreme Court, right? So how does one aware of the law suddenly become a "Teabagger" (you can guess I get a big kick out of that label being applied to me)!?
I think what disturbs me the most however, is the faux concern about the terror suspect's rights being denied him yet no real concern that the United States House of Representatives, led by the GOP, has passed Bills allowing private Internet services immunity when sharing citizens private account information for "cybersecurity" purposes. According to the Bill passed this week, Internet providers may share citizens e-mails and other data (bank records, sales transactions, etc.) with the government with impunity, even if citizens are not suspects of any crime(s). The President has demanded the Bill be amended to limit its scope to investigations of actual suspects with further limits to the scope of the information to be shared, yet the GOP House (with the help of some Democrats) passed the Bill anyway. So why the uproar over the exception to Miranda and no similar outrage over the sharing of private Internet based information (see CISPA)? And where is the equal outrage at the GOP for passing a Bill in the House allowing employers to demand all personal passwords of employees to social media sites such as Facebook, Twitter and LinkedIn? Yes, you are reading this correctly. The House passed HR624 allowing employers the right to demand access to all employee passwords to social media sites as a condition of employment! What happened to the right of privacy when it comes to our personal use of the Internet? Does the GOP really think Freedom of Speech does not apply to what we read and say on the Internet? On Facebook? Twitter? It galls me even more that the GOP alleges it is the party against "Big Government", yet it gives them and "Job Creators" access to everything we do on the Internet! Does this mean that if my employer does not like the way I criticize the current state of our education system, I can be fired? Whatever happened to protection against "Chilling" or inhibiting Free Speech? Does this mean we lose our fundamental rights when we become employed? Is being employed more important than our Liberty, including our right to Free Speech? Have so many serving and dying for our Country paid the ultimate price to protect businesses instead of the People of America?
So folks, stop clamoring against the government when it seeks to investigate terrorist attacks. Criminal law and procedure are in place to protect society. Instead, start demanding our Government immediately stop attempting to dilute our collective fundamental rights to freedom and liberty guaranteed under the Constitution! As Abraham Lincoln once wrote, "The shepherd drives the wolf from the sheep's for which the sheep thanks the shepherd as is liberator, while the wolf denounces him for the same act as the destroyer of liberty. Plainly, the sheep and the wolf are not agreed upon a definition of liberty." It's time for the "sheep" to recognize who the wolves are so that we step up and stop them from diluting our fundamental rights and liberties. We need to recognize that some in Washington may be "wolves in sheep's clothing!"
Just last night, I responded to a message posted online claiming the entire Boston Bombing was a hoax and was none other than a "government conspiracy" proven by the fact the apprehended suspect was not read his Miranda rights! When I pointed out an exception exists wherein Miranda does not have to be immediately read to a suspect, the response was swift, "That's what's wrong with you Teabaggers, you know nothing!" Wow, I've been called a lot of things, but having someone call me a "Teabagger" was definitely a first!
A simple review of Miranda and subsequent court rulings reveals that although self-incriminating speech under the 5th Amendment is generally protected, the collection of physical evidence may not be so protected. For over two decades, Courts have ruled that criminal defendants, even though they may have the right to remain silent, have no right to decline having evidence collected without a warrant that might incriminate them of a crime. Gee, do you think an arresting officer of a drunk driver needs to obtain a search warrant when seeking to use a breathalyzer? Or draw blood or hair samples without a warrant? This has been happening for years, and only now the Supreme Court is reviewing whether law enforcement must obtain a search warrant before obtaining such samples. But what if the suspect refuses to allow samples to be taken? Does he have the right to "remain silent" and refuse any DNA or blood evidence to be collected? Thus far, State Supreme Court's have ruled suspects do not have such a right (see the case of Missouri v. McNeely, 11-1425). But what is this alleged "Public Exception" anyway? Is it something new? Did authorities just make it up this week? No, the exception has been used in law enforcement since as early as 1984!
According to the Supreme Court, the "Public Safety" exception is triggered when law enforcement have an objectively reasonable need to protect the police or the public from immediate danger. Because the standard is objective, the availability of the exception must not depend on subjective motivation of the officers, but instead, upon objective standards relating to public safety. Legitimate concerns for officer safety or public safety prompting unwarned custodial questioning arise in a variety of contexts. A common factor that can be gleaned from the courts addressing this issue is the prior knowledge or awareness of specific facts or circumstances that give rise to the imminent safety concern that prompted the questioning verbally and physically.
But what is then the exception to Miranda that has so many folks "deeply" concerned? Has the United States Supreme Court ever ruled on whether such an exception to the 5th Amendment exists? Yes, they have, and the exception has been upheld. And this is exactly where I get exasperated by the "armchair" lawyers. They are quick to scream "there ought to be a law" when the Supreme Court has already ruled on its validity. Since Marbury v. Madison (1803), the Supreme Court is the sole arbiter of what is constitutional and they have so ruled. So what did they decide? What is "The Public Safety Exception?" According to the Supreme Court,
"The Public Safety Exception" comes into play when law enforcement have an objectively reasonable need to protect themselves or the public from immediate danger. Since it is an objective standard, the circumstances of every case will dictate whether the exception to Miranda may apply. The Court further ruled that the exception does not allow law enforcement to compel a statement from a suspect, it simply allows questioning before providing a suspect his Miranda rights. All the exception requires is a reasonable concern of an imminent threat to public safety. Once the questioning turns from imminent threats to public safety, to those that can lead to incrimination only, Miranda must then be read to the suspect (see New York v. Quarles, 467 U.S. 649, 654 (1984) and Miranda v. Arizona, 384 U.S. 436, 460-461, 467 (1966). In the case at hand, evidence of body vests with explosives existed, making the arrest itself dangerous. The existence of Improvised Explosion Devices would make any reasonable person nervous as well. What did it mean before the second suspect was apprehended when his father proclaimed "If my son dies, all hell is going to break loose?" Was he referring to the existence of a "cell" that would go into immediate action if he should die? Where might additional evidence be obtained detailing imminent terror attacks in the United States? But "armchair" lawyers knew all about the exception as established by the Supreme Court, right? So how does one aware of the law suddenly become a "Teabagger" (you can guess I get a big kick out of that label being applied to me)!?
I think what disturbs me the most however, is the faux concern about the terror suspect's rights being denied him yet no real concern that the United States House of Representatives, led by the GOP, has passed Bills allowing private Internet services immunity when sharing citizens private account information for "cybersecurity" purposes. According to the Bill passed this week, Internet providers may share citizens e-mails and other data (bank records, sales transactions, etc.) with the government with impunity, even if citizens are not suspects of any crime(s). The President has demanded the Bill be amended to limit its scope to investigations of actual suspects with further limits to the scope of the information to be shared, yet the GOP House (with the help of some Democrats) passed the Bill anyway. So why the uproar over the exception to Miranda and no similar outrage over the sharing of private Internet based information (see CISPA)? And where is the equal outrage at the GOP for passing a Bill in the House allowing employers to demand all personal passwords of employees to social media sites such as Facebook, Twitter and LinkedIn? Yes, you are reading this correctly. The House passed HR624 allowing employers the right to demand access to all employee passwords to social media sites as a condition of employment! What happened to the right of privacy when it comes to our personal use of the Internet? Does the GOP really think Freedom of Speech does not apply to what we read and say on the Internet? On Facebook? Twitter? It galls me even more that the GOP alleges it is the party against "Big Government", yet it gives them and "Job Creators" access to everything we do on the Internet! Does this mean that if my employer does not like the way I criticize the current state of our education system, I can be fired? Whatever happened to protection against "Chilling" or inhibiting Free Speech? Does this mean we lose our fundamental rights when we become employed? Is being employed more important than our Liberty, including our right to Free Speech? Have so many serving and dying for our Country paid the ultimate price to protect businesses instead of the People of America?
So folks, stop clamoring against the government when it seeks to investigate terrorist attacks. Criminal law and procedure are in place to protect society. Instead, start demanding our Government immediately stop attempting to dilute our collective fundamental rights to freedom and liberty guaranteed under the Constitution! As Abraham Lincoln once wrote, "The shepherd drives the wolf from the sheep's for which the sheep thanks the shepherd as is liberator, while the wolf denounces him for the same act as the destroyer of liberty. Plainly, the sheep and the wolf are not agreed upon a definition of liberty." It's time for the "sheep" to recognize who the wolves are so that we step up and stop them from diluting our fundamental rights and liberties. We need to recognize that some in Washington may be "wolves in sheep's clothing!"
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