The bombings at the Boston Marathon have brought many issues to light. It has renewed America’s interest in its own safety, it has shown that terror and violence can come at any time and in anyplace, and it has brought to light the meaning of you have the right to remain silent.
Miranda v. Arizona is the seminal case that carved in stone a person’s Fifth Amendment right against self-incrimination. No longer were the police permitted to question a person in the absence of advising them that anything they said can and would be used against them in a court of law. But that stone which houses the Fifth Amendment right against self-incrimination has been steadily eroding and nowhere do we see it more prevalent then when there is talk of terrorism.
The first strike against the Fifth Amendment came when New York courts created a public safety exception to Miranda. What that meant was that the police have an opportunity to question a person at length, without reading him or her Miranda rights, for the sake of the public. Thus, prosecutors only have to prove that some imminent threat to public safety justifies the failure to tell suspects of their right to remain silent and to consult a lawyer before being interrogated.
This exception arose out of a case where a man was said to have entered a supermarket with a loaded gun. When the police detained the man, they found him wearing an empty holster, and they asked him the whereabouts of the weapon. After he showed the police where he had hidden the gun, he was arrested and charged with criminal possession of a weapon. The lower courts held that he should have been given his Miranda warning before being asked the location of the gun. The United States Supreme Court accepted a review of this New York case and created this “emergency exception” to Miranda, allowing the police to defuse a dangerous situation before administering the warning.
As if this first strike was not enough, the government has now taken a sledge hammer to the Fifth Amendment by extending this public safety exception of Miranda to terrorists. The government has allowed accused terrorists to be questioned by law enforcement, without being read their Miranda rights, at length on hours and days for the sake of public safety.
The problem with a public safety exception or emergency exception to Miranda based on someone being a terrorist is that that someone could be you. The government will cloak the oppressed, the poor and those least represented as terrorists in order to invoke the public safety exception. The government has a history and a habit of labeling anyone it perceives to disagree with its world view. Not too long ago and not so far away the government accused Blacks who were asserting their rights and questioning injustices as terrorists. There were those who believed in a different political ideology from this country who were called enemies of the State and being labeled a terrorist or enemy of the State meant that law enforcement did not have to apply the laws to you as it had to your counterparts.
Perhaps you can’t see yourself being the one that such a labeling would apply. Perhaps your political ideology is in lockstep with the majority. If that is so, then you are right, then the public safety exception would never apply to you. But you know that isn’t true. You know that after the World Trade Center attacks law enforcement stopped, frisked, arrested rounded up and rousted anyone of color, by justifying that they were Muslim terrorists who had to be detained, followed or watched. My telephone rang off the hook during that time as minorities were being wrongfully arrested under the guise that they were terrorists.
And what the Boston Marathon bombings has shown us is that we are all vulnerable and our rights are steadily eroding. This week New York Congressman Charles Schumer stated that the brother in the Boston bombing should have been questioned by the FBI when he tweeted negative statements about the U.S. Now, your tweets can have you questioned, in the absence of Miranda, by law enforcement, based on what you sent via social media. The communication on social media, for example Twitter, Facebook, and Instagram means that everyone is exposed to the proverbial knock at the door.
It is now clearer than ever that the public safety exception will be used by law enforcement to wrongfully question minorities and others about anything under the guise that the public safety is in jeopardy. These are different times we live in that call for everyone to be vigilant and arm themselves with the card of a good lawyer. For when you or a loved one find yourselves face-to-face with law enforcement - - and it will happen - - if you cannot remember to stop talking, then you better remember to call a good lawyer.