Day: April 20, 2013

Miranda and the Public Safety Exception

As I wrote previously, the Miranda warning is a fiction created by the Supreme Court of the United States (SCOTUS). Nowhere in the Constitution will you find anything even close to a requirement to advise criminal suspects of their rights.

Miranda is grossly misunderstood. Movies and television give the impression that Miranda must be read immediately upon arrest or the arrest is invalid. This is far from the case. Miranda is two pronged. The first prong is that a person must be in custody. The second prong is that a person must be being asked investigative questions. A person not in custody can be freely questioned without having been read the warning as long as the person consents to the questioning.

Let us examine the following scenario:

A peace officer on patrol spots a bandit snatching a purse from a lady. The peace officer chases down the bandit, captures him, and then hauls him to jail. The peace officer never asks the suspect any questions about the crime and the Miranda warning is never read.

Good arrest? Bad arrest? Will the case be tanked due to the lack of the warning?

The answer is good arrest with no Miranda issues.

Now, if the peace officer, after having captured the suspect, had chosen to ask the suspect questions about the crime, the warning would have been required. Failure to do read the warning would have resulted in any evidence obtained as a result of the questioning being thrown out of court. It is important to note that the initial arrest would still be a good arrest.

Since we have gotten all of the above out of the way, we can move on to the point of this piece which is the public safety exception. This exception is triggered only when there is immediate danger. It originated in the case of New York v. Quarles, 467 U.S. 649 (1984), in which officers responding to a reported rape approached a suspect in a grocery store and captured him after a short chase. During a frisk of the suspect, an empty holster was discovered, and upon being asked where the gun was, the suspect gave up the location. He was later Mirandized and formally questioned.

At trial, the court tossed the disclosure of the firearm’s location as well as all resulting questioning. The ruling was appealed and initially upheld, but the SCOTUS reversed the rulings of the lower courts and held that the initial questions were prompted by an immediate concern for public safety.

Note the use of the word “immediate”. The Court didn’t establish a blanket exception here. It only established an exception when there is an immediate public safety concern. Once that initial immediate public safety concern is alleviated the exception no longer applies. In the scenario of the Quarles case, once the firearm was located the officers read the warning prior to formally questioning the suspect.

So, suppose a bombing suspect was hiding in a boat in someone’s back yard, and a swarm of cops descended upon the scene to capture him. Whilst doing so, if they asked about bombs and weapons in an attempt to safely secure the suspect and the scene, then such questions would be good to go. However, when that suspect, should he survive his wounds, is formally questioned about his involvement in the bombing and ties to terror organizations, Miranda will most definitely apply.

None of this would matter in the first place if SCOTUS had not created the Miranda warning in the first place.

Notes on Speed Detection

Governor Lester Maddox was a professed segregationist who sold his Pickrick Cafeteria rather than serve black customers, but even he drew the line at speed traps. The town of Ludowici, Georgia, had become so notorious for operating a speed trap that Governor Maddox had billboards erected to the north and south of the town warning passing motorists to be wary of speed traps and clip joints, and he assigned state troopers to guard the signs. This was even covered by Time magazine.

You would think that speed enforcement would be an easy feat to accomplish. It seems pretty simple to assign a peace officer to go sit along a stretch of roadway with a speed detection device with that officer stopping and citing motorist that come along in excess of the speed limit. Well, as with most things government related, common sense and actual reality rarely meet, and this is no exception. There is one law that deals with the actual offense of speeding (40-6-181 O.C.G.A.). However, there are 17 separate state laws that deal with the operation of speed detection devices. If you are a student of history, you know that Lester Maddox was Governor of Georgia from 1967 through 1971. Most of these 17 code sections date back to 1968.

Among some of the requirements in the aforementioned state laws are the requirement for warning signs, visibility of the officer’s vehicle to approaching motorist, rules about where such devices may be used, testing devices for accuracy, etc, but perhaps the one that astounds the general public the most is a requirement that a county, city, or college/university agency have a permit from the state to operate speed detection devices. This permit does not give blanket authority to conduct speed detection throughout the agency’s jurisdiction. Specific streets must be listed on the permit along with their approved speed limit. If the speed limit is changed on a road, the permit for that stretch of road is rendered null and void until the process to have it changed on the speed permit is completed or the speed limit is put back to the limit listed on the permit. The speed permit comes up for renewal every three years, and making changes or additions to it is a very, very tedious process. Operating a speed detection device without the appropriate permit is a misdemeanor offense. The permit requirement does not apply to the Georgia State Patrol.

The requirements for operating speed detection equipment are found in 40-14-1 through 40-14-17 O.C.G.A. You can find the code sections online by clicking here.

I took a class a few years ago taught by a retired precinct commander from the Phoenix (AZ) Police Department. He told a story about taking over a precinct that had experienced numerous murders in the months preceding his getting the assignment. Keep in mind that Phoenix is broken up into eight precincts; so, this was multiple murders in just one precinct of the city in a short amount of time. The Commander told us that he met with community organizations upon taking over the precinct. The number one concern expressed to him was not the high murder rate. Each and every one of the community organizations wanted to know what he was going to do about speeding in their neighborhood.

The point of that story was to point out that speeding is a universal concern. We get more complaints about speeding than anything else, and I expect that a poll of agencies across the country would report likewise. The problem is, provided we have jumped all of the state’s hurdles to get a permit and your neighborhood is on the permit, that we really only have one tool to deal with speeders, and that is to write citations. If we come to an area to enforce the speed limits, we are going to catch people speeding, and this includes your spouse, your children, your neighbors, and maybe even you.

We would rather that people voluntary comply with the speed limits because when all you have is a hammer, everything starts to look like a nail. On the weekend of the first UGA game this year, three of our deputies set up a big, flashing sign warning that speed limits were being strictly enforced. Those three deputies then wrote 80 citations in six and a half hours with none of the citations being for less than 15 miles per hour over the limit including one written for 99 miles per hour in a 55 mile per hour zone.