Forget Miranda

The process of change is like steering the Titanic: slow to move, but when the direction has changed there is no turning back.


Every law enforcement officer knows what to say, in their own way, when advising a suspect of their rights. We thoroughly examined the historic case of Miranda v. Arizona either as an academy cadet, college student or both. We know that suspects are often quick to tell us "...I know, I know, I have the right to remain silent." When it comes to the warning itself, cops do not necessarily like to give it, prosecutors attempt to undermine it, defense attorneys try to uphold it in every situation even when it does not apply and the courts overturn it. To say the least, it was a highly controversial ruling back then and continues to be so today.

Working the street it never ceased to amaze me when I saw cops, some inexperienced, others competent and intelligent, and still a few veterans who really did not know when Miranda should be applied and when it shouldn't. Even fewer than that knew when to disregard it completely. Do you recall the exceptions? The categories are:

  • Public Safety Exception - Here a reasonable officer concludes that it is more important to obtain critical information than to be held to Miranda compliance. Dangerous situations, evolving and imminent, to the public, victim, suspect and officers fall within this condition.
  • Undercover Agent Exception - Apart from the obvious deductive reasoning conclusion here, the U.S. Supreme Court in Illinois v. Perkins held that since an officer is not functioning in a police-dominated atmosphere while serving in an undercover capacity and therefore, Miranda concerns are not perilous.

As we can see, the necessity of Miranda is not as concrete as we think and due to a multitude of factors the core elements of the warning and it's stipulated use remain in a state of flux. More changes are on the horizon.

Terror Suspects

On Sunday, 5/9/2010, U.S. Attorney General Eric Holder was a guest on the NBC show Meet the Press. While doing his best to resist a period of grueling questioning by the host, David Gregory, Holder apparently slipped and released "big news." Holder went on to say that when it comes to law enforcement having to apply Miranda during rapidly evolving terrorism investigation, "We certainly need more flexibility and we want the public safety exception to be consistent with the pubic safety concerns we have in the 21st Century..." Holder continued by saying that the Obama Administration, through the U.S. Department of Justice, would work with Congress to "come up with a way" in which the public safety exception to Miranda accounts for the threats the U.S. currently faces from terrorism.

In my view, Holder is right; I couldn't agree with him more. The fact is the current public exceptions existing to Miranda do not account for a terrorism event. They were instituted concerning traditional crimes from ordinary criminals, not international terrorists conspiring to unleash a Weapon of Mass Destruction in some major city killing tens of thousands. Police officers today have to contend with criminal acts that transcend the boundaries of nations, in some cases involving a foreign government, and are so complicated that they take years to investigate on multiple continents. The rules of the game need to change.

Unintended Consequences

Although I believe in an expansion of the public safety exception, I cringe when thinking about it too. Do you believe that over-zealous prosecution exists? If you don't then that tells me you have never been a target of it. Each one of us has personal experiences where good intentions went astray. Don't think this can't happen with a terrorism specific public safety exception. Somewhere, somehow, with some case, a not-so-good prosecutor will pursue prosecuting a case that should have never been. The defendant will have allegedly engaged in, what will be argued at a later point, terrorist activity. In the end, after tens of thousands of dollars are spent prosecuting and defending such a case, the defendant will have lost freedom for a considerable part of his or her life and whatever wavering confidence the public had in our government and system of laws, will be forever shattered.

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