RESPOND TO EACH PERSON (1-JOE 2-JENN) WITH 350 WORDS EACH OF FEEBBACK WITH
APA SOURCES FOR EACH ABOUT THEIR RESPONSE TO THE QUESTIONS LISTED. DO NOT ANSWER
THE QUESTION.. PROVIDE FEEBACK ONLY, EXPAND ON SAID TOPIC ETC..
SOURCES ARE TO BE IN BLUEBOOK FORMAT LIKE BELOW
11111111111111111111111111111111JOE111111111111111111111111111111111
The fact that police must Mirandize suspects leads us down an interesting trail of logic if we explore how
it relates to the protections provided by the Fifth Amendment. Starting at the source, and assuming that
Miranda rights stem from the Fifth Amendment, we would certainly point to the specific protection that
suspects cannot be compelled to be a witness against themselves. However, that isn’t what the police
officer tells the suspect during the Miranda process. Instead, the police officer tells the subject that they
have a right to remain silent, among other things.[1] That statement and the protections provided by the
Fifth Amendment are not the same things. It’s as if the Miranda process exists under a specific and
exclusionary view of the Fifth Amendment that doesn’t apply in the same way under any other
circumstance.[2]
Instead, it may make more sense if the officer said something along the lines of “I can’t compel you to
talk”. This was basically the question asked in Dickerson v. United States[3]. Should a statement made by a
suspect be admissible if (1) it was not coerced or compelled and (2) it was made before or in the absence
of a proper Miranda warning? The Supreme Court held that the Miranda mandate should still govern the
admissibility of evidence at trial.
Having firmly established that Miranda rights are at least constitutionally based, why are police officers
not required to give similar warnings about consent and searches? After all, it wouldn’t be hard to think of
at least a few circumstances where consenting to a search would be much more detrimental to the
individual than talking. In addition, a search would be much more invasive, whereas not remaining silent is
a personal choice and is in no way invasive; it is the opposite of invasive.
The only good answer I can think of is the difference between the experience and ordeal of being in
custody which would mandate a Miranda reading, and an encounter with police where they asked to
search a person’s property. Being in police custody can be stressful and confusing. Moreover, it can be
frightening and uncomfortable. Therefore, being in this position provides at least a moderate incentive to
find a way out of the predicament which may entice some individuals to say things that maybe
incriminating, but also will end the encounter sooner, especially if the suspect believes that the outcome is
unavoidable. On the other side, perhaps there is an expectation that if the police said “can we search your
home” a reasonable person should have a motivation to say ‘no’, especially if the outcome would be
considerably better for them than if they said ‘yes’.
So, maybe the Fifth Amendment doesn’t drive Miranda requirements as much as our perception of the
vulnerability of a person in police custody. Therefore, by nature Miranda protections and requirements go
above and beyond the constitutional requirements because the risk of police maleficence is so much
greater in those conditions.
[1] Stephen Schulhofer, Miranda, Dickerson, and the Puzzling Persistence of Fifth Amendment
Exceptionalism, Michigan Law Review, Mar 2001, 99, 5, 941-943.
[2] Id, at 942
[3] Dickerson v. United States 530 U.S. 428, (2000).
222222222222222222222222222222 JENN 2222222222222222222222222222222222222
Why should the police be required to advise suspects of their Fifth Amendment rights when police
are not required to advise people who consent to searches that they need not give consent? What
is the difference? When does Miranda apply? Give examples. Support your position.
Nowadays, thanks to the media, most Americans understand that they are able to refuse a search. Almost
any procedural drama on television has shown time and time again that the police need a warrant to
conduct a search if the target refuses. Besides the fact that this is well known thanks to pop culture, there
are more reasons (rooted in law and previous case decisions) why people must be advised of their
Miranda rights but not necessarily of their right to refuse a search. Simply put, the 5 th amendment does
not protect property, only individuals. The 4th amendment protects an individual against an illegal search
and seizure, but a consent search is just that—a search granted by consent.
The fifth amendment deals specifically with confessions and admissions. It wasn’t until Miranda v. Arizona,
however, that it became common practice to inform citizens of their rights upon arrest. Prior to Miranda,
it could be argued that a suspect may not understand his or her rights, may not understand his or her
words could possibly be used against them at trial or that indigent defendants were entitled to a legal
counsel even if they weren’t able to afford it. The specific wording in Miranda isn’t required to be used—
rather, as long as every point is explained, departments are legally covered. In addition to the fifth
amendment, Worrall points out that confessions and admissions are also covered by the 14 th
amendment’s due process clause as well as the 6th amendment’s guarantee to counsel [1].
Miranda applies only when a person is in custody and being interrogated. In Salinas v. Texas, a man who
had committed a murder voluntarily answered a police officer’s questions until asked about ballistics
testing to his shotgun. After refusing further questioning, he challenged the information he had given the
police. During the questioning, Salinas was never placed into custody nor did he invoke his fifth
amendment right to remain silent. The Court sided with the officer since Salinas was not in custody at the
time of his revelations [2].
As far as custody is concerned, several landmark cases have established the parameters of what
constitutes “custody”. Traffic stops are not custodial in nature. Questioning someone at their home, place
of business or even the police station does not necessarily mean custody—it depends on the situation
and the specifics must be evaluated on a case-by-case basis. In Berkemer v. McCarty, the Supreme Court
held that the standard is “how a reasonable man in the suspect’s position would have understood his
situation” [3].
But does every person placed into custody and interrogated deserve to have their Miranda Rights read to
them? Citizens, non-citizens and tourists do…but those suspected of something time sensitive, like a
terrorist, do not [4]. When public safety is an issue and the suspect is in custody, the focus is to get as
much information as law enforcement can in the least amount of time. When the remaining Boston
bomber was taken into custody, he was interrogated prior to Miranda Rights being read. The same thing
happened with the so-called “Christmas Bomber,” Umar Farouk Abdulmutallab. After trying to blow up a
Northwest Flight to Detroit, the FBI detained him upon arrival and questioned him for an hour prior to
giving him his Miranda warning [5]. This public safety exception was developed after the case New York v.
Quarles was heard by The Court. Justice Rehnquist, joined by Justices Burger, White, Blackmun and Powell,
argued, “The need for answers to questions in a situation posing a threat to public safety outweighs the
need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination” [6]
[1] John Worrall, Criminal Procedure: from First Contact to Appeal, 5th ed., 2015.
[2] Salinas v. Texas, 570 U.S. ___ (2013), available at https://www.law.cornell.edu/supremecourt/text/12-246
[3] Berkemer v. McCarty, 468 U.S. 420 (1984), available at
https://supreme.justia.com/cases/federal/us/468/420/case.html
[4] John Worrall, Criminal Procedure: from First Contact to Appeal, 5th ed., 2015.
[5] H. Joshua Rivera, At Least Give Them Miranda: An Exception to Prompt Presentment as an Alternative to
Denying Fundamental Fifth Amendment Rights in Domestic Terrorism Cases, 49 Am. Crim. L. Rev. 337
(2012)
[6] New York v. Quarles, 467 U.S. 649 (1984), available at
https://www.law.cornell.edu/supremecourt/text/467/649
Purchase answer to see full
attachment