More than lives and limbs may have been lost on April 15th amid the horror of the Boston bombings. How much of our personal freedom are we willing to sacrifice to assure our protection from enemies walking among us? In the wake of this latest atrocity we rightly applaud the quick efforts of law enforcement to locate and bring to ground the the terrorists. How many of us watched the unfolding investigation and its use of street surveillance to isolate the bombers and retrace their steps? We were at once both captivated and relieved that the offenders were so readily found.
Once the younger of the Tsarnaev brothers was captured we heard of something called the public safety exception,relieving the police from the obligation to provide him with his Miranda warnings. First, the issue had to be resolved whether to even prosecute him in the civilian courts or treat him as an enemy combatant, stripped of the protections of our Bill of Rights.
At some point, there will be those believers in the paramount need to extend our constitutional protections even to the guiltiest offender; a label easily applied to Tsarnaev. They will remind us that despite the horror of his crimes above all we should not sacrifice the Bill of Rights. But have we?
Take the issue of the extensive video surveillance used in the hunt. Is this an example of Big Brother from the pages of Orwell’s 1984? Have we really welcomed the constant stream of video imaging as a means to protect us or is it an intrusion into our privacy? The answer requires an understanding of the underpinnings of many of our constitutional rights–the expectation of privacy. It is this expectation that triggers the application of the Fourth Amendment proscription against unlawful searches and seizures.
That right requires proof that Government has intruded into an area that we have attempted to shield from public view. Our homes, cars and our phone conversations are the typical protected areas. When we close our shades or speak in private on our hones we have made a silent statement that we do not intend the public at large to see or hear what we are engaged in.
Attempts at video surveillance that invade our private areas clearly offend the Fourth Amendment if done without prior judicial approval. To justify such intrusions a neutral and detached judicial magistrate must make an independent finding of probable cause. But when we walk the city streets we do so tacitly exposing ourselves to the view of all around us. What the naked eye of our fellow citizen observes, the following eye of electronic surveillance cameras is entitled to record. We do not carry the shield of the Fourth Amendment like Harry Potter’s cloak of invisibility.
The public safety exception to Miranda is a common sense concept that the rise in domestic acts of terror has engendered. It is an attempt to balance the Fifth Amendment rights to be free of self-incrimination–the basis of Miranda— against the need for law enforcement to act quickly to prevent greater injuries.
In the case of Tsarnaev the evidence revealed to the public to date appears overwhelming. Interrogating him in the absence of Miranda creates a risk that a court may later determine that the public safety exception was not justified. The effect of such a ruling would only suppress any incriminating statement he made from use in a subsequent trial. It would not lead to the unreasonable result of a dismissal of the case against him.
The actions of law enforcement in the wake of the bombings appear to have struck the right balance between individual liberties and our safety as a society– proof that the rights of one must at times bend to the good of all.