Miranda Rights, “Public Safety” and the Police State

Attorneys in the Boston bombing case are jockeying with the judge over whether or not testimony garnered from Dzhokhar Tsarnaev during thirty-six hours of FBI questioning while he lay in a hospital bed recovering from a gunshot wound—his jaw wired shut and heavily doped up on pain medication—will be admissible as evidence against him in his upcoming trial. The FBI unrelentingly questioned the younger Tsarnaev without reading his Miranda rights to him even though he repeatedly answered in writing that he wanted an attorney present during their interrogations.

Tsarnaev’s lawyers (via the Boston Globe) state that Tsarnaev ““wrote the word lawyer 10 times, sometimes circling it” and that “At one point, he wrote: ‘I am tired. Leave me alone.’ . . . His pen or pencil then trails off the page, suggesting that he either fell asleep, lost motor control, or passed out.”” In the Tsarnaev investigations the FBI justify their unremitting questioning without granting Tsarnaev his right to a lawyer being present on the grounds of protecting “public safety”. While it may have been protective to find out if there were other bombs before bothering with an attorney, the judge is pondering if what Tsarnaev told investigators under duress may be used as evidence against him—a completely other matter. While no one should feel sympathy for a terrorist who attacked our citizenry—we should all be concerned if this same law enforcement tactic can be applied to any U.S. citizen—ourselves included and then the evidence that is obtained under duress without an attorney present can then be used to convict us.

The same grounds of “public safety” were used and accepted by a judge in another case that I was involved in a few years ago where the defendant, Annette Morales Rodriguez, was also clearly guilty of a heinous crime. Rodriguez who had gruesomely cut a fetal child out of another woman leaving her for dead, while she attempted to pass the baby off as her own stillborn child, was questioned under rather unusual duress. While I found her crime horrifying, I also found it extremely disturbing that Rodriguez was picked up and escorted by Milwaukee police to a local hospital and subjected to two gynecological exams, the latter that she clearly, and unequivocally, refused but was subjected to anyway. At the same time—while Rodriguez, a former rape and incest survivor and very mentally ill person, was begging not to be subjected to another gynecological exam, a Milwaukee police official questioned her about her crime. Not surprisingly, Rodriguez, broke under the pressure of having to undergo yet another forced vaginal exam and admitted her crime. While arguments can also be made in her case for aggressively questioning her and not delaying to wait for her attorney, the judge didn’t seem to have any problem with allowing Rodriguez’s confession obtained under this level of duress to be admitted into the court as evidence. I found that so disturbing I wrote a book about it telling her story (Fetal Abduction: A True Story of Multiple Personalities and Murder).

When I hear these cases I begin to wonder about the potential abuses of government power when security services and law enforcement personnel can question us under medical duress—including medication and invasive bodily searches—without a warrant, while we attempt to refuse, and without reading our rights to us or supplying a lawyer if we ask for one. And I find it doubly horrifying that what is gained under this level of forced interrogation methods alongside what some might call “soft torture” –can be used against us in trial—and this all in the supposed service of “public safety”!

It seems to me if this sort of thing is allowed, it is not only our bodies and minds under potential assault by security professionals trying to do their jobs—perhaps at our grave expense if we are innocent—which is why in the United States constitution we have the Fourth Amendment to protect us. In the above examples, innocence is clearly not the case—but the same reasoning and behaviors could have been applied to a wrongly accused and innocent suspect—resulting in questioning under medical duress and even an invasive internal bodily search all without a warrant!

Add to that, it is not only ourselves that can today be interrogated in such a manner, but it appears that our cell phones and electronics can also be searched without warrants. The U.S. Supreme Court will soon hear two such cases that involve the warrantless searches of cell phones made pursuant to arrest. In the case of Riley v. California, David Riley was arrested for an expired registration at which time loaded guns were found in his car. A warrantless search of his cell phone then led to a further arrest and conviction for attempted murder. The California appeals court claimed that neither search required a warrant and likened the search of a cell phone to the evidence found in wallets and personal papers that have long been subject to examination pursuant to an arrest.

The second case, United States v. Wurie involves the warrantless search of Wurie’s cell phone following an arrest for drug dealing. In his case, the federal court in Boston threw out the evidence found during the warrantless search and Judge Norman H. Stahl wrote in his opinion that, “Today, many Americans store their most personal ‘papers’ and ‘effects’ in electronic format on a cellphone, carried on the person.”

Indeed when current law supposedly protect us from our doors being broken into and our homes being invasively searched without a warrant it seems contradictory that our electronic items are now potentially open to unchecked law enforcement access—akin to breaking down the doors to some of our most privately held information.

Is computer search and seizure the new frontier? That’s what Professor Orin Kerr of George Washington University School of Law and an expert in search and seizure is claiming. When viewed alongside the cases arguing “public safety” as a rationale for questioning individuals while under duress—without reading them rights or granting them access to their attorney, and judges (at least in the case I served on) accepting police evidence obtained under such severe duress as evidence to convict—it seems we are rapidly losing our rights.

If Rodriguez could convict herself through a confession obtained during a refused but, carried out nonetheless, invasive bodily search—all in the name of “public safety”—I wonder have we not effectively surrendered our rights in the hopes of being kept “safe”? And are we not just the opposite of “safe” when our own law enforcement teams can invade our computers, cell phones and even our bodies to obtain evidence that will then appear in court and used against us? For me, this is a harbinger of a police state.

Anne Speckhard, Ph.D. is Adjunct Associate Professor of Psychiatry at Georgetown University in the Medical School, forensic expert, researcher, public speaker and author of Talking to Terrorists. She conducted psychological autopsies of over half of the one hundred and twelve Chechen suicide terrorists, interviewed hostages from Beslan and Nord Ost and has interviewed over four hundred terrorists, their family members and supporters in various parts of the world.

 

 

Raping our Privacy? Our Bodies, Drones, Invasive Search and our Fourth Amendment Rights

When I wrote Fetal Abduction which is the true story of a mentally ill woman who murdered a pregnant woman to take her fetus and try to pass it on as her own I wrote the book because I was concerned about how the justice system seemed to fail a poor, Spanish speaking and mentally ill person who I felt needed an insanity defense. I was also appalled at how the Judge in the case ruled on issues of public safety. He found that evidence collected while Annette Morales Rodrigues was in Milwaukee County Police custody—evidence collected via two invasive vaginal exams—one that the police and the hospital both documented as her having adamantly refused—was allowable as it was in the interest of public safety. The Judge  justified the police decision not to waste their time to read Mrs. Morales Rodriguez her rights and allow her to exercise them because they thought a life may have been saved—although in fact the woman in question was already dead.

Now as we witness the controversy over the use of drones and the public discussion about their use overseas—as well as their future overhead—right here in the U.S.—we must think hard about what other threats we may ultimately face here of accepting too much emphasis on threats to public safety.  We must realize that we will always live with some level of threat—from terrorism and from other types of crimes such as the murder referenced above—and we must come to an acceptable means of balancing those concerns to that of our Fourth Amendment Rights protecting us against undue search and invasion of privacy.

Although vaginally searching a woman while under police custody in an examination she is clearly refusing seems to me to be about the worst case scenario I can imagine—there are other government sponsored invasions to privacy also to consider.  

And I worry that if a judge in Wisconsin can rule that a woman’s vagina can be invasively searched for the interest of public safety while she’s being held without being informed she’s under arrest, without her being able to contact her attorney, and without her rights even having been read to her—and this all done twice against her consent while being held by a police department who have incidentally been facing other scandals now being investigated by the U.S. federal government—then what’s to say drones won’t also be used for highly invasive purposes? Raping us in a sense of our dignity and privacy without us ever having the right to refuse?

In the case of Annette Morales Rodriguez the judge was ruling in reference to potentially saving one woman’s life at the expense of violating the rights of another.  What’s to be said if the government argues that multiple lives might be saved by invasively searching via drones from overhead of all of our back yards, our driveways, our patios, balconies, rooftops, our meeting places, and homes—possibly even our bodies—to learn who we are seeing, who visits us, and what we are doing in the privacy of our own homes? And this carried out via an increasing array of technology that will likely include acute visual, auditory and infrared sensing and much more.

It’s not a fantasy scenario. Indeed in 1989 the Supreme Court ruled in Florida v. Riley that a police helicopter “search” conducted without a warrant over Riley’s back yard in which a helicopter which was flown and hovered four hundred feet overhead allowing the police to see what they suspected—that the man was growing marijuana in a backyard greenhouse—was allowable.  While Riley argued that for the police to hover over his backyard in a helicopter—enabling them to view his private business and allowing them to see inside his fence—violated his expectation of privacy, the court ruled that it did not violate his Fourth Amendment rights.

However in 2001, the Supreme Court ruled in Kyllo vs. U.S.—a case again where the police learned that the homeowner was growing marijuana, in this case via heat lamps—that authorities scanning a home with an infrared camera without a search warrant was an invasion of privacy and constituted an unreasonable search barred by the Fourth Amendment.  The Supreme Court stated that a citizen has a “subjective expectation of privacy” in his own home and that a warrant is necessary to use remote sensing devices.

However, remember that this was before the “war on terror” at a time when the U.S. government was still adamantly protesting Israel’s practice of “targeted assassinations” calling them unacceptable extrajudicial killings. And keep in mind we are talking about a U.S. government who in regard to drones has granted to itself the right to strike anywhere, at anytime and in countries that are not at war with the United States and to do so endlessly—potentially setting up an international precedent that may create a significant and terrifying backlash.  There will be a future of drones overhead here in the U.S. and they will be invasively searching our lives—and perhaps even our bodies—unless we all get seriously concerned and speak up against it—before it’s too late.

Anne Speckhard, Ph.D. is the author of Fetal Abduction: The True Story of Multiple Personalities and Murder and Talking to Terrorists: Understanding the Psycho-Social Motivations of Militant Jihadi Terrorists, Mass Hostage Takers, Suicide Bombers & “Martyrs”