Miranda: A Real Fiction

Alphabetically-ordered seating in school generally meant that I had a seat in the back of the room leaving me free to do as I pleased for the most part, but the elevated platform used by Mrs. Carol Thomas negated that advantage, and I actually paid attention in her seventh grade civics class. Among the many of her lessons that I remember was the lesson on the Bill of Rights: the first ten amendments to the Constitution enumerating such things as the right to counsel, the right not to be a witness against oneself, the right to due process, and the freedom from unreasonable searches and seizures as well as cruel and unusual punishment. The Bill of Rights was ratified in 1791. They aren't exactly a secret.

In 1966 the nine wise souls of the Supreme Court of the United States (SCOTUS) voted in a 5-4 decision in the case of Miranda v. Arizona, 384 U.S. 436 (1966), to require peace officers to read what is now commonly known as the Miranda warning to suspects in custody prior to questioning. However, as Messrs Harlan and White pointed out in their dissenting opinions there is no requirement in the text of the Constitution that requires such a warning. The requirement to do so is purely a creation of the court. I repeat, there is nothing in the Constitution that places any requirement whatsoever on the government or its agents to formally advise people of all said rights. The Constitution itself does that, and it did so 175 years prior to the Court's creation of a real fiction.

Please note that I am by no means arguing against these rights as such a presumption would be false. I'm just pointing out that all the Court did in Miranda was create a procedural step that has spawned four decades worth of court cases. Earlier this year, SCOTUS handed down its decision in Berghuis v. Thompkins (docket 08-1470). In this decision, the Court held that individuals must explicitly invoke their right to silence. Headlines and talking heads have proclaimed this decision as "turning back the clock" on legal protections and as "trimming Miranda rights". Well, this is just a nit that I have to pick. Miranda didn't and doesn't grant or guarantee rights. It's the United States Constitution that enumerates our rights. Again, the Court with Miranda created nothing but a procedural hoop through which to jump. Even without said warning, the rights are still there and can still be invoked by the individual. If the SCOTUS wiped out Miranda completely, those rights would still exist.

Notes:

-Noted civil rights attorney Thurgood Marshall argued the case on behalf of the government, thus he argued against the Miranda procedure. Marhsall, who later become a SCOTUS Justice, was the lawyer who successfully argued in Brown v. Board of Education, 347 U.S. 483 (1954), against the "separate but equal" policy that allowed racial segregation in schools.

-The defendant in this case, Ernesto Miranda, was convicted of burglary while in high school. He served time on numerous offenses and was later dishonorably discharged from the Army after repeated AWOL and peeping tom offenses for which he also served time in a military stockade. In the case in question, he was arrested, confessed to, was positively identified by the victim, and was later convicted of the rape and robbery of an 18 year old girl (he couldn't be positively linked to other victims abducted and raped from the same area). A warning very similar to the wording created by Miranda was printed on each page on which he wrote his confession. After SCOTUS overturned his conviction, he was re-tried without his confession being entered into evidence. He was convicted and sentenced to over 20 years in prison but was paroled a few short years later after which he made money by selling autographed Miranda cards. He was killed in a bar fight in 1976.

-Miranda is often misunderstood. A suspect must be both in custody and being asked investigatory questions before it is required. Other than that, a peace officer may ask any question they so choose to anyone not in custody. Also, a peace officer with probable cause may make an arrest and never ask any questions of the suspect thus never crossing the threshold of Miranda being applicable.

The 2-3-4 Rule

Below is the 2-3-4 rule. The "2" is for the two types of legal authority possessed by a peace officer. In order to detain a citizen either of the authorities must be in play. The "3" is for the three tiers of police-citizen encounters as outlined by the courts, and the "4" list the four ways in which a peace officer may legally enter a dwelling.

Two Types of Legal Authority (LA)

• Reasonable Articulable Suspicion (RAS)
  
  • A set of facts and circumstances that would lead a reasonable and prudent peace officer based on his or her knowledge, training, and experience that criminal activity is afoot.
    
  • Case Reference: Ornelas v. US, 517 US 691, 95-5259 (1996)
    
• Probable Cause (PC)
  
  • A set of facts and circumstances that would lead a reasonable and prudent person when using all of their senses to believe that a crime has been or is about to be committed by the suspected person.
    
  • IMPORTANT NOTE per Wagner v. State, 206 Ga.App. 180, 424 S.E.2d 861 (1992): The mere fact that someone calls the police does not constitute probable cause.
    

Three Types of Police-Citizen Encounters

• Verbal/Consensual Encounter: Tier 1
  
  • No legal authority is needed to approach a citizen.  The encounter must be voluntary on the part of the citizen, and the officer must display no show of authority other than to identify him or herself as a peace officer.  An officer may ask for consent to search during a verbal encounter.
    
  • Case References: Florida v. Bostic 501 US 429; US v. Baker, 01-16585 (2002)
    
• Investigatory Detention/Brief Stop: Tier 2
  
  • An officer must have RAS to make an investigative stop.  The suspect can only be held for a reasonable amount of time.  Barring any other RAS or PC developed during the stop, the officer must release the suspect once the officer's initial suspicion has been satisfied and all identification checks have been made.
    
  • An officer may handcuff a suspect during a brief stop only when necessary for the officer's, the public's, or the suspect's safety.  The suspect must be advised that they are not under arrest.  An officer may frisk for weapons if the officer has RAS that the suspect is armed
    and presents a threat.
    
  • Case References: Terry v Ohio 392 US 1 (1968); United Sates v. Arvizu
    534 U.S. 266 (2002)
    
    
• Arrest: Tier 3
  
  • An officer must have PC to make an arrest.  The officer should conduct a search incident to arrest.  The officer must take the suspect before a judge and must read the suspect his/her Miranda warning if the suspect is questioned after being taken into custody.
    

Four Legal Ways to Enter a Dwelling

• Consent
  
  • Consent can only be obtained from the owner of the property to be searched, someone with valid authority of the property, or someone with valid control over the property (in that order).  Consent can be given verbally or written.  The burden of proving consent is on the peace officer, and consent can be withdrawn at any time (must maintain contact) or may be qualified consent.
    
• Warrant/Court Order
  
  • An officer can enter a suspect's home to arrest the suspect if the officer has a warrant for the arrest of the suspect and the officer reasonably believes the suspect to be in the dwelling.
    
  • Case Reference: Payton v. New York
    445 U.S. 573 (1980)
    
• Exigent Circumstances
  
  • An officer may enter a dwelling without a warrant when exigent circumstances exist.  Examples include situations where an officer has to enter in order to prevent death or injury to those inside of the dwelling, to prevent the destruction of evidence, or to prevent the immediate escape of a suspect.
    
• Hot Pursuit
  
  • The officer must be pursuing the suspect for an arrestable offense.  The suspect must know that he or she is being pursued, and the suspect must be in actual flight.

A Word on Judge Jones

Judge Steve C. Jones, a Superior Court judge in Clarke and Oconee Counties, has been nominated for a position on the United States District Court for the Northern District of Georgia. This news is both outstanding and disappointing at the same time. Judge Jones will be a wonderful addition to the federal courts, but sadly, it means that we will lose him locally.

I would like to pass along some information about Judge Jones. A few months ago, he presided over an aggravated stalking case in which the defendant chose to represent himself (he had a legal advisor on hand). Due to the defendant's lack of familiarity with court room procedure, what normally would have been a two or three day trial turned into a five day trial with three of those days the trial lasting past 8:00PM. Obviously, this was a very taxing experience for the jury.

I have always respected Judge Jones, but in the minutes after the trial concluded my respect for him reached a new level. He printed out a copy of the Sixth Amendment to the United States Constitution and passed it out to the jurors. For those of you that do not remember from your middle school civics class, the Sixth Amendment guarantees the right of a defendant to a trial by an impartial jury.

After giving each juror a chance to read it, he then talked of the other rights guaranteed in the Bill of Rights and said that if the right to a trial by jury can be sacrificed then all of the other rights can be sacrificed as well. It showed that he is a man that respects the Constitution as a guiding principle and not an anachronism. It shows that he believes in the rights of the individual and not simply the textual context of law.

This is the type of judge that I want to see on the federal bench ruling on Constitutional issues and applying the Constitution to the cases brought before him. May his confirmation be quick, and may his tenure on the federal bench be long!

Yielding to Emergency Vehicles

The tragic death of a not quite two-year-old child on the Georgia 10 Loop has spurred a considerable amount of discussion locally concerning what a driver should do when approached by an emergency vehicle operating in emergency mode.

Georgia law addresses this issue in 40-6-74 O.C.G.A. stating:

"(a) Upon the immediate approach of an authorized emergency vehicle or a vehicle belonging to a federal, state, or local law enforcement agency making use of an audible signal and visual signals meeting the requirements of Code Section 40-6-6, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle or law enforcement vehicle has passed, except when otherwise directed by a police officer.

(b) This Code section shall not operate to relieve the driver of any authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway."

At the time that I write this, the wreck is still under review; so, I will not get into specifics of the investigation, and I do not intend this piece to be a criticism of any of the parties involved. I am simply attempting to address the issue in hopes that it will prevent similar occurrences. The general facts of the case are that an ambulance was en route to a call and was traveling on the Georgia 10 Loop, a four-lane divided highway that forms a perimeter route around Athens and passes through Clarke and Oconee Counties. Upon seeing the ambulance, a driver stopped in the roadway and was struck from behind by a pickup truck. A third vehicle was also struck during the collision. The above facts are sufficient for the purposes of this discussion, and I will not delve into the other issues arising from this tragedy at this time.

Pulling to the right and stopping sounds simple, and under ideal conditions it would be easy to achieve; however, ideal conditions would preclude the need for emergency response in the first place. Traffic congestion may not allow for a driver to move immediately to the right and stop. Other mitigating but certainly not alleviating factors are that vehicle manufacturers are producing vehicles that virtually shut out road noise, and the market is burgeoning with communication and media devices that often get used within vehicles creating more distractions. It is not uncommon at highway speeds for the sound of the siren and the emergency vehicle to "arrive" at virtually the same time thus not allowing for much reaction time on the part of drivers. This is why it is important for the drivers of emergency vehicles to not look upon the lights and sirens as creating a magic bubble that will give them instant right of way and a clear path to their call.

Pulling to the right as soon as practicable and stopping until the emergency vehicle passes is the preferred and expected response. Simply pulling to the right and continuing may prevent the emergency vehicle operator from being able to make a right hand turn. If you stop and allow it pass prior to continuing, it should allow enough time and space for the emergency vehicle to make any necessary maneuvers.

 

 

Jurisdictional Georgia

I am frequently asked questions concerning the jurisdiction of various law enforcement agencies within the state; so, I thought a rundown of the various agencies and other jurisdictional questions would be in order.


First, I want to clear up the matter of traffic law.  Traffic law may be enforced anywhere in the state by any officer.  This is codified in 17-4-23 O.C.G.A. and has been upheld numerous times in the Court of Appeals. 


Arrest warrants are typically addressed to "any peace officer" and can be executed by any peace officer within the state regardless of whether or not they are in their jurisdiction.  Peace officer is the proper term that applies to all officers certified and employed under Title 35 Chapter 8 of Georgia law.


Mutual aid agreements may be instituted among agencies, and officers can be sworn in through multiple agencies as well as being deputized.


Peace officers are also citizens and may still make a citizen's arrest when outside of their jurisdiction.


Throughout this article I will refer to all of the above as "previously excepted".
 


Local


Office of Sheriff



Note that I wrote Office of Sheriff and not Department of Sheriff.  The Sheriff is a constitutional officer deriving his or her powers from Georgia's Constitution and common law.  The Sheriff's Office is not a department of county government, and the Sheriff is not subject to the county government; a fact often lost on county governments.  The Sheriff is the chief law enforcement officer in the county.  Sheriffs and their deputies have statewide jurisdiction. 


The Sheriff is an elected position serving four year terms.  Due to the elected nature of the office, the Sheriff's Office is directly accountable to the people which it serves.  Some offices are completely "at will" meaning that all employees serve completely at the discretion of the Sheriff.  Others are set up so that the Sheriff appoints certain members within the organization.  Either way, a new Sheriff coming into office is likely to lead to a transformation of the office; so, it is easy for the people to directly voice approval or disapproval with the service being provided by their Sheriff's Office via the voting booth. 


Every county in Georgia has a Sheriff's Office as a constitutional requirement.  The Sheriff operates the jail and provides court security as well as being responsible for serving civil papers and executing arrest warrants.   A "full service" Sheriff's Office also provides primary law enforcement within unincorporated areas of the county and may contract with municipalities to provide such services within municipalities.  Whether or not a contract is in place, the Sheriff still has full jurisdiction within municipalities in his/her county.  Having a contract in place simply allows for the municipality to claim that it is providing an essential service under law (discussed more in depth later).  Of the 159 Sheriff's Offices 147 are full service offices

County Police Departments
 

Twelve counties in Georgia have established county police departments which have a department head appointed by and accountable to the county government.  In the counties in which such agencies exist, they assume the primary law enforcement function in unincorporated areas of the county and in municipalities by contract.  County police officers only have jurisdiction within their county except as previously excepted.


 
The twelve counties with such agencies are Chatham, Clarke, Clayton,
Cobb, DeKalb, Dougherty, Floyd, Fulton, Glynn, Gwinnett, Henry, and Polk. 

One item of note concerning county police agencies should be mentioned here.  Frank Rotondo, the Executive Director of the Georgia Association of Chiefs of Police (GACP), in his article in the 2010 1st Quarter Newsletter of the GACP writes that a county cannot operate police services within a municipality without a service delivery agreement between the county and the municipality in place, which is in fact what the Georgia Constitution states in Article IX.  So, unless such an agreement is in place, a county police agency does not have jurisdiction in municipalities within its respective county.  Mr. Rotondo incorrectly argues that this applies to Sheriffs.  As noted above, Sheriffs receive their duties and authority from the Georgia Constitution and not from the county government.  This section of the constitution applies to agencies created by the county and not the constitutional Office of the Sheriff.  Suppose a municipality does not have a police department and it has no formal contract in place with the Sheriff.  Under Mr. Rotondo's interpretation, the residents of the municipality would have no police services whatsoever as the Sheriff would not be able to provide such services to citizens within his or her county.  This argument simply is neither logical nor consistent with the powers, duties, and authorities vested in the Sheriff.  Furthermore, state law (15-16-10 O.C.G.A.) clarifies that the Sheriff has the same powers within incorporated municipalities as he or she does in unincorporated areas of the county. 

(Author's Note:  Mr.  Rotondo wrote his article in response to Senate Bill 295 introduced in the 2010 session of the Georgia General Assembly.  This bill, if passed, would have prohibited municipal police agencies from operating speed detection equipment on interstate highways.  Mr. Rotondo incorrectly extended this to municipal police departments not being able to enforce any traffic law or work wrecks on the interstate highways, and using this false argument that the Sheriff could not do so within city limits without a service delivery agreement in place, makes a claim that the Georgia State Patrol would then be the only agency allowed to enforce traffic laws on the interstates.  This simply is not so.  On top of Mr. Rontondo being wrong the authorities, duties, and powers of the Sheriff, he is wrong on how the proposed bill would impact municipal agencies as the bill only deals with the operation of speed detection devices and not general traffic law enforcement or wreck investigations.  I offer no opinion on SB295.  I am simply addressing the legal issues raised within the article.  SB295 did not pass.)



Why county police?


This is a very good question.  The state constitution mandates that each county must have a Sheriff.  The 12 county police agencies are a creation of their respective county commissions and are under the control of said commissions.  As noted above, the Sheriff is independent of the county government.  A logical examination of the question leads me to believe that the county police agencies were created so that the respective county commissions could exert control over law enforcement within the county.  Whether or not the reader comes to the same conclusion as did I, such creations clearly change the direct line of accountability.

This is a double-edged sword.  Whoever is in control is also the final repository for blame when things go wrong.  Usually, the appointed chief is the fall guy whether or not the failure was his or her own creation.


The creation of a county police department could previously be done simply by an act of the county commission.  State law now requires that the creation of such an agency must be put before the qualified electors (voters) of the county in question.  If such an effort fails, the question cannot be put before the voters again until four years has passed (see 36-1-20 O.C.G.A.).  It should be noted that all of the county police agencies currently in existence were created prior to the requirement of the issue being put before the voters.
 

Municipal Police Department

Obviously, cities may establish their own police departments.  The officers that work for such agencies only have jurisdiction within the limits of their respective municipality other than as previously excepted.  Under Georgia law, municipalities must provide at least three from a list of 11 of essential services either directly or by contract in order to maintain their charter (see 36-30-7.1 O.C.G.A.).  Among the list of these essential services is police service.  A municipality may claim that it is providing police services by maintaining its own police department, or it may contract with the Sheriff's Office or county police department (should one exist) to provide police services within the municipality.  The Sheriff's Office may patrol and answer calls within a municipality without such a contract in place, but the municipality cannot claim this as providing an essential service. 



Municipal agencies are typically headed by a chief of police who is appointed by and directly accountable to the municipal government.  As to who in the municipal government appoints the chief and to whom the chief directly reports will depend upon the structure of the particular government in question. 


 Constables



Yes, I said constables.  Georgia law (15-10-110 through 116 O.C.G.A.) still allows for the appointment of constables, but they are elusive critters.  I do not know of any constables currently active anywhere in the state.  If any reader knows otherwise, please let me know.   Constables may be created by local legislation of a county's governing authority, and they are appointed by and serve at the pleasure of the chief magistrate of the county.    They have the power to execute warrants, summons and returns, etc of the magistrate court.  They may only arrest with a warrant or by direction of and in the presence of a judge.  Constables are not peace officers under Georgia law (they are in some other states).   Constables may be substituted with marshals, which leads us to...


Marshals



Unlike constables, marshals may be peace officers.  The actual function and peace officer status of marshals varies depending on the agency.  In some places such as Fulton County, marshals are full-fledged peace officers with the power to enforce traffic laws and make arrest (substitute for constables as described above).  Richmond and Muskogee Counties also have marshals which are sworn officers.  Please keep in mind that the examples provided are not an exhaustive list.  In other places, marshals are code enforcement officers or similar.  They can issue citations for code violations and the like, but they do not have arrest powers.  Furthermore, both municipalities and counties may appoint and employ marshals.



On Campus


Campus police agencies and their legal authority vary depending upon the type of institution to which they belong.   For instance, there are differences between campus agencies of units of the University System of Georgia (USG) versus that of a private college, and the legal authority of school board police agencies differ as well.  Campus agencies also tend to vary as to how proactive they are.  Agencies on college campuses typically are answerable to the institution's administration whereas agencies of a school system are typically answerable to the respective school board.
 
The authorities and definition of a campus and its officers as they relate to institutions of higher education are found in 20-8-1 O.C.G.A.  This applies to both public and private institutions.  Campus officers have jurisdiction on the actual property of their institution and 500 yards in any direction from that property.  A campus officer may go off campus to investigate a crime that occurred within his or her jurisdiction, and as they are peace officers that fall into the all of "previously excepted" categories I listed above.



Units of the University System of Georgia (USG) may establish police departments that are answerable to the president (or designee) of the respective institution.  These agencies have original jurisdiction on any property owned, leased, or under the control of the Board of Regents and 500 yards in any direction (see 20-3-72 O.C.G.A.) from said property.  These officers are peace officers.  As stated previously, as sworn officers they may enforce traffic law or execute warrants anywhere in the state.  If executing a search warrant off campus, they are required by state law to have a local officer present. 

Please note that in the above paragraph that the jurisdiction is based on property of the Board of Regents and not the respective institution alone.  This means that officers from one USG institution have full jurisdiction on the campus and property belonging to other USG institutions.  If you happen to frequent UGA football games, you may have seen officers from other USG institutions working at the games.  They have the same legal authority as do the UGA officers on the UGA campus. 


Georgia Military College (GMC) is unique in that it is a public college, but it is not part of the University System of Georgia.


The jurisdiction of a campus agency belonging to a private college or university is the same as that of an officer working for a public institution; however, they are limited to the campus of their respective institution and immediate area and do not have jurisdiction on other campuses.  

Under 20-8-5 O.C.G.A., local boards of education may establish police departments with full police jurisdictions at their facilities and properties. 
 

State of Georgia


The Georgia Department of Public Safety (DPS) is made up of the Georgia State Patrol (GSP), the Capitol Police, and the Motor Carrier Compliance Division (MCCD), which is primarily concerned with commercial vehicle issues.   The DPS is headed by a Commissioner appointed by the Governor.  The Commissioner carries the rank of Colonel.


The Georgia Bureau of Investigation (GBI) is headed by a Director that is appointed by the Governor.  Contrary to what many people think, the GBI does not have blanket original jurisdiction statewide; however, there are a few specific areas such as drugs and fraud where the GBI may exert original jurisdiction.  Other than those instances, in order for the GBI to become involved in a local case they must be requested to do so by the head of a law enforcement agency, a prosecutor, or the head of a local governing authority.  The GBI investigates all in-custody deaths and has original jurisdiction on state property, and it operates the crime labs.


The Department of Natural Resources (DNR) employs Conservation Rangers (game wardens) as part of the Wildlife Resources Division to enforce wildlife, environmental, boating and other state and federal laws. They are full-fledge certified peace officers with state-wide jurisdiction. The Parks, Recreation, and Historic Sites Division also employees Rangers, but these rangers are may or may not be POST certified peace officers. The Governor appoints members of the Board of Natural Resources which oversees the DNR.


There are a myriad of POST certified officers working for the state; so, I focused primarily on those agencies for which the average citizen is likely to encounter.  There are many certified officers/agents that work in administrative capacities in which interaction with the general public is limited.  Some examples are investigators that look into food stamp fraud or revenue agents investigating tax issues.  Some of licensing boards, the Secretary of State, the Agriculture Commissioner, and others also have POST certified investigators that investigate issues relating to professional licenses or fraud. There are also numerous state run buildings that have facility police on the grounds. An example of this would be state run mental health hospitals. Furthermore, there are parole officers and probation officers. Trying to a compile a comprehensive list would be daunting.