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Hostage Negotiation’s and the 4th, 5th and 6th Amendment

By:

Crisis Negotiation 770

Professor Becker

April 28th, 2011

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Abstract

The 4th, 5th, 6th and the 14th Amendment of the United States of America’s Constitution

provide to citizens rights to fair protection under the law. The protections provided by these

amendments throughout the course of the nation have evolved due to changing socio-economic

times, laws, and technology. When the resolution to a legal dispute cannot be found in the

existing body of law or regulations- judges rely on prior decisions that other courts have ruled on

similar issues. The legal terms for these judicial decisions are known as Stare Decisis. (Peak

2009 p.292) Hostage situations have been occurring since the time of the Romans and King

Henry IV, who captured King Richard Coeur-de-Lion and held him hostage for ransom. (Peak

Radli 2008 p.2) This paper will focus on the ever changing interpretations of the constitutional

rulings in relation to hostage negotiations.

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Table of Contents

4th Amendment- Pg. 3

Probable Cause- Pg. 4

Totality of Circumstance Test- Pg. 4

Exception to Warrant Requirement – Pg. 5

Use of Listening Devices- Pg. 11

Use of Mirrors, Thermal Imaging and Other Invasive Devices- Pg. 13

5th Amendment- Pg. 16

Self Incrimination Provision- Pg. 17

Psychological Coercion- Pg. 18

Exception to Miranda Warnings- Pg. 23

Public Safety Exemptions- Pg. 24

6th Amendment- Pg. 26

Assistance of Counsel- Pg. 27

Promises Made by Negotiators- Pg. 27

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Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The purpose of the Fourth Amendment is to limit the overzealous behavior by law

enforcement officials. (Peak 2009 p.222) The importance of this in relation to hostage

negotiation is that law enforcement officials negotiating with a hostage taker must ensure the

hostage takers constitutional rights are not infringed upon in order to not have evidence excluded

and to ensure a conviction against the hostage taker for his criminal offenses that he commits

during the course of his incident.

The origins of the constitutional guarantees of the Fourth Amendment stems from the

framers of the constitution resentment towards the British and what they called- “writs of

assistance.” These writs were general search warrants that had no specific requirements or

limitations on what the scope of protection of privacy. There were no limits on things or places

that could be searched. The British government was hoping to discourage smuggling by colonial

merchants. (Epstein Walker 2007 p. 482)

The primary protection of this amendment is to require that a neutral detached magistrate,

rather than a police officer, issue warrants for arrest and search and seizure. The concerns of

both citizen and law enforcement is the unnecessary unwarranted intrusion into a home by law

enforcement. (Peak 2009 p.223) The protection of privacy and the necessity for law enforcement

officers to enter and violate your privacy lies in the hand of neutral judicial officer and not by an

agent of law enforcement. (Peak 2009 p.223) Hostage negotiators have to be careful not to

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illegally search or invade hostage takers privacy while negotiating; this includes the use of

mirrors to see inside a home, listening devices, and thermal imaging devices. (4th amendment

Findlaw.com p.4)

Probable Cause

Probable cause is the legal standard used to conduct a personal or property search, or to

obtain a warrant for arrest when criminal charges are being considered against a person. A

warrant is not always a necessity when making an arrest or conducting a search but the fact

remains that the law enforcement official must be able to prove that he or she had probable cause

prior to conducting the arrest or search. (Peak 2009 p.224) The test the court of appeals uses to

determine if probable cause existed for the purpose of arrest or search is if whether the facts and

circumstances are sufficient to warrant a prudent person to believe a suspect has committed, is

committing, or is about to commit a crime which is now the legal standard referred to as the

“Totality of Circumstances Test”. (4th amendment Findlaw.com p.4)

Totality of Circumstances Test

Probable cause is present in every aspect of hostage negotiations. The use of listening

devices, the use of thermal imaging, and the use of mirrors to see inside a building to aid the

hostage negotiators or the special weapons team all are required to be supported by probable

cause and a warrant signed by a neutral magistrate. In the United States Supreme Court Case

Illinois v Gates (1983) the legal standard referred to as the “Totality of Circumstances Test” was

developed which abolished the previous standard of the “Agullar-Spinelli Test”. In the majority

opinion delivered by Justice Rehnquist in Illinois v. Gate(1983) the court stated:

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In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has

informed probable-cause determinations. The task of the issuing magistrate is simply to

make a practical, common-sense decision whether, given all the circumstances set forth

in the affidavit before him, including the "veracity" and "basis of knowledge" of persons

supplying hearsay information, there is a fair probability that contraband or evidence of a

crime will be found in a particular place. And the duty of a reviewing court is simply to

ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable

cause existed.” (Epstein Walker 2007 p. 492)

With the establishment of the Totality of Circumstances standard it makes clear the

efforts needed by police to obtain a search warrant from a magistrate. The warrant must specify

the area to be searched and the person or things to be seized. The police must only search and

seize what is specifically on the warrant unless they discover something that itself is found to be

illegal. (Epstein Walker 2007 p. 494) There are seven exceptions to when a warrant is not

required to which four relate to hostage negotiations.

Exceptions to the Warrant Requirement

At times, especially during a hostage negotiation, adhering to the warrant requirement is

not a feasible option. The Supreme Court has recognized such instances and determined seven

exceptions to the requirement to obtain a warrant. (Epstein Walker 2007 p. 494)

The seven exceptions to obtaining a warrant are:

1) Searches incident to a valid arrest

2) Searches to ensure that evidence is not lost

3) Searches based on consent

4) Searches to ensure the safety of law enforcement officials

5) Searches done in hot pursuit

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6) Searches conducted under plain view doctrine

7) Searches conducted in specific places that merit low levels of protection.

(Epstein Walker 2007 p. 494)

All seven of these requirements are related to the circumstances surrounding Hostage

Negotiations. The lack of a warrant requirement gives much greater discretion and abilities to

the police and negotiating team in determining the course of action to take.

Searches Incident to Valid Arrest

A principle of law is that law enforcement officials may conduct a search when placing a

suspect under a valid arrest. The Supreme Court has determined that these searches are

necessary and constitutional for three reasons:

1) To protect the safety of the police officer in case the suspect is armed

2) To remove any means of escape

3) To prevent the suspect from disposing of any evidence.

The Supreme Court divided this legal rule into two types of limits; Temporal and Spatial.

Spatial refers to searching the area surrounding a suspect which is limited to the area under the

suspect’s immediate control. In a hostage situation the law enforcement officials, without a

warrant, are limited to searching only the area immediately surrounding the hostage takers. This

leaves large vicinity where other evidence could be held or links to other criminal activities

could have been taking place. It would be much more beneficial to attempt to get a search

warrant. Temporal refers to the limit that police can only search the vicinity only at the time of

the arrest. (Epstein Walker 2007 p. 494)

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An example of spatial limitation is the case of Chimel v. California(1969) in which police

arrested an individual with an arrest warrant in hand and proceeded to search the entire house.

The court found evidence in the house that incriminated and convicted him. The Supreme Court

reversed the decision on the basis that the evidence found violated his fourth amendment right to

privacy because they searched well beyond what is permissible. In hostage negotiations the law

enforcement officials must be sure that they do not violate the spatial requirements of their

warrants while making the arrest upon the ending of negotiations. (Epstein Walker 2007 p. 496)

Loss of Evidence Searches

Police have the right to conduct search and seizures without a warrant to prevent the loss

of evidence. The limitations to this requirement are that the search and seizure must not extend

further than necessary to preserve the evidence from loss or destruction. The Supreme Court set

created a legal test in the case of Rochin v. California (1952) referred to as the “shocked-

conscience rule”. The rule was that if police obtained evidence in a way that shocks civilized

people or causes unreasonable pain and discomfort, the principles of due process law are

violated. (Epstein Walker 2007 p. 494) In relation to hostage negotiation this could give much

needed leeway into the hands of hostage negotiators. The law enforcement officials could

possibly, under these legal standards, record conversations, listen in to conversations using

electronic surveillance, or probe into a dwelling using mirrors or thermal imaging because

hostages are technically evidence in a hostage situation.

Consent Searches

Law enforcement officials can conduct a search without a warrant if consent is given to

them. The two restrictions placed on this by the Supreme Court is that:

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1) Permission must be freely and voluntarily granted

2) The individual granting consent must have the authority to do so.

The search must be completely voluntary and not coerced. If the court determines the

search is coerced by law enforcement than the search does not stand up to the voluntary consent

requirement. (Epstein Walker 2007 p. 497) In a hostage negotiation situation the negotiator may

be able to obtain consent to search the place by the hostage takers but he must be able to prove

that his consent was given voluntarily and was not coerced or made in exchange for something

because that would also be considered a form of coercion.

The Supreme Court has also restricted on who is legally eligible to authorize a police

search. The homeowner of a house has the authority to authorize a search of his residence as

does the driver of an automobile or the leaseholder of an apartment or building. The search may

only go as far as the person who authorized the search allows and the search may be ended at

anytime the authorizing individual decides. (Epstein Walker 2007 p. 494) In hostage negotiation

if a hostage situation is taking place in another building, house, or dwelling where the hostage

taker is not the owner or authorized to deny a search based on his right to consent than the person

who does have that power could authorize the use of thermal imaging, mirrors, or listening

devices. For example, if a hostage taker holds hostages in a house where one homeowner is not

present and the other is a hostage. The homeowner who is not present may authorize law

enforcement officials to enter the residence or use devices to search without a warrant.

Safety Searches

The Supreme Court has ruled that a police officer may stop and pat down a suspect

believed to pose a danger in order to find any weapons or other threatening objects. The

Supreme Court has placed two standards to this rule of safety searches which are:

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1) Police must have a reason to believe the suspect poses a threat to safety and

2) The search may be only for the purposes of removing danger. (Epstein Walker 2007 p. 494)

There is a small relation to a hostage situation under this exception to searching without a

warrant because most Hostage Situations the suspect is already known to be armed because he is

using the threat of deadly force against his hostages. If a person suspected of taking part in the

hostage situation is released disguised as a hostage in a ploy for him to destroy evidence or

escape than any evidence found on him would stand in court under this rule.

Hot Pursuit

Hot pursuit is when a police officer following a suspect after immediately committing a

crime or the purpose of preventing the escape of any person who  is suspected of committing, or

having committed, a misdemeanor or felony. If the individual goes into a house or building an

officer is not required to have a warrant to enter that building according to the standard set forth

by the Supreme Court. If evidence is endanger of being destroyed or lives are placed in danger

than officers can enter the building without a warrant. (Epstein Walker 2007 p. 498) This rule is

very closely associated with a hostage situation. The Supreme Court has placed limits on these

exceptions due to exigency. They are:

1) The suspect will evade arrest2) Evidence will be lost 3) The fleeing suspect will pose a threat to innocent people

The search under this exception must focus solely on capturing the suspect. (Epstein

Walker 2007 p. 498) Under this rule a hostage situation would not require a warrant to enter the

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building, place listening devices, use mirrors or thermal imaging, or to tap lines of

communication into the building. When the hostage taker takes another person into his custody

as his hostage this constitutes a threat to innocent people which allows for warrantless searches.

Justice Brennan, while referring to the hot pursuit rule, wrote in the majority of Warden v.

Hayden (1967) that:

Because the “Fourth Amendment does not require police officers to delay in the course of

an investigation if to do so would gravely endanger their lives or the lives of others.

Speed here was essential, and only a thorough search of the house for persons and

weapons could have ensured that Hayden was the only man present and the police had

the control of all weapons which could be used against them or to affect an escape.”

The final two doctrines of the seven exceptions to warrantless searches and seizures are

the Plain View Doctrine and Place Searches. These refer to evidence that is in plain view of the

officers which can be legally seized without a warrant and places that can be searched without a

warrant such as automobiles in certain circumstances. When police officers unconstitutionally

search a home, telephone line, or person than the evidence found cannot be used against them in

court under the exclusionary rule. In a hostage situation it is imperative that the negotiation team

ensures that they do not violate any constitutional rights in order to ensure a criminal conviction

takes place.

Exclusionary Rule

The Fourth Amendment protects against unreasonable searches and seizures. A

reasonable search or seizure supported by probable cause will have no issues when presenting

evidence in a criminal case but an unreasonable search or seizure will have all evidence excluded

entirely under the exclusionary rule. The exclusionary rule requires that all evidence obtained in

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violation of the Fourth Amendment be excluded from use in a trial. (Peak 2009 p.224) Evidence

obtained during a hostage negotiation can be very useful in securing a criminal conviction for

involvement in other crimes committed by the hostage takers. For example, the hostage takers

admit to their involvement in a previous bank robbery or drug ring which is recorded on a

listening device used by the negotiators. The Mapp v. Ohio case ruled that evidence obtained

under unreasonable search and seizure could not be admissible. Under the exclusionary rule the

evidence could not be admitted in court unless it was obtained legally under the fourth

amendment. When evidence cannot be admitted than the difficulty of obtaining a criminal

conviction increases significantly. In a hostage situation where warrants were not obtained it

could cause vital evidence to not be able to be admissible in court. In a hostage situation the use

of listening devices on lines of communication with the hostage takers could be recorded and

could be used as evidence against the hostage takers if admissible in court. The negotiators

could also use mirrors and thermal imaging devices to gain a better view of the hostage takers

and situations. Are the use of listening devices and recording conversations admissible without a

proper warrant?

Use of Listening Devices

Katz v United States

Katz v United States (1967) set the precedent for cases dealing with listening devices and

the lack of warrants. In this case federal agents placed a listening device outside a telephone

booth that they suspected was being used for illegal phone calls. The Supreme Court found that

the agents had probable cause for the listening device and used the device within the confines of

what a warrant would allow. However the agents in this case did not properly secure a warrant

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for their listening device. The Supreme Court determined in this case that a warrant is required

for the use of listening devices and that the Fourth Amendment protects people and not just

property. Justice Stewart in his majority opinion wrote:

“Only last Term we sustained the validity of…such an authorization, holding that, under

sufficiently "precise and discriminate circumstances," a federal court may empower

government agents to employ a concealed electronic device "for the narrow and

particularized purpose of ascertaining the truth of the . . . allegations" of a "detailed

factual affidavit alleging the commission of a specific criminal offense”

The court found that a warrant is required if officers intend to listen or use electronic

recording devices on lines of communication. However where probable cause is present and

lives are in danger, under the fourth amendment, it could be argued that a warrant would not be

required. Justice Stewart also stated:

“This Court has never sustained a search upon the sole ground that officers reasonably

expected to find evidence of a particular crime and voluntarily confined their activities to

the least intrusive means consistent with that end. Searches conducted without warrants

have been held unlawful "notwithstanding facts unquestionably showing probable cause,"

A hostage situation is a little different because a crime is actively taking place and is

enough to support probable cause and the use of a listening device without a warrant. In a

hostage negotiation the hostage taker is actively committing a crime and threatening the lives of

others which change the need for warrants and add exigency into the equation which then

removes the requirement for a warrant. Under Katz, the court stated that “notwithstanding facts

unquestionably showing probable cause," and a hostage situation where the lives of others are

threatened, unquestionably shows probable cause.

United States v. Hearst

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In United States v. Hearst (1977) the U.S. Court of Appeals, 9th Circuit found that the use

of listening devices in a prison was justified and was not a violation of privacy under the fourth

amendment. The opinion stated:

“An intrusion by jail officials pursuant to a rule or policy with a justifiable purpose of

imprisonment or prison security is not violative of the Fourth Amendment.”

And

“Here the government adequately established that its practice of monitoring and

recording prisoner-visitor conversations was a reasonable means of maintaining prison

security. Indeed, appellant makes no very serious argument to the contrary. Rather, she

focuses her arguments almost exclusively on the other end of the balance beam: the

prisoner's interest in privacy. But once the government establishes that its intrusion is for

justifiable purpose of imprisonment or prison security, the Fourth Amendment question is

essentially resolved in its favor. This approach is reflective of both the federal courts'

"broad hands-off attitude toward problems of prison administration and traditional

notions regarding official surveillance of prisoners with the concomitant reduction in

reasonable prisoner expectations of privacy.”

A hostage situation in a prison situation is much different and does not require any type of

warrant. The prisoner’s expectations of privacy are less because of the safety and security

requirements of a prison.

Use of Mirrors, Thermal Imaging and Other Devices

O'BRIEN v. City of Grand Rapids

O’Brien v. City of Grand Rapids (1994) was a case brought before the United States

Court of Appeals, 6th Circuit. In this case the respondent was approached by police officers at

his home when they came to re posses his automobile because of a 34,000 dollar civil judgment

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against him. When police officers arrived at his home he answered the door with a rifle shouting

at the officers telling them to “get out of here”. After the initial confrontation with the officers

he secured all entrances into his house creating a barricading situation. The police than

evacuated the neighborhood and started negotiations with him via a bullhorn to which he never

responded. The incident continued on with no sign of O’Brien.

The police never once informed him that he was being placed under arrest. The police

than placed three probes into his house without a warrant in order to determine where he was

inside the house in hopes it would assist in their attempts to communicate with him. The Court

of Appeals ruled that the placing of the probes into O’Brien’s home was a violation of the Fourth

Amendment right to privacy. In the opinion the court stated:

“We conclude, however, that the "hot pursuit" exception does not apply to the undisputed

facts in this case. Officer Johnson chose not to pursue O'Brien at the initial confrontation

and instead called for backup to surround the house and secure the area, thereby slowing

down and controlling the action. According to the officers' testimony, the house was

surrounded, O'Brien could not flee the scene unnoticed, and the officers did not fear the

destruction of evidence.”

In this case there was a lack of exigency when attempting to probe into the private home

of a citizen. The court found that police had the time to obtain a warrant and that O’Brien was

breaking no laws while barricading himself in his home. The court went on to further state that:

“O'Brien was not holding anyone hostage and had taken no action against the officers

during the nearly six hours between the time of the confrontation and the probe. Even if

reasonable fact finders might agree that the officers were in pursuit of O'Brien during the

six hours as they took control of the area, gathered information, and developed a response

plan, under the facts of this case, no reasonable fact finder would find that they were in

hot pursuit.”

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Since O’Brien never took any action against police or was holding anyone hostage there was a

lack of exigent circumstances. O’Brien never placed any officers or anyone else in danger

during the incident. The court stated that:

“To justify the officers' failure to obtain a warrant, the facts must show that the threat to

the officers or the public was "immediate."

The facts of the case prove that there was no immediate threat during this incident. In a

hostage situation opposed to this barricading situation the threats against the public become

immediate and thus could justify the use of probes and other devices without a warrant.

Kyollo v. United States

Kyollo v. United States (2001) is a case in which a special agent from the Department of

Interior was using a thermal imaging device to view inside a house suspected of growing a

significant amount of Marijuana. The imaging device displayed that the house was radiating a

significant more amount of heat compared to the surrounding homes. The agents obtained a

search warrant for the house, using the Totality of Circumstances test, the results of the thermal

imaging device combined with informant’s tips.

The Supreme Court reversed the decisions ruling that the use of the thermal imaging

device was a violation of the Fourth Amendment right to privacy. In the majority opinion Justice

Scalia stated:

“Where, as here, the Government uses a device that is not in general public use, to

explore details of the home that would previously have been unknowable without

physical intrusion, the surveillance is a "search" and is presumptively unreasonable

without a warrant.”

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According to this case the use of devices that are not available to public use or any device

that can divulge details that would constitute a physical intrusion of a home requires a warrant

and probable cause. This would include the use of probes, thermal imaging and listening

devices. Since the agents used the thermal imaging device as a means of securing a warrant the

court found the search to be a violation of the Fourth Amendment.

Fourth Amendment and Hostage Situations Conclusion

The fourth amendment protects against unreasonable search and seizures and clearly

defines the protection afforded by the amendment. Mapp v. Ohio (1967) set a legal precedent

that the right to privacy applies to an individual and not just a physical entity. The exceptions to

the Fourth Amendment in Hostage Situations allow law enforcement officers to proceed without

warrants because of exigency and the seven exceptions of the amendment. In a hostage situation

citizens are in immediate danger which the Supreme Court has ruled consistently that as long as

any reasonable citizen would find that there was an immediate danger a warrant is not required.

A hostage situation is unquestionably a situation where citizens are in immediate danger and

warrants to use listening devices, probes, or thermal imaging are not required during the

immediate stages. In a barricading situation where there are no hostages and no immediate threat

to law enforcement offices, the Courts have ruled that warrants are required because of lack of

immediate danger and exigent circumstance. (O’Brien v. City of Grand Rapids 1994)

Fifth Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or

in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,

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without due process of law; nor shall private property be taken for public use, without just compensation”

In 16th century England a major tool used in religious persecutions was the Oath. The

oath involved ministers being called before the Court of the Star Chamber. The Court of the Star

Chamber was a court, during the 16th and 17th centuries, that was responsible for enforcing

unpopular political policies. This court doled out punishments that included branding, whipping,

and mutilation all without the benefit of a jury. Since the ministers were men of god called

before the court they were compelled to tell the truth admitting to their non-conformist views

which often lead to severe punishment and in some cases execution. In 1630 the Court of the

Star Chamber was disbanded by parliament. The citizens were disdained by self-incrimination

and in effect the privilege against self-incrimination was recognized in all courts when claimed

by witnesses and defendants. (Peak 2009 p.240)

The Fifth Amendment essentially states that no criminal defendant shall be compelled to

take the witness stand against him and that no one can be forced into answering a question that

can be used to implicate guilt or convict him. (Peak 2009 p.241)

In a hostage situation the negotiators must be sure to be able to use the recorded

statements by the hostage negotiator. If the hostage take makes incriminating statements about

his involvement in criminal activities it could lead to criminal convictions for those charges. The

recording of a hostage negotiation situation is permissible due to the fourth amendment and

exigent circumstances clause because of the threats to other individuals. However, the

negotiation team must work to be able to admit the recordings into the court proceedings

following the incident.

Self-Incrimination Provision

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The Self-Incrimination provision is similar to the fourth amendment’s exclusionary rule

and is enforced through the exclusion of evidence. (Epstein Walker 2007 p.526) This provision

can be violated by the presence of two separate elements:

1) There must be some form of testimonial evidence that incriminates the person who

provides it.

2) The testimonial evidence must be somehow coerced by the government.

In a hostage negotiation situation the testimony could be forced by an agent of the

government if promises made to the hostage taker lead to his confession. If the hostage taker

makes these confessions that incriminate him as a result of government coercion, under the self-

incrimination provision, the statements cannot be introduced in court as evidence. (Epstein

Walker 2007 p.526)

A hostage negotiator can ask questions about the hostage takers involvement in a crime

but the hostage taker has every right to invoke the Fifth Amendment Privilege and refuse to

answer any questions. The negotiator cannot make any promises to the hostage taker in

exchange for hostages regarding information about the hostage takers involvement in a separate

crime without reading the hostage taker his rights because that would constitute coercion by the

government forcing him to waive his fifth amendment rights. (Epstein Walker 2007 p.526) If

and when the hostage taker decides to tell the negotiator about his involvement and knowingly

waives his rights than it can be admissible in court but if at any time the hostage taker decides to

stop than the negotiator must cease asking questions about it.

Psychological Coercion

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Hostage negotiators must ensure that psychological coercion does not take place because

the Supreme Court has ruled that psychological coercion has no place in the modern criminal

justice system. (Epstein Walker 2007 pg 527) The threat of psychological coercion by a hostage

negotiator is ever present and the negotiators must be sure not to coerce a testimony out of the

hostage taker when they play on the fears of probable punishments that the hostage taker could

receive. In the Supreme Court case Spano v New York(1959) the court ruled that the use of

psychological coercion was a violation of the Fifth Amendment. (Epstein Walker 2007 p.528)

The court also ruled in Rhode Island v Innis(1980) that police officers can be held accountable

for a practice that is reasonably likely to evoke an incriminating response from a suspect and it

amounts to interrogation. (Israel Kamisar pg 391).

Spano v New York(1959)

Spano v New York is a case in where police officers used psychological coercion to

obtain a confession from the defendant which led to his conviction and a death sentence. (Epstein

Walker 2007 p.528) Spano was an Italian immigrant who was in a bar when a professional

boxer entered the bar and took some of Spano’s money. Spano left the bar and went to his

apartment to obtain his gun. After Spano retrieved his gun he returned to a candy store the boxer

was known to patronize. After Spano saw the individual he drew his weapon and fired killing

the professional boxer in front of an eye witness. (Epstein Walker 2007 p.528) Spano than fled

the scene of the crime. A grand jury indicted Spano and a warrant was issued for his arrest.

Spano contacted his close friend, Gaspar Bruno, who was a recruit in the police academy. Bruno

advised Spano to turn himself in and to obtain legal defense. (Epstein Walker 2007 p.529)

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When Spano was brought in for questioning following his arrest he refused to talk with

police about his involvement in the fight and killing of the professional boxer. The police than

used Gaspar Bruno in order to force a confession out of Spano by having Bruno tell Spano that if

he didn’t confess he would lose his spot in the police academy and his job. Bruno pleaded with

Spano explaining that if he lost his job it would be disastrous for his family of his pregnant wife

and three children. Spano finally gave in and confessed to the killing. Spano’s confession was

used as a primary piece of evidence in his trial which lead to his conviction and death sentence.

(Epstein Walker 2007 p.528)

The Supreme Court reversed the conviction stating that the testimony was coerced out of

Spano and the use of his childhood friend falsely pleading to keep his job violated his Fifth

Amendment rights. The court held that he Court held that Spano's "will was overborne by

official pressure, fatigue, and sympathy falsely aroused." (Epstein Walker 2007 p.529) Hostage

negotiators must ensure that any confessions from the hostage takers must not be coerced by the

negotiators in order to be admissible into evidence. For example, a hostage negotiator cannot tell

the hostage taker that his family members will be thrown in jail if he does not admit to his

involvement in a crime and release the hostages.

Rhode Island v. Innis (1980)

Rhode Island v. Innis was a case where Innis was placed under arrest for his involvement

in a murder with of a taxi cab driver using a sawed off shotgun. When Innis was placed under

arrest he was read his Miranda rights and stated to the officers that he wished to speak with a

lawyer. On the way to the station one of the police officers mentioned to another officer about

his concern that the weapon Innis allegedly used in the crime has still not been recovered and

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that a school for special needs children was close by. The officer than mentioned that he would

hate for one of the children to find the weapon and hurt themselves with it. Upon hearing this

Innis decided to waive his rights and decided to show the officers where the weapon was located.

Before the weapon was located the officers again read Innis his Miranda rights to which he

waived. At trial Innis requested his statements and the shotgun be suppressed.

The Supreme Court ruled that the comments made by police officers that were likely to

illicit an incriminating response from a suspect are in violation of the Fifth Amendment.

However, in this case, the Supreme Court found that these off hand remarks were nothing more

than off hand remarks between officers and that Innis was read his rights multiple times

acknowledging that he understood he was waving his rights. (Israel Kamisar pg 391).

In hostage negotiation a remark by a negotiator could illicit an incriminating response by

the hostage taker. If the hostage taker is notified of his Miranda rights prior to him making these

statements than they could be admissible in court according to Rhode Island v. Innis (1980). If

the Miranda rights are not read and the response is elicited through coercion of any type, similar

to that of Spano v. New York (1959) than it will not be admissible in court. The best case

scenario would, if the situation permits, to explain the hostage taker his rights to ensure that the

conversations can be admitted into evidence in a trial.

Miranda v. Arizona (1966)

Miranda v. Arizona (1966) was a landmark case for the Fifth and Sixth Amendment. The

case found that the court should affirmatively protect against self-incrimination by adding those

protections that were already extended from the previous case of Escobedo v. Illinois (1964).

(Epstein Walker 2007 p.532) The case involved Ernesto Miranda who was arrested for the rape

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of a young woman. When Ernesto Miranda was brought into the police station and interrogated

he confessed to the crime. There was no evidence of any police behavior and at no point during

the interrogation did he request an attorney. At trial, Miranda was convicted and sentenced to

twenty to thirty years based on his confession as well as the positive identification by his

assailant. On appeal, his lawyers argued that because the interrogation process is so inherently

coercive that eventually an individual will confess. (Epstein Walker 2007 p.538)

The Supreme Court held that statements made by a person in police custody are not

admissible in court unless there was evidence that certain procedures safeguarding the person's

Fifth Amendment right against self incrimination was taken. The Court's decision also applied

only to interrogations that occurred when the individual was in police custody. (Epstein Walker

2007 p.538)

Immediately after this decision law enforcement officials condemned the decision by the

Supreme Court. Law enforcement officials thought that this ruling would seriously hinder police

investigations and their ability to solve crimes. The Miranda Warning is as follows:

“You have the right to remain silent. Anything you say can and will be used against you

in a court of law. You have the right to an attorney. If you cannot afford an attorney, one

will be provided for you. Do you understand the rights I have just read to you? With these

rights in mind, do you wish to speak to me?” (mirandawarning.org)

The ruling in this case showed that individuals must be read their rights before an

interrogation by law enforcement personnel. Under this ruling in a hostage situation the hostage

taker must be afforded his rights by law enforcement personnel when communicating with police

officers if they are placed in custody. (Epstein Walker 2007 p.538)

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In a hostage situation the individual is technically in police custody and therefore should

be afforded his rights. In the Supreme Court case of California v. Beheler (1983) the Supreme

Court ruled that:

"The circumstances of each case must certainly influence a determination of whether a

suspect is `in custody' " and that the ultimate inquiry is whether the restraint on freedom

of movement is "of the degree associated with a formal arrest."

The hostage taker has no chance of escaping and his restraint on his freedom of

movement is the same, if not more, than if he was placed under arrest. The Miranda warning set

a legal precedent for law enforcement personnel to ensure that the individual being interrogated

understands his Fifth Amendment rights and this includes hostage takers. In a later case Orozco

v. Texas (1969) the Supreme Court ruled “custodial interrogations” regardless of where they

occur require Miranda Warnings. (Epstein Walker 2007 p.538) These previous cases deal with

the interrogation of suspects under police custody and about suspect’s involvement in criminal

acts.

There is no doubt that a hostage taker is in police custody and if he wishes to confess to

another crime over the line of communication than he must be read his Miranda rights before he

continues because it can be used against himself and it is the government’s responsibility to

protect against self-incrimination.

Exceptions to Miranda Warning

The previous cases and the self-incrimination clause deal with Miranda warnings and the

right against self incrimination when questioned about their involvement in a crime in an

accusatory fashion. Does a hostage negotiator have to read the hostage taker his rights before

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communications and negotiations begin? If the hostage taker makes incriminating statements

during negotiations are they invalid because of the self-incrimination clause? The Supreme Court

ruled no in New York v. Quarles (1984)

New York v. Quarles (1984)

New York v. Quarles (1984) was a case where police officers apprehended a rape suspect

after chasing him through a supermarket. When police officers noticed the suspect had an empty

holster on him they asked him about where the weapon was hidden. The suspect revealed to

police where the weapon was hidden and he was subsequently read his Miranda Warnings.

Quarles was than charged with criminal possession of a weapon.(Epstein Walker 2007 p.542)

In a very concise clear opinion Justice Rehnquist stated in the majority:

“We conclude that under the circumstances involved in this case, overriding

considerations of public safety justify the officer's failure to provide Miranda warnings

before he asked questions devoted to locating the abandoned weapon.”

Public Safety Exception

New York v. Quarles (1984) ruling made clear a public safety exception was made for

Miranda warnings. A hostage situation is no doubt a threat to public safety because of the

hostages being held against their will with the threat of deadly force. The Supreme Court ruled

that Miranda warnings were not feasible or necessary when public safety was at risk and that

statements made could still be used as evidence in court. The Majority opinion stated:

“We hold that on these facts there is a "public safety" exception to the requirement that

Miranda warnings be given before a suspect's answers may be admitted into evidence”

And

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“Whatever the motivation of individual officers in such a situation, we do not believe that

the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a

situation in which police officers ask questions reasonably prompted by a concern for the

public safety.”

The court ruled that evidence obtained prior to a Miranda warning when a threat to public

safety was present was still admissible in court. In a hostage situation the threat to public safety

is present and therefore the negotiators are not required to read the hostage takers their Miranda

rights before negotiations begin.

Conclusion to the Fifth Amendment and Hostage Negotiation

There is no doubt that a hostage negotiator should read the hostage taker his rights if the

hostage taker chooses to admit his involvement in criminal acts in exchange for anything. The

Supreme Court ruled in Miranda v. Arizona (1966) that any questioning about involvement in a

crime that was accusatory required a Miranda Warning. A hostage situation is an in custody

interrogation as the Supreme Court defined in California v. Beheler (1983) where the Supreme

Court ruled custody is defined by the restraint on freedom of movement being similar to that of

arrest. In Orozco v. Texas (1969) the Supreme Court ruled “custodial interrogations” regardless

of where they occur require Miranda Warnings making it clear that certain aspects of Hostage

Negotiation could require the hostage taker to be Mirandized. Finally, The Supreme Court ruling

in New York v. Quarles (1984) made clear a public safety exception was made for Miranda

warnings.

The hostage taker cannot psychologically coerce a hostage taker into confessing about his

involvement in a crime nor can the hostage taker force a confession. If the hostage taker decides

to confess in exchange for something; he must be read his Miranda rights and can stop at any

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given time during the confession. Hostage Situations do not require a negotiator to Mirandize

the hostage taker from the beginning of communications because of the public safety exception

and all statements made can be used in court against the hostage taker.

Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his

defense”

The Sixth Amendment provides legal defense to the accused before and at the trial in all

court proceedings. (Peak 2009 p.244) Hostage negotiations deal with pre-trial situations where

the hostage taker negotiates for demands with a hostage negotiator. Negotiations will take place

long before any trial or arraignment but that does not mean the hostage taker is not entitled to

legal counsel. (Peak 2009 p.245) The Supreme Court has repeatedly emphasized that the role of

a criminal defense attorney begins long before any trial because there are critical complicated

stages that could be violated. Historically the Supreme Court has ruled that it was always the

responsibility of the accused to secure a lawyer and pay for services. (Epstein Walker 2007

p.549)

Assistance of Counsel

Since most of the Sixth Amendment deals with post-arrest scenarios the only relation it

has to hostage negotiation is the assistance of counsel. Anytime a person accused is being

interrogated he has a right to counsel. (Peak 2009 p.246) Originally, the Supreme Court followed

the rule of ''fundamental fairness,'' whether under the circumstances a defendant was so

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prejudiced by the denial of access to counsel that his trial was tainted. The Supreme Court

upheld this decision in Spano v. New York (1959). (Sixth Amendment findlaw.com p.11) During

a hostage negotiation situation the hostage taker has the right to request counsel in order to

protect him from further incrimination and according to attorney client privilege law the law

enforcement officers cannot listen in on or record their conversations.

Promises Made by Negotiators

Promises made by negotiators are not always necessarily held up in court. In the case of

United States v. Crosby (1983) the court held that the portion of the recorded negotiation in

which the defendant was told by the negotiator that if he turned himself in he would not be

prosecuted would not be admissible in court because it could induce unnecessary sympathy for

the defendant. Another case that was upheld was the case of State v. Sands where a signed letter

of immunity from the sheriff was not admitted because the defendant signed it under duress.

Many negotiators argue that promises made need to be delivered because it destroys the

negotiators credibility in future negotiations. (McMains 2010. p. 21) In a hostage negotiation

situation the police and negotiators do not have the power to cut deals and grant immunity

regarding the hostage situation. The Supreme Court ruled in Isaacs v. United States (1958) that

the power to grant immunity does not lie within the judicial branch of government but in the

legislative and executive branch.

United States v. Crosby (1983)

In United States v. Crosby (1983) Gary John Crosby entered the Veterans Affairs

Hospital emergency department with a shotgun. He began to brandish his weapon while yelling

obscenities and expressing his dissatisfaction with the Veterans Affairs organization. After

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fifteen minutes all but one hostage was released. After two to three hours Crosby finally

released the final hostage and surrendered himself to the police. During the final moments of the

incident the police officer acting as lead negotiator allegedly told Crosby that if he gave himself

up he would not be jailed if he gave himself and his hostage up. The government motioned to

have the portion of the tape that contained the recorded negotiation, between Crosby and the

negotiator, which stated if he gave himself up he would not face jail time. The Court ruled that

portion of the tape inadmissible because the defense could not find any relevancy of it and that if

it they could than it would become admissible. The Court found that the statement made by the

negotiator and Crosby bore no legal relevance and that it would not be admissible in court.

In hostage negotiation the promises made by negotiators and the hostage takers do not

necessarily have to be honored according to this case. If the recorded negotiation was played for

the jury it could give them sympathy for the defendant. This is not always necessarily a good

thing for negotiators even though it could mean ending a siege early. It causes negotiators to

lose credibility when the story of this situation comes out to the public. In a separate part of the

country a hostage taker could recall this case during an incident and come to the conclusion that

the negotiator is lying to him. The reality is it could quite possibly come down to lying to save

the lives of innocent people or losing credibility in the next incident.

Crosby also attempted to have his trial thrown out because it violated his Sixth

Amendment right to a speedy trial. Crosby’s legal defense, like many hostage takers, was

insanity. Crosby was forced to undergo psychiatric evaluations for the trial court and his second

forced psychiatric evaluation violated his right to a speedy trial. The Supreme Court ruled that

the reason for the delay in the beginning of the trial was in order for the government to prepare

for the insanity defense. The Supreme Court Stated:

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“A defendant who elects to invoke the insanity defense must necessarily expect that there

will be attendant delay in his case. In the absence of substantial prejudice to a defendant,

the government must be given the time adequately to prepare for such a defense.”

United States v. Gorham (1973)

United States v. Gorham (1973) was a hostage case brought before the Courts that also

ruled on promises made during a siege. Gorham and Wilkerson were inmates at the District of

Columbia Jail who were conspiring to escape incarceration. The two inmates managed to obtain

a loaded .38 caliber revolver. Early one morning Jones faked a sickness and when two

correctional officers entered the cell to help him Gorham assaulted them with the pistol and took

them hostage. The two managed to take full control of their entire cellblock taking eleven

hostages total including the District of Columbia Corrections Director Kenneth Hardy. Later that

evening the inmates, while still holding Director Hardy hostage, went before District Judge

William Bryant and voiced their complaints about the prison in hopes it could resolve the

situation.

District Judge Bryant and Director Hardy both made written promises regarding

immunity of Gorham and Wilkerson. Director Hardy’s note read:

“I, Kenneth Hardy, Director of the Department of Corrections of the District of

Columbia, hereby promise that there will be no reprisals of any kind, including no

deadlock, nor will I bring any court action against any of the inmates involved in the

action that has taken place on October 11, 1972 at the D.C. Jail. The inmates will be

continued in their present location pending any court action.”

During the hours of the siege Director Hardy was subject to beatings by the hostage takers, had

a pistol pointed at his head, and had a noose tied around his neck while he was threatened by the

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hostage takers to negotiate the release of the hostages. Eventually he was induced into writing

the note. Two days later on October 13th Judge Bryant issued the following order:

“3. Defendants, their agents and employees, shall take no action, nor make any threat of

action, to injure or harass any inmate because of actions arising out of the disturbance at

the District of Columbia Jail on October 11 and 12, 1972.”

The Court ruled that both orders and grants of immunity were invalid. The immunity

granted by Director Hardy was ruled that Director Hardy did not have the authority to authorize

any prosecutorial discretion. The prosecutorial discretion lied within the Attorney General’s

office. The Court also found that Director Hardy’s note and Judge Bryant’s written order

precluded the United States Attorney from initiating criminal prosecutions against the inmates.

The Supreme Court also issued a “catch-22” regarding the promises of immunity made

by the judge and Director Hardy. The Supreme Court stated:

“Had a promise that prosecution would not ensue been offered to appellants, it would

have lacked the consideration of a knowing relinquishment of a constitutional right,

involved the performance of a pre-existing duty, been voidable because of inducement by

duress, and, because bargains involving the forbearance of prosecution are contrary to

public policy, it would have been nudum pactum”.

Even if both Director Hardy and Judge Bryant possessed the powers to grant immunity to

the charges stemming from the hostage situation the Court would have ruled them as induced by

duress of the hostage situation. In a hostage situation deals made with the police are hard to hold

up in court as a defense. The Courts have ruled the same in two similar cases: State v. Sands

(1985) and United States v. Bridgeman (1974). States v. Sands involved a sheriff signing a form

promising not press charges against a hostage taker. The Court found that the sheriff granted it

under duress and therefore it was invalid. United States v. Bridgeman involved the accomplices

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of Gorham and Wilkerson where the court also held that the letter signed by the director was

invalid because it was signed under duress.

Conclusion of Promises Made During Hostage Negotiations

Promises made during a hostage negotiation are usually not admissible in court. The

Courts have ruled in many different cases that if signed under duress they cannot be admissible

in court. The Court stated in the Majority opinion regarding contract law in Ingalls v. Neidlinger

(1950) that:

“Under the modern rule duress invalidating a contract may properly be predicated on a

threat of criminal prosecution, and this is true, although execution of the threat would not

have been illegal or actionable. Threats of criminal prosecution inducing a contract are

ordinarily regarded as duress irrespective of the innocence or guilt of the victim”

The threat of criminal prosecution used to induce a hostage into surrendering will not be held in

court. The promises made by a hostage negotiator in a negotiation do not have to be honored

according to these cases. The hostage negotiator though, if continually making false promises,

risks losing all credibility for situations as well as puts an unnecessary danger on other

negotiating teams elsewhere.

Conclusion

Hostage Takers arguably have fewer rights under the Fourth, Fifth and Sixth

Amendments. A hostage situation falls under almost every one of the seven exceptions to

searches without warrants under the Fourth Amendment because of its exigent circumstances

allowing police to use recording devices, listening devices, and other invasive procedures. The

Fifth Amendment has public safety exemptions for questioning and interrogations which gives

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more power and leeway to the police in a hostage situation due to the threat of innocent lives.

The Sixth Amendment right to Counsel can only provide counsel to hostage takers after the

incident and negotiations for immunity can only be approved by the Attorney General and even

in this specific situation the Supreme Court can find it invalid because it was induced by duress.

Hostage negotiators, due to the threat of innocent lives, have much more discretion under the

constitution in a hostage situation.

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References

California v. Beheler (July 06, 1983) (Google Scholar, Dist. file).

Epstein, L. (2007). Constitutional law for a changing America. Washington, D.C.: CQ Press.

Ingalls v. Neidlinger (March 27, 1950) (Google Scholar, Dist. file).

Isaacs v. United States (United States Court of Appeals Eighth Circuit June 27, 1958) (Google

Scholar, Dist. file).

Israel, J. H. (2009). Criminal procedure and the Constitution: leading Supreme Court cases and

introductory text. Eagan, MN: Thomson/West.

Miranda v. Arizona (June 13, 1966) (Google Scholar, Dist. file).

New York v. Quarles (June 12, 1984) (Google Scholar, Dist. file).

Peak, K. J. (2009). Policing America: challenges and best practices. Upper Saddle River, NJ, NJ:

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Peak, K., Radii, E., Cecil, P., & Darin, B. (2008). Hostage Situations in Detention Settings:

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35

Right to Assistance of Counsel in Nontrial Situations. (n.d.). Www.findlaw.com. Retrieved April

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http://caselaw.lp.findlaw.com/data/constitution/amendment06/11.html#1

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