Constitutional Amendments and Hostage Negotiation Law

Introduction to Hostage Negotiation

The Fourth, Fifth, and Sixth Amendments have had serious impacts on modern hostage negotiations. Elements to be considered include promise-making, incriminating statements, and the planting of listening devices. Graham v. Connor, State v. Sands, and Taylor v. Waters, among others, are some of the court cases used in this discussion. The impact of these cases, as well as all three amendments, on modern-day hostage negotiations will be examined throughout this paper.

The world of emergency mental health is full of crises, but few are ever as critical as hostage situations. In such circumstances, lives are in immediate danger, often at the hands of unstable, emotionally traumatized, and desperate individuals operating within a highly chaotic environment. Homicidal rage and suicidal despair are the most common denominators in these situations. The individuals involved are frequently under the influence of drugs or alcohol, which aggravates their violent tendencies (Miller, 2005). In other incidents, the perpetrator is simply a cold-blooded criminal willing to go to any extent to achieve his aims. The hostage remains at the mercy of the criminal and his immediate demands. Hostage situations can last anywhere from a few hours to several days, and their resolution requires skillful and focused handling. Negotiators must resort to all available methodologies and strategies drawn from crisis intervention techniques in both psychology and law enforcement in order to arrive at the most acceptable outcome (Miller, 2005).

Hostage-taking crimes account for fewer than 20% of all critically violent crimes and are resolved successfully, without fatalities, in the vast majority of cases. It is reassuring to know that negotiation and containment have achieved success rates as high as 95% in resolving hostage situations and preserving human life — a remarkable statistic across all life-saving intervention strategies. A hostage situation is defined by three separate dangerous periods. The first period lasts 15 to 45 minutes, during which confusion and panic are typically very high (Miller, 2005). The second phase involves the surrender of hostage takers (HTs), when ambivalence, hair-triggered emotions, and uncooperative HTs or crisis response team members can trigger a negative outcome and turn a smooth progression into a dangerous one. The final phase is the tactical assault, when a response team enters to rescue hostages and capture the HT. This last phase is usually when the most casualties occur for two reasons. First, a tactical assault typically results from uncooperative HTs and an inability to resolve the situation through negotiation — at this point, hostages may already have been harmed. Second, hostages may panic during a firefight, causing unintended harm (Miller, 2005).

Certain hostage crises are significantly more dangerous than others when specific risk factors are present. These factors are usually related to the context from which the crisis originates, including the stages of the crisis and the history of the hostage taker. One particularly risky factor is whether the hostage was chosen specifically by the HT or was simply a victim of circumstance (Miller, 2005). This is consistent with the broader finding that most interpersonal violence is directed toward individuals known to the perpetrator — quite unlike situations in which a hostage is taken during a bank robbery, where the victim was simply in the wrong place at the wrong time. When the perpetrator knows the hostage, the motive often involves punishment for a past incident. Workplace conflicts and disputes between romantic partners are common examples. The perpetrator's goal frequently includes intimidating or frightening the hostage, and sometimes actually injuring or killing them. Murder-suicides are among the most dangerous scenarios; they often escalate into serious hostage crises when response units arrive and surround the premises (Miller, 2005).

The Fourth Amendment was ratified in 1791 and was intended to provide protection against political violence and unreasonable government intrusion. The antebellum period introduced a new dimension to this amendment, as southern states employed violent search-and-seizure techniques to regulate property, slavery, and mobility (Smith, 2008). Later, the Fourteenth Amendment incorporated this evolving interpretation of the Fourth Amendment against the states, compelling modern governmental bodies to respect both individuals and groups, to deliberate regarding search-and-seizure policies, to act upon individualized suspicion, and to adopt the least restrictive means to achieve their goals (Smith, 2008).

Impact of the Fourth Amendment

Precise and timely knowledge is a vital component of effective crisis management. Crisis situations tend to disrupt routine information-gathering processes, and electronic reconnaissance — such as wiretaps and listening devices — is frequently used as an aid. These systems can become entangled in legal requirements under 18 U.S. Code. Federal electronic surveillance law contains a crisis provision that permits the non-consensual interception of telephone communications in cases where a person is in immediate danger of death or physical injury, provided the emergency interception has been authorized by a senior prosecutorial official and an application for a court order is filed within 48 hours of the initial interception. Ensuring that the statutory requirements for emergency electronic surveillance are met enables the crisis management team to maintain the flow of vital intelligence that may lead to the safe resolution of the crisis (18 U.S. Code).

Federal law also governs the use of listening devices. Without a court order or an emergency affecting the life or safety of persons, federal law prohibits the non-consensual electronic surveillance of oral communications in which there is a reasonable expectation of privacy (18 U.S. Code). Two hostage takers inside their own home, speaking privately and outside the presence of any captive, arguably possess a reasonable expectation of privacy. Any electronic monitoring of such a conversation would therefore need to comply with the relevant federal statute.

The historical background of the privilege against self-incrimination is tied to revolution — first against religion, and ultimately against the state. In its earliest form it was part of a conflict between Protestant Anglicans and Protestant Calvinists, and between a Protestant Parliament and a Protestant Crown (Kemp, 1958). The privilege exists in modern law today because England became Anglican in the sixteenth century, and because for the Calvinists that was insufficiently Protestant.

Impact of the Fifth Amendment

Occasionally, in prosecutions following the resolution of a crisis, a defendant will challenge the admissibility of statements made to negotiators during the crisis. These challenges typically allege some violation of the rule established in Miranda v. Arizona, in which the Supreme Court held that statements made by a defendant while subject to custodial interrogation must be preceded by the familiar Miranda warnings and a valid waiver (Legal Issues in Crisis Management). For three reasons, however, a challenge to the admissibility of such statements on Miranda grounds is likely to fail.

First, Miranda applies only when the individual is in custody. For Miranda purposes, custody occurs when the suspect is taken into formal police custody or is restrained in a manner associated with formal arrest. In crisis situations where the suspect is not under the complete control of police, there is no such custody, and Miranda is therefore inapplicable (Legal Issues in Crisis Management). As one court observed, requiring Miranda warnings in this context would redirect officers from their primary role — using every available means to persuade the suspect to surrender peacefully — and force them to evaluate whether any spontaneous statement might later be used at trial, potentially provoking a violent reaction to the adversarial-sounding warnings.

Second, Miranda warnings are required only when a custodial suspect is subjected to interrogation. Negotiating the safe return of hostages and the peaceful resolution of a hostage situation is not considered interrogation (Legal Issues in Crisis Management). It was on this basis that a court declined to suppress incriminating statements made by a defendant during hostage negotiations in People v. Gantz: even assuming the defendant was in police custody during the negotiations, the communications were directed toward providing the defendant with medication and maintaining the safety of the hostages — not toward eliciting inculpatory statements. Absent Miranda warnings, the trial court did not err in declining to suppress those statements.

Third, the Supreme Court has recognized that the Miranda rule does not apply when questions are reasonably prompted by concern for the general safety and well-being of the public.