文章基本信息

标题：Berkemer Revisited: Uncovering the Middle Ground Between Miranda and the New Terry
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作者：Roth, Michael J.
期刊名称：Fordham Law Review
出版年度：2009
卷号：77
期号：5
页码：2779
出版社：Fordham Law School
摘要：Over the past twenty-five years, appellate courts have significantly expanded the scope of police authority to stop and frisk potential suspects without probable cause, a power originally granted to law enforcement by the Supreme Court in Terry v. Ohio. This development has led Terry’s once limited licensing of police searches to run into conflict with a defendant’s right against compulsory self-incrimination while in police custody, as articulated by Miranda v. Arizona. This Note explores the contours of this unforeseen collision between two core constitutional doctrines and the solutions generated by appellate courts to resolve the conflict. Courts today are generally divided as to whether Miranda should apply during a valid, but intrusive Terry stop. This Note argues that a distinct overlap now exists between Miranda and Terry; one that should compel courts to invoke Miranda where police detain and question a suspect in a manner analogous to custodial interrogation. However, this Note also stresses that courts should be vigilant in enforcing the public safety exception to Miranda, particularly in light of Terry’s inherent unpredictability and extemporaneous nature.
关键词：Miranda; search and seizure; stop and frisk; constitution; fourth amendment