When the second Boston Marathon bombing suspect, Dzhokar Tsarnev, was being sought, debate was roiling over whether or not authorities should read him his Miranda Warnings prior to questioning him, and whether he should be classified as an enemy combatant. The second argument did not go very far, as Mr. Tsarnev is a U.S. citizen, and is afforded the same rights as all citizens under the constitution, including due process and the right to an attorney. The more heated debate centered on whether he should be read Miranda.
The Justice Department stated their intention to not advise Mr. Tsarnev of his Miranda rights, saying that their questioning would be allowed under the public safety exception. All indications are that Mr. Tsarnev was not advised at the initiation of his interrogation, and that he has been communicating with law enforcement. The failure to read Miranda does not mean that authorities could not question him, but typically any statements obtained from such a custodial interrogation could not be used against him in court. Such statements were not admissible under the Miranda ruling by the Supreme Court, until they carved out the public safety exception in a case known as New York v. Quarles. The Quarles decision in 1984 drew a very narrow exception for questions in the interest of public safety. In that case, Mr. Quarles had been detained after ditching a firearm, and the officer asked a few questions about the whereabouts of the gun prior to reading Mr. Quarles his Miranda. The court found that under those facts, an exception was proper, and the state could use those statements in the prosecution of the case against him.
The FBI latched onto the idea of the public safety exception, and spent some time reviewing and planning when they felt they might be able to use it to avoid the reading of Miranda. They produced an internal memo in 2010 outlining which circumstances they could cite the exception to avoid the Miranda reading. The New York Times obtained a copy of that memo and published it in 2011. This presents several logistical problems, as well as a concern that the FBI has made a concerted effort to deny detainees their Constitutional rights.
The public safety exception, as outlined by Quarles, is limited to a very narrow set of facts and circumstances. Justice Rehnquist specifically discussed that there was an element of spontaneity involved when suspects are arrested in the field as Mr. Quarles was. That does not appear to fit the facts of Mr. Tsarnev’s situation. Rehnquist contrasts those questions in the field to the inherently coercive nature of interrogation in the confines of a police station house. There is a danger for the government that there was a coercive nature to Mr. Tsarnev’s custodial interrogation in the hospital, where he was undoubtedly tied down and confronted by multiple trained interrogators who had time to formulate their questions. The FBI memo attempts to broaden the scope of the public safety exception, but such internal memos carry no force of law. It’s possible that interrogators’ reliance on the FBI’s interpretation of the exception could taint Tsarnev’s statement; and a judge might refuse to admit those statements. This may not be a major issue in Tsarnev’s case, as the government may feel they have enough evidence against him without needing to rely on his statements. They certainly will be challenged by the Defense if the case ends up going to trial, as the facts of Mr. Tsarnev’s interrogation do not fit the facts of Quarles and its narrow exception.
It is possible the court could further expand the public safety exception. The Quarles language is very limited and fact specific, but it is easy to imagine situations where such an exception would be appropriate. Imagine a scenario where terrorists are planning to detonate a nuclear weapon in the United States, and are on the verge of doing so (a Jack Bauer situation). What if agents were able to capture a conspirator who had information about how to stop the imminent attack: would we want them to advise the terrorist he didn’t have to talk to them? In such a hypothetical, the public interest would be better served by allowing the interrogation to proceed, unadvised. The public interest would favor the greater good of seeking information to protect more people from harm, and could still be a limited enough public safety exception to warrant abuse from overly broad interrogations. I recognize the slippery-slope concern of further abrogating Miranda, but it might be appropriate under limited factual circumstances. As it is, the government has rarely attempted to claim the public safety exception, so there is not a great body of law on the subject. It will be interesting to see how it develops.
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