April 22, 2013 Update: Public Safety Exception to Miranda in USA v. Tsarnaev

by feldmanwallach

By Ian Wallach, Feldman & Wallach

“NBC News’ Pete Williams said authorities could invoke the public safety exception for up to 48 hours before reading Tsarnaev his Miranda rights, a period of time that far exceeds all previous cases in which federal agents invoked the exception….”

Many are asking what this exception is and what is its origin – a judicial creation that is rarely invoked? An Executive Order? A law enforcement decision? Or some rarely-addressed legal concept that – if expanded – could largely render Miranda obsolete?

The answer, in brief, appears to be “all of the above.”

Almost 30 years ago, in New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court recognized a very narrow exception to the strict application of Miranda that can apply when there is an immediate need for information to secure public safety. In Quarles, a woman claimed a man raped her and pointed a gun at her. The police officer raced into a supermarket the suspect and found a man with an empty holster and demanded to know where the gun was, and the defendant told him. It was conceded that the man was in custody and not Mirandized. But the trial prosecutor argued that there should be a “public safety” exception to the requirement, and ultimately the Supreme Court agreed, stating – “We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”

The real issue in Quarles wasn’t the statement – it was the admission of the gun that was found as a potential result of the “fruit of the poisonous tree.” And today I spoke with Attorney John Wallenstein, who, many years ago, was the trial prosecutor who argued (and perhaps invented) the exception, and he clarified that it was meant to address immediate, real-time harm, and applicable only to true public emergencies where they believe other weapons or explosives are in a place where they can be imminently dangerous. And all courts that have interpreted Quarles have interpreted it to mean “immediate” as in “right now.”

On October 21, 2010, the DOJ issued a memo to the FBI stating that it is more important to get information about terrorist activities than to give Miranda warnings. The DOJ was concerned that if FBI agents continued to give Miranda warnings, the suspects would quickly “lawyer up” and the FBI would not be able to get valuable information. But a DOJ memo does not change the law — this was a DOJ policy decision. It did not create or alter a rule of evidence.

Police are always free to not give Miranda warnings, and frequently don’t, simply because they don’t want the suspect to stop providing information (which happens when anyone gets a good lawyer, as the first bit of advice from any good criminal lawyer is “stop talking”). This is common when Law Enforcement Officers feel that they don’t need a confession to prove the case (as all Miranda does is keep statements that someone makes, while in custody and before being Mirandized, and other evidence found only because of those statements, away from a jury).Many lawyers are justly concerned that this tragic event in Boston, and the Tsarnaev case, can present an opportunity for prosecutors to try to expand Quarles – because, in theory, everything a criminal knows can be related to a public safety issue. Any confession can address someone’s likelihood to commit another crime, etc. And contrary to public opinion, Miranda is a good thing, and protects a lot of people (most of whom are underprivileged and uneducated).Even if every statement that Dzokhar Tsarnaev made over the past few days (or writing or by gesture, as he apparently can’t communicate verbally) was excluded from his trial, it wouldn’t likely have much effect on the ultimate determination as to guilt or innocence. There is enough other evidence to sustain a conviction.
USA v. Tsarnaev will bring a lot of attention to the Public Safety exception expressed in Quarles, and might clarify the exception and its reach. But that case is almost thirty years old — and its reach shouldn’t suddenly be expanded as a result of the Boston tragedy. For now, lets be patient and preserve those (few) rights afforded by our constitutions and our courts.