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Dzhokhar Tsarnaev, Miranda, And The Public Safety Exception

Bill Of Rights 2

As James Joyner has already noted this morning, Boston Marathon bombing suspect Dzhokhar Tsarnaev will, at least initially, not be read his Miranda rights and authorities will attempt to question him regarding the plot that he engaged in with his brother, whether the two of them had any assistance from others in the United States or elsewhere, and presumably whether there are other bombs out there. While ordinarily police give the warnings required by Miranda v. Arizona fairly soon after someone is arrested, in this case authorities are relying on what’s called the “public safety” exception to Miranda, which the FBI describes this way on its website:

According to the Supreme Court, the public safety exception is triggered when police officers have an objectively reasonable need to protect the police or the public from immediate danger. Because the standard is objective, the availability of the exception does not depend on subjective motivation of the officers. Legitimate concerns for officer safety or public safety prompting unwarned custodial questioning arise in a variety of contexts. A common factor that can be gleaned from the courts addressing this issue is the prior knowledge or awareness of specific facts or circumstances that give rise to the imminent safety concern that prompted the questioning.

Before getting into a discussion of the “public safety” exception, it’s important to recognize what Miranda does and does not require, and what the consequences are if the police do not comply with it properly. Contrary to the conclusion that most people are likely to gather from watching crime dramas like Law & Order, officers are not required to give the warning before they arrest someone and failure to give the warning will not result in dismissal of the case. Miranda is more properly seen as an evidentiary rule that the government must follow if it wishes to interrogate a suspect and eventual defendant and use whatever statements that interrogation elicits against him in court.  If a suspect is not given his or her Miranda  warnings and the state then attempts to utilize post-arrest statements against him, then the government will generally be barred from using that statement against him in Court. As Orin Kerr notes, however, the Supreme Court ruled in Chavez v. Martinez, 538 U.S. 760 (2003) that police may arrest a Defendant, fail to read him his rights, interrogate him, and obtain his statement as long as they don’t use the statement in Court.  Additionally, the Court has held that evidence that the police discover as a result of a statement such as this can be used in Court against the defendant, which is radically different from 4th Amendment’s “fruit of a poisonous tree” doctrine which provides that any evidence obtained as a result of an illegal search, even indirectly, is inadmissble unless an exception applies.

What all this means is that the issue of not reading Tsarnaev his rights only really matters to the extent that the authorities are concerned with being able to use something that he might say in Court against him. Given the mountain of evidence that we already know the authorities have against him related to the bombings,  most especially the videos and the photographs but also the evidence obtained during Friday morning’s chase as well as whatever was recovered at the apartment he shared with his brother while not at school, the authorities most likely don’t need Tsarnaev to confess to anything at all. Instead, they are interested in finding out what he is willing to tell them about what he and his brother did, why they did it, how it was financed, whether they had any confederates, and whether they were allied in any way with terror groups overseas.  Thus, it’s more appropriate to view any future interrogation of Tsarnaev as an intelligence gathering operation rather than as part of a criminal investigation.

With regard to the “public safety” exception, the most obvious question, of course, is what constitutes the kind of “specific facts or circumstances” suff icient to say that there is an imminent safety concern that allows the police to go forward with questioning with giving the Miranda warnings. The classic scenario, which is seldom true in reality, is the “ticking time bomb” scenario that is often the plot of thrillers such as 24. In such a situation, where you know that there is a threat such as a bomb that will go off if not defused, the public safety exception allows the authorities to question the suspect outside of Miranda and still be able to use whatever evidence that interrogation may uncover against the Defendant at trial. Beyond the ticking time bomb, though, it’s often unclear what constitutes a sufficient threat to public safety and, more importantly, it’s unclear how long authorities can continue questioning a suspect without benefit of Miranda under the “public safety” exception. There is no case law on this second issue, so it’s arguably the case that the longer that Tsarnaev is questioned without being “Mirandized” the bigger risk authorities are taking that the information that they obtain from him will be unavailable at trial. The best we can say about this specific case is that, at least initially, not reading Miranda will be considered acceptable. The longer this goes on, though, the more likely it is that anything that Tsarnaev says may be considering inadmissible.

While the exception seems to be being applied in a relatively benign manner in this case, there are some raising objections to the governments decision to forego the Miranda warning for now.

Scott Lemieux, for example, objects to it mostly because of the message it sends about how we’re conducting the “War on Terror”:

To refuse to inform Tsarnaev of his rights — outside of the acknowledged emergency exception to Miranda— sends the opposite message.   It’s the message of the previous administration — i.e. that the rule of law and the “war on terror” are incompatible, that slapping the label “terrorist” on a suspect means that professional procedures that respect the rights of the accused can’t work.   This isn’t right  — it’s wrong in terms of the values it represents and it’s wrong in terms of the underlying assumption that less respect for the rights of the accused means more effective crime control.  The appropriate course of action is for Tsarnaev to be treated like any other criminal suspect, consistently with not only the letter but the spirit of Miranda.  Coercive interrogations are wrong because they’re wrong, not just because the state isn’t permitted to introduce evidence gained from them.  This is why the Bill of Rights contains the Fifth Amendment rights Miranda was designed to enforce.

These points are very well-taken but I think it pays short-shrift to what I noted above about what Miranda actually means and requires. If the government doesn’t intend to use anything Tsarnaev says at trial, then there’s nothing about Miranda and the cases that followed it that requires them to given him the warning before questioning him regardless of whether they formally apply the “public safety” exception. No sanctions will be suffered by the state at trial, and the defendant would not have any civil claims against the officers who interrogating him, unless the interrogation was in some way physically or mentally coercive in which case a whole other set of laws applies. Given this, I’m not sure that the failure to Mirandize for what is likely to be a relatively short period is an egregious a mistake as Lemieux makes it out to be.

Over at Slate, meanwhile,  Emily Bazelon raises some other concerns with the use of “public safety” exception in this case or, it seems, any case:

Dzhokhar Tsarnaev will not hear his Miranda rights before the FBI questions him Friday night. He will have to remember on his own that he has a right to a lawyer, and that anything he says can be used against him in court, because the government won’t tell him. This is an extension of a rule the Justice Department wrote for the FBI—without the oversight of any court—called the “public safety exception.”

There is one specific circumstance in which it makes sense to hold off on Miranda. It’s exactly what the name of the exception suggests. The police can interrogate a suspect without offering him the benefit of Miranda if he could have information that’s of urgent concern for public safety. That may or may not be the case with Tsarnaev. The problem is that Attorney General Eric Holder has stretched the law beyond that scenario. And that should trouble anyone who worries about the police railroading suspects, which can end in false confessions. No matter how unsympathetic accused terrorists are, the precedents the government sets for them matter outside the easy context of questioning them. When the law gets bent out of shape for Dzhokhar Tsarnaev, it’s easier to bend out of shape for the rest of us.

Bazelon’s concerns are well-founded, and here article goes into detail about several recent cases where the exception was arguably over-used. However, that doesn’t negate the fact that none of the examples she cites can really be called “coercive” interrogations, which is certainly the thing that we want to avoid both in this case and in ordinary criminal cases. Moreover, as I noted above, authorities are free to question Tsarnaev in any case if they don’t intend to use his statements against him. Finally, Tsarnaev himself could decide not to talk in any case. As someone who’s been raised in American culture, he’s no doubt as aware of the Miranda right as any of us are. He could choose not to talk if he doesn’t want to. Indeed, given the fact that he is currently hospitalized in “serious” condition it’s unlikely that he’s in any condition to talk anyway. In any case, while we should want exceptions like “public safety” to be used minimally, it doesn’t strike me that boundaries are being stretched very far here. If that turns out not to be the case, then the authorities will definitely have something to answer for.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Mark Ivey says:

    Take away his Miranda rights, but not his 2nd Amendment rights, something like that..

    Like or Dislike: Thumb up 12 Thumb down 5

  2. The issue is not whether the Tsarnaev prosecution would be tainted because of what the FBI asked or learned under the PSE.

    Let us suppose that inside the ambulance transporting Tsarnaev to the hospital just after he was apprehended that he admitted under questioning there was one more bomb in place. Even if that admission got thrown out, there are already so many other charges awaiting filing that the overall allegations against Tsarnaev would be sufficient to put him away for decades to life.

    The issue here is that in his 2010 memo to the field, Eric Holder recognizes no limits to the public safety exception. Surely you find that worrisome?

    Like or Dislike: Thumb up 7 Thumb down 0

  3. Todd says:

    I’m not really concerned about the Miranda rights … honestly that strikes me as more of a “political/public relations” decision than anything else.

    Where the debate could get interesting is if they were to refuse to let him see a lawyer, and/or refuse to charge him with a crime … and instead hold him as an “enemy combatant”.

    If I had to guess, I’d bet that when they’re done interrogating this kid, they’ll find out he’s probably got a lot more in common with the Columbine killers than the 9/11 high jackers.

    .. but that’s just a guess. I’m not attached to the idea. It’s also entirely possible that these guys do have some sort of foreign connection (beyond a couple of youtube videos).

    I suppose we’ll all find out soon enough … but I suspect only some of us will actually believe the evidence if it ends up not supporting our own (totally baseless at this point) theories.

    Like or Dislike: Thumb up 5 Thumb down 0

  4. rodney dill says:

    @Mark Ivey: Did you read the post? It doesn’t sound like his Miranda rights are necessarily being taken away, they’re just not being volunteered to him,, and law enforcement seems willing to live with this as they may not need to rely on anything he says to convict him.

    Like or Dislike: Thumb up 0 Thumb down 0

  5. JKB says:

    @Donald Sensing: Eric Holder recognizes no limits

    But that is a political question best raised with his boss, Barack Obama.

    Whether the AG recognizes limits to the PSE or not, doesn’t mean a court can’t or won’t. The AG give guidance to the FBI and federal prosecutors but his opinion in no way binds a judge in regards to admitting statements or not.

    Lawyers ask questions, good interrogators get you talking. And I suspect this guy will have the best interrogators we got at his side 24/7 until they have what they need.

    I also doubt a 19-yr old raise on the liberal side of Boston, whose brother may or may not have had terrorist training, isn’t hardened enough to stand up to the mental games of the best interrogators. He’s going to wake up scared and alone, hated by everyone. But he will find one kind face on a person who is very understanding.

    Plus, you decide to murder people by bombing the Boston marathon, if you didn’t remind yourself of your rights should you be caught before hand, whose fault is that. This isn’t some kid who decided to break into a home on a lark.

    Like or Dislike: Thumb up 3 Thumb down 1

  6. CSK says:

    Investigators have removed a huge amount of presumed physical evidence from the Cambridge apartment, including undetonated IEDs. In addition, they have the eyewitness testimony of at least one of the injured Marathon spectators, who saw one of the brothers place the backpack-bomb by the eight-year-old boy who was killed. This witness will be a particularly potent courtroom presence; he was the young man who lost both legs below the knee.

    In addition, the brothers apparently made some sort of statement to the man whose Mercedes SUV they hijacked in Cambridge. This person–I don’t know his identity; that seems to be kept under tight wraps–should also be a very powerful prosecution witness.

    Of course, there are many other eyewitnesses. I’ve just mentioned some of the most obvious.

    Like or Dislike: Thumb up 4 Thumb down 1

  7. @Todd:

    Well, the two leading idiots of the Republican party (tho I admit that’s a tough call to make), Graham and McCain, have already called for the enemy combatant route,

    Like or Dislike: Thumb up 8 Thumb down 0

  8. john personna says:

    @Todd:

    I suppose we’ll all find out soon enough … but I suspect only some of us will actually believe the evidence if it ends up not supporting our own (totally baseless at this point) theories.

    I don’t think it’s that bad. There is a silent majority out there, waiting for the story to come out.

    Like or Dislike: Thumb up 1 Thumb down 1

  9. john personna says:

    @Donald Sensing:

    Seriously? Not that I particularly care about this guy’s future, but it seems pretty unnecessary to consider 2 guys a foreign force. If they were part of an organized larger “cell” then maybe.

    Like or Dislike: Thumb up 2 Thumb down 1

  10. @JKB:

    I am not a lawyer, tho I do have professional law-enforcement agency experience, so maybe Doug will weigh in on this. But my understanding is that the PSE means that statements by the accused are admissible in trial even tho the Miranda warning has not been offered. That was the whole basis of SCOTUS overturning the lower appellate courts’ dismissal of Quarles’ conviction in New York V. Quarles, 1984, in which Quarles, the accused, had admitted to the location of his firearm in a grocery store even though he had not been Mirandaized.

    Convicted, the appellate courts all the way through the NY court system threw out the conviction based on the lack of Miranda warning before his admission. The state argued that it was unacceptably hazardous to public safety to take the time to Mirandaize Quarles first. (Despite what you see on TV, Miranda rights advisories are technical processes that require documentation and take 20-30 minutes. When I was in Army CID, Miranda warning were never given only verbally at the time of apprehension.)

    SCOTUS ruled that the public safety consideration was reasonable and so founded the exception rule. But the key is that Quarles’ conviction was reinstated by the Court and his non-Miranda admission was upheld as admissible.

    My objection stated above is not the PSE rule exists. I think the Court’s ruling is sound. As I stated, Holder does not recognize the Court’s limits on the PSE.

    Doug, any lawyerly insights?

    Like or Dislike: Thumb up 2 Thumb down 0

  11. @john personna:

    I assume you are asking whether it is really true that Graham and McCain have already called for them to be treated as enemy combatants. Yes, it is. Just look in Google news.

    Like or Dislike: Thumb up 3 Thumb down 0

  12. It’s probably worth pointing out that the Miranda rule protects against self incrimination under interrogation. It does not protect against being stupid enough to run your mouth to cops before they start asking you potentially incriminating questions. The courts admit self-incriminating, spontaneous statements.

    This is one reason that a lot of investigators wait some time before giving the Miranda warning. As long as they are not interrogating, Miranda does not apply. You’d be surprised how many admissible confessions are made, pre-Miranda, in the back seat of a patrol car because the suspect can’t take the silence any more.

    Like or Dislike: Thumb up 2 Thumb down 0

  13. john personna says:

    @Donald Sensing:

    More expressing my dismay in the form of a question.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. michael reynolds says:

    He’s an American citizen inside the US where the rule of law is in force and enforceable. There is absolutely no argument that supports calling him an enemy combatant. If he were in Pakistan or Yemen beyond the rule of law? Okay. But he’s in Boston. Graham is a real piece of sh!t.

    Like or Dislike: Thumb up 5 Thumb down 1

  15. Spartacus says:

    If the real purpose of the Public Safety Exception is to prevent imminent harm, why should the statements be admissible in court? Admitting those statements during a future trial does nothing to prevent a harm that is imminent at the time of arrest. And, the fact that the statements can be used means it is less likely that someone who has been arrested will say anything that will stop an imminent threat.

    Like or Dislike: Thumb up 2 Thumb down 0

  16. Moosebreath says:

    I can’t see the point of this. Since he lived in the US for the last decade, and went to high school in the US, he certainly is aware of Miranda. So what is gained by not giving him the Miranda warnings?

    Like or Dislike: Thumb up 2 Thumb down 0

  17. @michael reynolds:

    The eschaton must be near! You and I actually agree on something!

    Like or Dislike: Thumb up 1 Thumb down 0

  18. @Spartacus:

    Again, caveating that I am not an attorney, my understanding is that SCOTUS held in New York v. Quarles that because of the reasonable concern for public safety, the police questions and Quarles’ admission did not cross the Constitutional boundary. That being so, there was no basis to exclude them.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. Mary G says:

    This is bad PR. We are saying to the world that we love our freedoms and have a system of law in place to protect them, but we don’t feel like it doing it in this case. We look like an even bigger bunch of hypocrites than we usually do.

    These are two yahoos who murdered three civilians and a cop and injured countless others. Let Massachusetts try and convict him, and he probably won’t last a week in jail. OK, I don’t mean that last part.

    Like or Dislike: Thumb up 2 Thumb down 0

  20. BTW, The NYT is all over this:

    But the administration’s effort to stretch a gap in the Miranda rule for questioning about immediate threats to public safety in this and other terrorism cases has alarmed advocates of individual rights.

    Anthony D. Romero, the executive director of the American Civil Liberties Union, said it would be acceptable for the Federal Bureau of Investigation to ask Mr. Tsarnaev about “imminent” threats, like whether other bombs are hidden around Boston. But he said that for broader questioning, the F.B.I. must not “cut corners.”

    “The public safety exception to Miranda should be a narrow and limited one, and it would be wholly inappropriate and unconstitutional to use it to create the case against the suspect,” Mr. Romero said. “The public safety exception would be meaningless if interrogations are given an open-ended time horizon.”

    Like or Dislike: Thumb up 2 Thumb down 0

  21. grumpy realist says:

    Considering that this kid is in the hospital at present, maybe they’re just seeing what he babbles under the influence first?

    It would seem to me that the “public safety exception” is a little hard to plead a week after picking him up, if that’s when they get around to questioning him.

    Like or Dislike: Thumb up 3 Thumb down 0

  22. john personna says:

    Doug’s post was pretty reasonable. Miranda has this “public safety” provision. Mad bombers, who have laid not just one, but thrown many bombs, seem pretty well suited to it. So, take the “self incrimination” hit, get their data, and prosecute using the mountain of other evidence.

    As a separate issue, sure, press government for limits to the public safety provision, but I really don’t think this is a borderline issue.

    Mad bombers fit the public safety provision to a tee.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. Argon says:

    People keep talking about ‘Miranda’ but it just reminds me about the movie, Serenity, and how it was such a pity that Fox killed the ‘Firefly’ series.

    Like or Dislike: Thumb up 2 Thumb down 0

  24. Patrick says:

    @rodney dill: the public safety exception is invoked specifically to deprive a suspect of their right to an attorney. It’s a DoJ contrived constitutional loophole. In this case they have crossed the line. the US supreme Court decisions thus far involve two cases (U.S. v. De-Santis and New York v. Quarles ) where the infraction occurred seconds after the suspect was detained.

    Like or Dislike: Thumb up 3 Thumb down 0

  25. Spartacus says:

    @Donald Sensing:

    I realize that the SCOTUS found a public safety exception, but the purpose of the exception (i.e. protection from imminent harm) is not served by using a person’s statements to convict him many months after he first made them. In fact, the purpose of the PSE would be better served if the statements couldn’t be used at trial. If we want people to give us info for the specific purpose of preventing an imminent harm, then we should not penalize them by using that info to later convict them.

    Like or Dislike: Thumb up 0 Thumb down 0

  26. CocoNY says:

    Fascinated that everyone thinks a 19-year old stoner kid knows what Miranda Rights are – I don’t think most Americans know fully what they mean. In fact, when I’ve questioned people on Twitter I’ve been ripped because “You’re not a lawyer!” or “Lawyers understand it better than you.”

    I am 52 years old, consider myself fairly smart/politically astute with two lawyer brothers (criminal defense and legal counsel to a state official) in very liberal Manhattan, and I’ve had to research this more.

    Like or Dislike: Thumb up 1 Thumb down 0

  27. Tyrell says:

    The justice system and police have been weakened in my opinion over the years by police having their hands tied and the courts becoming more preoccupied with rights of the criminals than the suffering of the victims. Technicalities, plea bargains, and other frauds have turned the courts into revolving doors for criminals.

    Like or Dislike: Thumb up 0 Thumb down 3

  28. A lawyer’s assessment is on the Volokh Conspiracy.

    Like or Dislike: Thumb up 0 Thumb down 0

  29. Jenos Idanian #13 says:

    My first thought was this was no big deal — the remedy for the omission is that any statements he makes can’t be used against him in court. There’s plenty of other evidence already, so that’s not a real concern, and I think that such statements could be used against any potential accomplices he implicates.

    But then I reconsidered. If there’s the slightest chance this could mean he would not be prosecuted at all, then it’s a bad idea. The next thing you know he’ll be a respected member of academia, like former terrorist bombers William Ayers, Bernardine Dohrn, and Kathy Boudin…

    Like or Dislike: Thumb up 0 Thumb down 0

  30. anjin-san says:

    Technicalities, plea bargains, and other frauds

    I’m curious, how is making cops respect the law and having district attorneys use a legal negotiating tactic a “fraud”?

    Like or Dislike: Thumb up 0 Thumb down 0

  31. Jenos Idanian #13 says:

    I’m no lawyer, but it occurred to me — would this be similar in concept to “qualified immunity?” That’s another area where rights are bypassed, in a way.

    Like or Dislike: Thumb up 0 Thumb down 0

  32. Jenos Idanian #13 says:

    @Mark Ivey: Take away his Miranda rights, but not his 2nd Amendment rights, something like that..

    As has been noted several times, the suspect is 19 years old, and in Massachusetts one must be 21 to buy or own a gun. So your “2nd Amendment” whine is pointless.

    Like or Dislike: Thumb up 0 Thumb down 0