The Bogus 'Public Safety' Exception

Police can ask about ticking bombs without sacrificing the Fifth Amendment.

Boston bombing suspect Dzhokhar Tsarnaev, captured last Friday evening, was not informed of his right to remain silent and his right to a lawyer until Monday morning, nearly three days after his arrest. The FBI said the delay was justified under the "public safety" exception to Miranda v. Arizona, the 1966 ruling in which the Supreme Court said the now-familiar warnings are required to enforce the Fifth Amendment's guarantee against compelled self-incrimination. But the public-safety exception itself is not justified, which becomes clear when you consider the 1984 decision that announced it.

New York v. Quarles involved a late-night confrontation between police and a suspected rapist at an A&P supermarket in Queens. Officer Frank Kraft chased Benjamin Quarles into the back of the store, losing sight of him briefly before stopping, handcuffing, and frisking him. Discovering an empty shoulder holster, Kraft asked where the gun was. "The gun is over there," Quarles said, nodding toward a box where Kraft found a .38-caliber revolver.

When Quarles was tried for criminal possession of a weapon, the judge excluded the gun and Quarles' statements about it from evidence because Kraft began questioning him before he had been Mirandized. Both the Appellate Division and the Court of Appeals (the state's highest court) upheld that decision.

The Supreme Court said all three courts had erred. "Under the circumstances involved in this case," Justice William Rehnquist wrote for the majority, "overriding considerations of public safety justify the officer's failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon."

Rehnquist claimed Quarles' hidden gun posed two possible threats: "An accomplice might make use of it," or "a customer or employee might later come upon it." But as dissenting Justice Thurgood Marshall noted, there was no indication that Quarles had an accomplice, and the supermarket was deserted except for the clerks at the checkout counter. Had the police simply searched for the gun, they would have found it easily.

When Kraft asked about the gun, Quarles was handcuffed and surrounded by four officers, who felt safe enough to holster their weapons. "Nothing suggests that any of the officers was by that time concerned for his own physical safety," the New York Court of Appeals concluded. "There is no evidence in the record before us that there were exigent circumstances posing a risk to the public safety."

The public-safety exception discovered by the Supreme Court not only did not fit the facts of the case. It did not jibe with the logic of Miranda, which said statements by arrestees should be presumed to be compelled in the absence of a warning about the right to remain silent because police custody is inherently coercive, as illustrated by cases in which suspects are exonerated after confessing.

But that insight remains true even in situations involving real threats to public safety, which brings us back to Tsarnaev. While it was plausible that he might have information about imminent threats such as unexploded bombs, that possibility did not make his circumstances any less coercive.

Even without a public-safety exception, Miranda did not bar the FBI from interrogating Tsarnaev before he had been read his rights; it said only that statements obtained through such questioning could not be used to prosecute him—not much of a problem in a case like this one, where there is abundant evidence that does not hinge on whatever Tsarnaev may have told the FBI before Monday morning. Interrogators are even free to venture beyond immediate threats in an effort to "collect valuable and timely intelligence," which a 2010 FBI memo says may be appropriate in "exceptional cases." They just have to weigh that priority against the desire to obtain statements that will be admissible in court.

Does the need to consider the Fifth Amendment implications of such questioning make it harder for law enforcement officials to do their jobs? Yes, but civil liberties tend to do that.

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  • Fist of Etiquette||

    The public-safety exception discovered by the Supreme Court not only did not fit the facts of the case.

    Consider the public safety exception a tax that the younger Tsarnaev was assessed by officials in the heat of battle at the hospital.

  • Smilin' Joe Fission||

    Taxation, the ultimate loophole.

    I think we have figured out why all these cops sloopy posts about get off with payed vacation who commit what would otherwise be a crime. The suspects dog was assessed lead bullet taxes during apprehension, or that cuffed and detained suspect was assessed a tax of a few flashlight blows to the head. It was all just assessed taxes, I mean, with the commerce clause and all...

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  • Lord Humungus||

    reallllly?

  • jemskill||

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  • WomSom||

    Roll that beautiful bean fottage!

    www.GotzPrivacy.tk

  • ||

    never go full retard, anonbot

  • Caleb Turberville||

    I need something made clear for me: Miranda said pre-warning questioning was inadmissible in court, and Quarles said that pre-warning question could be admissible in court? Is that right?

  • Night Elf Mohawk||

    Yes. But, hey, cops intuitively know what's allowed and what's not, so rest easy that they won't ask you anything beyond the scope of Quarles.

    I think prospective SCOTUS nominees be required to spend at least 5 years in the real world before they are even eligible.

  • UnCivilServant||

    I say we should go one step further - bar lawyers from being judges. After all it is a lawyer's job to pervert the law, and a judge's to uphold it.

  • newshutz||

    Simpler, each Supreme court hearing on criminal justice matters must begin with the justices sitting silently for 30 mins, while Balko reads to them from his book.

    On other issues, they must listen to an T.Jefferson impersonator read from the Federalist and Anti-federalist papers.

    Before making any vote, Congresscritters must perform a Three Stooges routine. The Leadership and all committee chairs must take the part of Larry.

    Before signing any legislation, the President must reenact a scene from Duck Soup as Rufus T. Firefly. If the legislation authorizes military action it must be the battle scene complete with costume changes.

  • ||

    In Pennsylvania (and in many states) District Judges (Justices of the Peace, etc) do not have to be lawyers. I assure you, there are few people more unsympathetic to a criminal defendant's rights than a cop turned Judge.

  • SIV||

  • Smilin' Joe Fission||

    When you combine this trend with the Republican Party’s sharp libertarian turn on economics and modest libertarian turn on civil liberties, you could argue that libertarian ideology has never enjoyed more bipartisan influence than it does right now.

    Uhh.... What? Apparently the current US has never been closer to libertopia than right now.

  • An0nB0t||

    you could argue that libertarian ideology has never enjoyed more bipartisan influence than it does right now.

    One could also argue that Rosanne Barr is a better lay than Kate Upton.

  • ||

    she's probably a better mattress

  • Lord Humungus||

    thicker.

  • Mock-star||

    That just means she tries harder.

  • dinkster||

    She certainly is more experienced.

  • ||

    Uhh.... What? Apparently the current US has never been closer to libertopia than right now.

    Joe, I'd argue the US has never been farther away from libertopia, resulting in people moving towards libertarian ideals. It's the utter lack of freedom that is prompting people to action.

  • XM||

    But people moving towards libertarian ideals are like the 300 Spartans. The Persians outnumber them in spades.

  • Night Elf Mohawk||

    "I invoke my rights pursuant to the 4th, 5th, and 6th Amendments of the US Constitution, Article 1 sections 9 and 10 of the Texas Constitution, and Texas Code of Criminal Procedure 38.22 and any questioning must be immediately suspended and shall be continued only in the presence of, and with the advice of, legal counsel."

  • ||

    impressive but a bit much to remember. Can I just say "Prove it, beeyatch" and then shut up?

  • Smilin' Joe Fission||

    If you don't mind being tased you can.

  • Night Elf Mohawk||

    I have it on a card.

    And I don't think "Prove it, beeyatch" gives notice that you want the questioning to stop.

  • ||

    i was actually going to say "impressive but a bit of a mouthful" until i realised exactly how you lot would interpret that

  • Caleb Turberville||

    http://en.memory-alpha.org/wiki/Seventh_Guarantee

    Interestingly enough, it's called the "seventh guarantee" in Star Trek.

  • Tim||

    Wait, we've violated the Prime Directive?

  • BakedPenguin||

    The First guarantee was to force all French people who speak English to do so with British accents. Many of them rebelled and started talking like chavs, until their public benefits were threatened. And thus, the "not bovvered" revolt of 2214 was quelled before it could be started.

  • Caleb Turberville||

    They signed a peace treaty with the French Resistance in which, in exchange for speaking the King's, they were allowed to own large swaths of land to be used for vineyards.

  • db||

    Picard was stabbed in the heart, not by a Nausicaan, as he later insisted, but by a fellow Franco-chav in an argument over an ASBO that his companion was issued after being mistaken for Picard.

  • Agammamon||

    Which is actually bullshit - wasn't that "Jack the Ripper" episode the one where they were going to memory probe the suspect?

    And what about Spock - he violates people's civil rights all the damn time.

  • thom||

    I assume that a public safety exception also exists in regards to freedom of the press? Religion?

  • Smilin' Joe Fission||

    The good old public safety exception. Same as the public good exception. Public good is an exception where there is no objective way to measure what exactly is for the "public good". A nice loophole for ones who wish to ignore civil liberties to get what they want.

  • sarcasmic||

    The word "public" means "everyone but you."

    So in the name of "public safety" they can beat you to death, and in the name of "public good" they can rob you blind.

  • Smilin' Joe Fission||

    Well, in these times of crisis we must not be selfish.

  • Cdr Lytton||

    Yes, but those exemptions don't apply to commercial safety. Also, there's no right to falsely cry "Terrorist" in a crowded draft board.

  • Caleb Turberville||

    Yes, but is there a right to cry wistfully in the arms of your woman after love-making?

  • ||

    Are you sobbing your sister's name? No? Carry on

  • Cdr Lytton||

    The penumbra and emanations surely must cover that too. Or what is the point about not being required to bear quarterhorses?

  • ||

    the point is to prevent this

  • Cdr Lytton||

    I bow before your constitutional acumen.

  • Smilin' Joe Fission||

    But, most importantly, is there a right to yell "free bird" at an acoustic guitar performer in a room full of hipsters?

  • Caleb Turberville||

    I almost wish we could update it to something more contemporary: "Hunger Strike!"

  • Zeb||

    It's pretty much obligatory, isn't it?

  • Tim||

    All this tough guy shit helps them feel like Kiefer Sutherland in 24.

  • sarcasmic||

    "Public safety exception"

    FYTW

  • db||

    The Public Safety Amendment is right there in the Secret Bill of Rights, of course.

  • Tim||

    Fuckin A.

  • NeonCat||

    "The Right of the People to be ignorant and easily controlled shall not be infringed."

  • Fluffy||

    I'm sure that the police, prosecutors, and politicians up the chain of command involved in the Tsarnaev matter don't really care whether statements made as a result of the questioning are admissible or not.

    The #1 priority to them, above everything else, is making sure the press reports that Tsarnaev wasn't Mirandized. Because that makes the cops, prosecutors, and politicians look tough, and protects them from potential criticism that they're soft on terrorism.

    That's the important thing.

    What happens at trial? That's too far in the future to be a concern. They'll cross that bridge when they come to it. The current news cycle demands prominent stories showing that Top Men are Taking Strong Measures.

  • Tim||

    At arraignment Tsarneav should demand trial by combat. That would be cool.

  • Tim||

    Hey, prosecutors and cops get to make shit up all the time, it's only fair that defendants get to start doing it too.

  • The Renegade||

    Will Bronn fight on his behalf? Maybe the Red Viper?

  • db||

    I fucking love Drudge this morning:

    TAXPAYER FUNDED TERROR?
    Bombers received Mass welfare payments

    Good for a chuckle.

  • SIV||

    Maybe the public will wise up to our taxpayer-subsidized refugee/asylum visa program. "Come to the USA! Free money, food and housing as soon as you and your family step off the plane. Don't forget to apply for citizenship and register to vote"

  • db||

    It's just a safety net, dude.

  • gaijin||

    Should make for a fun debate on pending Immigration Reform Legislation!

  • wwhorton||

    Funny, from the all-caps part I was expecting him to be referring to the house-to-house invasions searches.

  • steve sturm||

    Miranda related, but somewhat off point: given that practically 'everybody' knows the Miranda warning, why is it necessary for police to still recite the warning to suspects? Or from a different perspective, once someone has been read his rights (from an earlier arrest), why is it necessary to re-read them those rights? It isn't as if someone forgets it (no more than someone forgets that 2+2=4).

  • Cdr Lytton||

    It's really for the officer's sake. After dealing with killer dogs and hostile fire all day, they need the reminder that they just can't toss a guy into a cell until he talks(*).

    (*) unless its the DEA. Or they forget.

  • DJK||

    For the same reason that Miranda was decided the way it was in the first place. Confrontations with police are inherently coercive. It's easy for some who has had no experience with being on the wrong side of the law to forget what they know because holy shit that motherfucker has his hand on his gun! Even for those who have had plenty of encounters, the power differential is still readily apparent. Why should I be concerned with the inconvenience I'm placing on the person holding all the power?

  • ||

    Much as DJK said, but also because you have to remember that the Police can lie to you, they don't have to tell you the truth. They can tell you "You're not a suspect, we just need information," even if you actually are a suspect. By reading someone his or her rights it's essentially declaring "You are a suspect. These are your rights."

  • The Late P Brooks||

    Rehnquist claimed Quarles' hidden gun posed two possible threats: "An accomplice might make use of it," or "a customer or employee might later come upon it."

    Holy shit. This is what passes for analysis in the highest court of the land?

    Maybe, possibly, the fucking cops might have taken a few minutes out of their very busy day to look for it.

  • Cdr Lytton||

    The cops know how dangerous those self firing pistols are and how they can't be left lying around for a minute.

  • Bill Dalasio||

    Honestly, it's not all that clear to me what all that surveillance actually got us. All surveillance can ever give you is raw intelligence. To be at all useful, that raw intelligence needs to be analyzed. And, from where I'm (admittedly) sitting, the authorities' analysis and processing of that raw intelligence is looking pretty piss poor. I mean, really, what happened? If I'm understanding correctly, the authorities released these guys' picture, in addition to those of other people unconnected to the bombing, and they panicked. The reported give-away that they were the bombers is their admission to the guy they carjacked. And even after they began the search for them, it really seems the only reason they were able to find them, despite a house-to-house search that looked like something more out of Iraq than the United States, the only reason they got caught is because a civilian clued them in. Only minutes before, they'd been issuing a bulletin to Connecticut to be on the lookout for him. Really, Boston is looking a lot more of a testament to dumb luck than the brilliance of the authorities or the efficacy of the surveillance state.

  • wwhorton||

    I wonder how this will impact our readiness to get involved in "peacekeeping" and nation-building abroad. I mean, you said it looked like something out of Iraq, and that's dead-on. It also looks like what we're doing in Afghanistan, and you can see how that turned out. If doing that shit overseas is creating terrorists, what will it do when we do it at home?

  • ||

    Frankly, the verbalization of Miranda Rights has always struck me as silly. The rights obviously exist and cannot be denied by the police officer. If ignorance of the law is not an excuse for crime, how is ignorance of one's rights an excuse against self-incrimination?

    At the same time, considering it is standard procedure, considering prosecutions can get thrown out on judicial precedent, I'm just not understanding why they DIDN'T read him his rights while still acknowledging the rights still exist regardless of their pronouncement. He could have still remained silent and asked for a lawyer. Seems stupid that they would jeopardize justice, but then it seems stupid justice is jeopardized in the first place.

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  • ||

    The important question is not just whether a "public safety exemption" exists as to being advised of one's right to remain silent. The important question is whether a "public safety exemption" exists as to one's right to remain silent. It is not at all inconceivable that police could use various truth serums or non-torturous (or perhaps even torturous) methods to force someone to answer questions. Whether those answers are actually truthful or not is a different question.

    Thoughts?

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