Monday, April 22, 2013

The Scope of Miranda's Public Safety Exception

By Mike Dorf

By now it has been widely reported that federal investigators and prosecutors plan to interrogate Dzhokhar Tsarnaev without first reading him his Miranda warnings, pursuant to the "public safety" exception to Miranda v. Arizona.  That exception allows the government to interrogate a suspect without first issuing the Miranda warnings, and then introduce any evidence obtained as a result, when the initial interrogation is undertaken for the purpose of protecting the public from an immediate threat.  A leaked 2010 internal FBI memo contends that in certain terrorism cases, the exception can be broader.  [NB: I've since rethought that reading of the memo, as described in a short follow-up post.]  Here is the money quote:
There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government's interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.
Whether the courts find this more expansive view persuasive remains to be seen, but here I want to suggest that it's not even 100% clear that the regular public safety exception applies in a case like Tsarnaev's, much less an expanded exception.

To be sure, the exception only comes into play if the government attempts to introduce a statement obtained from Tsarnaev at his trial.  As Orin Kerr explains on the Volokh Conspiracy, there is no freestanding right of arrestees (or anyone else) to be read warnings.  The warnings only become relevant when the government offers a statement obtained as a result of custodial interrogation.  So, let's assume that happens.  That is, let's suppose that: Tsarnaev recovers; the FBI interrogates him without first giving Miranda warnings, asking him questions designed primarily to detect information about an immediate threat; Tsarnaev makes a statement in response; in addition to using the statement for any information it contains about ongoing threats, the government attempts to introduce it as evidence of Tsarnaev's guilt at his criminal trial.  Is it admissible under the public safety exception?

The public safety exception was first announced in New York v. Quarles and the Court rested it on a number of considerations.  In some respects, interrogation of a terrorism suspect makes out a stronger case for the application of the public safety exception than an ordinary criminal case like Quarles, but in other respects it's a weaker case.  Let's look at the relevant considerations in Quarles and compare them with the Tsarnaev case.

The Quarles opinion is short and I encourage readers interested in this subject to read it.  The main points are these:

1) The Miranda rule balances the needs of law enforcement for convictions of guilty persons against the protection of suspects from the risks to their Fifth Amendment right against compelled self-incrimination--risks that inherently arise from custodial interrogation.  But, as the Court said in Quarles, "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."

There are in that statement two points, and they face in opposite directions.  In Quarles, the threat to public safety was a gun that Quarles had discarded.  In the Tsarnaev case, the potential threat to public safety is much greater.  Tsarnaev or his brother or as-yet-unknown co-conspirators may have planted or plotted additional mayhem.  Thus, the "public safety" consideration in the public safety exception is heightened here.

2) However, note that the language I have just quoted from the late CJ Rehnquist's opinion tacitly makes another point, by referring to Miranda as a "prophylactic rule."  He was pointing to the fact that the Court in Miranda did not say that the Fifth Amendment requires the Miranda warnings.  That's the point Kerr makes.  But there's something else too.  CJ Rehnquist was also saying that the Constitution does not even require that Miranda warnings be given if the government later attempts to introduce the suspect's statement as evidence.  All that Miranda does is to say that the pressure inherent in custodial interrogation requires some safeguards to mitigate that pressure, and that the warnings are one such effective set of safeguards.  But, the Court implies in Quarles, because the Miranda rule is judge-made--i.e., "prophylactic"--the Court may choose not to apply it where its costs outweigh its benefits.

That looks pretty good for the government in the Tsarnaev case but for one major problem.  In 2000, in Dickerson v. United States, the Court, in another Rehnquist opinion, rejected the idea that Miranda is a mere prophylactic rule in favor of the view that it was a "constitutional decision."  In dissent, Justice Scalia argued that, in light of Quarles and other cases seemingly holding that Miranda was prophylactic, the Dickerson majority made little sense.   In an article in the Supreme Court Review shortly after the case came down, Barry Friedman and I agreed that the majority opinion did seem somewhat inconsistent with the language of various prior Miranda cases, but that this did not mean those earlier cases had been overruled.  What it did mean was that the rationales of those prior cases needed to be reconceptualized.  Quarles, in particular, could no longer be based on an ad hoc weighing of costs and benefits, but must be reconceptualized in some way.

3) If we look to the other factors at play in Quarles, they appear inapplicable to a case like Tsarnaev.  One point the opinion emphasizes is that time is of the essence: If the gun is not found, perhaps the suspect himself or a hidden co-felon will use it, or a child will discharge it accidentally.  The Court is envisioning a very immediate emergency, referring to the decisions police must make "in a matter of seconds."  That sort of exception would certainly allow the FBI, upon arresting Tsarnaev, or upon his awakening and gaining the power of speech, to ask him a few urgent questions.  But Quarles itself does not envision an extended interrogation.

4) The Quarles Court also thought it noteworthy that Quarles was asked one question--"where's the gun?"--upon his arrest, rather than in the inherently coercive environment of the station house for which the Miranda warnings were originally designed.  It's possible that Tsarnaev will be questioned at his hospital bedside.  That seems somewhat less coercive than the station house, but depending on the length of the questioning, would seem more like it than different.

How does all of the foregoing cash out?  I think it's a fairly close case, although I strongly suspect that, if it came to it, most judges would find the sort of interrogation I'm envisioning falling within the public safety exception.  My point here is simply that it's not an obvious slam dunk.  The seriousness of the threat is doing a lot of the work.

In any event, I also would note a certain unreality to the whole discussion.  The Quarles opinion cites as one important factor the risk that the giving of Miranda warnings will lead suspects not to talk.  But the fact is that Miranda has only a marginal impact on a suspect's willingness to talk.  Occasionally a warned suspect will clam up and/or lawyer up because of the warnings.  But usually they make no difference.  Even innocent people confess after receiving the warnings.

10 comments:

matt30 said...

I'm not entirely convinced that a proper reading of Quarles necessarily entails some kind of immediacy requirement.

It's true that the court notes that the police are required to assess the danger to public safety "in a matter of second" but I think you left an important word out of that quote: "often."

As a matter of practicality, the Supreme Court gave weight to situations that police officers commonly face - unorganized criminals perpetrating unrelated, one-off crimes for personal gain. In most cases the danger to the public after police have a suspect is in custody is going to be immediately traceable to the crime that was just committed and further police investigation is undeniably for the purpose of securing a conviction rather than ensuring the safety of third-parties.

Terrorism (if that is in fact what we have) on the other hand is often carefully planned to inflict as much pain on the public as possible and is much less likely to resolve itself when a suspect is in custody. Objectively, as a matter of creating an effective police response to such crimes, extended questioning fits to a "T" the Quarles standard that police "questions [be] reasonably prompted by a concern for the public safety." Though Miranda may be the constitutionally proper way to protect the suspects 5th amendment's right, the proper way to reinterpret Quarles in light of Dickerson is to say that police action to safeguard the public does not invoke 5th amendment interests at all because everyone has a duty to safeguard the public - rather than as a balancing test between two opposing interests.

I'm curious whether you plan on saying anything about Lindsey Graham's recommendation that this kid be held as an illegal/unlawful/enemy combatant and use federal courts to adjudicate such a classification under the restricted detainee set of laws/rules. The "legal" analysis on the Sunday shows has dismissed this as implausible because they seem to believe (incorrectly, IMHO) that US citizenship alone precludes either the classification itself or the operation of the limited ruleset. I hope you have some thoughts to share.

This could be the spark that leads us to considering the necessity of AUMF in the next few years.

Michael C. Dorf said...

Just to be clear, I didn't mean to suggest in point 3 that immediacy is an essential element for the exception to apply--just that it was a factor in Quarles but would not be a factor, or not a factor in the same way, in the envisioned interrogation.

Bob Moss said...

I don't see the difference between this public safety exception and the spurious arguments for torture, which amounted to nothing more than a public safety exception. In both cases, a right is abridged (whatever the exact nature of the Miranda right) on the grounds that otherwise, something terrible will happen.

Sam Rickless said...

Bob Moss is on to something. The problem is that there is a slippery slope with respect to time and possibly level of danger when it comes to the public safety exception. Once an exception has been made, the government will try to broaden the exception because of political pressure and general hysteria. We know this not only because of the violations of civil liberties widely condoned during McCarthyism and the Iraq War(s) but also because the DoJ memo itself proves it in this case.

Chavez v. Martinez also strongly suggests (particularly Justice Kennedy's vigorous and eloquent dissent, given that he will likely be the swing vote in case the matter ever reaches SCOTUS) that the Court will be very seriously worried on Due Process grounds, even if not on Self Incrimination grounds, about the coercive interrogation of a seriously wounded suspect who reasonably believes that he will die or his injuries less well attended to if he does not cooperate with the high value detainee interrogation group.

pvineman1 said...

A few points:

1. I don't believe, Prof. Dorf, that the portion of the FBI memo that you quote was setting forth an "expanded" exception. Rather, it was simply stating that once the government interrogators could no longer rely on the public safety exception they could, in "exceptional" cases, continue to interrogate if "necessary" to gather "valuable and timely intelligence," and if the need for that intelligence outweighed the risk that any un-Mirandized statements could not be used to convict the suspect.

2. None of the post-Dickerson cases have felt it necessary to "reconceptualize" Quarles' "rationale." Yes, Dickerson did refer to Miranda as a "constitutional decision." But the Court did not intimate that a Miranda violation is on the same constitutional footing as an actual 5th Am. violation -- a violation that requires actual compulsion, as opposed to presumptive coercion. The fact that a 1983 action is not a remedy for Miranda (or Edwards) violations confirms this distinction.

I believe that the ad hoc balancing approach would be adhered to if the issue came before the Court. In fact, in light of the post-9/11 world we live in, the Court might be willing to interpret the public safety exception in an even broader manner, as have some of the circuit courts.

3. It is interesting to note that the public safety exception is very similar to the "ongoing emergency" language that the Court has used in its 6th Am. Confrontation Clause jurisprudence. And for good reason.

In Davis v. Washington and Hammon v. Indiana, I helped the authors of the government's merits briefs formulate the test to determine if hearsay (that the government seeks to introduce at a criminal trial) is "testimonial" (as that term is used in Crawford v. Washington). In so doing, I advised the litigants to analogize to the Quarles public safety exception by advocating the following test: If the "primary purpose" of the government's interrogation (of the hearsay declarant) was to address an "ongoing emergency" then the resulting statements are not "testimonial," i.e., the declarant was not a "witness" as that term is used in the Confrontation Clause.
The Court adopted my test and has subsequently applied it in Michigan v. Bryant.

I believe that determining the government's purpose is at the heart of the public safety exception, the 6th Am. Confrontation Clause, and the "reasonableness" clause of the 4th Am.: Was the government's primary purpose to protect the public or to gather evidence/build a case against a particular person. Yes, at times, that line is murky. And, yes, it requires ad hoc, totality-of-the-circumstances balancing. But it is still a line that I believe the Court will continue to rely on in attempting to protect civil liberties while, at the same time, ensuring that the government is not hamstrung in protecting America.

Keep an eye on Maryland v. King. The Court's determination of whether the government (acting without a warrant and without suspicion) can obtain and test DNA swabs from arrestees for the purpose of solving cold cases (via the CODIS database) will provide another opportunity (in the context of the 4th Am.) to engage in the safety vs. evidence gathering analysis.

Stefen Curry said...

Bob Moss is on to something. The problem is that there is a slippery slope with respect to time and possibly level of danger when it comes to the public safety exception. Once an exception has been made, the government will try to broaden the exception because of political pressure and general hysteria. We know this not only because of the violations of civil liberties widely condoned during McCarthyism and the Iraq War(s) but also because the DoJ memo itself proves it in this case. Runescape Gold | Gold für WOW

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Camelia Alyka said...

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Stefen Curry said...

In the Tsarnaev case, the potential threat to public safety is much greater. Tsarnaev or his brother or as-yet-unknown co-conspirators may have planted or plotted additional mayhem. Thus, the "public safety" consideration in the public safety exception is heightened here.

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