More on the so-called national security exception to Miranda –
I have found no case by any court in the country that finds a “national security exception” to the Fifth and Sixth Amendments. In fact, running the phrase “national security exception” through Westlaw, with a proximity search for “Miranda,” I get only one case in which the issue was even raised.
In United States v. Mohamed Ibrahim Ahmed, the government was prosecuting an Eritrean man on terrorism charges in New York federal court. He was sentenced just last month to a sentence of 9 years and three months. Ahmed, who had been born in Eritrea, and who had moved to Sweden, had traveled to Somalia where he had tried to join the fight against the Ethiopian forces that had invaded Somalia by seeking military training from Al Shabab, a Somali group with ties to Al Qaeda that the United States had designated a foreign terrorist organization. He was arrested in Nigeria in November 2009 and brought to Manhattan in 2010 to face terrorism charges. (Why, you ask? That’s a long story, for another day.)
When he was arrested in Nigeria, he was interrogated by, among others, an FBI agent who, though knowing that they would be prosecuting him in federal court, gave him no Miranda warnings. Then, later, a different FBI agent came in and did the interrogation all over again, this time with Miranda warnings.
After an extensive suppression hearing, Judge Kevin Castel was prepared to issue a lengthy opinion. But as he sat on the bench, ready to hand down his opinion, the government and Ahmed arrived at a plea agreement. So the 60-page opinion will never see the light of day.
Why do I mention this? Because that case is the only time that the words “national security exception” and Miranda appear in proximity to one another, and we don’t even have a ruling in that case.
So if there is going to be any law on this point at all, it has to come under the public safety exception that was first enunciated in New York v. Quarles.
Virtually all of the cases that invoke the “public safety exception” of New York v. Quarles – like Quarles itself — are limited to the situation where an officer arresting someone or searching someone’s house asks about the presence of weapons. I haven’t traced back all of the cases applying Quarles, but they seem to fall into a few categories:
1. “I just chased you down. Where’s the gun?” This is classic Quarles stuff, and is always OK.
2. “You’re under arrest. Do you have a gun on you?” This is OK – “The questions asked were limited to the presence of weapons and did not suggest any attempt to elicit testimonial evidence. We find that under these circumstances, it was objectively reasonable for the officer to be concerned about his safety and the safety of others when he asked Young whether he had any weapons.” United States v. Young, 58 F. App’x 980, 982 (4th Cir. 2003).
3. “You’re under arrest for drugs. Before I go through your pockets, is there anything in your pockets that might stick me?” As far as I have been able to find, courts have unanimously permitted a question like that, and the answer. (You’d be surprised what drug users/dealers supposedly answer – “Not in my pockets.” “Back in my room, yes, but not here.”) United States v. Reyes, 353 F.3d 148, 152–53 (2d Cir.2003); United States v. Lackey, 334 F.3d 1224, 1227–28 (10th Cir.2003) (officer’s question before a pat down whether a suspect had guns or anything sharp on his person was proper under the public-safety exception as the question addressed a real and substantial risk of injury during a routine search or frisk); United States v. Carrillo, 16 F.3d 1046, 1049–50 (9th Cir.1994).
4. “You’re under arrest. We’re searching your house with this warrant. Are there any guns in the house?” This begins to look a lot like an interrogation. Presumably the officers have permission through the warrant to search for guns, and presumably they will do so whether or not the person answers the question. In United States v. Mobley, 40 F.3d 688 (4th Cir. 1994), Mr. Mobley was being arrested at his home. He lived alone, the FBI had done a security sweep and had determined that there was no one else there, and Mobley had answered the door naked and unarmed. There were 8 officers present – two to arrest and 6 to search the apartment. As they were leading him off, they asked him whether there were any weapons in the apartment; he said “Yes” and showed them where there was a weapon on one of the shelves in his closet. The Fourth Circuit applied Quarles, and found that there was no immediate danger, and that the statement should not have been admitted. (The gun was still admitted into evidence, because they had a search warrant and they would have found the gun without the statement.)
5. “You’re under arrest. Where’s the truck that your keys go to?” In United States v. Guess, 756 F.Supp.2d 730 (E.D.Va. 2010), the U.S. District Court in Norfolk threw out the evidence obtained when the officers searched the truck that the defendant identified; the government tried to argue that the truck would have been a danger to public safety, but the police officers had no information to back that up, and that was clearly not why they were asking the question. It might have been a different question if Guess had been arrested as a terrorist, and the police thought that the truck might have a bomb in it. But it would not have been enough under this reasoning if Guess had been arrested as a terrorist and the police thought that the truck might have evidence in it that they might want to build their case.
So – a quick search of WestLaw suggests that under present authority, the government will have a very tough argument to try to admit against Tsarnaev any statement that he might make without having Miranda warnings given to him.
My big fear is that the government will try to interrogate Tsarnaev anyway, and that they will then basically dare the United States District Court to suppress evidence in the most talked-about case of the 21st Century. The old saying that “hard cases make bad law” certainly would apply here. But so too would the question that the trial judge would surely ask – “Do you really need this evidence? Don’t you think you’ve got a strong enough case without this?”