News stories dealing with the arrest of Dzhokhar Tsarnaev have often referred to some 48-hour “national security” exception to the rules about reading Miranda warnings and questioning suspects. The articles start from one mistake, and move on to make two more.
First, let’s be clear what we are NOT talking about.
There is no Constitutional right to a Miranda warning. The Fifth Amendment and the Sixth Amendment to the Constitution guarantee someone who has been arrested three things – the right to remain silent, the right to the assistance of a lawyer when being questioned while in custody, and the right not to be coerced into a confession. The problem that the Supreme Court confronted in many cases in the 1950’s and 1960’s was a practical one – how to get the police to follow the rules? The Court considered choices – perhaps the best way to make the police behave was just to have the police chiefs discipline the officers who were violating the suspects’ rights. But that clearly wasn’t happening. Perhaps the best way was to allow the person whose rights were violated to sue the officer who violated his rights. But that clearly wasn’t happening either. The Court decided that the best way to make the police behave was to exclude any evidence obtained through improper interrogation.
This exclusionary rule was based on a weighing of competing factors – if the evidence was excluded, the main cost was simply that there would be fewer convictions, and once police figured out how to do it, they would be able to comply with the rules, the suspects would be told their rights, if they decided to waive their rights they could, and in the long run things would be better all around. That is the theory behind exclusionary rules in general – whether for illegal searches, or illegal interrogation practices.
After deciding to apply the exclusionary rule to confessions, the Court went on in Miranda v. Arizona, 384 U.S. 436 (1966) to impose what it called a prophylactic rule – to require that officers tell someone just arrested that he had the right to remain silent, that anything that he said could be used against him, and that he had the right to have a lawyer present during any questioning if he wanted one.
In response to the Miranda decision, it became standard practice for police departments to print up a card listing those rights, and for the officers to read the rights from the card and to get the suspect to sign a statement in which he says, “I’m willing to talk voluntarily. No one has threatened me.” In fact, once everyone got the hang of it, the number of people giving statements did not go down significantly.
But let’s be clear – the Supreme Court rulings do NOT guarantee that a warning will be read; they only say that if the warning is NOT read, the statement that the person makes may not be used against him in court.
In 1984, the Supreme Court was confronted in New York v. Quarles, 467 U.S. 649 (1984), with a tough problem. Quarles was charged in a New York state court with criminal possession of a weapon. A woman had reported to two officers that she had just been raped, she described her assailant, and she told them that the man had just entered a nearby supermarket and was carrying a gun. One officer entered the store and spotted Quarles, who matched the description given by the woman. Quarles ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun but lost sight of him for several seconds. Upon regaining sight of Quarles, Officer Kraft ordered him to stop and put his hands over his head. Kraft frisked Quarles and discovered that he was wearing an empty shoulder holster. After handcuffing him, Kraft asked him where the gun was. Quarles nodded toward some empty cartons and responded that “the gun is over there.” Officer Kraft then retrieved the gun, formally arrested Quarles, and read him his Miranda warnings. Quarles then admitted that he owned the gun and had bought it in Florida. The question was whether Quarles’ initial statement and the gun had to be excluded because Quarles hadn’t yet been given his Miranda warnings.
When the Supreme Court answered that question, it held that there should be a “public safety” exception to the Miranda requirement, and that if, in such a situation, the officer delayed a few seconds in reading the Miranda warnings, the statement and evidence should not be excluded.
The Court said:
In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles’ position might well be deterred from responding. … when the primary social cost of [giving Miranda warnings] is the possibility of fewer convictions, the Miranda majority was willing to bear that cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles but to insure that further danger to the public did not result from the concealment of the gun in a public area.
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. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.
To get to this point in Quarles, the Court had to distinguish this case from Orozco v. Texas, 394 U.S. 324 (1969), where police entered the sleeping defendant’s room and asked him about a gun used in a murder in a restaurant a few hours earlier. The Court in Orozco had held that such questioning was clearly just part of the investigation – the questions “did not in any way relate to … [a] need to protect the … public from any immediate danger associated with the weapon.”
The Supreme Court has not re-examined Quarles in the 29 years since it was decided, and the Supreme Court has never found a “national security” exception to the Fifth and Sixth Amendments, or to the Miranda rule.
In particular, no court has ever found there to be a “48-hour” rule, saying that “in a case involving national security, you get to question him for up to 48 hours before reading him his Miranda warnings.” My guess is that that is a Department of Justice guideline that they would LIKE to have be the law, but which has never been held to be the law.
Under the authority of New York v. Quarles, the police could have said to Tsarnaev as they were hustling him away to the hospital, “Are there more bombs?” And if Tsarnaev had answered, those answers would almost surely be admissible.
But note some important parts of Quarles:
1. We’re talking about excusing a police officer who is having to make a snap decision in seconds, not a U.S. Attorney who has days to come up with a theory as to why he doesn’t have to read Miranda warnings.
2. We’re not talking about investigating the crime; we’re talking about finding about imminent threats to public safety. “Are there more bombs?” would be OK. “Why did you do this?” would not be OK.
3. Even if it is OK to start asking about whether there are more bombs out there, that doesn’t mean that you get to go on and ask him about why he did it.
4. Even if it would be OK to ask him as he is being arrested about whether there are other people involved who might have more bombs, asking him days later, when he is well enough to be questioned, would be very different.
Remember that the key point in Quarles was exigency. There is little exigency days later when he has recuperated enough to talk.
And there is one more that the feds would have to overcome – Rule 5 of the Federal Rules of Criminal Procedure provides that someone arrested for a federal crime must be taken before a federal magistrate “without unnecessary delay.” As a general matter, that would probably mean “If he’s well enough to be interrogated, he’s well enough to be taken in front of a magistrate and he’s well enough to have a lawyer appointed for him.” And 18 U.S.C. §3501 provides that a statement procured when there has been a violation of Rule 5 is inadmissible. Period. See Corley v. United States, 556 U.S 303 (2009).
But there is one other possibility – if the federal prosecutor says to himself, “I’ve got plenty of evidence. I’m not worried about whether we can use his statement – I just want to know the rest of the story,” he might go ahead in violation of the law, and take his chances.
From the standpoint of Dzhokhar Tsarnaev, if the evidence is that he and his older brother were each full participants in the making and placing of the bombs, his best chance to avoid the death penalty is probably going to be to make a deal – “I’ll tell you everything, and you spare my life.” Given the outrage and public pressure in this case, the “I’ll tell you everything” would have to be enough to just knock the socks off the prosecutor to get to a life sentence. But it may be his only chance.