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Miranda states that police officers must read suspects their rights before they question them. However, in 1984, the Rehnquist Court ruled that there was an exception whenever public safety or the safety of the officers was involved. There is a compelling public interest in preventing terrorism here. And Slate reports that Attorney General Eric Holder has made extensive use of that provision. But the question is, how far do we go in invoking a compelling public interest?

From Slate, here are two cases in which the Holder administration invoked Quarles:

Then the Christmas Day bomber, Umar Farouk Abdulmutallab, was apprehended in December 2009, before he could blow up a plane bound for Detroit. The FBI invoked the public safety exception and interrogated. When the agents stopped questioning Abdulmutallab after 50 minutes and Mirandized him—after getting what they said was valuable information— Abdulmutallab asked for a lawyer and stopped talking. Republicans in Congress denounced the Obama administration for going soft.

Next came Faisal Shahzad, caught for attempting to bomb Times Square in May 2010. He was interrogated without Miranda warnings via the public safety exception, and again, the FBI said it got useful information. This time, when the suspect was read his rights, he kept talking. But that didn’t stop Sen. John McCain and then Sen. Christopher Bond from railing against Miranda. "We've got to be far less interested in protecting the privacy rights of these terrorists than in collecting information that may lead us to details of broader schemes to carry out attacks in the United States," Bond said. "When we detain terrorism suspects, our top priority should be finding out what intelligence they have that could prevent future attacks and save American lives," McCain said. "Our priority should not be telling them they have a right to remain silent."

In other words, it is clear that this tactic is effective in obtaining information to protect public safety. In other words, the tool is working the way it is supposed to be.

But the danger is that carving out such exceptions will clog up the courts with whether or not interrogations were coerced, which, as Justice Marshall notes, was the rule before Miranda:

When Miranda reached this Court, it was undisputed that both the States and the Federal Government were constitutionally prohibited from prosecuting defendants with confessions coerced during custodial interrogations. 5 As a theoretical matter, the law was clear. In practice, however, the courts found it exceedingly difficult to determine whether a given confession had been coerced. Difficulties of proof and subtleties of interrogation technique made it impossible in most cases for the judiciary to decide with confidence whether the defendant had voluntarily confessed his guilt or whether his testimony had been unconstitutionally compelled. Courts around the country were spending countless hours reviewing the facts of individual custodial interrogations. See Note, Developments in the Law - Confessions, 79 Harv. L. Rev. 935 (1966).

Miranda dealt with these practical problems. After a detailed examination of police practices and a review of its previous decisions in the area, the Court in Miranda determined that custodial interrogations are inherently coercive. The Court therefore created a constitutional presumption that statements made during custodial interrogations are compelled in violation of the Fifth Amendment and are thus inadmissible in criminal prosecutions. As a result of the Court's decision in Miranda, a statement made during a custodial interrogation may be introduced as proof of a defendant's guilt only if the prosecution demonstrates that the defendant knowingly and intelligently waived his constitutional rights before making the statement. The [467 U.S. 649, 684]   now-familiar Miranda warnings offer law enforcement authorities a clear, easily administered device for ensuring that criminal suspects understand their constitutional rights well enough to waive them and to engage in consensual custodial interrogation.

In fashioning its "public-safety" exception to Miranda, the majority makes no attempt to deal with the constitutional presumption established by that case. The majority does not argue that police questioning about issues of public safety is any less coercive than custodial interrogations into other matters. The majority's only contention is that police officers could more easily protect the public if Miranda did not apply to custodial interrogations concerning the public's safety. But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public's safety are less likely to be coercive than other interrogations, the majority cannot endorse the "public-safety" exception and remain faithful to the logic of Miranda v. Arizona.

This case involved the matter of a man who was subdued by police. Without reading him his Miranda rights, they asked him where the gun was since the man allegedly raped a woman and he had a gun. The man pointed to where the loaded gun was. The lower courts threw out his conviction on the grounds that he was not read his Miranda rights. However, the Supreme Court reversed and upheld it.

But Marshall notes that there is a way around this that does not involve jeopardizing public safety:

The irony of the majority's decision is that the public's safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confession. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial. Cf. Weatherford v. Bursey, 429 U.S. 545 (1977) (Sixth Amendment violated only if trial affected).
In other words, there is no need for a Quarles exception for the FBI to obtain information such as where any other bombs are or whether other people were involved and whether he knows of any other possible terror attacks to this country. The FBI would simply not be allowed to use his responses as evidence against him in court.

And there is a bigger question here. How far are we to go in allowing the government to invoke a compelling public interest? The 8th Amendment reads:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The risk of allowing a compelling governmental interest to trump Constitutional rights is that we could find ourselves right back in the Brave New World of George Bush, where he approved the "enhanced interrogation techniques" of alleged terrorists by his own admission in his book "Decision Points." After all, by his logic, the government had a compelling public interest in preventing future terror attacks in the months and years after 9/11; therefore, the need to obtain needed information to prevent such attacks allowed the government to set aside the 8th Amendment.

None of our Constitutional rights are absolute, of course. You can't yell fire in a crowded theater or lie in court or make death threats over the phone. None of these actions constitute Constitutionally protected free speech. But what bothers me most about the FBI not reading Tsarnaev his rights, beyond the obvious risk that he will be acquitted or the charges thrown out, is that there are no limits on defining how far we can go in justifying a compelling governmental or public interest.

Poll

Should there be a public safety exception for Miranda?

54%46 votes
45%38 votes

| 84 votes | Vote | Results

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Comment Preferences

  •  He may be part of a larger cell. (1+ / 0-)
    Recommended by:
    Neuroptimalian

    We need to know that info.

    •  True. But you can get that information by . . . (3+ / 0-)
      Recommended by:
      sceptical observer, JesseCW, ZhenRen

      . . .using current methods law enforcement uses all the time.

      Money ain't free speech and it won't buy you love.

      by waztec on Sat Apr 20, 2013 at 07:20:28 PM PDT

      [ Parent ]

      •  Dhokozh may have info on the network (0+ / 0-)

        we can't get any other way. 3 people were already murdered and over 100 injured--some with amputations.  Let's get real.

        •  What exactly does "let's get real" mean? (3+ / 0-)
          Recommended by:
          waztec, BradyB, ZhenRen

          I have little doubt Dhokozh knows his rights under our legal system.  He's lived here long enough to know he's got the right to demand a lawyer.

          Do you want to deny him a lawyer if he asks for one?

          Do you want to somehow compel him to talk?

          If so, how?  Do you want to deny him pain medication?

          If that doesn't work, would trying to manipulate his hospital bed into a painful position be ok?

          Lemme know if we've found your line yet.

          We know damn well, thanks to the ignored report, that the last Administration went much farther and the only fallout was promotions for those who green lighted the torture.

          I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

          by JesseCW on Sat Apr 20, 2013 at 09:04:01 PM PDT

          [ Parent ]

        •  BTW - we've got everything we'll ever (3+ / 0-)
          Recommended by:
          Bob Love, BradyB, ZhenRen

          need to put him away for the rest of his natural life whether or not any statements he makes now can be used against him.

          You get that, right?

          Mirandizing him won't mean he gets to walk.  Questioning him without reading him his rights or giving him a lawyer doesn't set him free without an "exception".

          I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

          by JesseCW on Sat Apr 20, 2013 at 09:11:48 PM PDT

          [ Parent ]

          •  I understand that we have enough (0+ / 0-)

            evidence on him to put him away for life, or preferably, get the death penalty.  My concern, and that of other rational law enforcement people, is that we need to know about the rest of the network.  I understand you don't care so much about that--we have a difference of opinion.

          •  Fruit of the poisonous tree? (1+ / 0-)
            Recommended by:
            JesseCW

            Correct, questioning him without giving him Miranda warnings does not mean he walks, it just means the prosecution can't use any confession or statements in court.  Here, we have plenty of evidence that will ensure his conviction, regardless of whether anything he says is usable in court.  We have the confession to the car whose car they hijacked, we have an ID from the guy whose legs got blown off, we have videos and photos of the shooting of the MIT police officer.

            Only issue is the fruit of the poisonous tree doctrine, which says that if someone is not read his rights and then makes a statement, both the statement and any evidence that the police find as a result of that statement is tainted and can't be used in court.  So if his tainted statement leads to evidence against others, can the statement and the evidence be used against them?  Maybe they do not have standing, I'm not sure.

            •   I honestly do not know if it applies (0+ / 0-)

              if questioning you without Mirandizing you would, say, lead them to physical evidence that would allow them to prosecute me.

              I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

              by JesseCW on Sun Apr 21, 2013 at 01:09:07 PM PDT

              [ Parent ]

        •  Dzhokhar n/t (0+ / 0-)

          Gondwana has always been at war with Laurasia.

          by AaronInSanDiego on Sat Apr 20, 2013 at 09:35:15 PM PDT

          [ Parent ]

        •  True again. But, if you steal. . . (0+ / 0-)

          . . .a citizen's civil liberties  (I think he is a citizen) You are trying to steal mine too.  Good police work will find the answers without the abridgement of rights. The world has not become that much more dangerous.  It is just that information exchanges are faster, so our sense of danger is more immediate. Anyway, I am loath to lose what few rights I have left.

          I have had police try to reduce my liberties- personally.  let me clue you in. I did not like it, particularly given that I was innocent.

          If we are going to elect Democrats, lets elect real ones!

          by waztec on Sun Apr 21, 2013 at 07:22:24 AM PDT

          [ Parent ]

      •  Law enforcement MAY be able to ... (0+ / 0-)

        use current methods to get information, but there is NO guarantee they could get all of it, especially the most important parts.  

        Still, just because Bomber #2 is questioned without being Mirandized doesn't mean he will tell them anything at all.

        It's still possible that more lives will be lost.  The Aurora Theater shooter, James Holmes, booby-trapped his apartment, hoping at the time to kill many more people.  But for whatever reason, he told authorities about it and further loss of life was avoided.  (It was never reported that delayed Mirandizing of him under the public safety exception occurred, but it's possible that's what happened.)

        "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

        by Neuroptimalian on Sat Apr 20, 2013 at 11:25:04 PM PDT

        [ Parent ]

    •  So they don't have to inform him of his (0+ / 0-)

      rights, but they may not be able to use his statements in court. That's really what the public safety exception is about.

      Gondwana has always been at war with Laurasia.

      by AaronInSanDiego on Sat Apr 20, 2013 at 09:09:45 PM PDT

      [ Parent ]

      •   That's how it works under Miranda. (2+ / 0-)
        Recommended by:
        Roger Fox, BradyB

        The "public safety exception" lets them use those statements/that information in court.

        With no "exception", say a guy committed murder on live TV.  The cops don't Mirandize him and question him for three hours with no lawyer.

        They can't use any of that questioning, or any evidence they get directly from it, but they can still use the video tape, the gun recovered at the scene, the powder on the suspects jacket, all the witnesses in the live studio audience, ect.

        I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

        by JesseCW on Sat Apr 20, 2013 at 09:19:09 PM PDT

        [ Parent ]

  •  Why Do I Feel the Incentive is Backward Here? (6+ / 0-)

    The reason you want to interrogate the suspect re: public safety is because you don't presently know anything about such possible threats.

    --But you have the suspect in custody because you already know enough to prosecute them. Whatever crimes are looming have not happened yet, but whatever crime caused you to take this suspect into custody has happened. Given time there will be plenty of opportunity to develop the case relating to the only crime that has yet happened.

    So it seems to me it's not the government we need to protect with this exception, but rather the suspect.

    Is it going to encourage the suspect to confess to a pending crime if the law allows his words to be used against him, or would it encourage him to help secure public safety if he divulged other threats knowing that he wouldn't be prosecuted for them?

    It's not my area of specialty so I wouldn't be surprised if there were a 3rd option area such as legal liability but reduced penalty etc.

    When the issue is government vs average individual I don't usually see that the government is the party requiring protection.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sat Apr 20, 2013 at 07:18:41 PM PDT

    •  It's pretty clearly a different situation (2+ / 0-)
      Recommended by:
      AaronInSanDiego, Roger Fox

      when you're in a room with a suspect who may have a loaded gun, than when you've got a wounded suspect helpess in a hotel room.

      But bad cases (and politically minded Prosecutors) make bad law.

      Right now, I wish Ben Masel was still here.  I know where he would fall and I know why, but neither I nor anyone else active here today can articulate it as he could have done.

      I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

      by JesseCW on Sat Apr 20, 2013 at 09:06:17 PM PDT

      [ Parent ]

  •  Today a public safety exemption. . . (6+ / 0-)

    . . .tomorrow an exemption because of my nationality or race. The day after that there will be an exemption because you don't like the way I look.  Thanks, but no thanks.

    We either respect human rights or we don't.

    Money ain't free speech and it won't buy you love.

    by waztec on Sat Apr 20, 2013 at 07:19:02 PM PDT

    •  Are you kidding? (1+ / 0-)
      Recommended by:
      Neuroptimalian

      You think their would ever be an exemption "because of your nationality or race"?

      Given the ruling was in 1984, that's a might gradual slope you think we're on...

      We were not ahead of our time, we led the way to our time.

      by i understand on Sat Apr 20, 2013 at 08:25:32 PM PDT

      [ Parent ]

      •  That exemption was created in a case (0+ / 0-)

        involving a suspect and police being in the same room, with a loaded gun the police were trying to find.

        Right now, we've got a guy in custody who does not pose any immediate danger to anyone.

        I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

        by JesseCW on Sat Apr 20, 2013 at 09:07:48 PM PDT

        [ Parent ]

        •  How do you know he hasn't booby-trapped ... (1+ / 0-)
          Recommended by:
          sandbox

          a hundred storage lockers?  How do you know he doesn't personally know 20 other terrorists out there who are planning another massive attack to occur next month, who've watched how Boston PD responded and learned things which will make it possible for them to kill 300 people next time?  

          "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

          by Neuroptimalian on Sat Apr 20, 2013 at 11:32:56 PM PDT

          [ Parent ]

          •  How do you know he hasn't created a gravity (1+ / 0-)
            Recommended by:
            Sparhawk

            canon that will launch the Moon into deep space, summoning a horde of alien battlecruisers?

            The hilarious thing is that your pants-wetting 24 plots aren't even time sensitive.

            I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

            by JesseCW on Sun Apr 21, 2013 at 01:38:04 AM PDT

            [ Parent ]

            •  And your couch-side analysis is unnecessary (1+ / 0-)
              Recommended by:
              Neuroptimalian

              The people on the ground will decide what questioning is necessary for safety reasons, if any, and a judge will rule if it was appropriate and therefore admissible.

              We were not ahead of our time, we led the way to our time.

              by i understand on Sun Apr 21, 2013 at 06:36:49 AM PDT

              [ Parent ]

              •  "I think we should all just trust that all (0+ / 0-)

                will be done for the best in this, the best of all possible worlds, under this, the best of all possible governments".

                The fact that you and I share citizenship in the same country makes me afraid.

                I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

                by JesseCW on Sun Apr 21, 2013 at 01:04:10 PM PDT

                [ Parent ]

          •  Safety of the officers? (1+ / 0-)
            Recommended by:
            JesseCW

            You seem to have missed your target, by a country mile.

            .................expect us......................... FDR 9-23-33, "If we cannot do this one way, we will do it another way. But do it we will.

            by Roger Fox on Sun Apr 21, 2013 at 10:02:20 AM PDT

            [ Parent ]

  •  WTF (2+ / 0-)
    Recommended by:
    gooderservice, JesseCW

    Who the hell voted yes?

    "What I do for myself is buried with me. What I do for others lives forever. by not sure; but I like this :)

    by Doggie269 on Sat Apr 20, 2013 at 08:21:35 PM PDT

  •  At first glance, I would say there should (1+ / 0-)
    Recommended by:
    JesseCW

    be a public safety exception for Miranda in special circumstances, HOWEVER, the information can only be used to protect the public from immediate danger.

    If the point of this is to protect the public, then protect the public with the information received and don't use it to convict the suspect.  

    •  That's not an exception ;) Under Miranda, (1+ / 0-)
      Recommended by:
      Roger Fox

      the Police could ask any question they pleased without reading your rights.

      They just wouldn't be able to use it in court.

      I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

      by JesseCW on Sat Apr 20, 2013 at 09:09:28 PM PDT

      [ Parent ]

  •  Is anyone really kidding anyone? (3+ / 0-)
    Recommended by:
    Sparhawk, Doggie269, Roger Fox

    The suspect isn't being mirandized for purely political reasons.

    This is clearly and entirely about being scared Bill'O is going to go on a rant about "Giving Terrorists Rights"...as if there is any cross over at all between his audience and anyone who would ever vote for a Democrat anyway.

    I love you stupid fucking fucks. Now stop poking at the dead cat on the table and get back to the issues.

    by JesseCW on Sat Apr 20, 2013 at 09:00:45 PM PDT

  •  I don't think there should be a public safety (0+ / 0-)

    exemption, but there is one, and as long as it exists, I'm not going to get too worked up if it is used in a very limited way. We'll have to see what happens in this case, but if they can prosecute effectively without using Tsarnaev's statements as evidence, it seems to be irrelevant.

    Gondwana has always been at war with Laurasia.

    by AaronInSanDiego on Sat Apr 20, 2013 at 09:08:45 PM PDT

  •  I voted 'Yes,' surprising even myself but because (1+ / 0-)
    Recommended by:
    sandbox

    'rights' are not absolute but contingent. You have a right to freedom of speech but not to yell 'Fire' in a crowded theater because the exercise of your right there would violate the rights of others in the theater. So, rights are socially contingent.

    One thing I do not yet understand, under the Public Safety exception to Miranda, are statements made admissible in trial? If so, then I think they should be excluded as fruit of the poisoned tree. IOW, the state should not be allowed to build a case on coerced statements (using 'coerced' in the sense the SCOTUS used it).

  •  The purpose of the public safety exception (2+ / 0-)
    Recommended by:
    sandbox, Tailfish

    Is to prevent police from being forced to choose between saving life or gathering evidence needed to convict a criminal.  That seems to be a common sense concern which should be handled by a balancing test rather than a bright line in determining what is permissible.

  •  Thank you for a well thought out examination (2+ / 0-)
    Recommended by:
    sandbox, Tailfish

    of the issue.

    Every system needs to be flexible enough to use common sense to save lives. Then again, any system - and any exception - can be misused or corrupted .

    The solution is always to be humane, thoughtful and unselfish. That can't be written into law, or into any escape clause.

    "I was a big supporter of waterboarding" - Dick Cheney 2/14/10

    by Bob Love on Sat Apr 20, 2013 at 09:59:34 PM PDT

  •  Of course there should be (1+ / 0-)
    Recommended by:
    sandbox

    there are "public safety" exemptions for pretty much everything these days (such if police claim somebody callled 9-11 from your house, they have free rein to enter and search even if you try to deny them entry).

    And that's the way most people want it - you know, so they can be safe and all.

  •  There's not going to be much talking going on. (0+ / 0-)

    He was shot in the throat. So we'll Miranda another day.

    guns are fun v. hey buddy, watch what you are doing -- which side are you on?

    by 88kathy on Sun Apr 21, 2013 at 05:53:32 AM PDT

  •  Yes, there should be an exception (0+ / 0-)

    If someone's been planting bombs and is caught, the police should be allowed to immediately jump to, "are there any more bombs planted around town waiting to go off?"

    The fact that police may try to expand the exception beyond its rational purpose doesn't mean the exception shouldn't exist.  That's what the courts are for.

    The Fourth Amendment has a bunch of rules and exceptions that apply (is it an emergency?  plain sight?  reasonable suspicion under the circumstances? etc.).  The police often exceed what they are allowed to do under the Fourth, and courts rule that they acted unconstitutionally and supress the resulting evidence.  Same thing would happen here.

  •  According to (0+ / 0-)

    this interpretation, this:

    Miranda states that police officers must read suspects their rights before they question them.
    is inaccurate.

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