[Guest post by DRJ]
Time’s Swampland reports New York City car bomber Faisal Shahzad was questioned before being given his Miranda warnings under the Public Safety Exception to Miranda:
“At a press conference Tuesday afternoon, Attorney General Eric Holder, DHS Secretary Janet Napolitano, FBI Deputy Director John Pistole and New York Police Commissioner Ray Kelly updated reporters on the ongoing investigation into the attempted bombing in Times Square.
They said the suspect, Faisal Shahzad, was interviewed by the FBI under the Public Safety Exception rule before being read his rights. Pistole said Shahzad, a naturalized American citizen, cooperated with investigators both before and after being Mirandized, and Holder said the interviews provided “useful information.” Pistole declined to say how long Shahzad was questioned before he was read Miranda rights.
From the 1984 Supreme Court ruling on New York v. Quarles:
The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety.”
Swampland’s brief summary of the Quarles exception to the Miranda warning requirement is hard to argue with — obviously terrorism like leaving a car bomb in a public place is a matter of public safety. But what were the facts in Quarles and what did the Court hold? Let’s start with the facts:
“On September 11, 1980, at approximately 12:30 a. m., Officer Frank Kraft and Officer Sal Scarring were on road patrol in Queens, N.Y. when a young woman approached their car. She told them that she had just been raped by a black male, approximately six feet tall, who was wearing a black jacket with the name “Big Ben” printed in yellow letters on the back. She told the officers that the man had just entered an A & P supermarket located nearby, and that the man was carrying a gun.
The officers drove the woman to the supermarket, and Officer Kraft entered the store while Officer Scarring radioed for assistance. Officer Kraft quickly spotted respondent, who matched the description given by the woman, approaching a checkout counter. Apparently upon seeing the officer, respondent turned and ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun. When respondent turned the corner at the end of an aisle, Officer Kraft lost sight of him for several seconds, and upon regaining sight of respondent, ordered him to stop and put his hands over his head.
Although more than three other officers had arrived on the scene by that time, Officer Kraft was the first to reach respondent. He frisked him and discovered that he was wearing a shoulder holster which was then empty. After handcuffing him, Officer Kraft asked him where the gun was. Respondent nodded in the direction of some empty cartons and responded, “the gun is over there.” Officer Kraft thereafter retrieved a loaded .38-caliber revolver from one of the cartons, formally placed respondent under arrest, and read him his Miranda rights from a printed card.”
The Supreme Court held that the detainee’s answer to where his gun was, as well as the existence and location of the gun, were admissible even though he was in police custody when he made his statements and he had not been given any Miranda warnings. Instead, the Court introduced a narrow “public safety” exception to the Miranda warning requirement that allowed the suspect’s pre-Miranda warning answers to nevertheless be admissible in court.
Similarly, in U.S. vs King, a 2006 case that cited Quarles, the Third Circuit allowed incriminating statements made by a suspect who had not been given his Miranda warnings because “the primary object of [the] questions was to obtain safety information from Defendant before law enforcement personnel entered the potentially dangerous clandestine methamphetamine laboratory [and the] questions asked Defendant were consistent with this goal.”
What these cases have in common is the imminent nature of the threat. Was there an imminent threat in the Shahzad case? After all, Homeland Security Secretary Janet Napolitano initially described this as a lone wolf event, and 53 hours had elapsed from the time the bomb was discovered until Shahzad was detained. Is 53 hours still imminent?
I submit there was not an imminent threat and the Obama Administration is treating the fact that Shahzad may be an affiliate or follower of a terror group — and further that the group may have future terror plans — as an imminent threat that meets the Miranda Public Safety Exception. However much sense that makes, I’m not sure it’s the law.
Which leaves us with a suspect that has been detained and questioned without being given his Miranda rights. Generally, absent a court-approved exception, law enforcement agents can question a suspect provided they don’t use the resulting statements or evidence in court (unless the evidence can be acquired independently). Hopefully it won’t matter in Shahzad’s case or in the underwear bombers case, but someday it may. Still, it’s interesting that Attorney General Eric Holder has apparently used Shahzad’s non-Mirandized statements to condemn him in the court of public opinion, even though we don’t know whether the statements can be used in court:
“[Shahzad] has been and continues to be questioned by federal agents. As a result of those communications, Shahzad has provided useful information to authorities,” said [Attorney General Eric] Holder.
When asked if Shahzad had confessed to participating in the attack, Holder said, “He has, he has done that.”
I wonder if the Obama Administration and Attorney General Holder are using Quarles to convert a narrow Public Safety Exception to Miranda law into a more expansive Terrorism Exception? Maybe the courts will agree. Perhaps Obama and Holder could ask Justice Stevens — now that he’s retiring and won’t hear any future cases — but I doubt they will. Stevens dissented in Quarles.