Public Safety and the Law

[Editor's Note: This turned a bit rambly and I'm definitely out of my zone talking about the law, so feel free to skip if you're not up for a non-lawyers opinion on the law after reading two articles about it.] Sorry, but I've got some time this morning and, like many of you I'm sure, I'm spending it reading as much as I can about yesterday's situation in Boston. If you were watching TV while the second suspect, Dzhokhar Tsarnaev, was found or listening later during the press conference, the question of whether he would be/was read his Miranda rights came up. In the moments after the capture there was some confusion, which was eventually cleared up during the press conference when the US Attorney Carmen Ortiz confirmed that he had not been read his Miranda rights under the "public safety" exception. I, like most I'd imagine, had never heard of the public safety exception before yesterday (or spent much time thinking about Miranda rights, to be honest). Slate had an excellent explanation of what happened and why it's a dangerous precedent:

And so the FBI will surely ask 19-year-old Tsarnaev anything it sees fit. Not just what law enforcement needs to know to prevent a terrorist threat and keep the public safe but anything else it deemed related to “valuable and timely intelligence.” Couldn’t that be just about anything about Tsarnaev’s life, or his family, given that his alleged accomplice was his older brother (killed in a shootout with police)? There won’t be a public uproar. Whatever the FBI learns will be secret: We won’t know how far the interrogation went. And besides, no one is crying over the rights of the young man who is accused of killing innocent people, helping his brother set off bombs that were loaded to maim, and terrorizing Boston Thursday night and Friday. But the next time you read about an abusive interrogation, or a wrongful conviction that resulted from a false confession, think about why we have Miranda in the first place. It’s to stop law enforcement authorities from committing abuses. Because when they can make their own rules, sometime, somewhere, they inevitably will.

This is one of those things where I don't know quite how to feel. The FBI has a pretty extensive article on the subject that shed some additional light (I know the FBI is probably not the most balanced outlet for this sort of stuff, but the article is a pretty good and comprehensible look at the history of the law and, also, the FBI is very incentivized to get this stuff right since if they don't any questions could be thrown out). The public safety exception was apparently introduced in a case where the police were chasing a rapist who, the victim informed them, had a gun. When they cornered him in a grocery he had an empty holster and the police asked where the gun was. The man, Benjamin Quarles, told the police where he hid the gun and they retrieved it. The court excluded the gun because the police had not read Quarles his rights. The ruling was appealed and eventually reached the supreme court, who decided that in situations where public safety was endangered suspects could be questioned without being read their Miranda rights. (I'm not entirely sure why I'm summarizing all this and I'd suggest reading the whole article.) Anyway, the more interesting case, also mentioned in the FBI piece, seems like a case where the police raided an apartment in Brooklyn where two suspected bombers lived. "During the raid, both men were shot and wounded as one of them grabbed the gun of a police officer and the other crawled toward a black bag believed to contain a bomb. When the officers looked inside the black bag, they saw pipe bombs and observed that a switch on one bomb was flipped." From there, the police used the public safety exception to question one of the bombers who had not yet been read his rights:

Officers went to the hospital to question Abu Mezer about the bombs. They asked Abu Mezer "how many bombs there were, how many switches were on each bomb, which wires should be cut to disarm the bombs, and whether there were any timers." Abu Mezer answered each question and also was asked whether he planned to kill himself in the explosion. He responded by saying, "Poof."

This case seems, at least to me, to be much closer to the root of the question. I don't really understand how a gun hidden in a supermarket presents a public safety concern since presumably the police could search the market for the gun after arresting the suspect. However, this latter situation, where there was a big bag of bombs, some of them ready to explode, seems like a pretty reasonable time to question someone prior to their rights being read. What's interesting about this, though, is the question isn't really whether you can question someone before their rights are read, since it's obviously possible (and likely a frequent occurrence). But rather, in what situations can those questions be used in court against the suspect. Here, again, I agree with Slate: If the questions they asked Tsarnaev were about whether he had planted more bombs around Boston, then that's fair game, but as soon as they move outside that things start to feel a lot less right. Interesting, the FBI article goes on to explain that Abu Mezer, from the bag of bombs, felt the same way and eventually tried to get his last statement, about whether he intended to kill himself, thrown out:

Abu Mezer sought to suppress each of his statements, but the trial court permitted them, ruling that they fell within the public safety exception. On appeal, Abu Mezer only challenged the admissibility of the last question, whether he intended to kill himself when detonating the bombs. He claimed the question was unrelated to public safety. The circuit court disagreed and noted "Abu Mezer's vision as to whether or not he would survive his attempt to detonate the bomb had the potential for shedding light on the bomb's stability."

Here, without reading the full decision or being a lawyer or knowing anything else about the case, I think I disagree with the court. Seems pretty thin to suggest that the police were given valuable information about the "stability" of the bomb by asking whether he intended to kill himself.