Quarles and its Progeny: Tsarnaev

Everyone knows the Miranda warnings. We have heard them ten thousand times on TV.

Not everyone knows their significance—clients often ask me whether it’s significant that they were not read their rights when they were arrested. It is not; the rule of Miranda is this: A statement made by a defendant as a result of custodial interrogation is not admissible against him unless, before making the statement, he was advised of certain of his Constitutional rights. So the police only need to read you your rights when they are going to question you while you are in custody. Under Texas law the mere reading of rights has no legal significance—the reading must be documented by audio recording or acknowledged in writing by the defendant—so Texas cops don’t bother to read arrestees their rights.

In New York v. Quarles the Supreme Court created a “narrow” exception to the Miranda rule. The reasoning was that public safety trumped Miranda’s stated goal of ensuring that subjects of police interrogation knew their rights:

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.

In a sense, any questions calling for incriminatory answers might be seen as “reasonably prompted by a concern for the public safety.” But that’s not the sense in which the Court decided Quarles:

The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.

(Mr. Quarles was not thought to have an accomplice, so this is really about guns being so terrifying that the possibility of a law-abiding citizen finding one creates a sufficient danger to public safety to change the rules. Scratch that: it’s really about nibbling away at the Constitution.)

For a situation to justify unwarned interrogation, the information sought is—by definition—important independent of its admissibility. If something is going to be trumped by public safety, it should not be the procedures the police must follow if they want the information they obtain to be admissible. It should instead be the police desire that all information be admissible.

Even before Quarles, if the police wanted information that they thought they wouldn’t get from an arrestee who knew his rights, they could seek that information without advising the arrestee of his rights. Before there was a Quarles public-safety exception to Miranda, society was no worse off for the police decision to conduct an unwarned interrogation seeking inadmissible information rather than giving the warnings in hopes of garnering admissible information.

The press has talked about the government “invoking the public-safety exception,” but the exception is not some magic spell that gives the FBI forty-eight hours to talk to a heavily drugged arrestee without Mirandizing him and then use the information obtained at trial. Quarles clearly does not cover information gleaned with questions other than those “reasonably prompted by a concern for the public safety,” and while the government may want to broaden it, they cannot without the cooperation of the courts. When the Boston Police Commissioner says, “We’ve told the people of Boston we feel that they’re safe at this point in time,” that’s a good indicator that further interrogation is not prompted by the “immediate necessity” that existed in Quarles.

But where the Supreme Court makes an exception, the Supreme Court always broadens the exception. Quarles is the top of the slippery slope…the jackbooted foot in the door…the flesh-eating camel’s nose in the tent.

Others have pointed out that the police do not need to get admissible evidence through interrogation if they have enough against him already. Maybe what Tsarnaev tells the FBI won’t matter to the trial of his case. Maybe the government will have a cut-and-dried case against without using the product of his interrogation. Maybe the admissibility of the product of his interrogation will never be litigated. But “maybe” implies “maybe not,” and here I suspect not.

I expect that the admissibility of Tsarnaev unwarned statements to the government will be litigated, and I expect that the outcome of that litigation will not be convivial to our freedom. The spirit of the times, carefully cultivated by the government and the media, is one of fear, and the courts will move in rhythm with that spirit, making it easier for the government to put terrorists in boxes.

But when the government talks about “terrorists,” they’re talking about the people who they can claim are terrorists. And when they are talking about the people who they can claim are terrorists, they are talking about you and me. 

Five years from now we’ll be talking about U.S. v. Tsarnaev as another step closer to tyranny.

(See also Gideon and Greenfield on Quarles, Burney on Miranda, and Greenfield again on two-step interrogations.)

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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23 Responses to Quarles and its Progeny: Tsarnaev

  1. Mike Trent says:

    There are flesh-eating camels??

  2. Gideon says:

    The thing about Quarles is that it’s a way to get statements admitted in the absence of Miranda warnings. So it’s not that the Government doesn’t want to use his confession; rather that Quarles permits them to do so without advising him of his rights and then they can do the Khalil two-step.

    But very informative post. I will bookmark for future review.

    • Mark Bennett says:

      What you’re missing is that “invoking the public-safety exception” is mumbo-jumbo. The government is (apparently) interviewing Tsarnaev without Mirandizing him. Even absent Quarles, they would want to do so if the reasoning of Quarles applied…that is, even if the Supreme Court had decided Quarles correctly, the government might (and in fact should) throw away the possibility of using his words against him if they thought there was “immediate necessity.”

      • Thomas Stephenson says:

        Of course, absent Miranda, getting custodial statements admitted into evidence would be a question of “were the statements voluntary” rather than “did the police say the magic words?”

        As Burney pointed out, reading the Miranda rights basically gives the cops a free pass to go crazy. How often are a defendant’s own statements suppressed if he was given his Miranda warnings?

      • Gideon says:

        I’m not missing it:

        There are two alternatives here: either they want to use his statements or they don’t.

        If they do, they invoke Quarles, which lets them. If they don’t; well then it doesn’t matter what they do. In either event, they don’t have to Mirandize him and yet could get his statements admitted.

      • Mark Bennett says:

        And yet you’re still talking about “invoking Quarles” as though it is not mumbo-jumbo.

        You assume that Quarles “lets them” use his statements.

        Quarles is narrow; it does not let them use all statements that they get from him because they have, like wizards, invoked it.

  3. shg says:

    The discussion that the FBI may be willing to forego use of the unwarned statement in order to get its shot at pre-Miranda interrogation isn’t to suggest that the US Attorney won’t try to use the statement under Quarles, but that they are prepared to make their case with or without it. In other words, the indictment won’t be nolle’d if the statements are tossed.

    They will certainly use everything they can, provided the court will allow it. But it may also provide the District of Massachusetts judge (remember, Nancy Gertner sat in that courthouse) the opportunity to suppress the statement as unjustified by the exception without doing much, if any, harm to the government’s case.

    So the FBI gets its chance to interrogate, the government gets its chance to use the statements and the court gets to be a constitutional hero, suppress the statements, and the defendant is convicted anyway. It could happen.

    • Thomas Stephenson says:

      I wouldn’t go that far. It’s easy to see how the statements could be important if, say, Tsarnaev tries to use duress as a defense. Then his statements to police could be important to show that he was a voluntary participant.

      I suspect that the DOJ wants to use this case as a “test run” for its argument for an expanded public safety exception.

      • shg says:

        The gov’t would do far better using a case no one heard of or cares about if it wants to expand the exception. High profile cases are heavily scrutinized, and that makes it much harder. A nice quiet case no one cares about would be far better and easier vehicle.

      • Thomas Stephenson says:

        Good point; but, given that the government wants to expand Quarles in terrorism cases… is there such a thing as a terrorism case that ISN’T high-profile?

      • Mark Bennett says:

        You know how, when you’re in a fight, after you’ve ripped off the other guy’s ear you step back and show it to him so that his brain can catch up with what has happened?

        That’s the stage of the fight over civil liberties we’re in now. The Government wants us all to know that they own us.

      • Mark's Dad says:

        I’ve always found it effective, after showing him his ear, to swallow it so he knows what he is dealing with.

      • Michael Stuart says:

        Exactly, Mark–well stated.

        The gloves are off; it’s been a rapid slide down a razor blade, and we’ve arrived in the pool of lemon juice now.

        When tyranny’s in its infancy, it makes pretty promises–New Deal, Great Society, etc.

        As it becomes a teenager, it sells fear–fear of the other, the power of nightmares.

        Now that it’s a bloated scrofulous Jabba the Hutt, it has no more promises, and the fear it sells is fear of itself.

        But in a way it’s desperation, too; they KNOW they’re bankrupt, they know they’re losing the consent of the governed…and they’re clinging to power using the only real tool they’ve ever had, the hallmark of the State–violence.

    • Mark Bennett says:

      Even if the government thought it needed a confession to convict, they could Quarlesize him, ask him the public-safety questions, then wait a decent interval, Mirandize him, and get their confession.

      If they were concerned about an immediate threat, this is what they would do regardless of whether the pre-Miranda statement would be admissible. Because “immediate threat” trumps—or should trump—”conviction.”

      • Legal Baby says:

        But doesn’t the possibility of that now happening plummet now he has counsel who will be asserting his rights to counsel and advising him to do the same.

      • Mark Bennett says:

        He is certainly not going to be talking any more.

      • Michael Stuart says:

        I thought that was the idea of administering a field tracheotomy.

        The entire event absolutely screams “false flag”, from the concomitant drill, to the security contractors/military wearing identical backpacks, to the deep FBI/CIA links of the two brothers.

        Reeks to high heaven.

  4. Mike Trent says:

    I don’t think the goal was to expand the statute or to obtain what might otherwise be inadmissible statements. I think the government wanted to find out about any possible accomplices or “sleeper cells” and move against them right away. I think they did not want Mr. Tsarnaev to know that he had the right to remain silent, have an attorney present, or terminate the interview at any time. I think they wanted to pressure him into giving them crucial information right away. I think invoking the public safety exception was really just a CYA move in case he did give them something that purely inculpated himself.

    While I agree that in general the government wants to expand its powers and limit our constitutional rights, I think the considerations you bring up are more the province of AUSAs in the appellate division than the agents and other folks in the trenches. I think that both building precedent and building a case against Mr. Tsarnaev took a back seat to their primary goal, which was finding out if there were more terrorists in his network.

    • Mark Bennett says:

      “Invoking the public-safety exception” is mumbo-jumbo, sound without content. If he gives them something that purely inculpates himself, it is no more admissible because they have not “invoked the public-safety exception” before questioning him. Quarles does not make it admissible at all.

      The decisions in this case are ultimately being made at the highest level of the government.

    • Michael Stuart says:

      “Click!”

      Mike that’s me taking a picture of you while you’re still young and innocent.

      Because later, when you discover who the REAL terrorists are, I want to remember when you still believed.

      They knew these two; they–multiple agencies including the CIA and FBI–had known about the older brother at least for five years. He attended Jamestown. The Russians had outed them in 2011.

      Their “sleeper cell” is not some shadowy Islamic group. It’s closer than that.

      • Mark's Dad says:

        Michael, you are naive if you believe that the French president left his camel in Timbuktu because of “shipping difficulties.” My sources tell me President Hollande left his camel to be force fed to produce a genuine, but little known, delicacy – ‘chameau foie gras’.

        Other than that, your comments on this blog post are right on target.

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