Revisiting the public safety exception to Miranda for suspected terrorists: Dzhokhar Tsarnaev and the bombing of the 2013 Boston Marathon.

• Author: Lonky, Hannah

This Comment examines the application of the public safety exception to Miranda to cases of domestic terrorism, looking particularly at the case of Dzhokhar Tsarnaev and the 2013 Boston Marathon bombing. By comparing the Department of Justice's War on Terror policies to the Warren Court's rationale for Miranda, this Comment argues that courts should require law enforcement officers to have reasonable knowledge of an immediate threat to public safety before they may properly invoke the Quarles public safety exception.

TABLE OF CONTENTS INTRODUCTION 394 I. THE HISTORY OF AMERICAN CONFESSION LAW 397 A. The Road to Miranda 397 B. Miranda v. Arizona 399 C. Limiting Miranda 400 D. Lower Courts and the Public Safety Exception 405 II. THE WAR ON TERROR 409 A. The October 2010 FBI Memo 410 B. Miranda, Public Safety, and the War on Terror 413 III. DZHOKHAR TSARNAEV AND THE 203 BOSTON MARATHON 417 CONCLUSION 419 INTRODUCTION

April 15, 2013. The finish line of the Boston Marathon, on the north side of Boylston Street, on a beautiful spring day. (1) It is 2:49 in the afternoon. The race clock reads 4:09:43. (2) Suddenly, a boom "like a cannon" erupts. (3) Runners and spectators see a "ball of fire," then smoke, glass, debris. (4) Thirteen seconds later, a second explosion rips through the crowd five hundred feet away. (5) There are people on the ground, limbs scattered, blood everywhere. (6) Three spectators lie dead, and nearly two hundred sixty people are strewn, injured. (7) Bombs made from two pressure cookers filled with nails and shrapnel. (8)

April 18, 2013. The FBI is running a multiagency investigation into the bombing. (9) It releases images and descriptions of two suspects, soon identified as Chechen-American brothers Tamerlan and Dzhokhar Tsarnaev. (10) In the pre-dawn hours of the next day, the same two men open fire on a campus police officer on the campus of the Massachusetts Institute of Technology in Cambridge. (11) They carjack an SUV at gunpoint across the Charles River in Allston. A car chase and shootout with police in Watertown follow, during which Tamerlan is killed. (12) Dzhokhar escapes in the stolen car. (13)

April 19, 2013. The entire Boston region is locked down for most of the day. Residents are told not to leave their houses, as law enforcement searches for the missing suspect. (14) The lockdown is lifted at dusk. Shortly thereafter, Dzhokhar Tsarnaev is found bloody and weakened in a dry-docked boat in a Watertown backyard. After a brief standoff, he is taken into custody around 8 P.M. (15) He is too injured to speak. (16) With official sanction from the Obama Administration, special counterterrorism agents question, but do not Mirandize, Dzhokhar. (17) Dzhokhar confesses to planting the bombs with his brother. (18) He is questioned in his hospital room for sixteen hours over two days, before Magistrate Judge Marianne B. Bowles, and two representatives from the U.S. Attorneys' Office show up to conduct a hearing. At this point, on April 22, 2013, Dzhokhar is finally read his rights. (19)

Everyone with a television knows the famous words police officers must say before they can question someone in custody: You have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you can't afford one, one will be appointed to you. (20) Everyone knows these protections as "Miranda rights." (21) But the Boston bombing aftermath showed that, contrary to popular belief, (22) these rights are not absolute.

The Supreme Court has created a public safety exception to Miranda's broad language. In New York v. Quarles, the Court held that in some situations presenting threats to public safety, the public's interest in safety outweighs an individual's right to be informed of her Fifth Amendment rights. (23) In Dickerson v. United States, the Supreme Court affirmed that defendants have the constitutional right to have these warnings read to prevent self-incrimination, but it left intact the rule's numerous exceptions. (24)

Where the right ends and the public safety exception begins remains elusive. Circuits are split as to how that exception should be interpreted and what factual scenarios should properly trigger the exception. Approaches to the public safety exception fall largely into two camps: the broad and the narrow approaches to Quarles. Circuits following the broad approach allow courts to admit evidence of prewarning statements made in inherently dangerous situations, regardless of the immediacy or severity of the threat to public safety. Those following the narrow approach admit such evidence at trial only when law enforcement officers have actual knowledge of an imminent threat to public safety.

This Comment advocates for the use of the narrow approach to the public safety exception, even in terror contexts. By requiring officers to have actual knowledge of an immediate threat to the public, the narrow approach hews closely to the facts and reasoning of Quarles itself, and allows both Miranda and its exception to coexist without the exception consuming the rule. The Supreme Court should clarify that the Quarles public safety exception applies only in narrow circumstances before another person is potentially deprived of her constitutional rights. Our constitutional democracy depends on the rule of law--or a match between the law as written and the law as applied--for its legitimacy. Because Miranda is a constitutional right, (25) exceptions to its rule must be minimized as much as possible, even if the rule has little effect on suspects' behavior i I n practice. Miranda is especially important as "a symbol of American commitment to due process" (26) in the terror context.

This Comment proceeds as follows. Part I addresses the history of the Supreme Court's confessions jurisprudence, exploring the reasons the Warren Court thought the rule necessary, and the Burger, Rehnquist, and Roberts Courts' gradual erosion of the rule. Part II examines the application of Miranda and Quarles to the War on Terror. It argues that the narrow approach to the public safety exception strikes an appropriate balance between the needs of law enforcement and the individual rights of terror suspects. Part III concludes by analyzing the case of Dzhokhar Tsarnaev and the 2013 Boston Marathon bombing and showing how the narrow approach to the public safety exception can still yield socially desirable convictions.

1. THE HISTORY OF AMERICAN CONFESSION LAW

   1. THE ROAD TO MIRANDA

      In relevant part, the Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself." (27) Between the 1880s and the 1960s, courts held this to mean that a confession was admissible only if it was "voluntary" and comported with due process. (28) The doctrinal underpinnings of the Court's criminal jurisprudence in the early-to-mid-twentieth century emphasized the exceptionalism of American due process. It highlighted the contrast between a truly democratic society and the totalitarian regimes of Europe, and between free-willed individuals and the coercive state. (29) The Court contrasted unconstrained foreign police forces that were authorized to "wring . . . confessions by physical and mental torture" (30) with America's criminal justice system, which was based on "abstract, defendant-oriented principles such as liberty, dignity, privacy, rationality, and freedom." (31) Police were required to use "fair procedures" in interrogating criminal suspects for such confessions to be admissible in a court of law. (32) Courts considered the totality of the circumstances under which a confession was extracted on a case-by-case basis. (33) But this approach to voluntariness proved a poor measure for rooting out unconstitutional conduct. By proceeding on a case-by-case basis and by seeing only the most egregious cases, the Court was unable to provide law enforcement with clear guidance about what interrogation tactics were impermissible. (34) These decisions provided unsatisfactory guidance for lower courts about what the focus of a "totality of the circumstances" analysis should be--the police tactics or the characteristics of the suspect. (35)

      Miranda is a landmark decision, not only for replacing courts' due process balancing test with a bright-line rule establishing protections for suspects during custodial police interrogations, but also as an emblem of the Warren Court's expansive social and political vision. From 1953 to 1969, when Earl Warren served as its Chief Justice, the Supreme Court took on the role of the nation's moral compass, (36) seeking an emphasis on justice rather than brute punishment. (37) The Court's decisions from this era--whatever their context--share a common theme: the federal courts as enforcers of individual rights and "equality norms" against the states. (38)

      Even before Miranda, the Warren Court was particularly concerned with the privilege against self-incrimination. Justice Frankfurter called the privilege against self-incrimination "an important advance in the development of our liberty" and "one of the great landmarks in man's struggle to make himself civilized." (39) And two years before the Court decided Miranda, Justice Goldberg's opinion in Murphy v. Waterfront Commissioner of New York Harbor gave an elegant discourse on the right:

      It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for...