Contents Introduction I. The Marathon Bombing & Tsarnaev's Interrogation II. Modern Judicial Constructions of the Public Safety Exception A. Expanding Law Enforcement Interpretations of Quarles B. Judicial Limitations on Quarles III. The Historic Roots of New York v. Quarles Conclusion Appendix INTRODUCTION
It was 12:30 a.m. in Queens, New York, on September 11, 1980, when a panicked young woman flagged down officers on routine patrol and told them she was just raped. (1) She described the assailant to officers, told them he was armed, and that he just retreated into a nearby supermarket. (2) Law enforcement apprehended the assailant in the back of the store and handcuffed him following a frisk that revealed an empty shoulder holster. (3) An officer asked where the gun was and the suspect responded, "the gun is over there." (4)
Because the suspect was in custody and responded to interrogation at the time of his incriminating statement, Miranda presumably mandated exclusion of his response. (5) But in a 1984 Supreme Court opinion titled New York v. Quarles, (6) the Court held the suspect's response--"the gun is over there"--admissible at his trial for criminal possession of a weapon by creating "a 'public safety' exception" to Miranda. (7)
Fast forward to 2:49 p.m. on April 15, 2013, when the first of two pressure cooker bombs exploded near the finish line of the Boston Marathon. (8) A second bomb exploded between twelve to thirteen seconds later 214 yards away. (9) Collectively, the explosions killed three people and wounded 264 others. (10) At the conclusion of a city wide manhunt that ended at around 8:30 p.m. on April 19, (11) law enforcement apprehended a severely wounded Dzhokhar Tsarnaev hiding inside a boat in the city of Watertown. (12) His condition initially deteriorated, prompting medical personnel to intubate him to keep him alive. (13)
But by 7:22 p.m. the next day, a high value FBI interrogation group began questioning Tsarnaev without first reading him his Miranda rights. (14) Although citizens openly lined the streets of Boston in celebration of Tsarnaev's capture and in praise of law enforcement, (15) the government nonetheless expressly relied on the public safety exception to justify questioning Tsarnaev without giving him Miranda. (16) And although he was heavily sedated, repeatedly requested a lawyer, and asked investigators to leave him alone, (17) the interrogation continued for at least sixteen hours during which Tsarnaev provided several incriminating statements. (18) Only after judicial intervention was Tsarnaev read his Miranda warnings. (19)
Reaction to the government's reliance on Quarles as a basis not to provide Tsarnaev, a naturalized citizen, with Miranda warnings was predictably mixed (20)--perhaps particularly so given that James Holmes and Timothy McVeigh, among other high profile examples, (21) each received warnings sooner despite lingering concerns for public safety after their capture. (22) Agreeing with the government's decision, Senator Lindsey Graham said on social media, " [t] he last thing we may want to do is read Boston suspect Miranda Rights telling him to 'remain silent.'" (23) In contrast, former prosecutor with terrorism case experience Gerard T. Leone Jr. commented, "[y]ou'd be hard-pressed not to say that to allow these statements in would require a wide expansion of the law as it presently exists." (24)
What was clear about the government's invocation of Quarles was the absence of clarity alongside a corresponding desire for clarity. (25)
That, in a nutshell, is the problem with Quarles. Scholars and courts alike have for years debated the limits, if any, on the public safety exception's applicability. (26) Most recently, scholars have considered the public safety exception's applicability to terror cases. (27) One scholar has even sought to apply the exception to Tsarnaev's specific interrogation, concluding that although the Quarles Court would not permit admission of Tsarnaev's statements, modern courts relying on the public safety exception would. (28)
But this Article makes different arguments: first, identifying who in the debate is right about the scope of Quarles is now more important than ever. Unquestionably, the judiciary has increasingly expanded the public safety exception's limits in recent years, (29) but this Article argues that the government's reliance on Quarles during Tsarnaev's interrogation reflects the culmination--or peak--of that expansion. (30) If the government's reliance on Quarles in the context of Tsarnaev's interrogation is constitutionally correct, then law enforcement's mentality about Miranda should change--and change now. Rather than Quarles serving as a "seldom-used" exception to Miranda[TM] Miranda should become the exception to Quarles and officers should assume a threat to public safety following even a routine arrest. One criminal is often connected to another, (32) after all, and interrogating one without the benefit of apprehending the other is a threat to public safety. When viewed through that lens, the government is surely correct that Quarles enables Boston citizens to simultaneously celebrate Tsarnaev's capture publicly yet also experience a threat to their collectively safety.
Second, this Article argues that the time has come for reexamination of Quarles. Just as a computer, car, or phone needs frequent updating, so too does Miranda jurisprudence.
Part I explores the Marathon Bombing in more detail alongside the government's reliance on Quarles to interrogate Tsarnaev. Part II then seeks to place the Tsarnaev interrogation in the context of modern judicial constructions of the public safety exception. Doing so firmly illustrates that the government's position was unsupported by judicial precedent.
By focusing on the Quarles decision itself, Part III then seeks to provide a proper historic context for the government's decision not to read Tsarnaev his Miranda warnings. In particular, Part III considers the Justices' private papers from Quarles to demonstrate that the Court never considered anything beyond applying the public safety exception to concern about a...