The unlikely meeting between Dzhokhar Tsarnaev and Benjamin Quarles.

• Author: Gallini, Brian
• Position: II. Modern Judicial Constructions of the Public Safety Exception B. Judicial Limitations on Quarles through Conclusion, p. 419-451

2. Judicial Limitations on Quarles.

By the time of the April 2013 Tsarnaev interrogation, the longest Quarles-based interrogation any state or federal court had approved of since 1984, outside the hostage negotiation context, (180) was three and one-half hours. (181) In that case, also distinct from the roughly 571 public safety cases before 2013, (182) the public safety interrogation occurred one week after commission of a kidnapping, when officers were still hoping the victim was alive. (183) Although Tsarnaev's public safety interrogation occurred comparatively sooner (four days after the bombing), relying on Quarles to interrogate Tsarnaev without Miranda for sixteen hours four days after the incident is, by any measuring stick, abnormal. (184)

More commonly before the interrogations of Tsarnaev, Shahzad, Holmes, and Abdulmutallab, state and federal courts encountered limited law enforcement questioning of a suspect within an hour after commission of a crime. (185) But each facet of the public safety exception--duration of interrogation and passage of time since commission of the crime prior to interrogation--expanded after the 2010 DOJ memorandum.

Consider first how long the judiciary, whether federal or state, had approved of a Quarles-based interrogation prior to the 2010 DOJ memorandum. From 1984-2010, state and federal courts most commonly admitted a suspect's statements pursuant to Quarles when obtained by a state or federal law enforcement officer who, in one or two questions, asked a suspect about the location of a weapon, (186) an accomplice, (187) and/ or more generally whether anything on the suspect could be used to hurt the arresting officer. (188) Courts were ordinarily unwilling to interpret Quarles to allow for deviation from those general guidelines. (189) It would therefore be an understatement to say that extended questioning pursuant to Quarles was rarely permissible prior to 2010.

But amongst the hundreds of cases representing the general rule, there were a few outliers. In 1991, a New York trial court declined to suppress a defendant's statements made during an eight-hour standoff with police. (190) In holding that Quarles allowed admission of defendant's statements, the court reasoned that "so long as the emergency condition continued unabated, the overriding concern for the safety of the public, the police, and even the defendant is paramount to defendant's individual right against self-incrimination." (191) Another New York state court reached the same result in a 1995 multi-hour hostage situation, during which defendant made incriminating statements in response to questioning without Miranda from a hostage negotiator. (192)

Outside of New York, and outside the hostage context, a California appellate court in 1996 reviewed application of Quarles when officers confronted the so-called "ticking time bomb scenario." (193) In People v. Tritchler, (194) law enforcement stopped a suspicious vehicle after hearing explosions. (195) Concerned about the prospect of additional explosions, different officers questioned the defendant over a period of approximately forty-five minutes without providing Miranda warnings. (196) In holding that Quarles permitted admission of defendant's statements, the court in its reasoning highlighted the "evidence of the explosion, the unknown nature of the devices found hidden under the [car] seats and the necessity of further handling of the devices...." (197)

Finally, in Commonwealth v. Dillon D., (198) a school police officer improperly read Miranda warnings to a juvenile suspect prior to commencing a roughly thirty-minute interrogation about the location of a weapon. (199) Although the trial court suppressed defendant's statements, the Massachusetts Supreme Judicial Court in 2007 reversed and held that Quarles permitted admission. (200) In allowing the extended public safety interrogation, the court reasoned in part that an undiscovered weapon in the school presented "an emergency situation that required protecting approximately 890 children at the middle school and residents of the neighborhood." (201)

Consider next how much time, before 2010, normally expired after the commission of a crime prior to the commencement of a Quarles-based interrogation. The overwhelming majority of public safety interrogations take place immediately at the time of arrest shortly after commission of a crime. (202) A handful of permissible Quarles-based interrogations occur either in the patrol car before and during transport to book the suspect, (203) at the stationhouse or detention facility, (204) or in a hospital when the suspect is injured. (205) Most courts, however, decline to admit a suspect's statements pursuant to Quarles beyond that period by reasoning that the threat to public safety has expired by the time the defendant is in custody and the surrounding scene has been secured. (206)

Like the interrogation length cases, some outlying cases before 2010 recognized the continued existence of a threat to public safety despite an increased passage of time since completion of a crime. In 1995, the District of Columbia Court of Appeals in part held in Trice v. United States (207) that Quarles permitted admission of defendant's statement about the location of a gun despite officers interrogating him four days after the shooting and an additional hour after his arrest. (208) Noting that defendant was arrested in the presence of children while the weapon was still missing, the court reasoned, "the detective did not learn of the specific threat his question was designed to eliminate--danger to children--until he saw children in appellant's home at the time of arrest, four days after the shooting." (209) Thus, concluded the court, "[a] refusal to apply the exception in this case would effectively penalize the government because [the detective] asked a question reasonably prompted by a concern for the well-being of small children." (210)

The Trice holding, though rare, was not anomalous. After Trice, sporadic courts admitted statements taken pursuant to Quarles thirty to forty minutes after defendant turned himself in, (211) fifteen to thirty minutes after an arrest, (212) at a treating hospital following an injury to defendant, (213) and during execution of a search warrant well after commission of the alleged crime. (214) Then, in Allen v. Roe, (215) the Ninth Circuit in 2002 upheld admission of incriminating statements pursuant to Quarles made by a suspect about the location of a gun where the suspect was detained a "significant amount of time" after the shooting. (216) Noting the "danger posed by the gun does not dissipate over time[,]" the court reasoned, "[the gun] posed a continuing immediate danger because anyone could have found the gun at any time." (217)

From 2002-2010, courts admitted statements pursuant to Quarles taken from a suspect hours or days after commission of the crime in fifteen more cases. (218) For example, courts during that period admitted incriminating statements pursuant to Quarles about a gun (1) at the time of arrest three days after commission of the crime, (219) (2) at the time of arrest seven days after commission of the crime, (220) and (3) one month after commission of the crime. (221) Note that in even in these extreme examples, the judiciary remained faithful to the core concern expressed by the Quarles Court--location of a weapon. Deviations from questions about weapons, though rare, do exist; courts during that period admitted statements made after public safety questions about the existence of contraband generally, (222) the safety or condition of a victim, (223) and imminent completion of a robbery. (224)

Collectively, those twenty-one total cases between 1984-2010 are the dramatic exceptions; they are twenty-one among a list of 611 total public safety exception cases between 1984 and October 21, 2010 when the DOJ memorandum was authored. (225) Stated differently, 3.4% of courts prior to the DOJ memorandum permitted public safety interrogations that occurred sometime other than immediately following defendant's commission of the crime and subsequent apprehension.

But according to Attorney General Eric Holder in a May 2010 interview that in hindsight foreshadowed the DOJ memorandum, none of those cases address the "ticking time bomb" scenario. (226) That scenario, he implied, arises where immediate threats are posed to the public because of the prospect that an explosive is set for imminent detonation. (227) The weekend following the Shahzad interrogation, Holder appeared on Meet the Press, during which he sought to justify the FBI's decision not to read Shahzad his Miranda warnings. Arguing for a rule with "more flexibility," he commented, "we want the public safety exception to be consistent with the public safety concerns that we now have in the 21st century as opposed to the public safety concerns that we had back in the 1980s." (228) That statement about Quarles, alongside the government's subsequently solidified position as expressed in the DOJ memorandum, would seemingly make a significant impact both on ordinary public safety cases after 2010 and those involving the "ticking time bomb."

Holder's suggestion, though, that public safety exception cases prior to 2010 did not address modern public safety concerns in the form of so-called "ticking time bomb" cases is misleading. State and federal courts by then surprisingly already had experience with applying Quarles to bomb threats, mass casualty situations, or possible explosions. Indeed, during the time preceding Holder's interview (from 19842010), courts confronted ten Quarles-based interrogations where bomb detonation, explosions, or mass casualties were either threatened or had actually taken place. (229) In those ten examples...