Bad Wars Make Bad Law: An Extension of the War on Terrorism and Its Creeping Infringement on Civil Liberties

June 4, 2013
By Hanging Out with Carl Gunn


  • There’s a narrow exception to Miranda called the “public safety” exception recognized in a Supreme Court case called New York v. Quarles.
  • The exception applies when there’s an imminent threat from a weapon and police have to think quickly on the spot.
  • The exception shouldn’t apply where there’s a more general threat and there’s careful legal analysis by top government officials, like there was in the case of the Boston Marathon suspect.


This post is partly driven by a specific legal issue that came to my mind in reading about the government’s treatment of the Boston Marathon bombing suspect it took into custody in April and partly driven by more general concerns – even anger – I have about the use of the so-called “war” on terrorism to attack our individual civil liberties. I was appalled (and hope some of you were too) to read that the government was going to interrogate the Boston Marathon suspect without Miranda rights in the hospital after he was arrested and then claim that such questioning was permitted by the “public safety exception” to Miranda.

Perhaps some of you have run into the “public safety” exception in your practice, but I haven’t run into it a single time in my public defender or appointed defense practice – which has been going on for 30 years now. I suspect that because it’s a verynarrow exception and very seldom invoked, even by the most aggressive government officials. You may recall that the exception was created in a case called New York v. Quarles, 467 U.S. 649 (1984). The defendant there had run into a grocery store after committing a rape and been arrested by an officer in hot pursuit. The officer had been told the defendant had a gun and found an empty shoulder holster when he frisked the defendant. Thinking the gun had been discarded somewhere in the store, he asked the defendant where the gun was and the defendant pointed out an empty carton where he had hidden the gun. The officer asked this question before reading the defendant his Miranda rights.

It being a particularly bad year for defendants in the Supreme Court, see, e.g., United States v. Leon, 468 U.S. 897 (1984), the Supreme Court held “there is a ‘public safety’ [yes, even the Court used quotation marks] exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted in evidence.” Quarles, 467 U.S. at 655. Still, the Court labeled the exception a “narrow exception,” id. at 658, and emphasized that it applied only “to a situation in which police officers ask questions reasonably prompted by a concern for public safety,” id. at 656. It further emphasized the fact that there had been a need to act immediately in that case:

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.

Id. at 657 (emphasis added). The Court then

decline[d] to place officers . . . in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.


This is of course very different from the government’s questioning without Miranda warnings in the Boston Marathon suspect case, which did not take place immediately at the scene and appears to have been carefully considered by lawyers at the highest levels of the Department of Justice. After reading about the government’s claim that it could use the exception in these circumstances, I thought I’d check on the development of the law to see if I was just unaware of some gross expansion of the exception. What I found was a touch disturbing, but nowhere near as disturbing as the government’s expansive interpretation in the Boston Marathon case.

The mildly disturbing stuff was a tendency of courts to allow questions about weapons – or needles or other “sharp objects,”see, e.g., United States v. Carillo, 16 F.3d 1046, 1049 (9th Cir. 1994); see also United States v. Lackey, 334 F.3d 1224, 1228 (10th Cir. 2003) (collecting cases) – whenever someone is arrested, but see United States v. Reyes, 353 F.3d 148, 155 (2d Cir. 2003) (warning that such questioning “cannot become a matter of course”), and sometimes even without any reason to suspect the presence of weapons and/or giving what seemed like mere lip service to such a requirement. But on the other side I found the following.

1. Not a single case that I found (and I looked at every published court of appeals case produced by a basic “Miranda and ‘public safety exception’” Westlaw search), applied the exception outside the immediately-after-arrest circumstances that existed in Quarles, though the questioning in one case took place at a hospital after the wounded suspect was immediately transported there, see United States v. Khalil, 214 F.3d 111, 115 (2d Cir. 2000). The vast majority of the cases also involved questioning about guns as in Quarles, though there were a couple where the questions were about bombs (but bombs found at the arrest scene), see United States v. Spoerke, 568 F.3d 1236, 1249 (11th Cir. 2009); Khalil, 214 F.3d at 115,and some, as noted above, where the questions were about needles or other sharp objects,see, e.g., United States v. Carillo, 16 F.3d at 1049.

2. Not a single case even hinted at the possibility of a detailed interrogation planned and carefully considered with legal counsel at high official levels like in the Boston Marathon case. And a number of the cases repeated theQuarles rationale of not chilling officers’ need to make public safety decisions on the spot, which certainly wasn’t a consideration in the carefully planned and considered questioning of the Boston Marathon suspect. See, e.g., United States v. Jones, 567 F.3d 712, 716 (D.C. Cir. 2009) (speaking of questions asked “in the circumstances of a tense and dangerous arrest” (quoting United States v. Estrada, 430 F.3d 606, 612 (2d Cir. 2005)); United States v. Newton, 369 F.3d 659, 678 (2d Cir. 2004) (speaking of questions “framed spontaneously in dangerous situations” in which “[p]recision crafting cannot be expected”).

3. Most circuits, unfortunately not including our Ninth Circuit, require a reasonable belief that there was a gun or other dangerous object. See United States v. DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009); United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007); see also United States v. Reyes, 353 F.3d at 154 (noting existence of “an objectively reasonable belief); contra United States v. DeSantis, 870 F.2d 536, 539 (9th Cir. 1989). Cases setting out this requirement also seem to require that the gun or object be in a place where it might in fact pose a threat. See DeJear, 552 F.3d at 1201; Williams, 483 F.3d at 428; Reyes, 353 F.3d at 154 (distinguishing cases where there was no such threat); United States v. Mobley, 40 F.3d 688, 693 (4th Cir. 1994) (finding exception inapplicable where no such danger).

To sum up, not a single case seems to support the DOJ’s expansive interpretation of the “public safety exception” in the Boston Marathon case. Let’s hope no case ever does.