The Public Safety Exception to Miranda Rights

The capture of the one of the Boston bombing suspects has given the country a crash course in exceptions to Miranda rights.  Many people are not familiar with the “public safety” exception to the well known Miranda rule.

Miranda was the result of a long line of cases that bars the government from using the statements of a defendant made during a custodial interrogation, to prove the case against the defendant, provided the statements were made before the defendant was told of their rights to remain silent and to an attorney.  See, Miranda v. Arizona, 384 U.S. 436, at 444 (1966). The goal of this “exclusionary rule” is to prevent unlawful police conduct.

The Miranda Court specifically held:

Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of  circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.

Miranda v. Ariz., 384 U.S. 436, 471-472 (U.S. 1966).

The 1984 case of New York v. Quarles, 467 U.S. 649 (1984) created the “public safety” exception to Miranda. The Supreme Court in Quarles held that “overriding considerations of public safety” could justify a failure to provide Miranda warnings before initiating custodial interrogation. 467 U.S. at 651.

The April 13, 2013 case US v. Hodge, addressed whether the public safety exception applied to a defendant who made statements about a pipe bomb. The Hodge court provided the following summary of the “public safety” exception to Miranda:

[Q]uestioning is permissible when “officers have a reasonable belief based on articulable facts that they are in danger.” United States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001). Determining whether an officer’s belief was “reasonable” requires “consideration [of] a number of factors, which may include the known history and characteristics of the suspect, the known facts and circumstances of the alleged crime, and the facts and circumstances confronted by the officer when he undertakes the arrest.” United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007). As this is an objective standard, the court reviews the reasonableness of an officer’s belief de novo. Talley, 275 F.3d at 563.

United States v. Hodge, 2013 U.S. App. LEXIS 7848, at *14 (6th Cir. Mich. 2013).

The Williams court stated the following test for applying the Quarles exception to guns:

The police officer has to have a reason to believe:

(1) That the defendant might have (or recently have had) a weapon, and

(2) That someone other than police might gain access to that weapon and inflict harm with it.”

Hodge, at *14, citing Williams, 483 F.3d at 428.

The Williams test is phrased in mandatory terms, because “The public safety exception applies if and only if both of those two conditions are satisfied and no other context-specific evidence rebuts the inference that the officer reasonably could have perceived a threat to public safety.” Hodge, at *14.

The Hodge court rejected the Williams test as applying to a pipe bomb for the following reasons:

[I]n a case involving a bomb, the presence of third parties who can access the bomb is usually not a compelling consideration. Bombs are potentially unstable and may cause damage if ignored or improperly handled by the police. We therefore agree with the government that Williams should be limited to situations where the “weapon” in question is one that a person must physically handle in order for it to present a threat to officers.

Hodge, at *15.

The holding in Hodge was based on the types of questions asked by the police to the defendant: Was there “anything in the house that could get anyone there hurt” and questions after the defendant said a bomb was in the house. Hodge, at *17. The Court stated the following on the application of Quarles to the Hodges facts:

As to the first set of questions, Gandy and Pierce had a “reasonable belief” that there was a pipe bomb in Hodge’s house when they arrived to execute the search warrant. Banks, the named informant, claimed that Hodge possessed a pipe bomb that could “blow up the entire house” if detonated and that he intended to hurt police if confronted. The relatively limited inquiry Gandy and Pierce made was appropriately tailored to the information they possessed. Once Hodge admitted the bomb was in the home, the questions Gandy and Robinson asked him were all directed to obtaining information about the bomb’s construction and stability. Both Khalil and Spoerke deemed such questions acceptable even though there was no evidence that a third party could access the bombs. Accordingly, we conclude that the district court did not err in finding that Hodge’s statements about the bomb, as well as the bomb itself, were admissible under Quarles.

Hodge, at *17-18.

The tragedy in Boston is a live case. How a court rules will turn heavily on the facts and the types of questions asked of the defendant. With that stated, the result in Hodge should provide a court significant guidance in determining whether the public safety exception applies to a defendant who has not been advised of his rights to counsel and against self-incrimination.

I personally believe that there must be clear reasons for invoking the public safety exception to Miranda. Finding bombs left in public or in a home where a search warrant is being executed are two such reasons. To put it simply, bombs put lives at risk. There is nothing hypothetical about the danger.

However, trying to compel a defendant to name others, or questions of motive, might be a violation of the exception to Miranda in the eyes of some judges, because the interrogation is going beyond “overriding considerations of public safety” such as the location of a gun or bomb.

The 5th Amendment right against self-incrimination and the 6th Amendment right to counsel are hallmarks of the United States legal system. We passed them as Constitutional Amendments as a testament to values we believe in as a nation. There is a substantial body of case law because our Constitution and Bill of Rights is what separates us from the police states of Nazi Germany or the Soviet Union we fought against during our finest hours of the 20th Century. Moreover, the prose of Supreme Court Justice Black in Gideon is something no one should forget: The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. Gideon v. Wainwright, 372 U.S. 335, 344 (U.S. 1963). Informing someone charged with a crime of their Constitutional rights is not selectively applied depending on the crime committed; informing those charged with a crime of their rights is what makes us the United States. Deviating from Miranda should only be done with careful thought of the risks to public safety.

There will be much commentary in the days and months ahead on this case. Expect to hear precedents such as Miranda, Quarles and Hodge discussed by attorneys as this issue is resolved before a judge.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

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