Unless you’ve had your head in the sand, you’ve no doubt seen the media coverage of the apprehension of the second Boston Bomber, Dzhokhar Tsarnaev, on April 19. You probably also know that he’s currently being held in a hospital, being treated for his injuries, while the prosecuting authorities, both state and federal, decide how to handle things from here. But what you may not know is that he has NOT been given his Miranda warnings. How can that be?
Those of us practicing criminal defense and criminal appeals know that anytime there’s custodial interrogation, the individual should be Mirandized. (Of course we also know that many times, officers decide the for themselves what constitutes custodial interrogation, but that’s a topic for another post). According to news reports, the feds have invoked the public safety exception to Miranda, which can be traced to the United States Supreme Court case of New York v. Quarles, 467 U.S. 649 (1984). According to Quarles, the reason the court carved out the public safety exception was because of the exigency of the situation facing the officers in that case. There, the officers, while “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.“ Quarles, 467 U.S. at 657.
Now, does that really seem like the situation that officers and prosecuting authorities are currently facing with Dzhokhar Tsarnaev? I admit that it’s pretty likely that the authorities have not revealed all the facts that have gone into their decision not to Mirandize Tsarnaev, but I would think that if there were any exigent circumstances, such as the possibility of immediate public danger, then the press would have been privy to that. After all, the FBI actively called on the press to help them locate the suspects when they released the photos of Dzhokhar Tsarnaev and his brother the day before Dzhokhar Tsarnaev was apprehended. And the whole reason the city of Boston was on lockdown was because the police feared that he would have a bomb on his person. I guess we’ll have to watch the legal aspects of this unfold. All I can say is that Dzhokhar Tsarnaev is going to need one hell of a lawyer.
UPDATE: See the criminal complaint here.