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The “public safety” exception to Miranda then and now

By Yale Kamisar


In 1984 a 6-3 majority of the US Supreme Court established the “public safety” exception to Miranda in a case called New York v. Quarles. Unfortunately, the factual basis for the exception the Court made in this case was quite weak.

A woman told the police she had just been raped, that the rapist had just entered a specified supermarket and that he was carrying a gun. Officer Kraft entered the store, only a few steps behind Mr. Quarles, the alleged rapist. Upon seeing the officer right behind him, Quarles ran toward the rear of the store. Officer Kraft pursued him with a drawn gun and ordered him to stop and put his hands over his head.

A minute or two later, three other police officers arrived on the scene. But Kraft was the first one to reach Mr. Quarles. After frisking the defendant, the officer noticed he was wearing an empty shoulder holster. The officer then handcuffed Mr. Quarles and — without giving him the Miranda warnings — asked him where his gun was. Quarles nodded in the direction of some nearby empty cartons and told the officer “the gun is over there.” In a couple of minutes, the police found the gun.

The Supreme Court admitted the defendant’s statement as well as the gun. Justice Rehnquist, who wrote the majority opinion, summed up the situation as follows: “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.”

This summary of the facts is misleading. Although the arrest took place in a supermarket, it occurred some time after midnight. The store was completely deserted except for the clerks at the checkout counters. All that one of the four officers had to do was stand outside the entrance to the store and tell any potential customer that because of a police emergency he or she could not enter the store for ten or fifteen minutes. Moreover, Officer Kraft was so close behind Quarles before he apprehended the defendant that he must have known Mr. Quarles’s gun was almost within reaching distance of him.

Nobody indicated that Mr. Quarles had an accomplice. (Nor did he in fact have one.) Moreover, as the New York courts (which had dealt with the case before it reached the US Supreme Court) had pointed out when they rejected the contention that under the circumstances the police were entitled to a “public safety” exception to Miranda, the arresting officers were sufficiently confident of their safety to put away their guns once they surrounded the defendant.

To sum up, applying a “public safety” exception to the facts of the Quarles case looks like quite a stretch. On the other hand, applying the exception to the recent Boston Marathon bombing case appears quite different. The Boston case is one that does call for a “public safety” exception to Miranda immediately after the bomber was apprehended.

When the explosions first occurred, law enforcement officials had no idea what they were up against. They knew neither the size nor shape of a possibly large conspiracy to wreak havoc or to terrorize the public.

There is reason to believe that the Department of Justice reads the “public safety” exception to Miranda more expansively than I think it should be read, applying it even when there is no immediate threat to public safety. I disagree. It should be plain that law enforcement officials could not delay giving the Miranda warnings indefinitely. However, I believe that in the Boston case the police could have done so long enough to satisfy themselves that the bombing was not part of, or not being coordinated with, another or larger act of terrorism. If law enforcement officers had done so (and at this point it is unclear precisely what actually happened), then they would have made a proper use of the “public safety” exception.

Yale Kamisar is the Clarence Darrow Distinguished University Professor Emeritus of Law at the University of Michigan and a nationally recognized authority on constitutional law and criminal procedure.

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