Monday, April 22, 2013
Will the "Public Safety Emergency Exception" Apply in White-Collar Cases?
The government decision to delay Miranda warnings, and also the first appearance before a judge and the assignment of counsel, for Dzhokhar Tsarnaev, the surviving alleged Boston Marathon bomber, was a tactical one, no doubt based largely on an evaluation that any admission Tsarnaev makes is unnecessary to a government case (eyewitnesses, an admission, videotapes, possession of explosives, flight, etc.) which appears to be overwhelming.
The broad "public safety emergency exception" which the government asserts is a questionable Department of Justice attempt to expand the narrow exception announced in New York v. Quarles, 467 U.S. 649 (1984). The government's aggressive stance is based in part on a belief that Miranda does not prescribe a procedural requirement for police questioning, but is only a prerequisite for the admissibility at trial of statements made by a defendant. Under such reasoning, government agents are free to violate the dictates of Miranda (and perhaps other constitutional rights) with no harm to their case except a return to the status quo ante.
Aggressive law enforcement tactics against criminal suspects accused of particular heinous crimes, such as terrorism, murder, kidnapping and large-scale drug dealing, gradually work their way into the general law enforcement toolbox. Tactics used against drug dealers and organized crime figures, such as extensive electronic surveillance, undercover agents, forfeiture of assets and disallowance of attorneys' fees, and exceedingly high bail requests, for instance, are no longer uncommon in white collar cases.
I wonder whether the "public safety emergency exception" is so far off. If it is acceptable under this exception to allow the government to disregard Miranda and Federal Rule of Criminal Procedure 5(a)(1)(A) (requiring agents to bring one arrested before a court "without necessary delay") in order ostensibly to prevent future terrorist crimes, will it also become acceptable to detain for 48 hours and question without Miranda warnings, for instance, those who have provided inside information about unknown persons to whom they might have provided such information in order to deter imminent or future insider trading or those who have hacked computers about accomplices or others who might commit imminent or future computer crimes?
I respectfully disagree. First, the suspect was apprehended on Friday evening after the courts were closed. Second, he was seriously wounded and in no shape to be taken before any judge. He was taken to Beth Israel Hospital so that his live could be saved. Third, the exception announced in Quarles is limited to an officer's personal physical safety and that of the general public. I doubt very much if any court will extend it to insider trading. Finally, the danger posed to the public by an individual who is alleged to have already set off 2 IEDs causing 3 deaths and over 100 serious injuries is substantially greater, and logically would take a substantially longer time to address (additional bombs; accomplices; as-yet-unexecuted bombing plots), than did the gun tossed away in Quarles.
Posted by: D. King | Apr 23, 2013 11:23:14 AM