North Carolina Criminal Law NC Criminal Law

Yesterday, I noted that the public safety exception to Miranda has been invoked in two recent terrorism cases to justify delaying the administration of Miranda warnings. A commenter correctly identified the seminal case in this area: New York v. Quarles, 467 U.S. 649 (1984).

In Quarles, a woman approached two police officers, told them that she had just been raped, described her assailant, reported that he had a gun, and said that he had just entered a nearby supermarket. An officer entered the supermarket and saw the defendant, who matched the woman’s description. The defendant turned and ran. The officer pursued him at gunpoint, and after rounding a corner, the defendant stopped. The officer frisked him and found an empty shoulder holster. The officer then asked where the gun was, and the defendant nodded towards some empty boxes and said “over there.” At the defendant’s trial on weapons charges, the trial judge suppressed the defendant’s statement and the gun because the officer did not Mirandize the defendant before asking about the gun. The Supreme Court reversed, holding that “there is a ‘public safety’ exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence.”

It isn’t clear from the Court’s opinion how important the immediacy of the safety concern was to the holding. Sometimes the Court emphasizes that the situation was “kaleidoscopic,” requiring “spontaneity,” an “instinctive” response, and the “immediate necessity” of recovering the gun. At other times, the Court focuses more on the seriousness of the threat to public safety than on its immediacy, as when it says “[s]o 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 has been cited in 10 opinions of our appellate courts. Here’s a reasonably representative sample:

• State v. Hewson, 182 N.C. App. 196 (2007) (officers responded to call regarding a woman being shot by her husband; asking husband where his wife was and where the gun was prior to administering Miranda warnings fell within public safety exception)
• State v. Al-Bayyinah, 359 N.C. 741 (2005) (officers responding to a stabbing tracked the defendant to a wooded area; after 45 minutes or an hour of searching, an unarmed officer with a dog found the defendant; asking the defendant where the knife was fell within public safety exception)
• State v. Crudup, 157 N.C. App. 657 (2003) (officers responding to a reported break-in arrested the defendant outside an apartment; after they found drugs in the apartment, they asked the defendant if he lived there and whether the drugs were his; at least the latter question “exceed[ed] the narrow scope of the public safety exception” because there “was no risk of imminent danger to the public, the officers, or even to the defendant”)

Like Hewson and Al-Bayyinah, most of the federal cases in which the public safety exception has been found to apply involve officers asking suspects very briefly about weapons in the first moments of interaction between the two. For example:

• United States v. Are, 590 F.3d 499  (7th Cir. 2009) (officers arresting drug suspect in his home asked whether any weapons were present; OK under public safety exception)
• United States v. Williams, 483 F.3d 425 (6th Cir. 2007) (public safety exception applies when officers have 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”)

There are over 100 published federal court of appeals cases citing Quarles, and I certainly didn’t look at all of them. But I didn’t see any that involved facts at all similar to the recent terrorism arrests. The cases that I saw involved one or two questions, asked immediately, focused on very imminent threats. Even those who think that Miranda warnings shouldn’t be given to terrorism suspects at all have doubted whether the public safety exception really fits cases like the Times Square bomber, where the suspect was questioned for several hours, more than two days after the attempted attack. Of course, the fact that the exception hasn’t previously been applied to similar facts doesn’t mean it won’t be in the future.

Whatever the ultimate resolution of that issue, the cases cited above provide some guidance regarding the application of the public safety exception in “regular” criminal cases. Factors that seem to be relevant in determining whether the exception applies in a particular case include the following:

• How likely it is that the arrestee may have access to, or may recently have disposed of, a weapon
• The type of weapon at issue
• How secure the arrestee is, e.g., whether he is handcuffed, outnumbered, etc.
• Whether the arrestee has a history of violence, including a history of using weapons
• How much time has elapsed since the arrestee was taken into custody
• How much time has elapsed since the crime of arrest
• How closely tied the question is to the threat

As always, I welcome your feedback about anything in this post, including factors I’ve overlooked in the list above.