anti-democratic power, and it does not exist."
Which brings us back to 2013 and Dzhokhar Tsarnaev, mutely writing answers to interrogators' questions on a pad in his hospital room.
The Supreme Court has said the right to a Miranda warning, and the right to having a lawyer present during questioning, is not absolute.
In 1984's New York vs. Quarles, two police officers on road patrol in Queens were approached by a young woman who told them she had just been raped. She gave them a description: black, about 6 feet tall, wearing a black jacket with "Big Ben" in yellow letters on the back. She told the officers the man was carrying a gun and had just entered a nearby supermarket.
One officer confronted Benjamin Quarles in the supermarket and arrested him after a chase. The officer frisked him, found an empty holster and asked him where he had put his gun. Quarles "nodded in the direction of some empty cartons and responded, 'The gun is over there.'" The officer retrieved a loaded .38-caliber revolver from one of the cartons, formally placed Quarles under arrest and read him his Miranda rights from a printed card.
Court records said Quarles indicated he would answer questions without an attorney present and told the officer he had bought the gun in Miami.
Quarles was charged with criminal possession of a weapon A judge excluded Quarles' initial statement and the gun because he had not yet been given the Miranda warnings, and said his other statements were excluded because they were tainted by the Miranda violation. New York appeals courts upheld the judge.
But on review, Rehnquist said in the Supreme Court's majority opinion: "This case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda."
Rehnquist said the "doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. In this case, so long as the gun was concealed somewhere in the supermarket, it posed more than one danger to the public safety: an accomplice might make use of it, or a customer or employee might later come upon it."
If Miranda warnings had deterred responses to the officer's question "about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting [Quarles]. An answer was needed to insure that future danger to the public did not result from the concealment of the gun in a public area."
The ruling reversed the New York courts and sent the case back down for a new hearing to conform with the majority opinion.
Justice Thurgood Marshall, joined by Justices William Brennan and John Paul Stevens, dissented.
"Once the suspect was in custody and found to be unarmed, the arresting officer initiated an interrogation," Marshall said. "Without being advised of his right not to respond, the suspect incriminated himself by locating the gun. The [Supreme Court] majority concludes that the state may rely on this incriminating statement to convict the suspect of possessing a weapon. I disagree. The arresting officers had no legitimate reason to interrogate the suspect without advising him of his rights to remain silent and to obtain assistance of counsel. By finding on these facts justification for unconsented interrogation, the majority abandons the clear guidelines enunciated in Miranda vs. Arizona, ... and condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations. More significantly and in direct conflict with this court's longstanding interpretation of the Fifth Amendment, the majority has endorsed the introduction of coerced self-incriminating statements in criminal prosecutions."
The Obama administration is citing the Quarles exemption in the initial Dzhokhar Tsarnaev interrogation.
Not everyone is happy with the approach.
Vincent Warren, executive director of the Center for Constitutional Rights in New York, issued a statement that said: "The Miranda warnings were put in place because police officers were beating and torturing 'confessions' out of people who hadn't even been formally accused of a crime. We cannot afford to repeat our mistakes. If officials require suspects to incriminate themselves, they are making fair trials and due process merely an option and not a requirement. To venture down that road again will make law enforcement accountable to no one.
"Like [President] Obama's expanded killing program and his perpetuation of indefinite detention without trial at Guantanamo," he added, "this is yet another erosion of the Constitution to lay directly at the president's feet. Obama's Justice Department unilaterally expanded the 'public safety exception' to Miranda in 2010 beyond anything the Supreme Court ever authorized. Each time the administration uses this exception, it stretches wider and longer. However horrific the crime, continuing to erode constitutional rights invites continued abuse by law enforcement, and walks us down a dangerous path that becomes nearly impossible to reverse."
The National Association of Criminal Defense Lawyers issued a statement saying it "supports the use of America's civilian criminal justice system. NACDL also opposes any expansion whatsoever of the 'public safety exception' to Miranda vs. Arizona."
NACDL President Steven D. Benjamin said last week: "The 'public safety exception' is precisely that -- an emergency exception. It cannot become the rule for any category of alleged criminal conduct without undermining the Constitution. Dzhokhar Tsarnaev, a U.S. citizen arrested on U.S. soil, has been in custody for nearly three days and the government will have a heavy burden to show that any further questioning without a reading of his Miranda rights is justified. In addition, the suggestion that Tsarnaev be treated as an enemy combatant or diverted out of the civilian criminal justice system" -- something opposed by Obama -- "would amount to a radical suspension of due process and NACDL opposes it. All crime is by definition an attack on civil society and the civilian population. Distinctions in degree, breadth or inhumanity do not distinguish these crimes from the conduct that our criminal justice system is designed to prevent and punish."
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