View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Case Western Reserve University School of Law Case Western Reserve Law Review Volume 66 | Issue 2 2015 The nliU kely Meeting Between Dzhokhar Tsarnaev and Benjamin Quarles Brian Gallini Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Brian Gallini, The Unlikely Meeting Between Dzhokhar Tsarnaev and Benjamin Quarles, 66 Case W. Res. L. Rev. 393 (2015) Available at: https://scholarlycommons.law.case.edu/caselrev/vol66/iss2/6 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Law Review·Volume 66·Issue 2·2015 The Unlikely Meeting Between Dzhokhar Tsarnaev and Benjamin Quarles Brian Gallini† Contents Introduction ................................................................................... 393 I. The Marathon Bombing & Tsarnaev’s Interrogation ................ 399 II. Modern Judicial Constructions of the Public Safety Exception ................................................................................ 411 A. Expanding Law Enforcement Interpretations of Quarles ................... 411 B. Judicial Limitations on Quarles. .................................................... 419 III. The Historic Roots of New York v. Quarles .......................... 442 Conclusion ....................................................................................... 453 Appendix .......................................................................................... 455 Introduction It was 12:30 a.m. in Queens, New York, on September 11, 1980, when a panicked young woman flagged down officers on routine patrol and told them she was just raped.1 She described the assailant to offic- ers, told them he was armed, and that he just retreated into a nearby supermarket.2 Law enforcement apprehended the assailant in the back of the store and handcuffed him following a frisk that revealed an empty shoulder holster.3 An officer asked where the gun was and the suspect responded, “the gun is over there.”4 † Associate Dean & Professor of Law, University of Arkansas-Fayetteville School of Law. The author first thanks Spencer Sims for her invaluable research assistance in preparing this Article. Second, the author thanks Professors George Thomas and Peter Henning for their helpful comments. Third, the author thanks the University of Arkansas–Fayetteville School of Law’s library staff—especially Lorraine Lorne—for their invaluable research assistance. Fourth, the author thanks the School of Law for a summer research grant that provided support for this project. Last, but far from least, the author thanks his wife for her tremendous support. Amazingly, she is not bored reading my work after all these years. 1. New York v. Quarles, 467 U.S. 649, 651 (1984). 2. Id. at 651–52. 3. Id. at 652. 4. Id. 393 Case Western Reserve Law Review·Volume 66·Issue 2·2015 The Unlikely Meeting Between Dzhokhar Tsarnaev and Benjamin Quarles Because the suspect was in custody and responded to interrogation at the time of his incriminating statement, Miranda presumably man- dated exclusion of his response.5 But in a 1984 Supreme Court opinion titled New York v. Quarles,6 the Court held the suspect’s response— “the gun is over there”—admissible at his trial for criminal possession of a weapon by creating “a ‘public safety’ exception” to Miranda.7 Fast forward to 2:49 p.m. on April 15, 2013, when the first of two pressure cooker bombs exploded near the finish line of the Boston Mara- thon.8 A second bomb exploded between twelve to thirteen seconds later 214 yards away.9 Collectively, the explosions killed three people and wounded 264 others.10 At the conclusion of a citywide manhunt that ended at around 8:30 p.m. on April 19,11 law enforcement apprehended a severely wounded Dzhokhar Tsarnaev hiding inside a boat in the city of Watertown.12 His condition initially deteriorated, prompting medical personnel to intubate him to keep him alive.13 5. See Miranda v. Arizona, 384 U.S. 436, 471–79 (1966) (holding that when a state actor takes an individual into custody, the state actor must inform the individual about some rights before interrogating the individual or evidence obtained from the questioning will be excluded). 6. 467 U.S. 649 (1984). 7. Id. at 652, 655. 8. 102 Hours in Pursuit of Marathon Suspects, Bos. Globe (Apr. 28, 2013), http://www.bostonglobe.com/metro/2013/04/28/bombreconstruct/VbSZ hzHm35yR88EVmVdbDM/story.html# [https://perma.cc/MJ75-8A6H]. 9. Compare id. (suggesting the explosions were twelve seconds apart), with Sara Morrison & Ellen O’Leary, Timeline of Boston Marathon Bombing Events, Boston.com (Jan. 5, 2015, 9:01 AM), http://www.boston.com/ news/local/massachusetts/2015/01/05/timeline-boston-marathon-bombing- events/qiYJmANm6DYxqsusVq66yK/story.html [https://perma.cc/3BPS- B87C] (reporting the explosions as thirteen seconds apart). 10. Boston Marathon Bombing Injury Total Climbs to 264, Officials Say, Huffington Post (June 23, 2013, 5:12 AM), http://www.huffingtonpost. com/2013/04/23/boston-marathon-bombing-injury-total_n_3138159.html? [https://perma.cc/WB6Z-Z5BE]. 11. Morrison & O’Leary, supra note 9. 12. Katharine Q. Seelye et al., 2nd Bombing Suspect Caught After Frenzied Hunt Paralyzes Boston, N.Y. Times (Apr. 19, 2013), http://www.nytimes.com/ 2013/04/20/us/boston-marathon-bombings.html?hp&_r=0 [https://perma. cc/8YEW-4QUL]; Russell Goldman, Boston Bomber Dzhokhar Tsarnaev Was Shot in Face, Say Doctors, ABC News (Aug. 20, 2013), http:// abcnews.go.com/US/boston-bomber-dzhokhar-tsarnaev-shot-face-doctors/ story?id=20012945 [https://perma.cc/HB39-PWBH]. 13. Milton J. Valencia, Lawyers Say Tsarnaev’s Hospital Remarks Were Involuntary, Bos. Globe (May 7, 2014), http://www.bostonglobe.com/ metro/2014/05/07/dzhokhar-tsarnaev-alleged-marathon-bomber-asks-judge- 394 Case Western Reserve Law Review·Volume 66·Issue 2·2015 The Unlikely Meeting Between Dzhokhar Tsarnaev and Benjamin Quarles But by 7:22 p.m. the next day, a high value FBI interrogation group began questioning Tsarnaev without first reading him his Miranda rights.14 Although citizens openly lined the streets of Boston in celebr- ation of Tsarnaev’s capture and in praise of law enforcement,15 the gov- ernment nonetheless expressly relied on the public safety exception to justify questioning Tsarnaev without giving him Miranda.16 And al- though he was heavily sedated, repeatedly requested a lawyer, and ask- ed investigators to leave him alone,17 the interrogation continued for at least sixteen hours during which Tsarnaev provided several incrimin- ating statements.18 Only after judicial intervention was Tsarnaev read his Miranda warnings.19 Reaction to the government’s reliance on Quarles as a basis not to provide Tsarnaev, a naturalized citizen, with Miranda warnings was predictably mixed20—perhaps particularly so given that James Holmes rule-out-statements-made-hospital/uCQd9PETLWJVqeJuQhSdeL/ story.html [https://perma.cc/PE4X-MF24]. 14. Id. 15. Tyler Kingkade, College Students Celebrate In Boston After Capture of Bombing Suspect Dzhokhar Tsarnaev, Huffington Post (Apr. 20, 2013, 11;58 AM), http://www.huffingtonpost.com/2013/04/20/college-students- boston-celebration_n_3120859.html [https://perma.cc/S49E-DFC8]; Jaclyn Reiss et al., Residents Cheer Capture of Marathon Bombing Suspect, Bos. Globe (Apr. 20, 2013), http://www.bostonglobe.com/metro/2013/ 04/19/watertown-residents-cheer-capture-dzhokhar-tsarnaev-boston- marathon-bombing-suspect/M8FwdarJzTCVrww6PNc81N/story.html [https://perma.cc/FQY6-SE84]. 16. Brian Beutler, DOJ Official: No Miranda Rights for Boston Bombing Suspect Yet, Talking Points Memo (Apr. 19, 2013, 10:18 PM), http://talkingpointsmemo.com/livewire/doj-official-no-miranda-rights-for- boston-bombing-suspect-yet [https://perma.cc/6KPQ-XSWR]; Josh Gerstein, Terror Suspect: 5 Legal Questions, Politico (Apr. 21, 2013, 6:03 PM), http://www.politico.com/story/2013/04/no-miranda-rights-for-now-for- bombing-suspect-90362.html?hp=f1 [https://perma.cc/UC5S-KSZQ]. 17. Valencia, supra note 13. 18. Associated Press, Boston Marathon Bombing Suspect Dzhokhar Tsarnaev Silent After Read Miranda Rights, CBS News (Apr. 25, 2013, 5:00 PM), http://www.cbsnews.com/news/boston-marathon-bombing-suspect- dzhokhar-tsarnaev-silent-after-read-miranda-rights/ (providing duration of interrogation) [https://perma.cc/DDU6-KHFK]; Government’s Opposition to Defendant’s Motion to Suppress Statements at 6–7, United States v. Tsarnaev, 53 F. Supp. 3d 450 (D. Mass. 2014) (Crim. No. 13-10200-GAO). 19. Devlin Barrett et al., Judge Made Call to Advise Suspect of Rights, Wall St. J. (Apr. 25, 2013, 7:40 PM), http://www.wsj.com/articles/SB1000 1424127887323789704578444940173125374 [https://perma.cc/4JW4-TLRN]. 20. Charlie Savage, Debate Over Delaying of Miranda Warning, N.Y. Times (Apr. 20, 2013), http://www.nytimes.com/2013/04/21/us/a-debate-over- delaying-suspects-miranda-rights.html [https://perma.cc/V8XD-EMA8]; Ken Dilanian & Brian Bennett, Legal Questions Surround Boston Bombing 395 Case Western Reserve Law Review·Volume 66·Issue 2·2015 The Unlikely Meeting Between Dzhokhar Tsarnaev and Benjamin Quarles and Timothy McVeigh, among other high profile examples,21