Shahzad and the Slippery Slope

There will be no Miranda issue should there come a time when Times Square Almost-Bomber Faisal Shahzad goes to trial.  He talked pre-Miranda, and he talked post.  He was a talker, as the agents around him did the Happy Dance and issued press releases about what a great job they did. 

Yet the knee-jerk outrage  was at the ready, just as it was when the Underpants Bomber was Mirandized, if Shahzad had shut his trap upon being given the warnings. 

“Obviously that would be a serious mistake … at least until we find out as much information we have,” McCain said during an appearance on “Imus in the Morning” when asked whether the suspect, 30-year-old Faisal Shahzad, a naturalized American citizen from Pakistan, should be given his constitutional rights.

“Don’t give this guy his Miranda rights until we find out what it’s all about,” McCain added.

A host of other politicians supported this position, with equally compelling reasoning, primarily along the lines that only Eagle Scouts deserve constitutional rights.  As it happens, Shahzad rendered the argument moot when he was given the warnings and continued to tell the government everything he knew.  Happy Dance.  News reports say that he’s still talking even as I write, which should come as no surprise given that he was a marketer.  Maybe he’s just trying to network and be genuine.  Maybe he’s laying the groundwork for the Shahzad brand.  No matter. He keeps talking and they keep listening.

Aside:  Apparently, when they pulled Shahzad off the Emirates plane after having nearly blown the no-fly protocol, Shahzad pointed out two other passengers on board who were also pulled but then released, demonstrating what a rich source of information he would be.

Over at Volokh Conspiracy , Orin Kerr uses this as an opportunity to review the law of Miranda, a worthy review for lawyers and layfolks alike, and a perfect exercise in slippery slope jurisprudence.  Whether Orin agrees with the state of law, I dunno, though he offered nothing to suggest that he disagrees.

[T]he FBI’s strategy was a smart one if you recognize the detailed maze of Miranda doctrine. It’s a reasonably safe bet that a court would allow an initial pre–Miranda inquiry to be admissible under the public safety exception of New York v. Quarles, 467 U.S. 649 (1984). Then, after Shahzad made clear that he’s a talker, the FBI could insert the Miranda warnings and get the waiver and then get Shahzad to repeat what he just said pre-waiver. Because the two-stage interview was not an intentional two-step interrogation technique designed to violate Miranda, a court would allow the post–Miranda statement under Justice Kennedy’s controlling opinion in Missouri v. Seibert, 542 U.S. 600 (2004). So from a legal standpoint, this was pretty cleverly done. 

Assuming that you already know the Miranda basics, that it only kicks in on custodial interrogations (which is itself rife with issues, but not for today), the Supremes slid down the exception slope with Quarles, crafting a “public safety” exception:

We hold that on these facts there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer.

Notice how the court denigrates those who would be slaves to the “police manual?”  Notice how “spontaneity” is “necessarily the order of the day?”  Notice how cops’ conduct “should not be made to depend on post hoc findings at a suppression hearing?”  This is the court’s way of saying, “we’re not gonna let all those stupid constitutional thingies get in the way when there’s he-man police work to be done.”  A step down the slippery slope.

[Tannebaum notes that in Quarles, there’s a missing gun at issue, whereas here, the bomb was already in hand, as if the missing gun in Quarles somehow makes the non-Mirandized interrogation different.  But when considered in light of Orin’s comparison to potential overseas conspirators who “who would presumably have other attacks planned or might in the future,” obviously an over-riding immediate public safety concern that would only last for a few decades and cover millions of people under any circumstances, Tannebaum doesn’t look nearly as silly. Public safety, obviously, is in the eye of the beholder. ‘Nuff said about that.]

Then there’s Seibert, where the court held that the Missouri two-step was wrong, but as long as police didn’t intend to scam the defendant out of his rights (as in, that subjective motivation that was wrong, wrong, wrong to consider in Quarles is now the saving grace for the police), it was cool with them.  Slip-sliding away.

Orin then points out an important point, that there’s no duty to provide Miranda warnings per se, but rather the failure to do so in the absence of Quarles would render the defendant’s answers inadmissible.

Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement that would be inadmissible in court. Chavez holds that a person’s constitutional rights are violated only if the prosecution tries to have the statement admitted in court.

This would be a sensible decision, allowing the cops to perform that public safety function while simultaneously safeguarding the defendant’s constitutional right against self-incrimination, if it ended there.  But of course, it doesn’t.

Indeed, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement is excluded. See United States v. Patane, 542 U.S. 630 (2004). So while it may sound weird, it turns out that obtaining a statement outside Miranda but not admitting it in court is lawful. 

Weird indeed, until one enjoys the sophistry of Justice Thomas’ rationale.

It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, “[t]he exclusion of unwarned statements … is a complete and sufficient remedy” for any perceived Miranda violation. Chavez, supra, at 790.

Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the “fruit of the poisonous tree” doctrine of Wong Sun, 371 U. S., at 488.

Got that? The remedy is suppression of statements, and physical evidence derived from statements isn’t statements, so therefore it isn’t suppressible. Duh.  Wong Sun is for kids.

Just to bring this back to the starting point, Orin concludes:

As a result, the FBI would have acted entirely lawfully in making a choice on the ground as to whether to read Shahzad his Miranda rights. The choice would have been between the odds of getting a statement that they could not use in court without the warnings versus the odds of getting a statement that they could use in court with the warnings. Shahzad turned out to be a talker, so the FBI gave him the warnings, got his waiver, and then continued to get more statements from him — all of which will be admissible in federal court.

While it’s not entirely clear, I think Orin is saying that no matter what the FBI did, chances were good that they get the statements in regardless of what they did, but the purely fortuitous fact that Shahzad won’t shut up makes the FBI’s choice a brilliant exercise of law enforcement discretion. 

Of course, given the fact that Shahzad was a marketer, all they needed to do was give him a blog and he would have spilled his guts no matter what.

7 comments on “Shahzad and the Slippery Slope

  1. Stuart Sarratt

    So to make sure I understand: when you can’t overrule constitutional decisions you don’t like (they are only the constitutional rights for criminals, afterall) because you begrudgingly admit that they’re bedrock principles founded in the law rather than in the proclivities of individuals, then you just eat away at that bedrock with a series of practical exceptions that reflect modern practices that are necessarily the order of the day. Got it.

  2. Austin Criminal Defense Lawyer

    What The Miranda Rule Says…(According To TV Version)

    Heard Jeffrey Toobin explaining Miranda to CNN’s Wolf Blitzer last night on the tube, and my head exploded. Sometimes a quick press of the record button, followed by several rewinds and I end up with an informal transcript of something…

  3. Brian Gurwitz

    By the way, in case Shahzad gets upset about the shitty press he’s starting to receive, all he has to do is Google “online reputation management.” There are now companies that promise to rid the Web of bad things people say about them. I thought of you today when I heard this new service advertised on the radio. Now that I know these companies exist, I’m much less afraid of you.

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