Constitution Check: Are there limits on questioning a bombing suspect?

Lyle Denniston

Lyle Denniston looks at the issues of Miranda warnings, Boston Marathon bombing suspect Dzhokhar Tsarnaev, Tsarnaev’s protections under the Constitution’s Fifth Amendment, and the public safety exception.

The statements at issue:

“The police can interrogate a suspect without offering him the benefit of Miranda [warnings] if he could have information that’s of urgent concern for public safety. That may or may not be the case with Dzhokhar Tsarnaev. The problem is that Attorney General Eric Holder has stretched the law beyond that scenario.”

– Emily Bazelon, a columnist for, in an article on April 19, “Why Should I Care That No One’s Reading Dzhokhar Tsarnaev His Miranda Rights?” 

“[As of Saturday night] Authorities have not read him his Miranda rights, which include the right to remain silent and the right to an attorney. Federal law enforcement officials said they plan to use a public safety exception, outlined in a 1984 Supreme Court decision, ‘in order to question the suspect extensively about other potential explosive devices or accomplices and to gain critical intelligence.’”

Washington Post story on April 21, by reporters Joel Achenbach and Robert Barnes, “Authorities seek answers in Boston Marathon bombing.”

We checked the Constitution, and…

Some three decades ago, the Supreme Court for the first time gave police and federal agents the authority to avoid giving criminal suspects Miranda warnings about their constitutional rights, when the public safety justified that suspension. That authority, given in the 1984 decision of New York v. Quarles, has since been expanded by lower courts so that, even if a suspect has claimed the right to remain silent or the right to a lawyer, the questioning can go on if the public safety threat remains.

How long such questioning can continue, and what kinds of questions can be asked, is now the source of considerable uncertainty, as officials have developed interrogation policies they think are necessary in dealing with terrorist incidents. But one thing does remain certain: the Constitution still requires that the police not use outright coercion in order to get answers even to the most pressing questions. If authorities want to use the evidence that they gain by such questioning, that evidence must have been given voluntarily.

In the case of the 19-year-old suspected of bombing the Boston Marathon and other crimes after that, Dzhokhar Tsarnaev, there is no doubt that he has some protection under the Constitution’s Fifth Amendment against being forced to implicate himself. He is a U.S. citizen, so he has the legal shield of the Constitution. (On April 2, we discussed the rights during terrorism investigations of suspects who are not U.S. citizens; those rights may differ.)

The night that Tsarnaev was captured in Watertown, Massachusetts, the chief U.S. prosecutor, Carmen Ortiz, told the news media that the suspect would not be given Miranda warnings immediately when questioning began, and she cited the “public safety exception.”

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Last year, in a bulletin to law enforcement officers across the nation, the FBI cautioned that this exception applied only to questions “directed at neutralizing an imminent threat.” It added that “once the questions turn from those designed to resolve the concern for safety to questions designed solely to elicit incriminating statements, the questioning falls outside the scope of the exception and within the traditional rules of Miranda.”

Related Story: Constitution Check: Why would a terrorism suspect be given Miranda warnings?

However, under the terms of a 2010 Justice Department legal memo (criticized by’s Emily Bazelon in her column), questioning of a terrorism suspect who has not been told of his rights may also continue even beyond concerns for the moment, in order to potentially get significant intelligence information “not related to any immediate threat.” The memo cautions that the officers conducting the interrogation should get approval from their superiors to go further into intelligence-gathering.

None of these issues that are specifically related to terrorism investigations have yet reached the Supreme Court, so federal agents and police use this added authority without knowing what the legal risks are.

There is some risk that, if the public safety exception and the 2010 Justice Department memo are pressed too far by officers in the field, they could put in jeopardy their chances of using at later trials the evidence of crime that has been gathered. The calculation thus has to be made whether to run that risk. That involves a balancing of the needs of trial prosecutors with the needs of finding out about potential future threats.

What investigators are generally expected to understand is that the whole purpose of the Miranda warnings–which are mandated by the Supreme Court’s decision in the 1966 case  Miranda v. Arizona–is to make sure that any incriminating evidence that results from questioning is available for use at trial, and the warnings are designed to help assure that whatever the suspect has said that gets him into trouble was said voluntarily.

If the threat of terrorism rises to the level that intelligence is more important than criminal evidence, then official policy, as outlined in the 2010 Justice Department memo, for example, will give it a higher priority.

That, however, is a judgment call that has to be made one case at a time, as in the case of the Boston bombing suspect. From all that officials involved in the investigation in Boston have said, it may well be that they have such overwhelming evidence to support prosecution that they have little need to get Tsarnaev to confess and can focus, instead, on finding out what he may know–if anything–about other threats or accomplices.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

Recent Constitution Daily Stories

Constitution Check: Is the hunger strike at Guantanamo Bay beyond court review?

Constitution Check: Is the war crimes court constitutionally jinxed?

Congress pushes for ‘Internet Freedom’ as U.N. showdown looms

CISPA, the Fourth Amendment, and you