By Malvina Halberstam

May 13, 2013 National Law Journal - Much of the discussion in the media on whether the surviving Boston bombing suspect should have been given Miranda warnings when he was arrested appears to be based on a misconception: that law enforcement officers are required to give suspects the warnings set forth in Miranda v. Arizona and that failure to do so is a violation of the law, at least if the public-safety exception doesn't apply. That is not correct.

Although the consequences of failure to give Miranda warnings and failure to obtain a search warrant in circumstances in which a warrant is required are the same — suppression of evidence — legally they are very different.

A search that is unreasonable or without a warrant in situations in which a warrant is required violates the Fourth Amendment regardless of whether the evidence is used at the trial. Questioning someone without first giving the warnings set forth in Miranda is not in violation of the law; the violation is the use of the answers to incriminate him at the trial. In this respect, the Fourth and Fifth amendments are very different. Although the exclusionary rule applies to both, a violation of the Fourth Amendment occurs at the time of the search; a violation of the Fifth Amendment occurs when the evidence is used in court.

The U.S. Supreme Court has emphasized this distinction in a number of cases. For example, in U.S. v. Verdugo-Urquidez, the court said: "[T]he Fourth Amendment…operates in a different manner than the Fifth Amendment.…[A] constitutional violation [of the Fifth Amendment] occurs only at trial.…The Fourth Amendment functions differently. It prohibits 'unreasonable searches and seizures' whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is 'fully accomplished' at the time of an unreasonable governmental intrusion."

Miranda is a prophylactic rule designed to protect the Fifth Amendment provision that no one shall be compelled to be a witness against himself. To dispel the intimidating atmosphere inherent in custodial interrogation, Miranda prohibits the use at trial of any incriminating statement by the defendant unless police inform him prior to questioning him that "he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed."

THE 'QUARLES' PRECEDENT

Continuing to question Dzhokhar Tsarnaev without Miranda warnings would clearly have been justified by the public-safety exception established by the Supreme Court in New York v. Quarles. In that case the court said, "We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." Indeed, the public-safety concerns in this case are far greater than in Quarles. In that case, which involved finding a gun discarded by a rape suspect in a supermarket, the public-safety concern was that "an accomplice might make use of it, a customer or employee might later come upon it." No one had been killed or injured. In this case, three people were killed and more than 250 were injured by bombs designed to inflict maximum damage and deliberately placed at the finish line of the Boston marathon so as to kill and injure many innocent people. The public-safety concern was to determine whether bombs had been planted elsewhere and whether other attacks were planned.

But, even absent the public-safety exception, questioning the Boston bombing suspect without Miranda warnings would not have violated the Constitution, or even Miranda, as both liberal and conservative members of the court have made clear. Thus, Justice Thurgood Marshall, who objected to a public-safety exception and dissented in Quarles, said: "The irony of the majority's decision is that the public's safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such uncontested questioning may take place…when police officers…believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information.…[N]othing in the Fifth Amend­ment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial."

In U.S. v. Patane, decided after Dickerson v. U.S., which characterized Miranda as a "constitutional rule," Justice Clarence Thomas, writing for the court, stated, "[P]olice do not violate the constitution (or even the Miranda rule, for that matter) by mere failure to warn." This is a very important distinction that needs to be understood by the media and, even more, by law enforcement officers, lest they forgo important intelligence information in the mistaken belief that questioning the suspect without Miranda warnings is a violation of the law.

Malvina Halberstam is a professor of law at Yeshiva University Benjamin N. Cardozo School of Law. She served as an assistant district attorney in New York County and as counselor on international law in the U.S. Department of State, Office of the Legal Adviser.

This article originally appeared in The National Law Journal under the headline “Failure to give 'Miranda' warnings does not violate the Constitution or 'Miranda v. Arizona'.”