Shahzad and Miranda Rights

The New York Times reports about the interrogation of Faisal Shahzad, who was arrested for trying to explode a bomb in Times Square:

The suspect, Faisal Shahzad, was interrogated without initially being read his Miranda rights under a public safety exception, and provided what the F.B.I. called “valuable intelligence and evidence.”

After investigators determined there was no imminent threat to be headed off, Mr. Shahzad was later read his rights to remain silent, but he waived them and continued talking, the F.B.I. said. Authorities charged him as a civilian on Tuesday, but postponed plans to bring him to court.

Based on what we know, it sounds like the FBI made a good judgment call here. Shahzad is a U.S. citizen who has been living in the United States and was caught in the United States for a crime committed in the United States: Surely this is a case for federal court.

Plus, the 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.

The countervailing concern is that perhaps Shahzad would invoke his Miranda rights and then stop giving the FBI the information they need. Perhaps obtaining the information was more important than getting a statement that would be admissible in court. But even if that’s true, that’s a call that the FBI could make on the ground. Consider the facts. The FBI had taken Shahzad into custody and started to question him initially without Miranda warnings under the public safety exception. Let’s imagine that Shahzad’s demeanor left the impression that he might speak to the FBI without Miranda warnings but that he might clam up if read the warnings. If that were the case, the FBI could lawfully make the decision of whether to continue to question Shahzad without Miranda warnings or whether to give him the warnings and obtain a waiver. In other words, the FBI could make the call on the ground based on his conduct.

Importantly, though, it would not have violated Shahzad’s constitutional rights to not read him his Miranda rights. A lot of people assume that the police are required to read a suspect his rights when he is arrested. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law & Order, but that’s not what the law actually requires. 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. See id. at 772-73. 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.

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.