“It does not seem unreasonable to question Tsarnaev for that period of time,” says Thomas Dupree, a former deputy assistant attorney general and now a partner in Washington law firm of Gibson, Dunn & Crutcher. “Public safety is paramount here. Law enforcement has to have time to ask questions.”
But 16 hours of questioning seems excessive to Tamar Birckhead, a former federal public defender in Massachusetts and now an associate professor of law at the University of North Carolina at Chapel Hill.
“In the past, it was interpreted as five minutes. Then 50 minutes was found to be fine,” Ms. Birckhead says. “But 16 hours definitely seems beyond the pale.”
Both sides acknowledge that the so-called public safety exception is vague.
The issue goes back to 1980 when police in the Queens borough of New York received a call that a woman said she had been raped and the suspect was in a supermarket carrying a gun. A police officer ended up apprehending a suspect who had an empty shoulder holster.
After the police officer handcuffed the suspect, he asked him where the gun was. The suspect nodded toward some cartons. The officer retrieved the gun, formally arrested him, and read the man his Miranda rights. The man said that he would answer questions without an attorney present and that he owned the gun.
The trial court excluded the statement and the gun as well as his other statements because of the Miranda violation. This was affirmed by an appeals court. But in 1984, the US Supreme Court overturned the lower courts and said that in this case, public safety (finding the gun) was more important than the Miranda warning.