Thurgood Marshall wrote a strong dissent in the Quarles case
It's worth keeping in mind that the Quarles case was a conservative decision and the liberals on the court dissented.
Justice Marshall specifically pointed to the decision as "limiting the protections of the Fifth Amendment ."
Some excerpts from Justice Marshall's dissent:
http://supreme.justia.com/cases/federal/us/467/649/case.html
III
Though unfortunate, the difficulty of administering the "public safety" exception is not the most profound flaw in the majority's decision. The majority has lost sight of the fact that Miranda v. Arizona and our earlier custodial interrogation cases all implemented a constitutional privilege against self-incrimination. The rules established in these cases were designed to protect criminal defendants against prosecutions based on coerced self-incriminating statements. The majority today turns its back on these constitutional considerations,
Page 467 U. S. 681
and invites the government to prosecute through the use of what necessarily are coerced statements.
A
The majority's error stems from a serious misunderstanding of Miranda v. Arizona and of the Fifth Amendment upon which that decision was based. The majority implies that Miranda consisted of no more than a judicial balancing act in which the benefits of "enlarged protection for the Fifth Amendment privilege" were weighed against "the cost to society in terms of fewer convictions of guilty suspects." Ante at 467 U. S. 656-657. Supposedly because the scales tipped in favor of the privilege against self-incrimination, the Miranda Court erected a prophylactic barrier around statements made during custodial interrogations. The majority now proposes to return to the scales of social utility to calculate whether Miranda's prophylactic rule remains cost-effective when threats to the public's safety are added to the balance. The results of the majority's "test" are announced with pseudoscientific precision:
"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."
Ante at 467 U. S. 657.
The majority misreads Miranda. Though the Miranda dissent prophesized dire consequences, see 384 U.S. at 384 U. S. 504, 384 U. S. 516-517 (Harlan, J., dissenting), the Miranda Court refused to allow such concerns to weaken the protections of the Constitution:
"A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government
Page 467 U. S. 682
when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged."
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The Fifth Amendment prohibits compelled self-incrimination. [Footnote 3/10] As the Court has explained on numerous occasions, this prohibition is the mainstay of our adversarial system of criminal justice. Not only does it protect us against the inherent unreliability of compelled testimony, but it also ensures that criminal investigations will be conducted with integrity, and that the judiciary will avoid the taint of official lawlessness. See Murphy
Page 467 U. S. 688
v. Waterfront Comm'n, 378 U. S. 52, 378 U. S. 55 (1964). The policies underlying the Fifth Amendment's privilege against self-incrimination are not diminished simply because testimony is compelled to protect the public's safety. The majority should not be permitted to elude the Amendment's absolute prohibition simply by calculating special costs that arise when the public's safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties.
= new reply since forum marked as read
Marshall's dissent appears to be on the point of incriminating statements being admissible. I think he makes a case for talking to suspects in the interest of public safety, but states that it can and already does happen.
n)o person . . . shall be compelled in any criminal case to be a witness against himself."
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 unconsented questioning may take place not only when police officers act on instinct, but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing 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. Cf. Weatherford v. Bursey, 429 U. S. 545 (1977) (Sixth Amendment violated only if trial affected).
To a limited degree, the majority is correct that there is a cost associated with the Fifth Amendment's ban on introducing coerced self-incriminating statements at trial. Without a "public safety" exception, there would be occasions when a defendant incriminated himself by revealing a threat to the
Page 467 U. S. 687
public, and the State was unable to prosecute because the defendant retracted his statement after consulting with counsel and the police cannot find independent proof of guilt. Such occasions would not, however, be common. The prosecution does not always lose the use of incriminating information revealed in these situations. After consulting with counsel, a suspect may well volunteer to repeat his statement in hopes of gaining a favorable plea bargain or more lenient sentence. The majority thus overstates its case when it suggests that a police officer must necessarily choose between public safety and admissibility. [Footnote 3/9]
But however frequently or infrequently such cases arise, their regularity is irrelevant. The Fifth Amendment prohibits compelled self-incrimination. [Footnote 3/10] As the Court has explained on numerous occasions, this prohibition is the mainstay of our adversarial system of criminal justice. Not only does it protect us against the inherent unreliability of compelled testimony, but it also ensures that criminal investigations will be conducted with integrity, and that the judiciary will avoid the taint of official lawlessness. See Murphy
Page 467 U. S. 688
v. Waterfront Comm'n,
378 U. S. 52, 378 U. S. 55 (1964). The policies underlying the Fifth Amendment's privilege against self-incrimination are not diminished simply because testimony is compelled to protect the public's safety. The majority should not be permitted to elude the Amendment's absolute prohibition simply by calculating special costs that arise when the public's safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties.
