“[W]here, as here, the double jeopardy violation is clear from the record without the need for additional fact finding, a guilty plea does not preclude subsequent relief.”
How later courts described this case
- “[W]here, as here, the double jeopardy violation is clear from the record without the need for additional fact finding, a guilty plea does not preclude subsequent relief.”
- adult defendant’s pre-warning statements admissible where defendant was believed to have abandoned a gun in an area accessible to the public; admissibility limited to responses to questions designed to locate and remove gun
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Rose v. Commonwealth, 2010 Ky. LEXIS 246 (2010)
275 S.W.3d 194, 202 (Ky. 2008), overruled on other grounds by Rose v. Commonwealth, 322 S.W.3d 76
The opinion
Opinion by
Justice NOBLE,
concurring in part and dissenting in part.
I concur with the majority opinion reversing on the double jeopardy claim, but dissent as to the other convictions.
The facts of this ease simply do not support application of the public safety exception set forth in New York v. Quarles, 467 U.S. 649 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984), to abrogate the rights of a defendant set forth in Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). While Quarles articulates a good rule of law, it is not to be applied automatically any time a defendant may throw down a weapon or other contraband that might be harmful to the public. The intent of the ruling in Quarles is to actually protect the public or the police officers chasing a defendant from immediate danger, not to give officers an automatic excuse to circumvent the Miranda warnings.
In Quarles , officers attempted to arrest a rape suspect who the victim claimed was armed with a gun. As the officers chased Quarles, they lost sight of him for a few seconds in the back of the store where they had found him. When he was captured moments later, he was wearing a shoulder holster which was empty. Based on the victim’s claim that he was armed, and given that his shoulder holster was then empty, the officers immediately asked for their own protection and the protection of the public where the gun was, without giving the Miranda warnings. Quarles indicated a nearby box, and the gun was immediately retrieved. Obviously, the officers did not know where the gun was, and equally obvious, they needed to remove the potential threat then and there.
This case differs significantly. Here, the police knew where the gun was before they tried to apprehend the Appellant. While looking for Appellant at the motel where he was said to be staying, they were approached by a security guard who told them he had seen Appellant throw a handgun over a fence that ran between the motel and a service station. The officers reported the weapon to a police dispatcher, and then left to pursue Appellant, but did not see his vehicle. When they were returning, they saw Appellant leave his car and approach the same fence pointed out by the security guard, doubtless to retrieve the gun. However, the officers reached him first. He was stopped, handcuffed, frisked and put in the back of the police cruiser, where the officer asked him where the gun was, without giving Miranda warnings.
The officers knew where the gun was without having to ask. Appellant had been frisked, so it obviously was not on him. He had not yet reached the fence to retrieve the gun when he was apprehended. The security guard had told them where the gun had been thrown.
Most telling, the police did not retrieve the gun until four hours later-, when different officers arrived and found the gun in the area the security guard had identified. Indeed, the Court in Quarles took the view that the exception to giving the Miranda protections was permissible because the police “were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just re *204 moved from his empty holster and discarded in the supermarket.” Id. at 657, 104 S.Ct. 2626 . (emphasis added). The Court emphasized the immediacy and exigency of possible public endangerment throughout the opinion. See id. at 656 , 104 S.Ct. 2626 (focusing on the need for “spontaneity rather than adherence to a police manual”); id. at 657 , 104 S.Ct. 2626 (approving this practice where officer’s decision to ask about weapons was made “in a matter of seconds” and in a “volatile situation confronting them”). Under the facts in Quarles , it is reasonable and sound policy to allow the police to ask where the weapon was, as it was immediately available to an accomplice. As the Court pointed out, under those facts, giving the Miranda warnings could have kept the police from locating the gun as Quarles may have wisely remained silent. Here, however, there was no need for the question because the police already knew where the gun was and were present to control that area, thus alleviating any public danger. No public purpose was served by asking Appellant about the gun, but the necessity for the Miranda protections remained, making the question solely for the purpose of avoiding them. While the Court in Quarles does say that the motive of the police, which might include gathering incriminating information as well as public safety information, does not prevent such a question, the Court does go on to clarify that the question must be “reasonably prompted by a concern for the public safety.” Id. at 656 , 104 S.Ct. 2626 ; see also United States v. Williams, 483 F.3d 425, 428 (6th Cir.2007) (reading Quarles to require that the officer “have reason to believe ... that someone other than police might gain access to that weapon and inflict harm with it”). In this case, there was no reasonable concern for public safety because the police already knew where the gun was.
Further, in answer to the question as to where the gun was, Appellant’s response that he had two guns was more than potentially incriminating. It was tantamount to a confession, given that he was subsequently charged and entered a conditional guilty plea to two counts of illegal possession of a firearm. When the question “Where is the gun?” is posed, there will be an inevitable answer of some kind from the person questioned, whether it range from disbelief to an outright admission. This type of confession is precisely what the fairness rule of Miranda was intended to prevent. This rule is so ingrained in our law and society that any erosion of it should be allowed only when necessary for the greater good, but even then it should be very narrow.
I believe the majority extends Quarles beyond its intent under the facts of this case when it allows the question about the whereabouts of the gun to go without Miranda warnings when the police had no need or reasonable basis to ask the question since they already knew where the gun was, and had chosen to chase the Appellant rather than retrieving the gun immediately. For the question to indeed be necessary, they would need to be told something they did not already know, so that the public could be protected at that point. What the majority does today is to allow police officers a free question about the location of weapons, whether they have a reasonable basis to ask it or not, and makes the gravamen of the question whether a weapon is claimed to be involved rather than whether there is a reasonable public safety risk. As our own Sixth Circuit Court of Appeals has indicated in Williams , when applying Quarles , there should be a “reason to believe” that risk is imminent.
Consequently, I would hold that the statements in response to the question re *205 garding the whereabouts of the gun should have been suppressed, and the case reversed and remanded for actions consistent with this opinion.