Dyson v. United States

RUIZ, Associate Judge,

concurring:

The trial judge found appellant guilty of possessing marijuana on the strength of evidence separate from appellant’s admission to having marijuana. That admission was in answer to the officer’s question 1 while appellant was in custody but had not been given the warnings required by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). I would affirm based on the trial judge’s narrower ruling without reliance on the admission, and therefore, concur that the judgment should be affirmed. I disagree, however, with the majority’s unnecessary analysis that the circumstances in this case come within the “narrow” public safety exception" to Miranda’s constitutional requirement that the Supreme Court recognized in New York v. Quarles, 467 U.S. 649, 658 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984).

Quarles established a “public safety exception” to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and held that the availability of that exception “does not depend on the motivation of the individual officers involved.” Id. at 656-57, 104 S.Ct. 2626 . The Court emphasized that in assessing whether a case comes within the public safety exception, the focus is on whether the officer is “reasonably prompted by a concern for the public safety.” Id. at 657 , 104 S.Ct. 2626 . In holding that the situation faced by the officers came within the exception, the Court noted that the officers had “every reason to believe” that the suspect had a gun — a woman had just reported being raped at gunpoint by the suspect who was apprehended within minutes wearing an empty gun holster — and had just discarded it in the supermarket where the rape, chase and arrest took place. Thus, the officers had an *370 “immediate necessity” of locating the gun in order to avoid danger to the public safety. Id. The Court addressed the concern that the exception would “lessen the clarity” of the Miranda rule, stating that “in each case it will be circumscribed by the exigency which justifies it.” Id. In Quarles , the distinction between questions permissible under the public-safety exception . and impermissible questions “designed solely to elicit testimonial evidence from a suspect” wds demonstrated by the fact that the officer “asked only the question necessary to locate the missing gun before advising respondent of his rights. It was only after securing the loaded revolver and giving the warnings that he continued with investigatory questions about the ownership and place of purchase of the gun.” Id. at 659 , 104 S.Ct. 2626 .

The facts in this case do not warrant a departure from the Miranda requirement, which, post-Quarles, the Supreme Court has held to be a constitutional rule. See Dickerson v. United States, 530 U.S. 428 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000). 2 First, although the trial judge credited that the officer had a “good faith reasonable belief’ that appellant might be armed, that belief was based entirely on the officer’s equivocal testimony that, as he was chasing appellant, appellant made a motion toward his waistband. 3 As the majority recognizes, that is much less evidence of the existence of a weapon than the Supreme Court considered in Quarles or that we have considered sufficient in our cases applying the public-safety exception to Mir anda, 4 In addition, here there was no “immediate necessity” grounded in public safety to ask about the weapon that the officer thought appellant might have. Appellant was arrested in the early morning hours in a deserted alley. Cf. Allen, supra note 2, 305 F.3d at 1051 (noting that discovery of gun in a deserted area is irrelevant if at the time officers asked the question they thought it was “reasonably possible that anyone could have found the gun and used it” anywhere between a campsite and the arrest scene, including a gas station or store where the suspect had been seen). An immediate patdown of his person yielded no gun and the two officers who had chased and apprehended him briefly searched the, alley — again finding no gun. They then left to retrieve a *371 brown bag (later found to contain marijuana) they had seen appellant drop into a tree box during the chase. Meanwhile, other officers had cordoned off the alley and searched it with a K-9 unit, also finding no weapon. It was only after the two arresting officers returned with the bag of marijuana that they asked appellant, who by then had been handcuffed and placed in a patrol car, about the gun. Unlike in Quarles and our prior cases applying the public safety exception, the question about the gun in this case was not the first thing out of the officer’s mouth, fast on the heels of apprehending the suspect. That delay, informed by the negative result of immediate searches of appellant’s person and (at least three) of the alley, eroded whatever reasonable belief the officer might have had based on what he thought he saw during the chase. Further, the police’s prompt action in cordoning off the alley where the officer thought the gun might be and the absence of people in that area during the wee hours of the morning, diminished the urgency of any objectively reasonable risk to public safety — no matter how genuine the officer’s subjective concern. Finally, unlike in Quarles where the Court relied on the officer’s prompt advisal of Miranda rights upon satisfying the public safety concern, the evidence in this case is that appellant was not advised at the scene, by any officer, of his Miranda rights.

The public safety exception is a narrow one and requires more than was present in this case to warrant a departure from Miranda’s, constitutional mandate. I disagree with the majority’s unnecessary conclusion to the contrary.

. The officer testified that after appellant had been arrested, handcuffed, and put into a police cruiser, he "asked the defendant where the gun was. If there’s a gun, we need to find it, so no little kids get it and hurt themselves.” According to the officer, appellant said: “That was my weed, but I didn't have a gun.”

. In Quarles , the Court balanced the interest in public safety against Miranda's prophylactic rule, noting that Miranda warnings were not constitutionally mandated. See 467 U.S. at 654 , 104 S.Ct. 2626 . This has prompted one federal appellate court to note that "the Quarles rationale has been, to some degree, called into question by Dickerson." Allen v. Roe, 305 F.3d 1046 , 1050 & n. 4 (9th Cir.2002). The Supreme Court's declaration in Dickerson that Miranda is indeed a constitutional rule does not mean that it is "immutable,” Dickerson, 530 U.S. at 441 , 120 S.Ct. 2326 but it cautions, at a minimum, that the Quarles exception be narrowly construed and strictly applied.

. During cross-examination at trial, after the trial judge had denied appellant’s motion to suppress his statement, the officer added that he "thought I saw a butt of a handle of a gun,” but then agreed when the prosecutor reminded him on redirect that what the officer had said was "that it looked like a gun or it could have looked like a pager, you weren't exactly sure.”

. See Crook v. United States, 771 A.2d 355, 359 (D.C.2001) (involving the risk to public safety from several armed people who just shot and wounded two others); Trice v. United States, 662 A.2d 891, 896 (D.C.1995) (noting the officer’s objectively reasonable belief that a shotgun used in the commission of a crime several days earlier may still be in the perpetrator's home, thus posing a threat to small children there); Edwards v. United States, 619 A.2d 33, 37 (D.C.1993) (noting an appropriate concern for public safety in ascertaining the location of a missing rifle where the appellant had been seen by police carrying the rifle only moments earlier).