Petition for Writ of Certiorari — Hill v. United States

Supreme Court, U.S.

FILED

09-740 C0 212009

OFFICE OF THE CLERK

William K. Suter, Clerk

No. 09-

IN THE

Supreme Court of the Anited States

ANTOINE HILL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

ANTOINE HILL, PRO SE

#34318-183

FCI Butner Medium II

P.O. Box 1500

Butner, NC 25709

QUESTIONS PRESENTED

Petitioner was arrested, interrogated without

Miranda warnings, and two hours later interrogated

again after being issued Miranda warnings. During

both rounds of questioning, petitioner responded

with incriminating statements. The only

explanation given for why Miranda warnings were

not issued during the first interrogation was a

general need for “officer safety”—although the officer

could not identify any exigent threat requiring the

immediate need for questioning. The court of appeals

below countenanced both the application of the

public safety exception and the question-first-warn-

later interrogation tactic, and in doing so,

exacerbated conflicts among lower courts on two

important issues involving Miranda v. Arizona, 384

U.S. 436 (1966).

The questions presented are:

I. Whether the narrow public safety exception

under New York v. Quarles, 467 U.S. 649 (1984), can

be applied to situations where a general threat to

officer safety exists, but no exigent circumstances.

Il. Whether the Missouri v. Seibert, 542 U.S. 600

(2004), plurality multi-factor objective test applies to

suspect statements where a police officer deliberately

withholds Miranda warnings during the first

interrogation, in order to later obtain the same

confession after issuing Miranda warnings.

TABLE OF CONTENTS

QUESTIONS PRESENTED .........ceccccescesscesssesesesseeeees i

TABLE OF AUTHORITIES. .........-:ssss-ssesssecsesseesseese iv

PETITION FOR WRIT OF CERTIORARI................. 1

OPINIONS BELOW. ..........ccccccccscsscecsececcesesseeceseeseeeeneees 1

BIGitiisi ty, 8 1

CONSTITUTIONAL PROVISION INVOLVED ........ 1

ST AT NII os ibecsevvescsoveeceseeeeoeso- 1

REASONS FOR GRANTING THE PETITION ......... 6

I. This Court’s intervention is needed to ensure

that the public safety exception remains a

“narrow” exception, based upon exigency, to the

general rule requiring Miranda warnings.............. 7

A: The lower courts are divided on whether

the Quarles public safety exception requires

CORA aoe EM enithnbectecsccencccccesess 7

B: The court of appeals’ decision conflicts with

Quarles because the public safety exception

does not apply to every threat of public or

officer safety, only those situations requiring

CORI gre I ie tatadectnsncccsveccccccecees 15

Il. This Court’s guidance is needed to determine

one standard for situations where police officers

deliberately interrogate a suspect without Miranda

warnings and subsequently interrogate with

Miranda warnings, in order to obtain an

CLT Criss cnocdoc00.0ccccees. 18

lil

A: Since Seibert, the lower courts have not

settled on one standard for determining when

question-first-warn-later statements are

CIID sevcciccnctoienteinsartictaeiclane aan 20

B: The court of appeals’ decision, holding

petitioner’s post-warning statements

admissible, was Crroneous. ..............csseceeeeeeees 22

CFE e IIIT + isincccicsncacvastesdesdinuadaranpiae saute 24

APPENDIX

United States Court of Appeals for the Fourth

Circuit, Opinion (Aug. 13, 2009)............000..ccceeeee enews la

United States District Court for the Eastern District

of Virginia, Order (June 24, 2008)............0..cccecceeeeeee 8a

United States District Court for the Eastern District

of Virginia, Bench Ruling on Motion to Suppress

ait Te Fi oeiiseinkncectascinatecictsscanisvmiscaeaaeee 9a

iv

TABLE OF AUTHORITIES

CASES

Georgia v. Pye, 653 S.E.2d 450 (Ga. 2007) ...........--. 22

In the Matter of John C., 519 N.Y.S.2d 223 (1987) ..10

Marks v. United States, 430 U.S. 188 (1977) .....20, 23

Martinez v. Texas, 272 S.W.3d 615 (Tex. Crim.

Be PE aitsh\cntackeanineneunsiaceiimetmindideisiadmmmnmauiiiaas 21

Miranda v. Arizona, 384 U.S. 436 (1966)......... passim

Missouri v. Seibert, 542 U.S. 600 (2004) .......... passim

New York v. Quarles, 467 U.S. 649 (1984) ....... passim

Oregon v. Elstad, 470 U.S. 298 (1985)............ 2, 18, 19

Orozco v. Texas, 394 U.S. 324 (1969)..................2.005 15

United States v. Jefferson, 2008 WL 1848798

Ce an MUI BION, SOUS Seisidcsckennrossqeannrsssacsaccnsdivees 8

State v. Hendrickson, 584 N.W.2d 774 (Minn. Ct.

I iiihcditnachradidcenppcieeaisibiennghlaeabkaniiieadialiairs 10

State v. Stephenson, 796 A.2d 274 (N.J. Super. A.D.

Stix: cishsisdulecuipaiais eins aauseaiicataaneibndaabemiaketinsiaslnea ae 10

State v. Strozier, 876 N.E.2d 1304 (Ohio App. 2 Dist.

MITT sisciaccmusiliaion tatiana cialaainiae menmcaldcsalina uta dmdenaieiaaaaesneae 10

Tennessee v. Dailey, 273 S.W.3d 94 (Tenn. 2009) ....21

United States v. Brathwaite, 458 F.3d 376 (5% Cir.

UUEINI ai cictossiths decadangeisedeebtian uum tadeaanaienaiadne aeeibandeans 9

United States v. Briones, 390 F.3d 610 (8* Cir.

eee 21

United States v. Carrizales-Toledo, 454 F.3d 1142

ee BN ican ccnvccscannentianapeiamielocessouaminaaianiaits 21

United States v. Fox, 393 F.3d 52 (1* Cir. 2004),

vacated on other grounds, 545 U.S. 1125 (2005) ..12

Vv

United States v. Jones, 154 F.Supp. 2d 617 (S.D.N-Y.

TEE istnntidsatiebdisectedesaitansitedatéddavaboieneniademsiecmaen 12

United States v. Kellogg, 306 Fed-_Appx. 916 (6™ Cir.

MINE Liceinviduasdiiuidiandtisteda dd asnusiiuedeeariantrcudeicecaiavarerel 10

United States v. Kiam, 432 F.3d 524

err 2 chaining edadadannobeeseanen 21

United States v. Liddell, 517 F.3d 1007

(B® Cir, 2008) ........cecccceccocececceseseccesesceceesescerenees 11, 12

United States v. Mashburn, 406 F.3d 303 (4% Cir.

SII sini. cu docs sactbanaees tacibaneiaedcaleieesinecsuieseeuaemeenieeeel 6

United States v. Melvin, 2007 WL 2046735 (4th Cir.

I I I ia aos c casa vaninmiiameniontaedenmentunegntel 13

United States v. Mobley, 40 F.3d 688

rm a us casanieisobavadiavienn 13

United States v. Phillips, 94 Fed-Appx. 796 (10% Cir.

I eee er 2 auiaieiaimannedeanond 12

United States v. Rodriguez, 931 F.Supp. 907

lela ea 10

United States v. Rodriguez-Preciado, 399 F.3d 1118

Sr a dase aan 21

United States v. Salahuddin, 607 F.Supp.2d 930

I acs 10

United States v. Stewart, 388 F.3d 1079 (7 Cir.

rile sacl oe oda al pumas aamembunetcaaniaenioraiaen 21

United States v. Williams, 435 F.3d 1148 (9 Cir.

SE eee neh een eu DO De NeEES WCE MET 20

vi

STATUTES

18 U.S.C. § 922(g)

18 U.S.C. § 924(c)

21 U.S.C. § 841

SETHE REESE ETHER EEE HEHEHE REORDER eee

SOPOT EHH EEE EE HEHE HEHEHE ESE EE EOE ERE EERE OE EES

PETITION FOR WRIT OF CERTIORARI

Petitioner, Antoine Hill, respectfully petitions for a

writ of certiorari in this case to review the judgment

of the United States Court of Appeals for the Fourth

Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fourth Circuit is unreported. App.la. The

ruling of the United States District Court for the

Eastern District of Virginia is unreported. App.8a.

JURISDICTION

The Fourth Circuit filed its opinion on August 13,

2009. The Court granted an extension of time to file

the petition for writ of certiorari to December 21,

2009. This Court’s jurisdiction rests on 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the United States

Constitution guarantees that no person “shall be

compelled in any criminal case to be a witness

against himself.”

STATEMENT

This case concerns a narrow exception that, over

the last two decades, has been applied to a broad

swath of circumstances never envisioned by this

Court. In New York v. Quarles, 467 U.S. 649, 658

(1984), the Court established the “public safety”

exception to the general rule that law enforcement

must issue Miranda warnings prior to custodial

interrogation. Although the Court tethered the

public safety exception to exigency, several courts of

appeals have applied the exception to circumstances

which present public or officer safety concerns, but

no exigency. Other courts of appeals, however, have

required it. And some courts of appeals, like the

Fourth Circuit here, have required exigency in some

cases, but not in others. The result is that

defendants’ Fifth Amendment rights against self-

incrimination under Miranda are determined by

where they reside and what panel they are fortunate

to draw on appeal.

The Court’s intervention is needed to reconcile the

various approaches by the courts of appeals and to

tie the public safety exception to exigency, lest it

swallow the rule.

This case also concerns the fallout from the Court’s

fractured decision in Missouri v. Seibert, 542 U.S.

600 (2004). Since Seibert, the courts of appeals have

divided on the standard to apply when judging

whether pre-Miranda statements taint post-Miranda

statements. The court below applied no standard,

dismissing petitioner’s argument in a footnote and

holding that the post-Miranda statements were

admissible under Seibert and Oregon v. Elstad, 470

U.S. 298 (1985).

The Court’s guidance is needed to establish one

standard for determining whether post-Miranda

statements are admissible after law enforcement

have deliberately withheld Miranda warnings during

the first round of questioning. For these reasons, the

Court should grant review.

1. On August 10, 2007, Detective Todd Bevington

and several other members of the Richmond Police

Department were conducting surveillance outside

petitioner’s home in hopes of arresting petitioner

after he left his apartment. After the arrest, the

officers planned to carry out a search of petitioner’s

apartment, seeking firearms and evidence relating to

narcotics trafficking.

Petitioner left his apartment, entered his vehicle

and drove away. Detective Bevington conducted a

traffic stop and arrested petitioner. As Bevington

transported petitioner to the police station, several

other detectives began searching petitioner’s

apartment. !

On the way to the station, petitioner was asked a

series of what Bevington labeled “officer safety

questions.” Although petitioner answered the first

question of whether anyone else was inside the

apartment, Bevington continued with two other

“officer safety” questions. Those two questions were

whether firearms or drugs were located in the

apartment.

Petitioner was not advised of his Miranda rights

prior to these questions.

1 It is unclear when exactly the officers began searching

petitioner’s apartment. Bevington testified at one point that

his fellow officers began conducting the search while he

transported petitioner to the station. Suppression Hearing, at

7. But later Bevington stated that the search was conducted an

hour after the arrest. Supp. Hr., at 17. And the district court

failed to make a factual finding on this discrepancy. For the

purposes of this petition, when the officers conducted the search

is not material to the questions presented.

4

In response to the series of “officer safety”

questions, petitioner made several incriminating

statements. Specifically, petitioner admitted that a

firearm and narcotics were located in his apartment,

and that he had been purchasing and dealing heroin.

Approximately two to three hours after the initial

questioning, Detectives Bevington and Killingsworth

advised petitioner of his Miranda rights. This

occurred inside the stationhouse. The detectives

proceeded to ask petitioner the same questions about

the presence of the firearm and heroin found in his

apartment. In response to the questioning,

petitioner repeated his previous incriminating

statements.

A search of petitioner's apartment revealed a

firearm and a quantity of heroin.

2. Petitioner was indicted on one count of

possession with intent to distribute heroin (21 U.S.C.

§ 841), ome count of possessing a firearm in

furtherance of a drug trafficking crime (18 U.S.C. §

924(c)), and one count of possessing a firearm after

previously being convicted of a felony (18 U.S.C. §

922(g)).

Prior to trial, a hearing was held on petitioner’s

motion to suppress the statements made to law

enforcement. At the hearing, Detective Bevington

admitted that he never advised petitioner of his

Miranda rights prior to questioning petitioner on the

way to the police station.

Detective Bevington explained that the reason he

asked petitioner questions, without first issuing

Miranda warnings, was due to officer safety.

Bevington failed to offer, however, any explanation

why questioning on whether another individual was

present in the apartment was needed, given that

officers were already conducting the search—or why

further questioning was needed after petitioner

answered that no one else remained in the

apartment. And ultimately, Bevington admitted that

the questions pertaining to drugs were not needed to

protect officer safety.

The district court denied the motion to suppress

based on the public safety exception to the Miranda

rule. The court noted that officers “may question a

person pre-Miranda at the scene of an arrest

regarding weapons, drug use, or other matters

relevant to the safety of the officers or members of

the public.” App.lla. Because officers “had reason to

believe there were weapons at Hill’s residence,” the

court held that the public safety exception applied.

App.lla The court also held that the second

statements were admissible since Miranda warnings

had been issued. App.12a.

Petitioner was convicted of all three counts in large

part due to the incriminating statements admitted

during the trial.

3. On appeal petitioner argued that the district

court improperly applied the Quarles public safety

exception to his pre-Miranda statements. Petitioner

further argued that since law enforcement

piggybacked his post-Miranda statements to the

illegally solicited pre-Miranda statements, both sets

of statements should have been suppressed.

Despite the absence of factual findings from the

district court, the court of appeals first concluded

that the officers conducted the search of petitioner’s

apartment after petitioner had been questioned.

Since petitioner’s apartment had yet to be secured,

the court held that any questions related to firearms

fell within the public safety exception to Miranda.

App.3a.

Although petitioner lost on the firearm question, he

succeeded on the drug question. The court of appeals

held that Bevington’s questions regarding the

location of drugs in the apartment fell outside of the

public safety exception, and thus, the district court

erred in admitting petitioner's statements on that

subject. The court nevertheless concluded that any

error was harmless because the district court

correctly admitted the post-Miranda statements,

which were “essentially identical” to the pre-

Miranda statements. App.4a.

In rejecting petitioner’s argument that the post-

Miranda statements should also have _ been

suppressed, the court cited prior circuit precedent

holding that few pre-warning questions will render

post-warning responses inadmissible. App.4a (citing

United States v. Mashburn, 406 F.3d 303 (4 Cir.

2005) (holding that post-Miranda_ statements

admissible unless there is evidence that an officer’s

failure to issue Miranda warnings was deliberate or

the post-Miranda statements were involuntarily

made)).

REASONS FOR GRANTING THE PETITION

The Court should grant this petition to clarify

lower court perplexity over two lines of cases dealing

with Miranda v. Arizona, 384 U.S. 436 (1966).

First, the lower courts are divided on the scope of the

7

public safety exception to the Miranda rule. The

court below deepened an already large split on

whether exigent circumstances are needed to apply

the public safety exception to Miranda. Second,

lower courts are confused over which Missouri v.

Seibert, 542 U.S. 600 (2004), standard to apply when

law enforcement intentionally withhold Miranda

warnings, interrogate defendants, and then provide

the warnings before eliciting a second confession.

Because these two questions have divided lower

courts and are _ essential to ensure that

constitutionally-required Miranda warnings

continue to be conveyed to criminal defendants, the

Court should grant the writ.

I. This Court’s intervention is needed to

ensure that the public safety exception

remains a “narrow” exception, based upon

exigency, to the general rule requiring

Miranda warnings.

A: The lower courts are divided on

whether the Quarles public safety

exception requires exigency.

In New York v. Quarles, 467 U.S. 649 (1984), the

defendant accused of armed rape fled into a grocery

store. Before he was arrested, Quarles stashed a

firearm behind some empty cartons. The arresting

officer subdued Quarles and noticed that he was

wearing an empty holster. Prior to issuing Miranda

warnings, the officer asked Quarles where the

firearm was located, and he responded, directing the

officer to the location of the firearm. 467 U.S. 652-

53. This Court concluded that the evidence was

admissible and for the first time recognized a “public

safety” exception to the Miranda rule.

The Quarles Court believed that the “public safety”

exception would be easy for police officers to apply

and lower courts to review, “because in each case it

will be circumscribed by the exigency which justifies

it.” Id. But determining when exigency justifies the

means has not proved so easy.

The courts of appeals are divided on when the

public safety exception applies. Some courts require

actual exigent circumstances before police may

question defendants without first reading the

Miranda warnings. The courts on the other side of

the divide use a different approach. Those courts

apply the public safety exception anytime police

encounter safety concerns, regardless of whether

those concerns require urgent action.

1. Both the Fifth and Sixth Circuits require

exigency before law enforcement may forego

Miranda warnings and interrogate suspects. For

example, in United States v. Raborn, 872 F.2d 589

(5" Cir. 1989), police officers had arrested the

defendant during a traffic stop. The officers,

believing the defendant had a firearm in his truck,

questioned him about the location of a gun without

first issuing Miranda warnings. The defendant

admitted to possessing an illegal firearm in his truck

and his statements were later used at trial to convict

him.

2 See e.g., United States v. Jefferson, 2008 WL 1848798 at *7

(M.D. Ala. April 24, 2008) (applying the public safety exception

where the defendant is already in handcuffs and is secure has

“presented a greater problem than the Court predicted.”).

9

On appeal, the government argued that the

statements where admissible under Quarles. But

the Fifth Circuit was unconvinced. The court noted

that the public was in no immediate danger

necessitating the public safety exception, because

only the officers had access to the truck. The court

therefore found the exception inapplicable.

The Fifth Circuit has continued to require the

presence of exigent circumstances before law

enforcement may employ the public safety exception.

In facts strikingly similar to the case presented here,

the court of appeals held in United States uv.

Brathwaite, 458 F.3d 376, 383 n.8 (5" Cir. 2006),

that where agents had the arrestee confined and had

established that no occupants remained in an

apartment, the officers could not ask about the

presence of weapons in the house without first

issuing Miranda warnings.

The Sixth Circuit has established a standard that

explicitly requires immediate danger before the

public safety exception may be employed. In United

States v. Williams, 483 F.3d 425 (6% Cir. 2007), police

officers entered the suspect’s apartment and placed

him into custody. Similar to this case, the officers

asked “if anybody else was in the room and if he had

any weapon.” Jd. at 427. Holding that the suspect’s

response identifying the location of the firearm was

inadmissible, the court concluded that “[t}he public

safety exception applies if and only if” an officer has

“a reasonable belief that he is in danger” because, “at

minimum,” (1) “the defendant might have (or

recently have had) a weapon, and (2)... someone

10

other than police might gain access to that weapon

and inflict harm with it.” Id. at 428. 3

Federal district courts and state courts have also

required a need for immediate questioning to justify

invoking the public safety exception. See e.g., United

States v. Salahuddin, 607 F.Supp.2d 930, 944

(E.D.Wis. 2009) (“The court disagrees that the

possible presence of an unknown person, in an

apartment that was under continuous surveillance

for the last day, justifies use of the public safety

exception. If the only requirements for the exception

are the presence of officers and the mere potential

that a second, unidentified person is present, the

exception again applies in the majority of arrests and

cannot be termed an exception.”) (emphasis in

original); United States v. Rodriguez, 931 F.Supp.

907, 911 (D.Mass. 1996) (concluding that there was

no immediate danger present to justify an objectively

reasonable need to protect the public or police); State

v. Strozier, 876 N.E.2d 1304, 1308-09 (Ohio App. 2

Dist. 2007) (“In order to establish that the [public

safety] exception is warranted in any given case, the

State must show that: (1) there was an objectively

reasonable need to protect the police or the public,

(2) from an immediate danger, (3) associated with a

weapon, and that (4) the questions asked were

related to that danger and reasonably necessary to

secure public safety.”) (emphasis in original); State v.

Stephenson, 796 A.2d 274, 280-81 (N.J. Super. A.D.

2002) (In order to invoke the exception “[t]here must

be a compelling and exigent need, under the totality

3 The Sixth Circuit has continued to employ the exigency

standard in subsequent cases. See e.g., United States v. Kellogg,

306 Fed_Appx. 916 (6% Cir. 2009).

11

of the circumstances, to protect the police or the

public.”); In the Matter of John C., 519 N-Y.S.2d 223,

227 (1987) (holding that suppression of evidence was

required because there was no volatile situation

requiring immediate action which would fall under

the narrow public safety exception); State ov.

Hendrickson, 584 N.W.2d 774 (Minn. Ct. App. 1998).

2. Three other courts of appeals, however, take a

view of the public safety exception that directly

conflicts with those above. In United States v.

Liddell, 517 F.3d 1007, 1008-1009 (8 Cir. 2008), the

defendant had been pulled over for a minor traffic

infraction. But a license check revealed that he was

not permitted to drive legally. Based on that

information, Liddell was handcuffed, searched, and

placed in the patrol car while the officers searched

his vehicle. Although no other people were nearby,

the officers asked him if there was anything else in

the car that they needed to know about that could

hurt them. Liddell, who had not yet received his

Miranda warnings, responded in part by stating that

a gun was in his car. The Eighth Circuit held that

“the risk of police officers being injured by the

mishandling of unknown firearms or drug

paraphernalia provides a sufficient public safety

basis to ask a suspect who has been arrested and

secured whether there are weapons or contraband in

a car or apartment that the police are about to

search.” Liddell, 517 F.3d at 1009-1010.

The Eighth Circuit’s standard contains no temporal

limitation. Under that standard, as long as officers

possess suspicion that firearms oor drug

paraphernalia could be present in the area to be

searched, it does not matter when the public safety

12

exception is invoked and questioning without

Miranda warnings begin. In other words the Eighth

Circuit’s standard contains no exigency requirement.

Such a standard in which exigency is irrelevant

cannot be squared with those above.

In fact, in a concurring opinion Judge Gruender

recognized that the Eighth Circuit’s standard

directly conflicts with those from the Fourth, Fifth

and Sixth Circuits. Jd. at 1012; see also, United

States v. Jones, 154 F.Supp. 2d 617, 628 (S.D.N-Y.

2001) (courts have taken “divergent approaches to

determining the breadth of the public safety

exception”). Judge Gruender upheld the search

based on previous circuit precedent, but wrote

separately to address his concerns that Eighth

Circuit’s decisions had “strayed from the Supreme

Court's tethering of the exception to the existence of

exigent circumstances.” Id.

The First and Tenth Circuits have _ taken

approaches similar to that of the Eighth. In United

States v. Fox, 393 F.3d 52 (1* Cir. 2004), vacated on

other grounds, 545 U.S. 1125 (2005), the First Circuit

allowed police officers to question suspects regarding

weapons in a vehicle based on the public safety

exception. See also, Liddell, 517 F.3d at 1012

(Gruender, J., concurring) (“[T]he First Circuit

agrees with our precedents.”). And the Tenth Circuit

also allows police officers to question suspects about

weapons without the necessity of immediate

danger—concluding that the presence of firearms in

an area about to be searched is_ inherently

dangerous, thus triggering the public safety

exception. United States v. Phillips, 94 Fed.Appx.

796 (10% Cir. 2004).

13

3. The Fourth Circuit has jumped from both sides

of the divide. In United States v. Mobley, 40 F.3d 688

(4" Cir. 1994), the court was confronted with a

situation where the arrestee’s apartment had

already been secured and there were no third parties

in the vicinity. An officer asked the defendant

whether “there was anything in the apartment that

could be of danger to the agents who would be

staying to conduct the search warrant, such as a

weapon.” Jd. at 691. The arrestee responded that

there was a weapon in the apartment. This

statement was later used to convict the arrestee.

Reversing the conviction, the Fourth Circuit refused

to apply the public safety exception “[a]Jbsent an

objectively reasonable concern for immediate danger

to police or public.” Jd. at 693. In so holding, the

court rejected the government’s argument that the

risk of encountering a firearm during the search

constituted a threat to the public safety. The court

noted that a threat to officer safety was present in

the majority of searches, yet the public safety

exception was not applicable to all threats, just

exigent ones. Jd.

The Fourth Circuit continued to apply the Mobley

rule in United States v. Melvin, 2007 WL 2046735, at

*11 (4th Cir. July 13, 2007), holding that the

government must “demonstrate an immediate need

that would validate protection under the Quarles

exception.” In Melvin, the police officers, like those in

this case, faced the danger of coming across hidden

weapons during a search. But the Fourth Circuit

held the Quarles exception inapplicable, and

suggested that the danger of coming upon a weapon

during a search can never be sufficient on its own to

trigger the public safety exception. Jd. at *11.

14

In this case, the Fourth Circuit switched course.

The court held that the public safety exception

applied because police were “aware that [petitioner]

did not reside in the apartment alone, and had

reason to suspect that weapons were located in the

residence.” App.4a. But fear of another person could

not have been a reason for the continued questioning

of petitioner once he responded that no other persons

where in the apartment. And the need to disccver

firearms surely did not constitute exigency. Given

that no exigency was present, the Fourth Circuit’s

opinion directly contravenes its prior decisions and

those from other circuits.

4. Twenty-five years have passed since the Court’s

decision in Quarles, and at least twelve federal and

state courts of appeals have weighed in on the

question of whether exigency is required before

police may question suspects without issuing

Miranda warnings; no consensus has emerged.

Further percolation is not needed because the split

has only hardened with time. Moreover, the scenario

presented here—where police arrest a suspect and

officer safety is implicated because of the possible

presence of firearms or drug paraphernalia at the

search site—occurs with regularity. Thus, the Court

is presented not only with a question which has

divided the lower courts, but also a question of

significant daily impact on police interaction with

citizens. The Court’s guidance is therefore needed to

ensure that the public safety exception is applied

evenly to citizens residing in all parts of the country.

The Court’s intervention is also needed because if

the public safety exception is not tied to exigency, it

threatens to swallow the general rule that police may

15

not interrogate criminal suspects without first

reading them the Miranda warnings.

B: The court of appeals’ decision conflicts

with Quarles because the public safety

exception does not apply to every threat

of public or officer safety, only those

situations requiring exigency.

1. In establishing the public safety exception, the

Court was clear that it was not meant to be a broadly

applied tool for law enforcement to conduct fishing

expeditions anytime public or officer safety is

implicated. Quarles, 467 U.S. at 658. Rather, it is

needed only when exigency is present. In fact,

throughout the opinion the Court focused on the

urgency of the situation. See e.g., 467 U.S. at 657-58

(public safety exception was needed because police

officers are called upon to make decisions, “often in a

matter of seconds,” whether to forego Miranda

warning in order to obtain evidence or statements

required for public or officer safety); id. at 658 (“[Wle

recognize here the importance of a workable rule to

guide police officers, who have only limited time and

expertise to reflect on and balance the social and

individual interests involved in the = specific

circumstances they confront.”).

That exigency is required before the public safety

exception may be applied was also clear from the

Court distinguishing Quarles from Orozco v. Texas,

394 U.S. 324 (1969). In Orozco, four officers entered

Orozco’s house, arrested him, and interrogated him

without Miranda warnings, regarding a murder

committed hours earlier. The police asked if he had

been present at the scene of the shooting, whether he

16

owned a gun and where the gun was located. The

defendant admitted that he was present at the scene,

that he owned a pistol and that the pistol was

located in the washing machine in a backroom of the

house.

Comparing the cases, the Quarles Court stated:

In Orozco however, the questions about the

gun were clearly investigatory; they did not in

any way relate to an objectively reasonable

need to protect the police or the public from

any immediate danger associated with the

weapon. In short there was no exigency

requiring immediate action by the officers

beyond the normal need expeditiously to solve

a serious crime.

Quarles, 467 U.S. at 659 n.8.

The Court thus distinguished situations where

public or officer safety required exigency and

situations where it did not. In doing so, the Court

undoubtedly recognized that if the public safety

exception was truly to apply as an exception, it must

necessurily be tied to exigency.

During the questioning of petitioner, no exigent

circumstances were present. Police had arrested

petitioner and were transporting him to the police

station when officer Bevington’ began his

interrogation. Although police had been conducting

surveillance on petitioner’s apartment for hours and

had not observed any other individuals arriving or

leaving petitioner’s apartment, officer Bevington

immediately asked if anyone was present in

petitioner’s apartment. Once petitioner responded

17

“no,” there was no need to continue questioning

petitioner about the location of firearms and drugs

without Miranda warnings The only other danger to

police officers was the possible presence of firearms

or drug paraphernalia at the apartment—a threat

which exists in a large majority of searches.

2. The court of appeals’ ruling below, if carried to

its logical conclusion, would apply the public safety

exception to every situation where officer safety may

be implicated. Indeed, the same concern for officer

safety in this case would have existed endlessly, if

the officers had not promptly searched petitioner’s

apartment. But under the narrow exception

established by Quarles, officers may only forego the

constitutionally-required Miranda warnings if

exigency is present. Where it is not, officers must

perform the “[simple] expedient of giving an

adequate warning” that suspects may invoke silence

and counsel. Miranda, 384 U.S. at 468. To sanction

unwarned questioning regarding the whereabouts of

a gun in every case where one is suspected would

result in the exception swallowing the rule.

3. The courts of appeals’ ruling conflicts with

Quarles in one other respect: the court countenanced

what were clearly “questions designed solely to elicit

testimonial evidence from a suspect.” Quarles, 467,

U.S. 658-59. As noted, officer Bevington continued to

question petitioner after he indicated that no other

persons were present in his apartment. The

following questions regarding the location of firearms

and drugs were nothing more than a deliberate end-

run around Miranda. In fact, the officer admitted as

much during the suppression hearing when asked

why such questions were needed based on officer

safety. Because the court of appeals’ decision

18

conflicts with Quarles in several respects, review is

warranted.

Il. This Court’s guidance is needed to

determine one standard for situations where

police officers deliberately interrogate a

suspect without Miranda warnings and

subsequently interrogate with Miranda

warnings, in order to obtain an admissible

confession.

The Court has twice had the opportunity to

address situations where police interrogate a suspect

without issuing Miranda warnings and then conduct

a second interrogation after giving the warnings. In

both Oregon v. Elstad, 470 U.S. 298 (1985), and

Missouri v. Seibert, 542 U.S. 600 (2004), the

admissibility of the second warned confession was at

issue.

1. In Elstad, police arrested a young suspect at his

home for burglary. Prior to arrest, one officer

explained to the suspect’s mother that the young

man was involved in a burglary, while the other

questioned the young man. The suspect responded,

stating that he had been at the scene of the burglary.

Id. at 315. After transporting the suspect to the

police station, the officers read him the Miranda

warnings and elicited a confession.

This Court noted that the incident had “none of the

earmarks of coercion,” and ruled that the second

post-warning statements were admissible. /d. at 313.

In so doing, the Court rejected the argument that the

statements derived from the second round of

questioning should have been suppressed as the

fruits of the first illegal questioning, and noted that

the causal connection between the first and second

19

responses was “speculative and attenuated.” Jd. The

Court also characterized the officers’ omission to

issue Miranda warnings as “a simple failure,” rather

than a deliberate ploy. Jd. at 309.

2. In contrast, the questioning in Siebert was

“systematic, exhaustive, and managed with

psychological skill.” Seibert, 542 U.S. at 616. There,

the police had taken the defendant to the police

station and deliberately questioned her without

Miranda warnings for 30 to 40 minutes. The police

then started a tape recorder, issued Miranda

warnings and obtained a signed waiver of rights.

Questioning was resumed and the officer conducting

the interrogation specifically mentioned Siebert’s

previous unwarned confession. As this Court noted,

“[w]hen the police were finished there was little, if

anything, of incriminating potential left unsaid.” Id.

at 616. During the suppression hearing, the officer

testified that, in compliance with officer training

manuals, a deliberate decision was made to question

first, warn later.

A plurality of this Court held that this deliberate

end-run around Miranda required suppression of the

second statements because the warnings mid-

interrogation challenged the very “comprehensibility

and efficacy” of Miranda warnings “to the point that

a reasonable person in the suspect's shoes would not

have understood them to convey a message that she

retained a choice about continuing to talk.” Jd. at

617. The plurality employed a multi-factor objective

test for determining when Miranda warnings

delivered midstream could be effective enough to

accomplish their objective. Jd. at 615.

20

Justice Kennedy concurred in the judgment but

rejected the objective test championed by the

plurality. Jd. at 619-622. Justice Kennedy applied a

different test that looks to the officer’s subjective

intent. Under that test, if an officer conducts the

deliberate two-step strategy, the post-Miranda

evidence must be excluded unless curative measures

are taken. Jd. at 622. Curative measures included

“a substantial break in time and circumstances”

between the two statements to allow the “accused to

distinguish the two contexts and appreciate that the

interrogation has taken a new turn.” Jd. Although

Justice Kennedy ultimately agreed that the post-

warning statements were inadmissible, his rationale

differed markedly from that of the plurality.

A: Since Seibert, the lower courts have

not settled on one _ standard i for

determining when question-first-warn-

later statements are admissible.

The Court’s fractured Seibert decision has

produced a multitude of confusion in the lower courts

on the appropriate standard for determining when

question first, warn later statements are admissible.

1. Some appellate courts have used Justice

Kennedy’s opinion as the standard, reasoning that

Marks v. United States, 430 U.S. 188, 193 (1977),

requires that the Seibert holding must be based on

the “narrowest grounds.” Those courts have

concluded that that only subjective, deliberate use of

the two-step interrogations must be suppressed. See

e.g., United States v. Williams, 435 F.3d 1148, 1157-

59 (9 Cir. 2006) (“Although the plurality would

consider all two-stage interrogations eligible for a

Seibert inquiry, Justice Kennedy’s opinion narrowed

21

the Seibert exception to those cases involving

deliberate use of the two-step procedure to weaken

Miranda’s protection.”); United States v. Kiam, 432

F.3d 524, 532-33 (3% Cir. 2006) (applying Justice

Kennedy’s test in finding that law enforcement

officials had not performed a deliberate two-step

interrogation); United States v. Mashburn, 406 F.3d

303, 308-09 (4" Cir. 2005) (“In Seibert, Justice

Kennedy concurred in the judgment of the Court on

the narrowest grounds.”); United States v. Briones,

390 F.3d 610, 613 (8 Cir. 2004) (“Because Justice

Kennedy relied on grounds narrower than those of

the plurality, his opinion is of special significance.”);

Martinez v. Texas, 272 S.W.3d 615, 620 (Tex. Crim.

App. 2008) (applying Justice Kennedy’s opinion as if

it were the holding of the Court).

2. Other courts have recognized that the Seibert

opinions are more complex and Justice Kennedy’s

opinion may not comprise the “narrowest holding.”

See e.g., United States v. Stewart, 388 F.3d 1079,

1090 (7* Cir. 2004) (reading the plurality’s balancing

test into Justice Kennedy’s allowance for “curative

steps”); United States v. Carrizales-Toledo, 454 F.3d

1142, 1151 (10% Cir. 2006) (describing the problem

with adopting Justice Kennedy’s approach); United

States v. Rodriguez-Preciado, 399 F.3d 1118, 1139-42

(9 Cir. 2005) (Berzon, J., dissenting) (explaining

why courts should not adopt Justice Kennedy’s

opinion and should apply the plurality’s test). And

one court has abandoned reconciling the fractured

Seibert opinions, instead analyzing the admission of

post-Miranda statements under both Justice

Kennedy’s and the plurality’s test. See e.g.,

Tennessee v. Dailey, 273 S.W.3d 94, 107 (Tenn. 2009).

Finally, the Georgia Supreme Court recently held

22

that only the Sezbert plurality opinion could control,

because Justice Kennedy’s opinion was explicitly

rejected by both the Seibert plurality and the dissent.

Georgia v. Pye, 653 S.E.2d 450, 453 n.6 (Ga. 2007).

The confusion surrounding the application of

Serbert is unlikely to dissipate on its own without

further guidance from the Court. Only this Court

alone can discern the appropriate standard for the

admissibility of question first, warn later statements.

Moreover, the lower courts have grappled with the

fractured Seibert opinions for five years, which has

itself produced more fractured standards from the

lower courts. Judicial economy would be well-served

by ending the lower court confusion now, rather than

later. For these reasons, the Court’s guidance is

needed to resolve the confusion surrounding Seibert.

B: The court of appeals’ decision, holding

petitioner’s post-warning statements

admissible, was erroneous.

The court of appeals rejected, without analysis,

petitioners argument that his post-warning

statements were inadmissible. Had the court

properly analyzed the statements under the Seibert

plurality standard, it is clear that the statements

were inadmissible.

1. The objective test employed by the Seibert

plurality should govern this case. First, Justice

Kennedy’s subjective test admittedly governs only

when police deliberately employ the question-first-

warn-later technique and 'ater admit to it. Seibert,

542 U.S. at 619-622. Only after officer admission,

may the subjective intent be found. Secondly, Justice

Kennedy’s subjective test was not adopted by any

other member of the Court. Indeed, seven other

23

Justices flatly rejected such a subjective element;

only Justice Breyer would have partially joined such

a holding. Thus, it cannot be said that Justice

Kennedy’s test constitutes the holding of the Court

even under a Marks v. United States, 430 U.S. 188,

193 (1977), analysis.

Applying Justice Kennedy’s subjective test is

simply not feasible given the realities of police

testimony. As the Sezbert plurality acknowledged,

rarely will the intent of the officer “be as candidly

admitted” as it was in Seibert, thus the “focus is on

facts apart from intent that show the question-first

tactic at work.” Seibert, 542 U.S. 617 n.6.

Petitioner’s case highlights that reality. This was

not a case where the officers admitted to conducting

a deliberate end-run around Miranda. But nor was

this a case where the police accidently forgot to issue

Miranda warnings before conducting interrogation.

While officer concern was the alleged motivation

behind the unwarned questioning, Bevington could

not, however, explain what officer safety concerns

demanded a hastily executed interrogation without

Miranda warnings. In fact, when asked why

questioning was needed on the location of narcotics,

detective Bevington admitted that the warnings were

not given due to officer safety concerns. Based upon

these admissions and omissions, it can be inferred

that the question first, warn later tactic was

employed. And in such a case, only the Seibert

plurality test can be employed to determine the

admissibility of the second warned statements.

2. All of the factors employed by the Seibert

plurality test cut towards inadmissibility of the post-

warning statements. First, the questions and

24

responses of both the pre and _ post-warning

statements were, as the Fourth = Circuit

acknowledged, “essentially identical.” App.4a.

Second, while an officer other than Bevington issued

petitioner Miranda warnings, Bevington conducted

both the first and second interrogations—a factor the

Seibert plurality found applicable in determining

admissibility. Seibert, 542 U.S. at 615. Third,

petitioner was interrogated in virtually the same

setting. The first interrogation took place in police

custody on the way to the stationhouse and the

second occurred inside the stationhouse. And lastly,

no curative steps were taken to dissipate the taint

from the first unwarned confession, so that petitioner

would understand his rights during the second

interrogation. In such circumstances, the Miranda

warnings could not have served their purpose and

the post-warning statements must be suppressed.

Because the court of appeals’ decision conflicts with

a relevant decision from this Court, review is

warranted.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

ANTOINE HILL, PRO SE.

#34318-183

FCI Butner Medium II

P.O. Box 1500

Butner, NC 27509

la

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5023

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTOINE HILL,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Virginia, at Richmond. Richard L.

Williams, Senior District Judge. (3:07-cr-00407-RLW-1)

Submitted: July 6, 2009 Decided: August 13, 2009

Before MICHAEL and MOTZ, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

2a

Timothy V. Anderson, ANDERSON & ASSOCIATES,

Virginia Beach, Virginia, for Appellant. Dana J.

Boente, Acting United States Attorney, Michael A.

Jagels, Special Assistant United States Attorney,

Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

Antoine Hill appeals his jury conviction and 300-

month variant sentence for possession with intent to

distribute heroin, in violation of 21 U.S.C. § 841

(2006), possession of a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C.

§ 924(c) (2006), and possession of ammunition by a

felon, in violation of 18 U.S.C. § 922(g)\(1) (2006). Hill

asserts that: (i) the district court erred when it denied

his suppression motion by allegedly misapplying the

public safety exception to pre-Miranda’ custodial

statements and then incorrectly admitted his post-

Miranda statements; (ii) the district court erred when

it refused to instruct the jury that it could not

conclude that Hill had “knowledge” of his drug

possession from negligence, carelessness, or his belief

in an inaccurate proposition; and (ili) ineffective

assistance of counsel conclusively appears on the

record because trial counsel failed to argue for an

appropriate sentence and instead moved to withdraw

* Miranda v. Arizona, 384 U.S. 436 (1966).

3a

just prior to sentencing.’ Finding no reversible error,

we affirm.

We find that Hill’s pre-Miranda statement per-

taining to a weapon located in his residence impli-

cates the public safety exception to Miranda under

New York v. Quarles, 467 U.S. 649 (1984). Police were

aware that Hill did not reside in the apartment alone,

and had reason to suspect that weapons were located

in the residence. Moreover, at the time Hill was

questioned, the residence had not yet been secured.

? Hill has also moved to file a pro se supplemental brief and

to relieve his counsel and proceed pro se on appeal. Because

there is no constitutional right to self-representation on appeal,

see Martinez v. Court of Appeal, 528 U.S. 152, 161 (2000), and

because we find that Hill did not move to proceed pro se at the

earliest possible time, 4th Cir. R. 46(f), we deny Hill’s motion to

relieve counsel and to proceed pro se. Moreover, although Hill

explains that he wishes to proceed pro se so he may move this

Court for release pending appeal, because we affirm Hill's

conviction and sentence, Hill’s motion for release would be

denied. See 18 U.S.C. § 3143(b) (2006) (providing that a criminal

defendant should be detained pending appeal unless it appears,

by clear anda convincing evidence, that the appeal raises a

substantial question of law or fact that requires reversal, an

order for a new trial, a non-prison sentence, or “a reduced

sentence to a term of imprisonment less than the total of the

time already served plus the expected duration of the appeal

process”). We grant Hill’s motion to file a pro se supplemental

brief, but after considering the arguments raised therein,

conclude that Hill’s ineffective assistance of counsel claim is not

cognizable on direct appeal. See United States v. Baldovinos, 434

F.3d 233, 239 (4th Cir. 2006) (ineffective assistance of counsel

claims are generally not cognizable on direct appeal unless the

ineffectiveness “conclusively appears” on the record).

4a

Based on these circumstances, we find that Hill’s pre-

Miranda statement regarding the existence of a

weapon in his apartment falls within the Quarles

exception to Miranda and was properly admitted by

the district court.

We nonetheless find that the transporting

officer’s pre-Miranda inquiry into whether drugs

were located in Hill’s residence does not implicate the

Quarles exception. In fact, one of the officers admitted

at the suppression hearing that there “is no officer

safety purpose in knowing whether or not there

[weJjre drugs in the apartment.” This finding,

however, affords Hill no relief. Because the district

court correctly admitted Hill’s post-Miranda state-

ments* — which were essentially identical to his pre-

Miranda statements — we conclude that the jury

* Hill’s assertions to the contrary, the mere fact that Hill’s

post-Miranda statements confirmed his pre-Miranda admissions

does not, in and of itself, render the post-Miranda statements

involuntary and inadmissible. See Oregon v. Elstad, 470 U.S.

298, 314 (1985) (holding that “absent deliberately coercive or

improper tactics in obtaining the initial statement, the mere fact

that a suspect has made an unwarned admission does not

warrant a presumption of compulsion” as to any subsequent,

post-warning statement); United States v. Mashburn, 406 F.3d

303, 307-10 (4th Cir. 2005) (holding that a few pre-warning

questions will not render post-warning responses involuntary

and inadmissible if: (i) there was no evidence that an officer’s

failure to convey Miranda warnings was deliberate or inten-

tional; and (ii) there was no evidence that the post-warning

statement was involuntarily made). Accordingly, we conclude

that the district court did not err in allowing Hill’s post-Miranda

statements to be presented to the jury.

5a

“would not have found the [Government’s] case sig-

nificantly less persuasive” if the pre-Miranda state-

ments had been excluded. See Schneble v. Florida,

405 U.S. 427, 432 (1972); see also United States v.

Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008) (recog-

nizing that an error “will be deemed harmless if a

reviewing court is able to say, with fair assurance,

after pondering all that happened without stripping

the erroneous action from the whole, that the

judgment was not substantially swayed by the error”)

(internal citations and quotation marks omitted), cert.

denied, 129 S. Ct. 1312 (2009). Thus, because the jury

would have received the same evidence even if Hill’s

pre-Miranda statements were suppressed by the

district court, any error by the district court to admit

Hill’s pre-Miranda statement was harmless beyond a

reasonable doubt.

We also conclude that the district court did not

abuse its discretion when it denied Hill’s proposed

jury instruction.

A district court’s refusal to provide an in-

struction requested by a defendant consti-

tutes reversible error only if the instruction:

(1) was correct; (2) was not substantially

covered by the court’s charge to the jury; and

(3) dealt with some point in the trial so

important [] that failure to give the

requested instruction seriously impaired the

defendant’s ability to conduct his defense.

United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995)

(internal quotation marks and citation omitted).

6a

Although the Government does not dispute that Hill’s

proposed jury instruction was a correct statement of

the law, we find that Hill’s requested instruction was

substantially covered by the district court’s remaining

jury instructions.

Hill last asserts that his counsel was ineffective

because he failed to file a sentencing memorandum

with the district court, failed to argue for a variant

sentence at his sentencing hearing, and instead

moved to withdraw as counsel a day prior to Hill’s

sentencing hearing. Although Hill recognizes that

this issue may be better left for review on a habeas

corpus motion, Hill suggests that if the Court finds

merit to his other arguments, “a remand for sen-

tencing with prepared counsel” would be appropriate.

Even assuming, without deciding, that it was

error for Hill’s trial counsel to move to withdraw from

representation just prior to his sentencing and to fail

to argue for an appropriate senter-e on his behalf, it

does not conclusively appear on the record that but

for counsel’s purported errors, Hill’s sentence would

have been different. In fact, Hill’s counsel concedes

that “[iJt is impossible to know what factors could

have or should have been presented to the Court at

sentencing that may have persuaded the Court to

depart by variance from the recommend[ed] sen-

tencing guidelines.”

Moreover, although the Government asked the

district court to sentence Hill within his 360-month to

life Guidelines range, the district court varied from

Ta

the Guidelines range and imposed a 300-month

sentence. Because it is not apparent that the district

court would have varied further based on any argu-

ment counsel may have made, we find that Hill’s

ineffective assistance claim based on counsel’s failure

does not conclusively appear on the record and, thus,

is not cognizable on direct appeal. See Strickland v.

Washington, 466 U.S. 668, 694 (1984); United States

v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

Based on the foregoing, we deny Hill’s motion to

relieve his counsel and to proceed pro se on appeal,

grant Hill’s motion to file a pro se supplemental brief,

deny Hill’s motions for bail or release pending appeal

as moot, and affirm the district court’s judgment. We

dispense with oral argument because the facts and

legal contentions are adequately presented in the

materials before the court and argument would not

aid the decisional process.

AFFIRMED

8a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

UNITED STATES

OF AMERICA :

y. - Criminal Action

: Number 3:07CRA07

ANTOINE HILL,

Defendant.

ORDER

This matter is before the Court on the defen-

dant’s motion to suppress and the addendum to the

defendant’s motion to suppress. For the reasons

stated from the bench on June 24, 2008, the defen-

dant’s motion and the addendum to defendant’s

motion are DENIED.

It is so ORDERED.

Let the Clerk send a copy of this Order to all

counsel of record.

June 24, 2008 /s/

DATE RICHARD L. WILLIAMS

SENIOR UNITED STATES

DISTRICT JUDGE

9a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Richmond Division

The United States of America,

plaintiff,

versus 07 CR 407

Antoine Hill,

defendant

before: HONORABLE RICHARD L. WLLIAMS [sic]

Senior United States District Judge

June 24, 2008

Richmond, Virginia

[40] MR. JAGELS: Sorry. Those are all the

questions I have.

THE COURT: All right. Fine. Thank you. I

will take a brief recess.

(Witness stood aside)

(A recess was taken)

THE COURT: This matter is before The

Court on the defendant’s motion to suppress. Having

heard the testimony today, I find as follows.

On August 10, 2007 Richmond City Police

Department officers obtained a search warrant for a

residence belonging to the defendant, Antoine Hill.

10a

Detective James Killingsworth prepared the search

warrant and affidavit. In his affidavit he stated that

two confidential sources, henceforth CS’s, had given

information that provided probable cause for the

search warrant to issue. The first CS gave

Killingsworth information that the CS had been in

Hill’s apartment within the past 72 hours and had

seen heroin inside the apartment for distribution.

Killingsworth noted that the first CS made

controlled buys for Killingsworth in the past and that

the CS had demonstrated an extensive knowledge of

heroin. Killingsworth stated that the second CS had

provided true, accurate, and reliable information [41]

to officer Mark Dunn in the past, and that infor-

mation provided by this CS was verified as true and

accurate through independent police investigations,

police surveillance, controlled purchases, recorded

telephone conversation, and DMV and police records.

Before the officers executed the search warrant

they observed Hill leaving the residence in a vehicle

and initiated a traffic stop. The officers arrested Hill

and transported him to the Special Investigation

Division, hereafter known as SID, office. During the

drive to SID the officers informed Hill of the search

warrant for his residence and then asked Hill if he

had any firearms in his residence. Hill said that he

had a firearm in his bedroom. The officers next asked

Hill if he had any drugs in the residence, and he

told them there was heroin on the floor next to the

sofa. Detectives searching Hill’s residence found a

semiautomatic pistol, ammunition, 56 grams of

lla

heroin, a scale, packaging material, and $6,900 in

U.S. currency.

After Hill arrived at SID Detective Killingsworth

read him his Miranda warnings. Hill acknowledged

his rights and agreed to speak with police. He stated

that he owned the firearm. And [42] when asked

about the narcotics in his residence he said he he [sic]

had about two ounces of heroin, and identified his

source. Hill also provided police with information

about his past drug dealing activities.

The defendant first argues that the officers

violated his fifth amendment right against self

incrimination by questioning him while he was in

their custody during the ride to SID headquarters,

and at the headquarters itself without first advising

him of his Miranda rights and obtaining from him

a knowing and intelligent waiver of those rights.

Miranda warnings are required whenever a suspect

is in custody and subject to interrogation by law

enforcement officials. And the Miranda case taught

us that. However, there exists a limited public safety

exception to the warning requirement. Officers may

question a person pre-Miranda at the scene of an

arrest regarding weapons, drug use, or other matters

relevant to the safety of the officers or members of the

public. And the New York versus Quarles case teaches

us that. The Court finds that the public safety

exception applies in this case since the officers had

reason to believe there were weapons at Hill’s

residence. Accordingly, the Court [43] denies the

defendant’s motion to suppress the statements he

12a

made before he was provided with his Miranda

warnings. As to the admissibility of the statements

Hill made later at STD headquarters, The Court finds

that Hill was read his Miranda warnings and that he

voluntarily waived his rights and subsequently made

numerous incriminating statements about his

involvement in the drug trade. The Court denies the

defendant’s motion to suppress any statements he

made after he arrived at SID headquarters and.

officers provided him with his Miranda warnings.

The defendant argues in his addendum to his

motion to suppress that the search warrant was not

valid. Hill contends that there was no probable cause

since the source was allegedly not reliable. Evidence

seized under a warrant may be suppressed if a defen-

dant first makes a substantial preliminary showing

that a false statement knowingly or intentionally, or

with reckless disregard to the truth, was included by

the affiant in the warrant affidavit. And the Franks

versus Delaware case teaches us that. Second, the

offending information must be essential to the

probable cause determination. Once a search warrant

has been [44] issued, review of the probable cause

determination by the judicial officer is to be shown

great deference. And United States versus Blackwood

teaches us that. The Court finds that the defendant

has not made a preliminary showing that Killingsworth

included a false statement in the affidavit, The Court

also finds that the information presented to the

magistrate in the affidavit regarding two confidential

sources provided ample probable cause for the search

13a

warrant to issue. Therefore, The Court denies the

addendum to the defendant’s motion to suppress.

An order memorializing The Court’s ruling will

be entered, and counsel will receive a copy of it. We

will go to trial as scheduled in the case.

Adjourn court until. 2:00 o’clock, or recess court

until 2:00 o’clock.

HEARING ADJOURNED.