Joe Freddie Fleming v. James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division

JERRE S. WILLIAMS, Circuit Judge

with whom JOHN R. BROWN, Circuit Judge joins, dissenting:

An unarmed man who had been shot twice was on the ground on his knees. A policewoman standing over him pointing a loaded gun at him elicited from him by a specific question an admission, tantamount to a confession, of participation in a nearby bank robbery. The prosecution relied heavily upon this admission in gaining a conviction. This blatant violation of a constitutional right against self-incrimination requires my dissent.

The Court relies upon a recognized exception to the privilege against self-incrimination which authorizes questioning which may lead to admissions or confessions without prior Miranda warnings in cases where the public safety is immediately implicated. The public safety exception is a limited exception to Miranda recognized by the United States Supreme Court in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984).

It is clear that the public safety exception was applicable to the earlier stages of the policewoman’s confrontation and questioning of Fleming. The opinion for the Court quotes extensively from the testimony at the suppression hearing, testimony which, of course, was not heard at the trial by the jury. That testimony and the description of the circumstances by the opinion for the Court demonstrate well, and somewhat dramatically, the public safety concerns when the policewoman and her partner, another policewoman, came upon Fleming in a vacant field some distance from the bank. But what this testimony, not admitted in Court, fails to show are the precise and specific questions and answers that led to the constitutional violation that interests in public safety could not justify.

Let the trial testimony speak for itself. This is the specific line of questioning of the policewoman by the prosecutor which was at trial and which the jury heard.

Q: When you first approached him, what was the first thing that you did?
A: I told him to get his hands up and to put his hands up because I didn’t know whether he had a gun in his hand. I didn’t know what was going on. It was very confusing.
Q: Did he say anything to you when you said, “Get your hands up”?
[Defense counsel objects; overruled]
A: Yes, he did.
Q: What did he say in response to you saying “Get your hands up”?
[Running objection by defense counsel; accepted]
A: He said, “I can’t. I’m shot. I’m shot.”
Q: Okay. Did you ask him who shot him?
A: Yes, I did.
Q: Did he answer that question?
A: Yes, he did.
*1115Q: What did he say?
A: He said the man at the bank.
Q: Did you ask him, “Where is your gun?”
A: Yes, I did.
Q: Did he answer that question?
A: Yes, he did.
Q: What did he say?
A: He said, “I threw it down.”
Q: Did you ask him what his name was?
A: I did.
Q: What did he say his name was?
A: Johnny Ray Powers.
Q: Did you ask him whether or not he had been involved in a robbery of the Buckner State Bank?
A: Yes, I did.
Q: Did he say—
[Defense objections to leading question; overruled]
Q: Tell us whether or not the man who identified himself as Johnny Ray Powers told you he had been involved in the robbery at the Buckner State Bank?
[Objection by defense counsel; overruled]
A: Yes, he did.
Q: After your conversation with Fleming, did you place him under arrest?
A: Yes, I did.
Q: What did you place him under arrest for?
A: For the robbery of the Buckner State Bank.

Prior to this questioning of Fleming by the policewoman, she had already ascertained that the man standing over him with a gun was a citizen who had pursued him from the bank. That citizen had explained his situation and had dropped his gun upon order of the policewoman. That questioning and the first questions asked Fleming were obviously justified under the public safety exception. Until the police knew what the situation was there was every right to explore exactly what the circumstances were that led to the tableau that the two policewomen had come upon. While Fleming objected to all the testimony set out above, it is clear that the line of questioning through the question as to his name and its answer were proper under the public safety exception to Miranda.

Some doubt of justification might be raised about the question as to where Fleming’s gun was and his response that he had thrown it down. But as long as a gun could possibly be within his reach, there was immediate danger to public safety. Elsewhere in the record, the evidence shows that Fleming also had been subjected to a patdown search for a weapon by the other policewoman before the question, “Where is your gun?”

The clear constitutional invasion of Fleming’s rights occurred with the next critical question asking him whether he had been involved in the robbery and the testimony that he replied that he had. It is conceded by all parties that at that time Fleming was under constraint. He was not free to leave. The record also clearly reveals that by this time there was no threat to public safety. The man was on the ground, wounded, and unarmed. This occurred in a vacant field and there were no other persons around except the man who had chased him down and the two policewomen. Without Miranda warnings, the police officer with a loaded gun pointed at Fleming asked him if he had participated in a bank robbery and elicited the response that he had.

By admitting this testimony as against proper objection, the court moved far beyond the narrow Quarles exception. The exception is clearly recognized, but it is so restricted that it has never been applied in this Circuit before and has rarely even been considered in any case. The prosecutor should never have been allowed to ask the question in court, and the court should never have allowed it and its answer to be admitted. The essence of the privilege against self-incrimination is the prohibition of the use in court of confessions and admissions obtained in this manner. How many thousands of unfortunate persons in totalitarian countries have confessed at the end of the loaded barrel of a gun held by a police officer, whether or not they were guilty? We must not start down that road, *1116and nothing in Quarles or any other decision by the Supreme Court says we must.

The holding that I urge upon this Court must not be mistaken as a holding that “ties the hands of the police.” The criticism in this case does not lie as much with the police as with the prosecutor and the state trial court. The police in questioning cannot be expected to hue precise constitutional lines in questioning suspects in circumstances such as these. For example, police often ask questions which call for hearsay and for that reason the answers are not admissible. There are other reasons why police questioning as it occurs in the immediacy of the arrest may transcend the critical boundaries. What is crucial is that the prosecutor and the court must eliminate from the testimony at trial those questions and answers which were asked which transcend constitutional rights.

The Supreme Court itself shortly after the Quarles opinion stated its own interpretation of the Quarles public safety exception which effectively summarizes and which not only fully supports but compels the verity of my dissenting view in this case. In Berkemer v. McCarty, 468 U.S. 420, 491 n. 10, 104 S.Ct. 3138, 3145 n. 10, 82 L.Ed.2d 317 (1984), less than a month after Quarles, the Supreme Court stated that the implication of the Quarles decision is:

When the police arrest a suspect under circumstances presenting an imminent danger to the public safety, they may without informing him of his constitutional rights ask questions essential to elicit information necessary to neutralize the threat to the public. Once such information has been obtained, the suspect must be given the standard warnings (emphasis added).

The threat to the public clearly had been neutralized by the time the admission was elicited at gunpoint. The Supreme Court statement succinctly and with unusual clarity articulates the law which this Court erroneously refuses to apply to this case, and it is the law of Quarles.

The only possible issue remaining can be disposed of briefly. The use of this admission or confession cannot be considered harmless error. The opinion for the Court does not rely upon a harmless error claim and properly so. The district court erred in holding otherwise. This record shows beyond any question that the prosecution relied heavily upon this admission in the trial of this case. Other evidence implicating guilt was far from strong and fully persuasive.

In summary, the admission was obtained at gunpoint by a police officer while the unarmed accused was lying on the ground in a vacant field and suffering because he had been shot twice a few minutes before. Any threat to public safety had been resolved. The accused had been given no warning of any kind as to his rights.

This case should be reversed, and the writ of habeas corpus granted. I deeply regret that this Court has upheld this grievous and far reaching constitutional violation of the right of a fair trial untainted by self-incrimination.