United States v. Lackey

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 11 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 02-1255
RODGERICK LABON LACKEY, aka
Roderick Lackey,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 01-CR-210-WM)

Madeline S. Cohen, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, with her on the briefs), Denver, Colorado, for Defendant-
Appellant.

Martha Ann Paluch, Assistant United States Attorney (John W. Suthers,
United States Attorney, and William L. Taylor, Assistant United States Attorney,
with her on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before HARTZ and McKAY , Circuit Judges, and BRORBY , Senior Circuit
Judge.

HARTZ , Circuit Judge.
 Defendant Rodgerick Labon Lackey appeals his conviction after trial for

possession of a firearm by a restricted person, in violation of 18 U.S.C.

§ 922(g)(1). His sole issue on appeal concerns the denial of his motion to

suppress the firearm. He argues that police officers discovered the firearm

through an interrogation that violated Miranda v. Arizona, 384 U.S. 436 (1966).

After Defendant’s arrest on a warrant, but prior to his receiving Miranda

warnings, officers asked him whether he had any guns or sharp objects on him.

He responded that there was a gun in the car he had just left. We affirm

Defendant’s conviction, holding that officers about to conduct a lawful frisk or

search of a suspect need not give Miranda warnings before asking the suspect

about the presence of dangerous objects on his person.

I. Factual Background

The relevant facts are not in dispute. On May 16, 2001, a woman contacted

the Colorado Springs Police Department (CSPD) to report that a man had fired

shots at her house. After some preliminary investigation, the police presented the

woman with a photo array, from which she identified Defendant. The CSPD

obtained a state arrest warrant for Defendant on felony charges of illegal

discharge of a firearm, menacing with a handgun, and possession of a weapon by

a previously convicted felon. The CSPD then contacted an agent of the federal

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Bureau of Alcohol, Tobacco, and Firearms (ATF) to obtain assistance in

apprehending Defendant.

On May 23 two CSPD officers and the ATF agent went to the parking lot of

an apartment building where Defendant was believed to be living, hoping to arrest

him as he arrived at or left the building. Shortly thereafter, the three officers saw

a man resembling Defendant approach a car matching the description of

Defendant’s car. The man opened the car’s hatchback and spent about a minute

moving things around inside the car.

The officers approached the man, displayed their badges, and identified

themselves. The man took a few steps away from the hatchback. One officer

asked him his name, and Defendant identified himself. Defendant was told that

he was under arrest on an outstanding warrant. Next, an officer asked Defendant,

“Do you have anything on you that would hurt me?” R, Vol. 5, at 47, 88.

Defendant responded, “What is this about? What is this about?” Id. at 44, 88.

An officer replied, “I will tell you about it in a minute,” and then handcuffed

Defendant. Id.

Once Defendant was handcuffed, but before he was patted down, an officer

asked, “Do you have any guns or sharp objects on you?” Defendant responded,

“No, I don’t have anything on me, but there was a gun in the car.” Id. at 47-48,

89. The officers looked into the car’s open hatchback and noticed a gun and its

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magazine clip, both plainly visible. When an officer asked Defendant whether the

car was his, Defendant responded that it belonged to him and his wife. At the

officers’ request he granted consent to search the car. He then was frisked, but no

additional weapons were discovered.

Following the arrest, Defendant was transported to the ATF office, where

he received Miranda warnings for the first time. Defendant signed a written

waiver and gave a written statement denying his involvement in the May 16

shooting.

Defendant was later charged with possession of a firearm by a restricted

person, in violation of 18 U.S.C. § 922(g)(1). He filed motions to suppress the

gun and the statements he made to the police officers at the arrest scene. The

district court denied the motions to suppress, finding that the officers’ questions

about whether Defendant had weapons or sharp objects on him were within the

public-safety exception to the Miranda requirement, see New York v. Quarles, 467

U.S. 649 (1984). The court also concluded that Defendant had voluntarily

consented to the search of the car, and that the search of the car was proper as a

search incident to a lawful arrest.

Defendant’s case proceeded to trial, where he was found guilty. This

appeal followed. We have jurisdiction under 28 U.S.C. § 1291.

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II. Discussion

Whether facts support an exception to the Miranda requirement is a

question of law. Because Defendant “challenges the district court's ultimate

ruling, not its underlying findings, . . . our review is de novo.” United States v.

Humphrey, 208 F.3d 1190, 1201 (10th Cir. 2000).

The sole issue on appeal is whether the officers violated Defendant’s

constitutional rights by asking him about the presence of guns or sharp objects on

his person after he was in custody but before he was informed of his Miranda

rights. Agreeing with the other circuit courts to address the issue, we hold that

the question was proper under the public-safety exception to Miranda set forth in

Quarles. See United States v. Padilla, 819 F.2d 952, 960-61 (10th Cir. 1987)

(applying Quarles to question of arrestee about the condition of persons inside a

house he had been shooting at).

In Quarles two police officers encountered a woman who informed them

that she had just been raped. 467 U.S. at 651-52. She told the officers that the

rapist had a gun and had recently entered a nearby grocery store. Id. The officers

entered the store, where they spotted a man matching the suspect’s description.

Id. at 652. Upon seeing the officers, the suspect fled. Id. After giving pursuit,

one of the officers, Frank Kraft, cornered the suspect and ordered him to stop and

put up his hands. Id. Officer Kraft frisked him, at which time he discovered that

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the suspect was wearing an empty shoulder holster. Id. Officer Kraft handcuffed

the suspect and asked him where the gun was. Id. The suspect nodded to some

empty cartons and stated “the gun is over there.” Id. Officer Kraft proceeded to

the cartons, where he discovered a loaded .38 caliber pistol. Id. Officer Kraft

then formally placed the suspect under arrest and advised him of his Miranda

rights. Id.

The state trial court suppressed the suspect’s statement that “the gun is over

there,” ruling that it was obtained by a question improperly asked before the

suspect was informed of his Miranda rights. Id. at 652-53. The New York Court

of Appeals affirmed. After concluding that the suspect had been in “custody”

within the meaning of Miranda, it “declined to recognize an exigency exception to

the usual requirements of Miranda because it found no indication from Officer

Kraft’s testimony at the suppression hearing that his subjective motivation in

asking the question was to protect his own safety or the safety of the public.” Id.

at 653.

The Supreme Court reversed, holding that “on these facts there is a ‘public

safety’ exception to the requirement that Miranda warnings be given before a

suspect’s answers may be admitted into evidence.” Id. at 655. Observing that

“[u]ndoubtedly most police officers, if placed in Officer Kraft’s position, would

act out of a host of different, instinctive, and largely unverifiable motives—their

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own safety, the safety of others, and perhaps as well the desire to obtain

incriminating evidence from the suspect,” id. at 656, the Court said that “the

availability of that exception does not depend upon the motivation of the

individual officers involved.” Id.

The Court reasoned that the protection of the Fifth Amendment privilege

provided by Miranda could not justify the risk to public safety. It wrote:

In such a situation, if the police are required to recite the familiar
Miranda warnings before asking the whereabouts of the gun, suspects
in Quarles' position might well be deterred from responding.
Procedural safeguards which deter a suspect from responding were
deemed acceptable in Miranda in order to protect the Fifth
Amendment privilege; when the primary social cost of those added
protections is the possibility of fewer convictions, the Miranda
majority was willing to bear that cost. Here, had Miranda warnings
deterred Quarles from responding to Officer Kraft's question about
the whereabouts of the gun, the cost would have been something more
than merely the failure to obtain evidence useful in convicting
Quarles. Officer Kraft needed an answer to his question not simply to
make his case against Quarles but to insure that further danger to the
public did not result from the concealment of the gun in a public area.

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.

Id. at 657.

Although the Court noted that the public-safety exception could

theoretically diminish the clarity of Miranda, it minimized this concern, stating,

“We think police officers can and will distinguish almost instinctively between

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questions necessary to secure their own safety or the safety of the public and

questions designed solely to elicit testimonial evidence from a suspect.” Id. at

658-59.

In our view, the reasoning of Quarles applies squarely to the circumstances

here. The focused question of the officers—“Do you have any guns or sharp

objects on you”—addressed a real and substantial risk to the safety of the officers

and Defendant: If Defendant was carrying such an item, he could use it against

the officers or, perhaps more likely, someone could be seriously injured when

Defendant, who was already under arrest, was routinely searched or frisked.

It is irrelevant that the principal danger in this case was the risk of injury to

the officers or Defendant himself, rather than ordinary members of the “public.”

As the above-quoted passages from Quarles illustrate, the concern of the public-

safety doctrine extends beyond safety to civilians. The exception undoubtedly

extends to officers’ “questions necessary to secure their own safety.” Id. at 659;

cf. United States v. Holt, 264 F.3d 1215, 1221-26 (10th Cir. 2001) (en banc)

(concerns about officer safety justify routinely asking about presence of weapons

during traffic stop).

Indeed, in one significant respect an exception to Miranda can be better

justified in this case than in Quarles. Here, a responsive answer to the officers’

question would not, as a practical matter, incriminate a suspect. Because officers

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have the right to, and will, search the person of an arrestee, they will learn soon

enough whether the arrestee is carrying a dangerous object. The purpose of the

question “Do you have any guns or sharp objects on you?” is not to acquire

incriminating evidence; it is solely to protect the officers, as well as the arrestee,

from physical injury. Thus, in this context requiring Miranda warnings does

precious little to protect the arrestee’s privilege against self-incrimination. The

risk of incrimination is limited to non-responsive answers (such as in this case,

when the suspect provides more information than requested), not a risk particularly

worthy of a prophylactic rule. Cf. Rhode Island v. Innis, 446 U.S. 291, 302-03

(1980) (Miranda inapplicable when suspect’s incriminating comments came in

response to officers’ statements that could not have reasonably been expected to

elicit an incriminating response).

We note that in similar circumstances other circuit courts have held that the

public-safety exception applies. See United States v. Shea, 150 F.3d 44, 48 (1st

Cir. 1998) (pre-Miranda question asking arrested defendant whether he had any

weapons fell within the public-safety exception); United States v. Young, No. 02-

4465, 2003 WL 283189, at *1 (4th Cir. Feb. 11, 2003) (unpublished) (officer’s

pre-Miranda question, “do you have any sharp objects, knives, needles, or guns,”

was within public-safety exception); United States v. Webster, 162 F.3d 308, 332

(5th Cir. 1998) (“[T]he police acted constitutionally when they asked [the

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defendant] whether he had any needles in his pockets that could injure them during

their pat down; such questioning, needed to protect the officers, does not

constitute interrogation under Miranda.”); United States v. Edwards, 885 F.2d 377,

384 (7th Cir. 1989) (public-safety exception applied to pre-Miranda question

asking arrested defendant whether he had a gun); United States v. Carrillo, 16

F.3d 1046, 1049-50 (9th Cir. 1994) (pre-Miranda question asking arrested

defendant whether he had any needles on him was within the public-safety

exception).

The judgment of the district court is AFFIRMED.

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