People v. Attebury

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________

                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




Opinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 Robert P. Young, Jr.
                                                                                                 Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                      FILED APRIL 24, 2001





                PEOPLE OF THE STATE OF MICHIGAN,


                        Plaintiff-Appellant,


                v	                                                                             No.          115225


                FREDERICK G. ATTEBURY, JR.,


                     Defendant-Appellee.

                ____________________________________

                BEFORE THE ENTIRE BENCH


                CORRIGAN, C.J.


                        We granted the prosecutor’s application for leave to


                appeal       to    consider        the     propriety             of    the   trial          court’s


                application of the “public safety” exception to Miranda v


                Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                Because we conclude that the circumstances of this case fall


                within the rule of New York v Quarles, 467 US 649; 104 S Ct

2626; 81 L Ed 2d 550 (1984), we reverse the decision of the


Court of Appeals and reinstate the judgment of the trial


court.


                  I. FACTUAL   AND   PROCEDURAL BACKGROUND


     On January 19, 1996, defendant approached his estranged


wife in a shopping center parking lot in Marysville and


threatened to shoot her.        After explaining that he had a gun,


defendant ordered his wife into the driver’s seat of her car.


He then displayed a handgun he had tucked into his pants and


forced his way into the back seat of her car before his wife


could drive away. Fearing for her life, defendant’s wife fled


on foot to a nearby video store and promptly called the


police.   When the police arrived minutes later, defendant had


left the area.


     Defendant’s     wife      filed    a   complaint    and   the   police


obtained a warrant for defendant’s arrest on a charge of


assault with a dangerous weapon, MCL 750.82; MSA 28.277.               Two


days after the incident in the parking lot, three police


officers went to defendant’s apartment to execute the warrant


for his arrest.      In addition to information in the arrest


warrant regarding the nature of the alleged offense, the


officers knew that defendant had recently been treated for


mental problems at a local hospital.                 Officer Larry West


testified as follows at defendant’s suppression hearing:



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         We knew that prior to this incident taking

    place on or about the 18th, which would have been

    the night before the alleged assault, there was a

    broadcast put on the police radio with Mr.

    Attebury’s   name  attached   to   it,  that   the

    psychiatrist had alerted the police he was

    homicidal at that point or had homicidal thoughts.


    Using a key provided by the landlord, the officers


entered defendant’s apartment without knocking.     Once inside


the apartment, they discovered that defendant was taking a


shower.    Officer   West   described   the   officers’   initial


interaction with defendant:


          Q. Tell the Judge briefly what transpired in

     or around the bathroom area of the shower.


          A. After we entered the home, it was to our

     left. I knocked on the door, advised him who we

     were, why we were there. He was given permission

     to continue his shower.


          After he finished he went to get dressed. We

     showed him the warrant.     While he was getting

     dressed, because he was going in and out of a

     dresser and what not, we asked him whether there

     were weapons in the home.     He said that there

     wasn’t.


          Q. Did he tell you—what are the things that

     he told you with regard to questions you asked him

     about the weapon?      Tell the Judge what the

     questions were and what his answers were?


          A. Whether there were weapons in the home, he

     said not at this time. And we asked him because

     there was a weapon indicated in the warrant if he

     had that weapon there or where it was at.        He

     indicated to me at that time he had taken it to his

     brother’s house.


          Q. And did you later locate a weapon at the

     brother’s house?



                               3

           A.   Yes, we did.


           Q. Were it not for his statement to you as to

      the location of that weapon, do you think you would

      have tracked it down, it being at the brother’s

      house by other means?


           A.   That would have been doubtful.


           Q. Okay. Did you know before asking the

      question about the weapon whether he had the weapon

      in the home or what he had done with the weapon?


           A. No. We had no idea where the weapon was

      at that time.


           Q. What was your concerns [sic] with regard

      to that weapon? What concerns?


           A. The fact of not knowing Mr. Attebury. Not

      knowing him. There were three police officers in

      his room.     We are certain that he allegedly

      threatened to kill one person and he would have

      access to a weapon. We didn’t know where one was,

      if he had thrown it in the ditch or river, if he

      had it stashed somewhere in his home, if he had a

      person who was hiding when he heard us come in, any

      of those scenarios that have come up.


It is undisputed that the police did not advise defendant of


his Miranda rights before asking about the gun.             When the


officers later informed defendant of his rights, defendant


again explained that he had given the gun to his brother. 


      Faced with the charge of assault with a dangerous weapon,


MCL 750.82; MSA 28.277, defendant moved to suppress his


initial statement to the police and the gun on the ground that


his   federal   constitutional        rights   had   been   violated.


Defendant argued that his statement regarding the whereabouts




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of the gun was unlawfully obtained in violation of the Miranda


rule, and that the gun itself was the “fruit of the poisonous


tree,” see Wong Sun v United States, 371 US 471, 488; 83 S Ct


407; 9 L Ed 2d 441 (1963).         After an evidentiary hearing, the


trial court denied defendant’s motion on the ground that the


facts fell within the public safety exception set forth in


Quarles.    At trial, Officer West testified specifically about


defendant’s statement in the apartment regarding the location


of the gun described in the arrest warrant.             A jury convicted


defendant as charged and the trial court sentenced him to a


two-year term of probation.


     The    Court     of   Appeals,       over    a   dissent,   reversed


defendant’s conviction and remanded for a new trial.1                The


majority concluded that the facts of this case were “markedly


and significantly different” from the situation in Quarles,


because the police were “not confronted with an immediate


threat     to   the    public.”           Given   the    “unthreatening”


circumstances    under     which    the     police    first   encountered


defendant and the fact that the police had no “indication that


the gun was located in a place where it was endangering the


public,” the majority reasoned that “the police were not


confronted with a situation where they had to make a split




     1
       Unpublished opinion per curiam, issued April 13, 1999,

reh den June 21, 1999 (Docket No. 197053).


                                     5

second    decision      between      giving       Miranda      warnings    and


neutralizing a volatile danger to public safety.” Rather,“the


questioning of defendant was clearly investigatory and did not


relate in any way to an objectively reasonable concern for


public safety.”       Accordingly, the majority concluded that the


“type of exigent circumstances that justify application of the


narrowly tailored public safety exception to the Miranda rule


were not present in the case at hand.”                  The majority ruled


that the defendant’s statement should have been suppressed


because it was obtained in violation of the Miranda rule, and


that the gun should have been suppressed “given that its


discovery was the illegal fruit of the Miranda violation.” 


     In the dissenting judge’s view, the circumstances of the


case,    including     the   nature       of   the   alleged     offense   and


defendant’s homicidal tendencies, gave the arresting officer


“an objectively reasonable justification to question defendant


regarding    the   whereabouts       of    the    gun   before   instructing


defendant regarding his Miranda rights.”                 In particular, he


opined that “while one might question the wisdom of the


officer’s decision to grant defendant the liberty to dress


himself     without    restraint,      the       exigency    justifying    the


officer’s     question,      e.g.,    the      safety   of   the   arresting


officers, was nonetheless present when the officer questioned


defendant regarding the location of the gun that was used to



                                      6

commit the crime named in the warrant.” The dissent concluded


that “under the circumstances of this case, the questions


posed to defendant by the arresting officer were reasonably


prompted by a concern for the safety of the officers, and


therefore, the questions come within the exception to the


Miranda rule recognized in Quarles.”                   The dissenting judge


would have affirmed.


                       II. STANDARD        OF   REVIEW


     We review a trial court's factual findings in a ruling on


a motion to suppress for clear error.                  To the extent that a


trial court’s ruling on a motion to suppress involves an


interpretation    of   the     law         or    the      application   of   a


constitutional standard to uncontested facts, our review is de


novo.    See People v Daoud, 462 Mich 621, 629-630; 614 NW2d 152


(2000); People v Stevens (After Remand), 460 Mich 626, 631;


597 NW2d 53 (1999). 


    III. THE MIRANDA RULE   AND THE   QUARLES PUBLIC SAFETY EXCEPTION


        In its landmark Miranda decision, the United States


Supreme Court announced the general rule that the prosecution


in a criminal case may not use a statement “stemming from


custodial     interrogation     of         the      defendant     unless     it


demonstrates the use of procedural safeguards effective to


secure the privilege against self-incrimination.” Id. at 444.


As a basis for the rule, the Miranda Court explained that in



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order        to    effectively       combat      the    “inherently         compelling


pressures” of custodial interrogation, an accused must be


“adequately and effectively apprised” of rights associated


with the interrogation.                Id. at 467.            In the years since


Miranda,          the    United    States   Supreme         Court    has    repeatedly


described          the     required     advice         of   rights     as    being   a


“prophylactic” measure designed to protect the exercise of an


accused’s Fifth Amendment rights.                       See Dickerson v United


States, 530 US 428, ___, n 2; 120 S Ct 2326, 2333, n 2; 147 L


Ed 2d 405 (2000) (citing cases).                        Although some of these


decisions, including Quarles, might have been read to suggest


that Miranda warnings are not constitutionally required,2 the


Court        has   recently        confirmed     that       the   Miranda     decision


“announced a constitutional rule.”                     Dickerson, 120 S Ct 2336.


In so doing, however, it also explained that the Miranda rule


was not “immutable.”                 120 S Ct 2335.               Most notably, for


purposes of this case, Dickerson described the Quarles public


safety exception as merely being a “modification” of the


Miranda rule.            Id.      Accordingly, Quarles remains “good law”


after Dickerson.


        2

       For instance, in Quarles, supra at 654, the Court

quoted Michigan v Tucker, 417 US 433, 444; 94 S Ct 2357; 41 L

Ed 2d 182 (1974), for the proposition that the “prophylactic”

Miranda warnings are “not themselves rights protected by the

Constitution, but [are] instead measures to insure that the

right against compulsory self-incrimination [is] protected.”



                                            8

       In Quarles, a woman approached a police officer alleging


that she had just been raped by an armed man.                   She described


her assailant and told the officer that the man had gone into


a nearby grocery store.          Entering the store, the officer saw


the suspect, who turned and ran toward the rear of the store.


The suspect was briefly out of the officer’s sight.                    When the


officer apprehended the suspect a moment later, the officer


frisked the man and discovered that he was wearing an empty


shoulder holster. The officer then handcuffed him and—without


giving Miranda warnings—inquired about the location of the


gun.   The suspect nodded toward some cartons and said that it


was “over there.”           Subsequently, the gun was found and the


suspect was charged with criminal possession of a weapon.


       The issue before the Quarles Court was whether the


officer    “was    justified      in    failing    to    make   available     to


respondent      the     procedural     safeguards    associated       with   the


privilege        against      compulsory        self-incrimination       since


Miranda.”    Quarles, supra at 655.               The Court answered this


question    in    the      affirmative,      concluding   that     “overriding


considerations        of    public   safety”     justified      the   officer’s


failure to provide Miranda warnings before asking “questions


devoted to locating the abandoned weapon.”                   Id. at 651.      It


then explained that the Miranda rule does not apply “in all


its    rigor”      to      situations        involving    police      questions



                                        9

“reasonably prompted by a concern for the public safety.” Id.


at 656.


     In defining, more precisely, the parameters of the public


safety exception, the Court first rejected the notion that the


availability of the public safety exception should depend on


the subjective motivation of the officers involved:


          In a kaleidoscopic situation such as the one

     confronting these officers, where spontaneity

     rather than adherence to a police manual is

     necessarily the order of the day, the application

     of the exception which we recognize today should

     not be made to depend on post hoc findings at a

     suppression hearing concerning the subjective

     motivation of the arresting officer. [Id. at 656.]


The Court also suggested that application of the public safety


exception was limited to situations involving an “immediate”


public safety concern.        Id. at 657, 658, n 8.      It described


the exigency faced by the arresting officers in Quarles as


follows:


          So long as the gun was concealed somewhere in

     the supermarket, with its actual whereabouts

     unknown, it obviously posed more than one danger to

     the public safety: an accomplice might make use of

     it, a customer or employee might later come upon

     it. [Id. at 657.]


Although the Quarles Court repeatedly referred to “public


safety,”    its   use   of   the   phrase   “public   safety”   clearly


encompassed the safety of the officers as well as the general


public.     See id. at 658-659, n 8.        Finally, the Court drew a


specific distinction between questions objectively necessary



                                    10

to secure the public safety and those with an investigatory


purpose,   explaining     that    only      the   former    can     trigger


application of the public safety exception.                Distinguishing


Quarles from its earlier decision in Orozco v Texas, 394 US


324; 89 S Ct 1095; 22 L Ed 2d 311 (1969), the Court explained:


          In Orozco four hours after a murder had been

     committed at a restaurant, four police officers

     entered the defendant's boardinghouse and awakened

     the defendant, who was sleeping in his bedroom.

     Without giving him Miranda warnings, they began

     vigorously to interrogate him about whether he had

     been present at the scene of the shooting and

     whether he owned a gun. The defendant eventually

     admitted that he had been present at the scene and

     directed the officers to a washing machine in the

     backroom of the boardinghouse where he had hidden

     the gun. We held that all the statements should

     have been suppressed. 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. [Id.

     at 659, n 8 (emphasis added).]


The preceding excerpt nicely captures the relevant elements of


the Quarles public safety exception: for it to apply, the


police   inquiry   must   have    been     an   objectively       reasonable


question necessary to protect the police or the public from an


immediate danger.


            IV. APPLICATION   OF THE   PUBLIC SAFETY EXCEPTION


         This case presents the first occasion we have had to


apply the Quarles public safety exception to Miranda.                  As an



                                   11

initial matter, the parties agree that defendant was in


custody at the time of Officer West’s questions.                           At the


suppression hearing, West testified that defendant was “in


custody” and had no right to leave.               Moreover, defendant does


not contend that his statements to the police were anything


less   than     completely      voluntary.           Defendant     voluntarily


answered the officer’s questions, knowing that the police were


in his apartment to execute a warrant for his arrest in


connection     with     the    threats      he   made    against     his    wife.


Accordingly, there was no due process violation, see Spano v


New York, 360 US 315; 79 S Ct 1202; 3 L Ed 2d 1265 (1959), and


no violation of the express language of the Fifth Amendment


self-incrimination clause, see generally Oregon v Elstad, 470


US 298, 304-309; 105 S Ct 1285; 84 L Ed 2d 222 (1985); see


also   Daoud,    supra    at    637   (recognizing         that     “the    Fifth


Amendment      itself    protects     only       against    compelled       self­

incrimination”).


       With    respect    to    application        of    the     public    safety


exception itself, we agree with the analysis of the Court of


Appeals dissent.         The Court of Appeals majority erred by


limiting      application      of   the     public      safety    exception    to


questions necessary to protect the public other than the


police themselves.        See Quarles, supra at 658-659, n 8.                  It


also erred in concluding that the situation did not pose an



                                      12

immediate danger.   Viewed in an objective fashion as Quarles


requires, once the officers allowed defendant to dress, and


defendant began to rummage through his dresser drawers, any


reasonable person in the officers’ position would have been


concerned    for his own immediate safety.   Not only did the


officers know that the arrest warrant stemmed from an incident


in which defendant threatened his wife with a gun, but they


also knew that defendant had previously expressed homicidal


and suicidal thoughts.3   While the officers might have, in


hindsight, mitigated the exigency by physically restraining


defendant before he was allowed to dress, their failure to do


so does not alter our analysis.     The fact remains that an


exigency existed.   The logic underlying Quarles is based on


the existence, rather than the cause of, a “public safety”


exigency.


     Finally, contrary to defendant’s argument, the United


States Supreme Court’s decision in Orozco, supra, does not


command a different result.     There, as noted above in the




     3

        Compare United States v DeSantis, 870 F2d 536 (CA 9,

1989) (concluding that the exception applied where the police

questioned the defendant regarding the presence of weapons in

a bedroom of an otherwise unoccupied apartment in response to

the defendant’s request to change into clothes located in that

bedroom), with United States v Mobley, 40 F3d 688 (CA 4, 1994)

(concluding that the exception did not apply where the police

encountered the naked defendant alone in his apartment, had

performed a security sweep, and inquired regarding the

presence of weapons as they were leading the defendant away).


                              13

excerpt from Quarles, supra at 659, n 8, the sleeping suspect


was awakened only after being surrounded by four police


officers. He was then questioned vigorously while he remained


in bed. Under the circumstances, the officers’ questions “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.”       Id.   Here, however, defendant


easily could have hidden the weapon in one of the dresser


drawers to which he had immediate access. Thus, as in Quarles


rather   than   Orozco,   the   officers’   initial   attempts   to


ascertain the location of the gun were directly related to an


objectively reasonable need to secure protection from the


possibility of immediate danger associated with the gun.


Moreover, the pre-Miranda questioning in the present case


related solely to neutralizing this danger. The officers only


asked about the whereabouts of the gun and not other broader


questions relating to investigation of the crime.        This case


is thus unlike Orozco, where the pre-Miranda questioning


included general investigation, such as whether the suspect


was at the scene of the crime, which was unrelated to any


immediate danger to the officers or the public.        Here, once


the officers were satisfied that defendant posed no immediate


threat of danger to them, they informed defendant of the


Miranda rights and began their general investigation. For all



                                 14

of these reasons, the pre-Miranda questioning at issue in this


case falls squarely within the public safety exception to


Miranda.


     In sum, we hold that the officers were justified in


forgoing immediate adherence to the Miranda rule, given the


exigencies of the situation in defendant’s apartment at the


time of his arrest.    Accordingly, the trial court did not err


in refusing to suppress defendant’s statement or the gun. The


judgment of the Court of Appeals is reversed and the judgment


of the circuit court is reinstated.


     WEAVER , TAYLOR , YOUNG , and     MARKMAN , JJ.,   concurred   with


CORRIGAN , C.J.


     CAVANAGH and KELLY, JJ., concurred in the result only.





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