IN THE SUPREME COURT, STATE OF WYOMING

2021 WY 48

 OCTOBER TERM, A.D. 2020

March 31, 2021

MAXWELL B. SCHWARTZ,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-20-0186

Appeal from the District Court of Converse County

The Honorable F. Scott Peasley, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; 

Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant 

Appellate Counsel. Argument by Mr. Westling.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; 

Joshua C. Eames, Senior Assistant Attorney General; Catherine M. Mercer, 

Assistant Attorney General. Argument by Ms. Mercer.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers 

are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 

82002, of any typographical or other formal errors so that correction may be made before final publication in

the permanent volume.
1

FOX, Justice.

[¶1] A jury convicted Maxwell Schwartz of second-degree murder and aggravated 

assault in the death of his brother, Joseph Schwartz.

1 On appeal, Max argues the district 

court erred when it denied his motion to suppress statements he made at the scene of the 

crime and during a recorded interview. He asserts that admission of the statements 

violated his Fifth and Fourteenth Amendment rights because law enforcement did not 

inform him of his Miranda rights before questioning him at the scene, and that he was 

under the influence of methamphetamine at the time of the recorded interview, making 

his statements involuntary. We affirm. 

ISSUES

[¶2] We address these issues:

I. Did the district court err when it found Max’s statements at 

the scene fell under the public safety exception to Miranda 

and denied his motion to suppress?

II. Did the district court err when it found that Max voluntarily 

waived his Miranda rights and denied his motion to suppress

his recorded statement? 

FACTS

[¶3] Sergeant Schmidt, and Officers Jones and Zwiebel responded to an undefined 

emergency call in Douglas, Wyoming. They soon learned it was a stabbing. When the 

officers arrived, they approached the front door and looked into the home through a 

nearby window. Sergeant Schmidt saw a woman and two crying children who looked 

scared and heard a man screaming hysterically. While the officers were still outside,

dispatch informed them that the call was for a shooting. Sergeant Schmidt announced 

himself and knocked on the door several times. Max slid across the floor, unlocked the 

door, and then scooted back into the kitchen. All three officers entered the home with 

their guns drawn. 

[¶4] Sergeant Schmidt testified that he entered the kitchen and saw a body on the floor

to the left of the door (later identified as Joe Schwartz), Max sitting on the floor to the 

right of the door, and a woman named Kelsi Stotsky standing nearby.2

 Almost 

1 We refer to the defendant and victim by their first names since they share the same last name. 

2 An autopsy revealed that Joe died from one of three stab wounds in his chest which severed the 

subclavian artery. The medical examiner thought Joe could have survived the gunshot wound because it 

did not hit any vital structures. 
2

immediately, Sergeant Schmidt asked Max if he shot Joe, and Max told him no. When

Sergeant Schmidt asked who shot Joe, Max responded that Joe had shot himself. The 

other officers then left the kitchen to clear the rest of the house while Sergeant Schmidt

remained in the kitchen with Max and Ms. Stotsky. He asked Max where the gun was, 

but Max could not respond. Ms. Stotsky answered and said, “It’s right here,” referring to

the counter. Sergeant Schmidt asked if Max was on any drugs, and Ms. Stotsky 

responded he was high on methamphetamine. This was later confirmed by a blood test. 

[¶5] Sergeant Schmidt was concerned about Max’s wellbeing and asked the paramedics

to examine him and to transport him to the hospital. An officer accompanied Max to the 

hospital and was later joined by a special agent of the Wyoming Division of Criminal 

Investigation (DCI). Hospital staff sedated Max, and he was later discharged and taken 

to the jail. Max spent most of the following day asleep. Later that evening, Agents 

Holder and Carpenter of DCI advised Max of his Miranda rights and asked if he would 

answer some questions. Max declined to speak with them, so they left Douglas to return 

to Casper. While on the road, Agent Holder received a phone call indicating that Max 

had asked to speak with them. The agents returned to Douglas and again advised Max of 

his Miranda rights. Max said he did not understand his rights and asked for an 

explanation, and Agent Holder re-advised Max of his rights. Max then waived his rights 

and spoke with the agents. During the interrogation, Max was sometimes confused and 

his answers included discussion of demons and a reference to “possession” of the house;

however, at other points, his answers were clear and responsive. 

[¶6] Max moved to suppress both the statements he made to Sergeant Schmidt at the 

scene and the statements he made to the DCI agents. He argued that Sergeant Schmidt 

did not inform him of his Miranda rights prior to questioning him, and therefore his Fifth 

Amendment rights would be violated if the statements were admitted. He also argued the 

statements he made to the DCI agents were involuntary because he was under the 

influence of methamphetamine at the time. 

[¶7] The district court denied the motion to suppress. It held the public safety 

exception applied to the statements Max made at the scene, citing New York v. Quarles, 

467 U.S. 649, 655, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984). The district court 

reasoned that the questions were objectively reasonable to secure the officers’ safety 

because the scene was chaotic, the officers did not know who was in the house or where 

they were, and Max was on the floor with a dead body. The district court concluded that 

“[a]n officer walking into a situation such as this would be expected to spontaneously 

inquire as to whether there was an active shooter in the household.” The district court

also denied Max’s motion to suppress the statement given to DCI. It found no indication

that Max was under the influence of methamphetamine during the second interview, no 

coercion, and it concluded that Max voluntarily waived his rights and spoke with the 

agents. 
3

[¶8] At trial, the State elicited testimony about Max’s statements at the scene during its 

case-in-chief. Max testified in his own defense and stated he did not remember the 

interrogation by Agents Holder and Carpenter in response to several questions by his 

attorney and the State. The State also questioned Max about his statements to Sergeant 

Schmidt as impeachment evidence. The jury found Max guilty of second-degree murder 

and aggravated assault, and this appeal followed. 

STANDARD OF REVIEW

[¶9] When we review the denial of a motion to suppress, we adopt the district court’s 

factual findings unless they are clearly erroneous. Rodriguez v. State, 2018 WY 134, 

¶ 15, 430 P.3d 766, 770 (Wyo. 2018). Because the district court had the opportunity to 

“assess the credibility of the witnesses, weigh the evidence, and make the necessary 

inferences, deductions, and conclusions,” we view the evidence in the light most 

favorable to its decision. Id. We review issues of law de novo. Jelle v. State, 2005 WY 

111, ¶ 13, 119 P.3d 403, 407 (Wyo. 2005) (citing Mackrill v. State, 2004 WY 129, ¶ 12, 

100 P.3d 361, 364 (Wyo. 2004)). 

DISCUSSION

I. The public safety exception applies to Max’s statements at the scene

[¶10] Max argues Sergeant Schmidt should have advised him of his rights prior to 

asking if he shot Joe, and the district court erred when it denied his motion to suppress.

Miranda requires statements made by a suspect during a custodial interrogation be 

excluded if the suspect is not given the requisite advisements. Jelle, 2005 WY 111, ¶ 14, 

119 P.3d at 407 (citing Gunn v. State, 2003 WY 24, ¶ 7, 64 P.3d 716, 719 (Wyo. 2003)). 

We consider the totality of the circumstances to determine whether a suspect is subjected 

to a custodial interrogation. Jelle, 2005 WY 111, ¶ 14, 119 P.3d at 408. The key 

question is whether a reasonable man in the suspect’s position would consider himself in 

police custody. Barnes v. State, 2008 WY 6, ¶ 14, 174 P.3d 732, 737 (Wyo. 2008) (citing

Gompf v. State, 2005 WY 112, ¶ 31, 120 P.3d 980, 988 (Wyo. 2005)). The district court 

determined that Max was subjected to a custodial interrogation, and we agree. Sergeant

Schmidt and Officers Jones and Zwiebel entered the kitchen with their weapons drawn,

and Sergeant Schmidt testified during the suppression hearing Max was not free to leave 

and he informed Ms. Stotsky, in Max’s presence, that she could not leave the kitchen. A 

reasonable person in Max’s situation would not feel free to leave. 

[¶11] The State argues that Max’s statements at the scene fall under the public safety 

exception to Miranda. Quarles, 467 U.S. at 656, 104 S.Ct. at 2631-32. Max asserts the 

district court’s reliance on the public safety exception was misplaced because Sergeant

Schmidt’s inquiry went directly to the ultimate question of guilt. The Quarles Court 

explained “the doctrinal underpinnings of Miranda [do not] require that it be applied in 
4

all its rigor to a situation in which police officers ask questions reasonably prompted by a 

concern for the public safety.” Id. It described “a kaleidoscopic situation . . . where 

spontaneity rather than adherence to a police manual is necessarily the order of the day.” 

Id. at 656, 104 S.Ct. at 2631. 

[¶12] Contrary to Max’s argument, many cases apply the public safety exception to 

questions by law enforcement officers that address the ultimate question of guilt. For 

example, in U.S. v. Lackey, the defendant was charged with possession of a firearm by a 

restricted person. 334 F.3d 1224, 1225 (10th Cir. 2003). The reporting witness identified 

Mr. Lackey as the person who fired shots at her house, and officers went to arrest him. 

Id. They encountered him in the parking lot of an apartment building where he was 

believed to be living and asked him if he had anything on his person that would hurt 

them. Id. Mr. Lackey asked why he was being arrested, and the officer responded he

would explain in a minute. He handcuffed Mr. Lackey and then asked, “Do you have any 

guns or sharp objects on you?” Mr. Lackey responded he did not, but there was a gun in 

the car. Id. at 1225-26. The court determined this inquiry fell squarely under the public 

safety exception because if Mr. Lackey had a gun, it could have been used against the 

officers, or someone could have been injured when he was frisked subject to arrest. Id. at 

1227. It reached this conclusion even though the admission went directly to the ultimate 

question of guilt under the crime charged. 

[¶13] Rather than analyzing the wording of the unwarned questions, we look at the 

totality of the circumstances to determine whether the public safety exception applies, 

including: the nature of the crime, the knowledge of the officer at the scene, whether the 

defendant is restrained, whether the defendant is alone, and the nature of the scene. See,

e.g., Quarles, 467 U.S. 649, 104 S.Ct. 2626 (question about location of gun fell under 

public safety exception because it was somewhere in a grocery store where the public 

might access it); Barnes, 2008 WY 6, 174 P.3d 732 (public safety exception applied to 

question about the amount of drugs Mr. Barnes used because he complained of dizziness 

and shortness of breath and it was possible he was suffering from a drug overdose); U.S. 

v. Mikolon, 719 F.3d 1184 (10th Cir. 2013) (question about presence of drugs or weapons 

in defendant’s truck did not fall under the public safety exception because defendant was 

secured and away from the truck at the time); Perez v. People, 479 P.3d 430 (Colo. 2021)

(After a traffic stop and foot chase, officers discovered shotgun rounds in defendant’s 

pocket and asked where the gun was. The court determined the public safety exception 

applied because the officer could have reasonably believed the defendant was armed at 

some point during the chase and that could pose a threat to public safety.); State v. 

Campbell, --- So.3d ---, 2020 WL 6580522 (La. 2020) (per curiam) (public safety 

exception applied to question “what happened?” after officers responded to a 911 call in 

which a child reported that her father had shot her mother because officers did not know 

the location of the child or weapon, or who was involved); State v. Forshee, 455 P.3d 

1025 (Or. App. 2019) (the public safety exception applied when officer responded to a 

workplace shooting and asked the first person he saw “what’s your involvement here?” 
5

because he arrived on a scene where an unknown shooter was at large and did not know 

if the defendant was the perpetrator, witness, or victim); see also U.S. v. Fautz, 812 F.

Supp. 2d 570, 624-29 (D.N.J. 2011) (including extensive overview of cases involving the 

public safety exception). 

[¶14] The situation here developed very rapidly. In the three minutes it took Sergeant

Schmidt to get from the station to the door of the house, the call evolved from an 

unspecified medical emergency, to a stabbing, to a shooting. He could hear Max and the 

children screaming before he entered the house. Max could not stand up and continued 

yelling after the officers entered the house. The officers saw Joe, dead on the floor, and 

did not immediately see the gun. When Sergeant Schmidt arrived, the scene was chaotic

and he did not know what had happened, who was there, where the weapon was, or if 

there was continuing danger to the public or people in the home (including the officers). 

Sergeant Schmidt’s questions were spontaneous and in response to the type of 

kaleidoscopic situation described by the Quarles court. The district court did not err in 

concluding the public safety exception applied. 

II. The district court did not err when it determined Max voluntarily waived his 

Miranda rights during his DCI interrogation 

[¶15] Max argues the district court erred when it failed to suppress the statement he gave 

to Agents Holder and Carpenter the day after Joe died because his statement was 

involuntary. Voluntariness is a question of law that we review de novo. Gunn, 2003 WY 

24, ¶ 5, 64 P.3d at 719. “In determining voluntariness, [we] examine[] the totality of the 

circumstances that existed when the statements were made.” Id. at ¶ 18, 64 P.3d at 722. 

Courts consider many factors in determining whether a statement was made voluntarily,

including: 

“[T]he atmosphere and events surrounding the elicitation of 

the statement, such as the use of violence, threats, promises, 

improper influence or official misconduct, the conduct of the 

defendant before and during the interrogation and the 

defendant’s mental condition at the time the statement is 

made[,] . . . whether the defendant was in custody or was free 

to leave and was aware of the situation; whether Miranda

warnings were given prior to any interrogation and whether 

the defendant understood and waived Miranda rights; 

whether the defendant had the opportunity to confer with 

counsel or anyone else prior to the interrogation; whether the 

challenged statement was made during the course of an 

interrogation or instead was volunteered; whether any overt 

or implied threat or promise was directed to the defendant; 

the method and style employed by the interrogator in 
6

questioning the defendant and the length and place of the 

interrogation; and the defendant’s mental and physical 

condition immediately prior to and during the interrogation, 

as well as educational background, employment status, and 

prior experience with law enforcement and the criminal 

justice system.”

Id. at ¶ 12, 64 P.3d at 721 (alterations in original) (quoting Simmers v. State, 943 P.2d 

1189, 1195-96 (Wyo. 1997)). Agent Holder testified that no one threatened Max or 

offered him anything in exchange for his testimony. And, while Max was under arrest 

and at the police station, he asked to speak to the DCI agents, and they read him his 

Miranda rights prior to questioning and did not ask any substantive questions until Max 

confirmed that he understood. 

[¶16] Max argues his statements to Agents Holder and Carpenter were involuntary 

because he was under the influence of methamphetamine at the time. However, 

intoxication, without more, does not render a statement involuntary. Siler v. State, 2005 

WY 73, ¶ 25, 115 P.3d 14, 26 (Wyo. 2005) (citing Stone v. State, 745 P.2d 1344, 1348 

(Wyo. 1987)). When an appellant alleges his statement was involuntary due to 

intoxication, we look to whether the appellant “was so intoxicated . . . he was unable to 

appreciate the nature and consequences of his statements.” Siler, 2005 WY 73, ¶ 25, 115 

P.3d at 26 (quoting Lonquest v. State, 495 P.2d 575, 582 (Wyo. 1972)). The district court 

found that Max’s positive methamphetamine test occurred fourteen and a half hours 

before the interrogation.3

 It found his answers during the interrogation were sometimes 

nonsensical, but at other points were responsive and clear. And finally, it found that 

Agent Holder was qualified to recognize whether a person is under the influence of drugs 

and alcohol, and he testified he did not believe Max was under the influence at the time 

of the interrogation. 

[¶17] Further, even if Max was under the influence of methamphetamine during the 

interrogation, “[i]nvoluntariness requires coercive state action, such as trickery,

psychological pressure, or mistreatment.” State v. Evans, 944 P.2d 1120, 1125 (Wyo. 

1997) (citing Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 521, 93 L.Ed.2d 

473 (1986)); see also Carter v. State, 2010 WY 136, ¶ 15, 241 P.3d 476, 485 (Wyo. 

2010). Max originally declined to speak with DCI, and he asserts the fact he was 

interrogated later in the evening indicates he was coerced into waiving his rights. The 

record, however, does not support this assertion. 

[¶18] Instead, the record shows Agents Holder and Carpenter first saw Max late in the 

morning on the day after Joe died, about four hours after he was released from the 

3 The parties stipulated that the positive methamphetamine test occurred at 2:37 a.m. The interview with 

the DCI agents was conducted at 7:00 p.m.—sixteen and a half hours after the positive test result.
7

hospital, but Max was asleep, so they left. Agents Holder and Carpenter returned around 

five o’clock in the evening, read Max his Miranda rights, Max said he did not want to 

speak with them, and they left. On the drive back to Casper, the agents received a call 

from a staff member at the jail who said Max wanted to speak with them. Agents Holder 

and Carpenter returned to Douglas and spoke with Max at the jail around seven o’clock 

that evening. The agents recorded the interrogation. They informed Max of his Miranda 

rights, and Max initially stated he did not understand and asked the agents to explain 

them. After the agents went through his Miranda rights a second time, Max affirmatively 

declared he understood his rights and then willingly spoke with the agents and answered 

their questions. Nothing in the record demonstrates the type of coercive state action 

necessary to render a statement involuntary. 

CONCLUSION

[¶19] The public safety exception applies to Max’s statements at the scene of the crime. 

Furthermore, Max was advised of his Miranda rights at the police station, he stated he 

understood them, and he waived his rights. His statements at the station were voluntary 

and not the result of coercion. The district court did not err when it denied Max’s motion 

to suppress. We affirm.