## I N THE COURT OF CRIMINAL APPEALS OF TEX AS

NO. PD-0810-19

THE STATE OF TEXAS

v. RICARDO MATA, Appellee
ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS

HIDALGO COUNTY
W A L K E R 

### , J., filed a concurring opinion, in w hich M C 

### C L U R E 

### , J., joined.

CONCURRING OPINION
Dependingon the circumstances, the warning s required by Miranda v. Arizona may be set aside if the w arning s themselves could create a t hreat to public safety

. Giving warning s when a kidnapping is involved will not necessarily create such a t h reat. B ut in Appellee’s case, if he was properly warned and thereafter decided to remain silent, the police would have been in an untenable situation where they would not know where the kidnapping victim w as located and her safety could be put at risk. F or that reason, and not because it w as a kidnapping of a child g enerally , the Quarles
p ublic safety ex ception to the rule of Miranda a pplies, and Appellee’s un-M irandized a

n s w e r s t o2

“ ag g ressive interrog ation” w ere a dmissible into evidence. I a g r e e w ith the Court’s de c i s i o n t o r e v e r s e the judg ment of the court of a ppeals, but I respectfully do not a g ree with the Court’s reasoning and cannot join its opinion.

I — The Quarles P ublic Saf ety Exception Is Not Categorical The court of appeals decided the Quarles p ublic safety ex c eption did not apply because the situation did not involve a missing gun. The Court today decides the ex ception does a pply because public safety

—insofar as the kidnapping victim was a member of the public—was involved. F rom my own reading of Quarles , the public safety ex ception is not ca t e g orical and does not turn on whether there is a m i s s i n g gu n , whether there is a kidnapping , or whether p ublic safety can be
g enerally p o i n t ed to. In stead, the ex ception applies wh en the Miranda w arning s themselves can cause more harm than g o od: when the warning s themselves implicate public safety

. A look at the facts involved in Quarles is n ecessary to understanding how the public safety

ex c eption w orks, and, knowing how it works, it is clear to me that the situation in Appellee’s case fails to meet that standard. I n Quarles : On September 11, 1 9 8 0 , at approx imately 12:30 a.m., Officer F rank Kraft a nd Officer Sal Scarring were on road patrol in Queens, N.Y., when a y o u n g w o m an approac h e d t h e i r c a r . She told them that she had just been raped by a black male, approx imately six feet tall, who was w e aring a b lack jacket with the name “B ig B en” printed in y e llow letters o n the back. She told the o fficers that the man had just entered an A &P supermarket located nearby a nd that the man was carry ing a gun. The officers drove the woman to the supermarket, and Officer Kraft e ntered the store while Officer Scarring radioed for assistance. Officer Kra f t q u i c kl y s p o tt e d [Q u a

rles] , who matched the description g iven by the woman, approaching a checkout counter. Apparently upon seeingthe officer, [ Quarles] turned and ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun. W hen [ Quarles] turned the corner at the end of an aisle, Officer Kraft lost sig ht of him for several seconds, a nd upon reg a i n i ng sig ht of [Quarles] , ordered him to stop and put h is hands over his head.3

Althoug h more than three other officers had arrived on the scene by that time, Officer Kraft was the f

irst to reach [Quarles]

. He frisked him and discovere d t h a t h e w as w ea r i ng a shoulder holster which was then empty

. After handcuffing him, Of fi c e r Kraft asked him where the gun was. [ Quarles] n odded in the direction of some e mpty cartons a n d respo n d e d , “the gun is over there.” Officer Kraft thereafter retrieved a loaded

. 38–caliber revolver from one of the cartons, formally placed [ Quarles] under arrest, and read him his Miranda rig hts from a printed card. New Y ork v. Quarles , 467 U.S. 649, 651–52 (1984). The police in Quarles were told that the suspect was armed, but when they apprehended him he h ad no gun y et he had an empty shoulder holster. Any reasonable police officer could deduce that the suspect must have g o tten rid of the gun somewhere in the supermarket. Thoug h the suspect could
not do any

thing himself with the now-missing gun, someone else in the supermarket could. I f anyone else found the gun before the police d id, that person c ould present a clear and present dang er to the police, the other people inside the supermarket, and the people outside the supermarket should the person leave with the g

un. Plainly , time was of the essence.
I n h olding that there should be a public safety ex c eption to Miranda , the Supreme C o u r t

ex p lained that: if the police are required to recite the familiar Miranda warning s before asking the whereabouts of the gun, suspects in Quarles’ positi o n m i g h t well be deterred from responding

. Procedural safeg uards w h ich deter a suspect from responding were deemed acceptable in M

i r a n d a in o rder to protect the F ifth Amendment privileg e; 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 warning s deterred Quarles from responding to O fficer Kraft ’ s question about the whereabouts of the gun, the c ost would have been something more than merely

the failure to obtain evidence u seful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case ag ainst Quarles but to insure that further dang er to the public did not result from the concealment of the gun in a public area. Quarles , 4 67 U.S. at 657. The plain import is that the Quarles public safety ex ception is intended4

to p revent the Miranda warning s themselves from endang ering the public. This could happen, as the Supreme Court ex plained, where, a fter being informed of his rig hts, the suspect chooses to insist on his r ig ht to remain silent a nd not answer a

ny questions, but answ e r s are necessary to prevent an immediate dang er to the public. I d. In Quarles , this w as simple enoug h—there was a loaded weapon somewhere in the supermarket, and “[ s] o long as t he gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one dang er to the public safety : an accomplice mig ht make use of it, a customer o r employ ee mig ht later come upon it.” Id. Althoug h Quarles involved a gun that, if n ot found, could be used to cause harm to the public and Appelle e’s case involves a kidnapped person that herself did not pose a harm to the public, if the police could not f

ind her in time the potential harm could have fallen o n her. I f Appellee had been g iven Miranda warning s and he thereafter chose to remain silent in the f a ce of the roadside interrog ation, his silenc e co u l d h a v e created an imminent dang er to the safety of the kidnapping victim, herself a member of the p ublic, because h er location was unknown and therefore her rescue was not at all assured. To be sure, she was actually located at an address that the police had identified during their investig ati o n , t h o u gh t hey did not know it at the time. T h e police knew two locations where Appellee’s phone, f

rom which he had b e en m a k i n g his ransom calls as “El Guero,” had ping ed from. 1 O ne location w a s A p p e l lee’s r esidence in Palmview; the other location, also in Palmview, was where the victim was eventually f ound. 2 As a result of their investig ation, the police h ad probable

1 Rep. R. vol. 2, State’s Ex . 1.

2 Id.5

cause to support search warrants to enter both locations. And the situation was arguably ex ig ent such that they did not even need warrants to enter both locations to search f o r the victim. In hindsig ht, if Appellee was g iven Miranda warning s and he ex e rcised his rig ht to r emain s i l e n t , the police nevertheless could have rescued the k i d napping v ictim and Appellee’s silence would not have created an imminent dang er. B ut at the time of the r oadside interrog ation, it was not known that the v ictim was at either of the two identified locations. She could have been at a third, unknown location. This placed her in a different and more precarious situation than the gun in Quarles , because at least in Quarles the
gun was somewhere in the g rocery store, and it w ould have only been a matter of time to find it. I f,

on the o ther hand, at the time of the r oadside interrog ation, surv e i l l a n ce had established and confirmed t h e v i ctim’s location and the police w ere confident that the victim w as not in any immediate dange r , A p p e llee’s silence following the Miranda w arning s would n ot have caused a threat to the safety

of the victim or the public, and the Quarles ex ception would not apply

. B ut her location and sa f

e ty were not established and confirmed. Under the reasoning of Quarles , which a sks whether the warning s themselves could cause a threat to public safety , it was reasonable for the police to conduct the roadside interrog ation of Appe l l e e w i t hout g iving him Miranda warning s. Appellee’s statement g iven du ri ng the roadside interrog ation was therefore admissible, and the court of appeals’s j u d gm e n t , a ffirming the trial court’s ex c lusion of the statement, should be reversed. II — Conclusion In sum, the Quarles public safety ex ception to g iving Miranda warning s does not turn upon the presence of a gun, whether someone w as kidnapped, or whether public safety can be g enerally6

pointed to. The ex ception instead turns upon whether the w arning s themselves could create a threat
to public safety

. T hus, I ag ree with the Court that the court o f appeals erred in determining that the

ex c eption was not met based on the lack of a gun. H owever, I disag r e e with the Court’s categ orical approach that a kidnapping of a child inherently implicates public safety and therefore q ualifies f or the ex ception. As in Quarles , it depends on the circumstances. In this case, the police who stopped Appellee on the roadside were faced with a situation where, if they had g iven Appellee the Miranda warning s and he thereafter ex ercised his rig ht to remain silent, they mig ht never learn of the location of t h e k i d n ap p i n g victim in order to rescue her. The warning s themselves could have caused an imminent threat to the victim’s safety

. Iconcur in the Court’s judgment only

.

F iled: J une 23, 2021 Publish