IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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

WALKER, J., filed a concurring opinion, in which MCCLURE, J., joined.

CONCURRING OPINION

Depending on the circumstances, the warnings required by Miranda v. Arizona may be set

aside if the warnings themselves could create a threat to public safety. Giving warnings when a

kidnapping is involved will not necessarily create such a threat. But 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 was located and her safety could

be put at risk. For that reason, and not because it was a kidnapping of a child generally, the Quarles

public safety exception to the rule of Miranda applies, and Appellee’s un-Mirandized answers to
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“aggressive interrogation” were admissible into evidence. I agree with the Court’s decision to reverse

the judgment of the court of appeals, but I respectfully do not agree with the Court’s reasoning and

cannot join its opinion.

I — The Quarles Public Safety Exception Is Not Categorical

The court of appeals decided the Quarles public safety exception did not apply because the

situation did not involve a missing gun. The Court today decides the exception does apply because

public safety—insofar as the kidnapping victim was a member of the public—was involved. From

my own reading of Quarles, the public safety exception is not categorical and does not turn on

whether there is a missing gun, whether there is a kidnapping, or whether public safety can be

generally pointed to. Instead, the exception applies when the Miranda warnings themselves can

cause more harm than good: when the warnings themselves implicate public safety.

A look at the facts involved in Quarles is necessary to understanding how the public safety

exception works, and, knowing how it works, it is clear to me that the situation in Appellee’s case

fails to meet that standard. In Quarles:

On September 11, 1980, at approximately 12:30 a.m., Officer Frank Kraft and

Officer Sal Scarring were on road patrol in Queens, N.Y., when a young woman

approached their car. She told them that she had just been raped by a black male,

approximately six feet tall, who was wearing a black jacket with the name “Big Ben”

printed in yellow letters on the back. She told the officers that the man had just

entered an A & P supermarket located nearby and that the man was carrying a gun.

The officers drove the woman to the supermarket, and Officer Kraft entered the store

while Officer Scarring radioed for assistance. Officer Kraft quicklyspotted [Quarles],

who matched the description given by the woman, approaching a checkout counter.

Apparently upon seeing the officer, [Quarles] turned and ran toward the rear of the

store, and Officer Kraft pursued him with a drawn gun. When [Quarles] turned the

corner at the end of an aisle, Officer Kraft lost sight of him for several seconds, and

upon regaining sight of [Quarles], ordered him to stop and put his hands over his

head.
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Although more than three other officers had arrived on the scene by that time, Officer

Kraft was the first to reach [Quarles]. He frisked him and discovered that he was

wearing a shoulder holster which was then empty. After handcuffing him, Officer

Kraft asked him where the gun was. [Quarles] nodded in the direction of some empty

cartons and responded, “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 rights from a printed card.

New York 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 had no gun yet he had an empty shoulder holster. Any reasonable police officer could deduce that

the suspect must have gotten rid of the gun somewhere in the supermarket. Though the suspect could

not do anything himself with the now-missing gun, someone else in the supermarket could. If anyone

else found the gun before the police did, that person could present a clear and present danger to the

police, the other people inside the supermarket, and the people outside the supermarket should the

person leave with the gun. Plainly, time was of the essence.

In holding that there should be a public safety exception to Miranda, the Supreme Court

explained that:

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.

Quarles, 467 U.S. at 657. The plain import is that the Quarles public safety exception is intended
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to prevent the Miranda warnings themselves from endangering the public. This could happen, as the

Supreme Court explained, where, after being informed of his rights, the suspect chooses to insist on

his right to remain silent and not answer any questions, but answers are necessary to prevent an

immediate danger to the public. Id. In Quarles, this was simple enough—there was a loaded weapon

somewhere in the supermarket, and “[s]o 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.

Although Quarlesinvolved a gun that, if not found, could be used to cause harm to the public

and Appellee’s case involves a kidnapped person that herself did not pose a harm to the public, if

the police could not find her in time the potential harm could have fallen on her. If Appellee had

been given Miranda warnings and he thereafter chose to remain silent in the face of the roadside

interrogation, his silence could have created an imminent danger to the safety of the kidnapping

victim, herself a member of the public, because her 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

investigation, though they did not know it at the time. The police knew two locations where

Appellee’s phone, from which he had been making his ransom calls as “El Guero,” had pinged

from.1 One locationwasAppellee’s residence in Palmview; the other location, also in Palmview, was

where the victim was eventually found.2 As a result of their investigation, the police had probable

1

 Rep. R. vol. 2, State’s Ex. 1.

2

 Id.
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cause to support search warrants to enter both locations. And the situation was arguablyexigent such

that they did not even need warrants to enter both locations to search for the victim. In hindsight, if

Appellee was given Miranda warnings and he exercised his right to remain silent, the police

nevertheless could have rescued the kidnapping victim and Appellee’s silence would not have

created an imminent danger.

But at the time of the roadside interrogation, it was not known that the victim 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 grocery store, and it would have only been a matter of time to find it. If,

on the other hand, at the time of the roadside interrogation, surveillance had established and

confirmed the victim’s location and the police were confident that the victim was not in any

immediate danger, Appellee’s silence following the Miranda warnings would not have caused a

threat to the safety of the victim or the public, and the Quarles exception would not apply.

But her location and safety were not established and confirmed. Under the reasoning of

Quarles, which asks whether the warnings themselves could cause a threat to public safety, it was

reasonable for the police to conduct the roadside interrogation of Appellee without giving him

Miranda warnings. Appellee’s statement given during the roadside interrogation was therefore

admissible, and the court of appeals’s judgment, affirming the trial court’s exclusion of the

statement, should be reversed.

II — Conclusion

In sum, the Quarles public safety exception to giving Miranda warnings does not turn upon

the presence of a gun, whether someone was kidnapped, or whether public safety can be generally
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pointed to. The exception instead turns upon whether the warnings themselves could create a threat

to public safety. Thus, I agree with the Court that the court of appeals erred in determining that the

exception was not met based on the lack of a gun. However, I disagree with the Court’s categorical

approach that a kidnapping of a child inherently implicates public safety and therefore qualifies for

the exception. 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 given Appellee the Miranda

warnings and he thereafter exercised his right to remain silent, theymight never learn of the location

of the kidnapping victim in order to rescue her. The warnings themselves could have caused an

imminent threat to the victim’s safety.

I concur in the Court’s judgment only.

Filed: June 23, 2021

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