## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 11 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

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 Defende r (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, C olorado, for DefendantAppellant. Martha Ann Paluch, Assistant United States Attorney(John W. Suthers, United States Attorney, and William L. Taylor, Assi stant United States Attorney, with her on the brief), Denver, Colorado, for Plain tiff-Appellee.

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

HARTZ , Circuit Judge.-2-

Defendant Rodgerick Labon Lackey appeals his convic tion 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 office rs 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 gun s 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 aboutto conduct a lawful frisk or search of a suspect need not give Mirandawarnings before asking the suspect about the presence of dangerous objects on his pers on. I. Factual Background The relevant facts are not in dispute. On May 16, 2001, a woman contacted the Colorado Springs Police Department (CSPD) to re port that a man had fired shots at her house. After some preliminary investi gation, the police presented the woman with a photo array, from which she identified Defendant. The CSPD obtained a state arrest warrant for Defendant on fe lony charges of illegal discharge of a firearm, menacing with a handgun, an d possession of a weapon by a previously convicted felon. The CSPD then contac ted an agent of the federal-3-

Bureau of Alcohol, Tobacco, and Firearms (ATF) to o btain 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 hatchbac k and spent about a minute moving things around inside the car. The officers approached the man, displayed their ba dges, and identified themselves. The man took a few steps away from the hatchback. One officer asked him his name, and Defendant identified himsel f. 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 yo u?” Defendant responded, “No, I don’t have anything on me, but there was a g un in the car.” Id . at 47-48, 89. The officers looked into the car’s open hatchb ack and noticed a gun and its-4-

magazine clip, both plainly visible. When an offic er asked Defendant whether the car was his, Defendant responded that it belonged t o 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 wr itten waiver and gave a written statement denying his inv olvement in the May 16 shooting. Defendant was later charged with possession of a fi rearm 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 office rs at the arrest scene. The district court denied the motions to suppress, find ing that the officers’ questions about whether Defendant had weapons or sharp object s on him were within the public-safety exception to the Mirandarequirement, see New York v. Quarles , 467 U.S. 649 (1984). The court also concluded that Def endant had voluntarily consented to the search of the car, and that the se arch of the car was proper as a search incident to a lawful arrest. Defendant’s case proceeded to trial, where he was f ound guilty. This appeal followed. We have jurisdiction under 28 U.S .C. § 1291.-5-

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 revi ew is de novo. ” United States v. Humphrey , 208 F.3d 1190, 1201 (10th Cir. 2000). The sole issue on appeal is whether the officers vi olated Defendant’s constitutional rights by asking him about the prese nce of guns or sharp objects on his person after he was in custody but before he wa s 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 exc eption to Mirandaset 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 per sons inside a house he had been shooting at).
In Quarles two police officers encountered a woman who inform ed 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 matchin g 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 susp ect and ordered him to stop and put up his hands. Id. Officer Kraft frisked him, at which time he disco vered that-6-

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 calib er pistol. Id. Officer Kraft then formally placed the suspect under arrest and a dvised him of his Miranda rights. Id. The state trial court suppressed the suspect’s stat ement that “the gun is over there,” ruling that it was obtained by a question i mproperly 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 sus pect had been in “custody” within the meaning of Miranda, it “declined to recognize an exigency exception to the usual requirements of Mirandabecause it found no indication from Officer Kraft’s testimony at the suppression hearing that h is subjective motivation in asking the question was to protect his own safety o r 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 O fficer Kraft’s position, would act out of a host of different, instinctive, and la rgely unverifiable motives—their-7-

own safety, the safety of others, and perhaps as we ll 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 Mirandacould not justify the risk to public safety. It w rote:

In such a situation, if the police are required to recite the familiar Mirandawarnings before asking the whereabouts of the gun, suspects in Quarles' position might well be deterred from re sponding. Procedural safeguards which deter a suspect from re sponding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost o f those added protections is the possibility of fewer convictions , the Miranda majority was willing to bear that cost. Here, had Mirandawarnings deterred Quarles from responding to Officer Kraft's question about the whereabouts of the gun, the cost would have bee n something more than merely the failure to obtain evidence useful i n convicting Quarles. Officer Kraft needed an answer to his que stion not simply to make his case against Quarles but to insure that fu rther danger to the public did not result from the concealment of the g un 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 exc eption could theoretically diminish the clarity of Miranda , it minimized this concern, stating, “We think police officers can and will distinguish almost instinctively between-8-

questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evi dence 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 i tem, he could use it against the officers or, perhaps more likely, someone could be seriously injured when Defendant, who was already under arrest, was routin ely 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 ordi nary members of the “public.” As the above-quoted passages from Quarles illustrate, the concern of the publicsafety 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 as king about presence of weapons during traffic stop). Indeed, in one significant respect an exception to Mirandacan be better justified in this case than in Quarles . Here, a responsive answer to the officers’ question would not, as a practical matter, incrimin ate a suspect. Because officers-9-

have the right to, and will, search the person of a n 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 requir ing Mirandawarnings 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 req uested), 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 hav e reasonably been expected to elicit an incriminating response). We note that in similar circumstances other circuitcourts 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 a ny 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- Mirandaquestion, “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 constitutional ly when they asked [the-10-

defendant] whether he had any needles in his pocket s that could injure them during their pat down; such questioning, needed to protectthe officers, does not constitute interrogation under Miranda. ”); United States v. Edwards , 885 F.2d 377, 384 (7th Cir. 1989) (public-safety exception applie d to pre- Mirandaquestion asking arrested defendant whether he had a gun); United States v. Carrillo , 16 F.3d 1046, 1049-50 (9th Cir. 1994) (pre- Mirandaquestion asking arrested defendant whether he had any needles on him was wit hin the public-safety exception). The judgment of the district court is AFFIRMED.