IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2020-NMSC-007

Filing Date: March 19, 2020

No. S-1-SC-36966

STATE OF NEW MEXICO,

Plaintiff-Petitioner,

v.

RONALD WIDMER,

Defendant-Respondent.

ORIGINAL PROCEEDING ON CERTIORARI

Stan Whitaker, District Judge

Released for Publication May 5, 2020.

Hector H. Balderas, Attorney General

John Kloss, Assistant Attorney General

Santa Fe, NM

for Petitioner

Bennett J. Baur, Chief Public Defender

C. David Henderson, Appellate Defender

Santa Fe, NM

for Respondent

OPINION

THOMSON, Justice.

{1} This appeal requires us to determine whether an officer’s question was 

sufficiently related to protecting officer safety to qualify for the public safety exception to 

the admissibility requirements of Miranda announced in New York v. Quarles, 467 U.S. 

649, 655-56 (1984). The Court of Appeals determined that the question in this case did 

not qualify for the Quarles public safety exception. State v. Widmer, 2018-NMCA-035, ¶ 

29, 419 P.3d 714. The Court of Appeals consequently reversed Defendant Ronald 

Widmer’s conviction for possession of methamphetamine and remanded for a new trial.
Id. ¶¶ 1, 40. We respectfully disagree and affirm the ruling of the district court that the 

Quarles public safety exception applied in this case because of the need to determine 

whether Defendant was armed or carrying potentially harmful drug paraphernalia before 

officers performed a pat-down search. We therefore reverse the Court of Appeals on its 

disqualification of the public safety exception and remand for further proceedings 

consistent with this opinion.

I. BACKGROUND

{2} Officers from the Albuquerque Police Department (APD) approached Defendant 

in a Walgreens parking lot in the late evening. Defendant, accompanied by a woman, 

was trying to start a motor scooter. APD had received an anonymous tip concerning two 

persons and a scooter with an ignition that “appeared to be tampered with.” The officers 

suspected that the scooter was stolen. After briefly speaking with Defendant and the 

woman, officers ran Defendant’s personal identification information and the scooter’s 

vehicle identification number (VIN) through the National Crime Information Center 

(NCIC) to check for outstanding warrants and any stolen vehicle reports. NCIC did not 

return a stolen vehicle report but did report Defendant’s outstanding felony warrants for 

trafficking drugs. Officers placed Defendant in handcuffs while they awaited 

confirmation that the warrants were valid.

{3} While Defendant was in custody, but before he was advised of his Miranda 

rights, an officer asked him, “Is there anything on your person that I should know 

about?” Defendant responded, “I have meth.” Officers collected a white powder from 

inside a pill container hanging from Defendant’s belt loop and placed it in a plastic 

evidence bag. After officers recovered the physical evidence, Defendant muttered, 

“Well, I’m gonna have another charge now.” The white powder recovered from 

Defendant’s belt loop tested positive for methamphetamine. As a result, Defendant was 

charged with felony possession of a controlled substance.

{4} Defendant asked the district court to suppress both his “alleged” statement to 

officers concerning “meth” and the physical evidence, arguing that the officer’s question 

following arrest did not qualify under the narrow public safety exception to Miranda. The 

district court denied Defendant’s motion but instructed the jury to determine whether the 

“statement allegedly made by the defendant . . . was given voluntarily” before 

considering it in deliberations. See UJI 14-5040 NMRA. The jury found Defendant guilty 

of possession of methamphetamine. 

{5} Defendant appealed his conviction for possessing methamphetamine. The Court 

of Appeals reversed his conviction and held that the statement and the physical 

evidence should have been suppressed. Widmer, 2018-NMCA-035, ¶¶ 29-30. The 

Court of Appeals remanded for a new trial because it held that the erroneously admitted 

evidence was not harmless error, id. ¶¶ 38-40, and therefore declined to address the 

merits of other issues Defendant raised, see id. ¶ 40. We granted certiorari.

II. DISCUSSION
{6} The Court of Appeals majority did not address the issue Defendant raised 

concerning the lawfulness of his arrest. Id. Because that issue was not presented to this 

Court in the State’s petition for writ of certiorari, we do not determine whether 

Defendant’s arrest was lawful. See State v. Morales, 2010-NMSC-026, ¶ 19, 148 N.M. 

305, 236 P.3d 24 (“Under the appellate rules, it is improper for this Court to consider 

any questions except those set forth in the petition for certiorari.” (internal quotation 

marks and citation omitted)); see also Rule 12-502(C)(2)(b) NMRA (“[T]he Court will 

consider only the questions set forth in the petition.”). We turn to the issue of whether 

the district court erred by admitting the incriminating statement officers elicited from 

Defendant based on the Quarles public safety exception to Miranda.

{7} Because the officers chose not to take the short, simple step of advising 

Defendant of his constitutional rights, we must determine whether Defendant was 

subjected to a custodial interrogation, and if so, whether there was an exception to 

Miranda that renders his statements admissible. If a defendant is subject to custodial 

interrogation but not advised of his rights under Miranda, the law generally requires that 

the defendant’s response be suppressed. See Quarles, 467 U.S. at 654 (“The Miranda

Court, however, presumed that interrogation in certain custodial circumstances is 

inherently coercive and held that statements made under those circumstances are 

inadmissible unless the suspect is specifically informed of his Miranda rights and freely 

decides to forgo those rights.” (footnote omitted)). However, suppression of a 

defendant’s statements or responses to an unadvised custodial interrogation is not 

required if the Quarles public safety exception applies. See id. 467 U.S. at 655 (“[T]here 

is a ‘public safety’ exception to the requirement that Miranda warnings be given before a 

suspect’s answers may be admitted into evidence.”).

{8} Although we determine that Defendant was subjected to a custodial interrogation, 

we respectfully disagree with the Court of Appeals reasoning concerning the application 

of the Quarles public safety exception in this case. Because we conclude that the 

Quarles exception applies, we reverse on this issue, vacate the Court of Appeals 

opinion, and remand for further proceedings consistent with this opinion. We specifically 

instruct the Court of Appeals to address Defendant’s argument concerning the 

lawfulness of his arrest, as it appears to be relevant to the remaining analysis. See, e.g., 

State v. Almanzar, 2014-NMSC-001, ¶ 10, 316 P.3d 183 (“If [a d]efendant’s arrest was 

lawful, then the search incident to the arrest falls within the exception to the 

constitutional search warrant requirement.”); State v. Ruffino, 1980-NMSC-072, ¶ 3, 94 

N.M. 500, 612 P.2d 1311 (observing that “search incident to a lawful arrest” is one of 

the recognized exceptions that permit warrantless searches).

{9} The minority, citing Quarles, would hold that although Defendant was in custody, 

“questions designed to protect public safety” are exempt from the definition of 

interrogation. See Min. Op. ¶¶ 47-58. We disagree. By exempting questions designed to 

protect public safety, Quarles did not redefine what constitutes interrogation. Instead, 

Quarles determined that exigent circumstances may justify an exception to Miranda and 

permit a court to admit a defendant’s self-incriminating statements regardless of 

whether the defendant was subjected to custodial interrogation. Quarles, 467 U.S. at 
655-56, 658. Quarles specifically observed, “The New York Court of Appeals was 

undoubtedly correct in deciding that the facts of this case come within the ambit of the 

Miranda decision as we have subsequently interpreted it.” 467 U.S. at 655-56. However, 

Quarles recognized “a narrow exception to the Miranda rule . . . [that] will be 

circumscribed by the exigency which justifies it.” Id. at 658.

{10} If questions designed to protect public safety were never interrogation, there 

would be no reason for Quarles to create an exception to the requirements of Miranda. 

We choose to remain faithful to the Fifth Amendment and the Quarles analysis. 

Defendant was subjected to a custodial interrogation, but the Quarles public safety 

exception applied. The district court did not err by admitting Defendant’s statement in 

this case.

A. Standard of Review

{11} “Appellate review of a district court’s decision regarding a motion to suppress 

evidence involves mixed questions of fact and law.” State v. Urioste, 2002-NMSC-023, ¶ 

6, 132 N.M. 592, 52 P.3d 964. “The trial court’s denial of a motion to suppress will not 

be disturbed on appeal if it is supported by substantial evidence, unless it also appears 

that the determination was incorrectly premised.” State v. Jacobs, 2000-NMSC-026, ¶ 

34, 129 N.M. 448, 10 P.3d 127; accord State v. Trangucci, 1990-NMCA-009, ¶ 13, 110

N.M. 385, 796 P.2d 606. This Court reviews the application of the law de novo but views 

the evidence in the light most favorable to the state. State v. Ochoa, 2004-NMSC-023, 

¶ 5, 135 N.M. 781, 93 P.3d 1286. “Whether facts support an exception to the Miranda

requirement is a question of law.” United States v. Lackey, 334 F.3d 1224, 1226 (10th 

Cir. 2003).

B. The Officer’s Question Subjected Defendant to Custodial Interrogation

{12} “Prior to any [custodial interrogation, a] person must be warned that he has a 

right to remain silent, that any statement he does make may be used as evidence 

against him, and that he has a right to the presence of an attorney, either retained or 

appointed.” See Miranda v. Arizona, 384 U.S. 436, 444 (1966). This Court has stated, 

“The federal and state constitutional provisions [protect] against self-incrimination and 

require, at a minimum, that before any individual may be subjected to custodial 

interrogation, the individual must be made aware of various rights the courts have 

established to aid in protecting the right to be free from self-incrimination.” State v. 

Rivas, 2017-NMSC-022, ¶ 27, 398 P.3d 299; see generally Miranda, 384 U.S. at 478-

79. If a defendant is subjected to custodial interrogation without being advised of the 

right to remain silent, a presumption of coercion arises. See United States v. Patane, 

542 U.S. 630, 631 (2004) (“[T]he Miranda rule creates a presumption of coercion in 

custodial interrogations, in the absence of specific warnings, that is generally 

irrebuttable for purposes of the prosecution’s case in chief.”).

{13} However, the Miranda rule is “only applicable when (1) the suspect is in 

‘custody,’ and (2) any ‘questioning [] meet[s] the legal definition of interrogation.’” United 
States v. Cash, 733 F.3d 1264, 1276-77 (10th Cir. 2013) (alterations in original) (quoting 

United States v. Benard, 680 F.3d 1206, 1211 (10th Cir. 2012)). Neither party disputes, 

and there is no question, that Defendant was in custody when he was questioned, so 

what we must determine is whether he was interrogated.

{14} “‘[I]nterrogation’ refers to ‘either express questioning or its functional 

equivalent’—i.e., ‘words or actions on the part of the police (other than those normally 

attendant to arrest and custody) that the police should know are reasonably likely to 

elicit an incriminating response from the suspect.’” Cash, 733 F.3d at 1277 (quoting 

Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)). For the reasons that follow, we 

determine that the officer’s question constituted interrogation.

1. The officer’s question was not normally attendant to arrest and custody

{15} Officers received notification through NCIC that there were two outstanding 

felony warrants for Defendant’s arrest, and they initiated arrest procedures while they 

confirmed the warrants.

{16} As part of the arrest procedures preceding the physical search, the officers put 

on protective gloves, and Officer Apodaca asked Defendant, “Is there anything on your 

person that I should know about?” Officer Apodaca testified that he asked Defendant 

“as a courtesy” because Officer Apodaca was going to search Defendant. Officer 

Apodaca also testified that he was concerned that a needle or other sharp object in 

Defendant’s possession might injure and expose him to bodily fluids or other hazardous 

materials during the physical search.

{17} The State argues that the officer’s question was “normally attendant to arrest and 

custody.” This argument is consistent with officer testimony that the question is 

“routine[ly]” asked of a person the officer is preparing to search and handcuff, “for 

[officer] safety, as well as the safety of the defendant.” Although we agree that “[n]ot 

every sentence punctuated by a question mark constitutes an interrogation,” Cash, 733 

F.3d at 1277, we disagree with the State’s view of the officer’s inquiry given the facts of 

this case.

{18} Even when a suspect is in custody, not all police questioning constitutes 

interrogation for purposes of Miranda. “[Q]uestions such as ‘what is your name?’ and 

‘where do you live?’ will not usually constitute interrogation within the meaning of 

Miranda.” United States v. Edwards, 885 F.2d 377, 385 (7th Cir. 1989). These questions 

are constitutionally permissible because “police routinely ask people for their names and 

addresses in nonarrest situations—in order to ascertain the identity and residence of 

witnesses, as well as to dispel (or confirm) suspicions aroused by unusual behavior—

where it is clear that Miranda warnings are not required.” Id. (citing California v. Byers, 

402 U.S. 424 (1971)).

{19} Limited police questioning focused on procedural matters is not interrogation if 

the questions are not directed at obtaining evidence of a crime. In Pennsylvania v. 
Muniz, the United States Supreme Court concluded that “limited and carefully worded 

inquiries as to whether [the defendant] understood” instructions on how to perform a 

sobriety test were “necessarily ‘attendant to’ the police procedure held by the court to be 

legitimate.” 496 U.S. 582, 603-04 (1990).

{20} We emphasize that the context matters for purposes of determining whether 

police have subjected a suspect to interrogation without warning. “There is a routine 

booking question exception to the Miranda rule that covers a person’s name, address, 

height, weight, eye color, date of birth, and current age.” United States v. VirgenMoreno, 265 F.3d 276, 293 (5th Cir. 2001). “Nevertheless, questions designed to elicit 

incriminatory admissions are not covered under the routine booking exception.” Id.

{21} An officer is not permitted to transform a question that constitutes interrogation 

into a question normally attendant to arrest and custody by simply making it a policy to 

ask specific questions during the process of custody or arrest. See Muniz, 496 U.S. at 

602 n.14 (“‘[T]he police may not ask questions, even during booking, that are designed 

to elicit incriminatory admissions.’” (emphasis added) (citation omitted)). Such a 

“question-first” strategy is constitutionally repugnant because it undermines the policy 

established by Miranda to safeguard a defendant’s Fifth Amendment protection against 

self-incrimination. See Missouri v. Seibert, 542 U.S. 600, 611 (2004) (“The object of

question-first is to render Miranda warnings ineffective by waiting for a particularly 

opportune time to give them, after the suspect has already confessed.”). The minority 

analysis would produce the same result for which the State essentially advocates, the 

adoption of a policy that would permit a question-first strategy so long as the officer did 

not subjectively seek to elicit incriminatory admissions. We will not condone such 

conduct.

{22} The question in this case was not normally attendant to arrest and custody. “Is 

there anything on your person that I should know about?” was not asked for 

identification purposes and was not narrowly focused on police procedure. It was much 

broader than the officer’s limited inquiries in Muniz directed at the defendant’s 

understanding of the instructions for the sobriety test. Though the State argues that 

officers routinely ask this question when initiating an arrest and search of a suspect, our 

inquiry cannot end there. See Muniz, 496 U.S. at 602 n.14. (“‘[R]ecognizing a ‘booking 

exception’ to Miranda does not mean, of course, that any question asked during the 

booking process falls within that exception.’” (citation omitted)). Seemingly innocuous 

questions that call for an incriminating response may not be normally attendant to arrest 

and custody when viewed in context. We must consider the context of the questioning 

and the content of the question to determine whether the question was reasonably likely 

to elicit an incriminating response.

2. The officer’s question was reasonably likely to elicit an incriminating 

response

{23} “Interrogation occurs when an officer subjects an individual to questioning or 

circumstances which the officer knows or should know are reasonably likely to elicit 
incriminating responses.” State v. Fekete, 1995-NMSC-049, ¶ 41, 120 N.M. 290, 901 

P.2d 708 (internal quotation marks and citation omitted). The officer’s subjective intent 

(e.g., concern for the officer’s own safety) is not determinative because this “is an 

‘objective [inquiry,] . . . and we focus on the perceptions of a reasonable person in the 

suspect’s position rather than the intent of the investigating officer.’” United States v. 

Yepa, 862 F.3d 1252, 1257 (10th Cir. 2017) (alteration and omission in original) 

(quoting Cash, 733 F.3d at 1277).

{24} Questions directed at establishing an element of a crime constitute interrogation 

because they are “reasonably likely to elicit an incriminating response.” See United 

States v. Disla, 805 F.2d 1340, 1347 (9th Cir. 1986). In Disla, officers discovered 

cocaine and cash in an apartment and developed a suspicion that the defendant 

resided there when they observed him approaching the apartment building. Id. Based 

on “both the context of the questioning and the content of the question,” the Ninth 

Circuit concluded that the defendant was subjected to interrogation, because “the 

question as to where [the defendant] lived was related to an element (possession) of the 

crime.” Id.

{25} Similarly, in United States v. Perdue, the Tenth Circuit concluded that the 

question “‘What stuff?’” was interrogation when officers, with guns drawn, detained an 

arrestee who was lying on the ground upon order of the officers. 8 F.3d 1455, 1458-59, 

1465 (10th Cir. 1993). The arrestee replied, “‘The marijuana that I know you guys found 

in the shed.’” Id. at 1459. In Harryman v. Estelle, the Fifth Circuit concluded that an 

arrestee was subjected to interrogation when an officer, aware of drug paraphernalia 

found in the arrestee’s motel room, asked “‘What is this?’” when he found a condom 

containing white powder in the arrestee’s waistband. 616 F.2d 870, 873 (5th Cir. 1980). 

The arrestee responded, “‘Oh, you know what it is. It is heroin.’” Id. The instant case is 

analogous to these two cases because the officer’s question in each of the three was 

reasonably likely to elicit an incriminating statement establishing knowledge or 

possession of drugs.

{26} The State argues that the question was not reasonably likely to elicit an 

incriminating response because the question was not “part of any investigation into 

whether [Defendant] possessed a controlled substance.” Again the State’s argument 

advocates for this Court to abandon the objective test and construct a subjective test 

based on the subjective belief or intent of the officer who “could not have known [the 

question] was reasonably likely to elicit an incriminating response . . . .” (Emphasis 

added.) We see no reason to change the inquiry to incorporate a subjective standard. 

As we have previously stated, the test is objective. State v. Fekete, 1995-NMSC-049, ¶ 

41. Defendant correctly pointed out at oral argument that if an arrestee possesses 

contraband or other evidence on the arrestee’s person and an officer asks the arrestee, 

“Do you have anything else on you that I should know about?”, not only is the question 

reasonably likely to elicit an incriminating response, but the response is necessarily 

incriminating if the arrestee is truthful.
{27} The minority asserts, “Federal case law confirms that questions falling within the 

public safety exception do not and cannot constitute interrogation.” Min. Op. ¶ 57 (citing 

as examples United States v. Reyes, 353 F.3d 148, 154 (2d Cir. 2003); United States v. 

DeSantis, 870 F.2d 536, 541 (9th Cir. 1989); and Lackey, 334 F.3d at 1228). The 

minority fails to appreciate that exempting public safety questions from the definition of 

interrogation would nullify the requirement that exigent circumstances justify suspending 

the requirements Miranda imposes. Quarles, 467 U.S. at 658 (stating that “in each 

case” the exception “will be circumscribed by the exigency which justifies it”). Instead, 

the minority would hold that any question that could be related to officer or public safety 

could never compel an incriminating statement. Federal precedent, including the 

precedent cited by the minority, does not grant law enforcement such broad latitude and 

sweeping authority. See Quarles, 467 U.S. at 655, 658 (holding that even though a 

defendant was subjected to custodial interrogations “there is a ‘public safety’ exception 

to the requirement that Miranda warnings be given” that must be justified by exigent 

circumstances).

{28} For example, Reyes acknowledged the legal determination of the federal 

government that “the officer’s questioning constituted interrogation within the meaning 

of Miranda.” 353 F.3d at 151. In that case, the “sole contention [was] that the 

statements should have been admitted under the ‘public safety exception’ to the 

Miranda rule.” Id. Reyes, 353 F.3d at 154, applied the policy determination announced 

in Quarles that where law enforcement asks a question that is “necessary to secure 

[officers’] safety or the safety of the public” and “not solely to elicit testimonial evidence 

from a suspect,” courts may admit a defendant’s response. Quarles, 467 U.S. at 658-59 

(emphasis added).

{29} DeSantis observed, “The Quarles decision does not warrant the conclusion that 

the ‘public safety’ exception allows the police to obtain involuntary, or coerced, 

statements in exigent circumstances.” DeSantis, 870 F.2d at 540. In adopting a public 

policy suspending the Fifth Amendment protections against compelling a “person . . . to 

be a witness against himself,” the United States Supreme Court in Quarles

“recognize[d] that certain exigencies required the courts to relax rules that act as 

prophylactic safeguards of the right against compelled self-incrimination.” DeSantis, 870 

F.2d at 540. Under the totality of the circumstances, the question, “whether there were 

any weapons in the bedroom,” was incriminating, but an officer had given DeSantis his 

Miranda warnings, and the question was not asked solely to elicit testimonial evidence. 

Id. at 537, 539, 541.

{30} Finally, Lackey does not analyze interrogation. See Lackey, 334 F.3d at 1226-28. 

Lackey necessarily assumed that the defendant was subjected to custodial interrogation 

and held that “the reasoning of Quarles applies squarely to the circumstances here” and 

“[t]he exception [to Miranda] undoubtedly extends to officers’ questions necessary to 

secure their own safety.” Id. at 1227-28 (internal quotation marks and citation omitted). 

The minority reliance appears to rest on dicta, which postulates that the physical 

evidence is the actual source of incrimination, not the defendant’s incriminating 

statement. Id. at 1228 (observing that if the search is incident to a lawful arrest, “officers 
have the right to, and will, search the person of an arrestee”). This reasoning fails to 

appreciate that both the statement and the physical evidence are incriminating and 

further assumes that there is a lawful arrest.

{31} We appreciate that the district court found that exigent circumstances and 

concern for officer safety justified the question in this case, and we agree that Quarles

applied in this case. However, this Court’s determination, affirming the district court, 

does not require us to alter, and arguably eviscerate, the definition of interrogation 

formulated by Innis. Defendant was subjected to a question concerning his knowledge 

of possible contraband that he possessed, an element directly related to his possession 

charge. A reasonable person under these circumstances who was in possession of 

contraband would have perceived three options: lie, say nothing, or tell the incriminating 

truth. Given these options, the officer’s question in this case reflects “a measure of 

compulsion above and beyond that inherent in custody” because “the police should 

know [the question is] reasonably likely to elicit an incriminating response from” 

Defendant. Innis, 446 U.S. at 300-01.

{32} The Innis Court observed, “Any knowledge the police may have had concerning 

the unusual susceptibility of a defendant to a particular form of persuasion might be an 

important factor in determining whether the police should have known that their words 

or actions were reasonably likely to elicit an incriminating response from the suspect.” 

Id. at 302 n.8. Because officers knew they were arresting Defendant on felony warrants, 

and because officers knew they were going to search for and find any contraband on 

Defendant’s person, the question was tantamount to a demand that Defendant tell the

incriminating truth. See State v. Ybarra, 1990-NMSC-109, ¶ 15, 111 N.M. 234, 804 P.2d 

1053 (determining that interrogation occurred where officers “took advantage” of 

compelling circumstances that resulted in an arrestee’s incriminating statements even 

though the officers did not create the circumstances).

{33} The Widmer majority adopted the reasoning of the Washington Court of Appeals 

in State v. Spotted Elk, 34 P.3d 906 (Wash. Ct. App. 2001), as part of its interrogation 

analysis. Widmer, 2018-NMCA-035, ¶¶ 20-21. Our analysis does not rely on Spotted 

Elk because it can be read to suggest a shift in the interrogation analysis away from an 

objective test (focused on the perceptions of a reasonable person in the suspect’s 

position) toward a subjective test (improperly based on the subjective belief or intent of 

the officer), which we reject. Reliance on Spotted Elk is not required to reach the 

conclusion that we share with the Court of Appeals that Defendant was subjected to 

custodial interrogation.

{34} Based on the foregoing, Defendant was subjected to custodial interrogation, and 

his right to be instructed under Miranda attached.

C. The Quarles Exception to Miranda Applies in This Case

{35} Although we determine that Defendant’s Miranda rights attached, we conclude 

that the Quarles public safety exception applies in this case because the question was 
not asked solely to elicit incriminating testimony. The potential for Defendant having 

objects on his person that threatened officer safety “outweigh[ed] the need for the 

prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” 

Quarles, 467 U.S. at 657 (concluding that the need for answers may outweigh the 

prophylactic rule).

{36} In Quarles, a woman approached two officers on patrol, told them that a man 

with a gun had just raped her, and gave them a description of the man. Id. at 651-52. 

She also told the officers that the man had entered a nearby supermarket. Id. The 

officers entered the supermarket and spotted the suspect, who attempted to escape. Id.

at 652. Officers lost sight of the suspect momentarily but apprehended him before he 

could exit the supermarket. Id. When officers searched the suspect, they noticed that he 

was wearing an empty shoulder holster and asked where the gun was. Id. The suspect 

nodded in the direction of the gun and responded, “The gun is over there.” Id. Quarles

announced a safety exception to the prophylactic requirements of Miranda and

indicated that it covered public safety and police safety concerns. Id. at 658-69 (“We 

think police officers can and will distinguish almost instinctively between questions 

necessary to secure their own safety or the safety of the public and questions designed 

solely to elicit testimonial evidence.” (emphasis added)).

{37} Quarles applies in a situation where the potential threat is to an officer’s safety. 

See Trangucci, 1990-NMCA-009, ¶¶ 11-12 (“The [United States] Supreme Court has 

clearly included considerations of police safety within the purview of the public safety 

exception.”). In Trangucci, the Court of Appeals held that the Quarles exception 

distinguishes between questions that are clearly investigatory and those that are 

objectively reasonable based on a need to protect “from [an] immediate danger.” 

Trangucci, 1990-NMCA-009, ¶ 11 (internal quotation marks and citation omitted). The 

application of the Quarles exception does not turn on whether the risk is to the safety of 

the general public or only police officers. Trangucci, 1990-NMCA-009, ¶ 11; accord

Lackey, 334 F.3d at 1225-26, 1228 (applying Quarles where an officer asked a 

handcuffed defendant, before a pat down search, if the defendant had any guns or 

sharp objects on him, and the defendant responded that he did not but said that there 

was a gun in the car). The Trangucci court affirmed the denial of a motion to suppress a 

defendant’s statement that he had ditched a gun in response to the question “‘Where is 

the gun?’” Id. ¶¶ 5, 13. The defendant made the statement while being searched, after 

officers pulled the defendant out from under a dresser in a motel room before they 

located the gun that the defendant was suspected of using. Id. ¶¶ 3-5.

{38} In this case, the fact that the question did not use terms such as “sharp objects” 

or “weapons” specifically does not bar the application of the Quarles safety exception. 

We acknowledge that the officer’s questioning was not ideal, and as Defendant points 

out, the answer to any question asked concerning what Defendant had on his person 

was potentially incriminating. But “[t]his type of question is logical and important to 

permit” because in addition to concerns about weapons a suspect could use against an 

officer during a search, “sharp and bio-hazardous objects pose a great risk to officers 
regardless of any action by the suspect.” United States v. Hernandez, 751 F.3d 538, 

541 (7th Cir. 2014).

{39} An officer should not be expected to craft a perfect question in the heat of the 

moment, and a broad question that may elicit information other than specific safety 

concerns does not bar the application of the Quarles exception. See United States v. 

Williams, 181 F.3d 945, 953 n.13 (8th Cir. 1999) (“[C]onditioning admissibility of 

evidence under the public safety exception on an officer’s ability to ask questions in a 

specific form would run counter to the Quarles Court’s decision that an officer may forgo 

announcement of Miranda warnings when public safety is threatened.”); see also United 

States v. Estrada, 430 F.3d 606, 612 (2nd Cir. 2005) (“Thus, a question that plainly 

encompasses safety concerns, but is broad enough to elicit other information, does not 

necessarily prevent application of the public safety exception when safety is at issue 

and context makes clear that the question primarily involves safety.”). Here, as the 

Court of Appeals minority opinion points out, the district court determined that in 

conjunction with his search, the officer donned protective “gloves as one precaution 

against the possibility of sharp objects such as needles.” Widmer, 2018-NMCA-035, ¶ 

45 (Hanisee, J., dissenting). The question was a second precaution. We conclude that 

the officer limited the inquiry to items on Defendant’s person including potentially 

hazardous items that could affect officer safety. Thus, we affirm the district court’s 

determination that the Quarles exception applies.

{40} This Court acknowledges that reasonable people may disagree. In support of 

suppressing the physical evidence, the Widmer majority concluded that the “‘narrow’” 

public safety exception did not apply and that the question must be “focused . . . [and] 

necessary to ensure the safety of the officer when there is an objective, immediate 

threat to the safety of the officer.” Widmer, 2018-NMCA-035, ¶¶ 29-30. Respectfully, 

this Court believes that the better application of the public safety exception aligns with 

those courts that do not apply such a narrow reading of the Quarles exception.

D. We Vacate the Court of Appeals Opinion and Remand for Further 

Proceedings

{41} Officers subjected Defendant to custodial interrogation, and Miranda warnings 

generally would be required. See State v. Nieto, 2000-NMSC-031, ¶ 20, 129 N.M. 688, 

12 P.3d 442 (observing that a suspect’s Miranda rights attach when the suspect is 

subjected to custodial interrogation). However, in this case, the Quarles exception lifted 

the prophylactic rule requiring Miranda warnings. Trangucci, 1990-NMCA-009, ¶ 12 

(observing that officer safety is encompassed within the public safety exception). The 

district court did not err in admitting Defendant’s statement, “I have meth.” We therefore 

do not reach the Court of Appeals determination that the physical evidence should have 

been suppressed as fruit of the poisonous tree subsequent to a Miranda violation 

because the Quarles public safety exception permitted the interrogation at issue.

{42} Based on our holding, we are not required to and do not reach the question 

whether the Court of Appeals properly applied the fruit of the poisonous tree doctrine to 
suppress the physical evidence. We simply note that federal case law may not support 

such an application of the doctrine. See Quarles, 467 U.S. at 659-60 (admitting both the 

defendant’s response to an officer’s question asked before giving Miranda warnings and 

the physical evidence); see also id. at 667-72 (O’Connor, J., concurring in the judgment 

in part and dissenting in part) (reasoning that suppression of the physical evidence is 

not proper and observing that “whatever case can be made for suppression [of 

statements made during custodial interrogation without Fifth Amendment instruction] 

evaporates when the statements themselves are not admitted”).

{43} As the ultimate arbiter of the New Mexico Constitution, it is our duty to observe 

that Defendant failed to raise and argue whether the fruit of the poisonous tree doctrine 

should apply to physical evidence discovered subsequent to a violation of the right to 

instruction under Article II, Section 15 of the New Mexico Constitution. See State v. 

Gomez, 1997-NMSC-006, ¶¶ 22-23, 122 N.M. 777, 932 P.2d 1 (providing guidance on 

the interstitial approach and preservation of questions when broader protection may be 

available under the state constitution). As former Associate Justice William J. Brennan, 

Jr., of the United States Supreme Court wrote:

[D]ecisions of the [United States Supreme] Court are not, and should not 

be, dispositive of questions regarding rights guaranteed by counterpart 

provisions of state law. Accordingly, such decisions are not mechanically 

applicable to state law issues, and state court judges and the members of 

the bar seriously err if they so treat them.

Brennan, William J., State Constitutions and the Protection of Individual Rights, 90 

Harv. L. Rev. 489, 502 (1977) (footnote omitted). We agree that the dual nature of our 

federalism requires robust scrutiny of constitutional decisions of federal courts by state 

courts and scrutiny of “state-granted rights that state courts can safeguard,” id. at 502-

03, and so remind practioners to raise state constitutional issues where appropriate.

III. CONCLUSION

{44} For the foregoing reasons, we conclude that the Quarles public safety exception 

applied to the officer’s question in this case. Accordingly, we vacate the Court of 

Appeals opinion and remand to the Court of Appeals for further proceedings consistent 

with this opinion.

{45} IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice
JAMES T. MARTIN, Judge,

Sitting by designation

NAKAMURA, Chief Justice (concurring in part, dissenting in part).

{46} First, while I concur that the question Officer Apodaca asked Widmer falls within 

the public safety exception identified in Quarles and agree that it does so for the 

reasons articulated in the majority opinion, see Maj. Op. ¶¶ 38-39, I do not concur that 

the question constitutes “interrogation” as that term is used in Miranda. Maj. Op. ¶ 34. 

If the question Officer Apodaca asked Widmer falls within the public safety exception, it 

cannot be interrogation. Second, the majority has not given adequate deference to the 

district court’s assessment of the facts. Rather, the majority applied the law to the facts 

as it found them. The Court of Appeals’ majority similarly did not defer to the district 

court about fact matters and incorrectly embraced facts and inferences in direct 

opposition to the district court’s resolution of this case. See Widmer, 2018-NMCA-035, 

¶ 29.

I. PUBLIC SAFETY EXCEPTION AND INTERROGATION

{47} If we ask what the public safety exception is an exception to, the answer is that it 

is an exception to the requirement that police must Mirandize criminal suspects before 

asking them certain questions, i.e., those focused on public safety. Quarles expressly 

holds that police officers need not Mirandize an accused before asking questions 

designed to protect public safety. 467 U.S. at 655-56. The basic thought at work here 

is that Miranda is not concerned with and has no effect on questions designed to secure 

public safety. Id. at 656-58. At the core of this thought is a policy choice: The United 

States Supreme Court decided that the Fifth Amendment shall not operate in such a 

way that it jeopardizes public safety. Id. at 657-58.

{48} Secondary authorities uniformly confirm what is apparent from the language of 

Quarles itself: the public safety exception is an exception to “the requirement that 

Miranda warnings be given.” 2 Wayne R. LaFave et al., Criminal Procedure, § 6.7(b), at 

859 (4th ed. 2015) (emphasis added) (quoting Quarles, 467 U.S. at 655); 2 Joseph G. 

Cook, Constitutional Rights of the Accused, § 6:33, at 6-220 (3d ed. 1996) (stating that 

Quarles “recognized a public safety exception to the requirement of Miranda warnings”); 

3 Nancy Hollander et. al., Wharton’s Criminal Procedure, § 19:8, at 19-33-35 (14th ed. 

2017) (observing that Quarles created a public safety exception to the requirement that 

Miranda warnings be given); 4 Mark S. Rhodes, Orfield’s Criminal Procedure Under the 

Federal Rules, § 26:507, at 171-72 n.15 (2d ed. 1987) (observing that Quarles created 

a “[p]ublic safety exception to the Miranda warning requirement”); 2 David S. Rudstein 

et al., Criminal Constitutional Law, § 4.02A, at 4-98 (Matthew Bender 2019) (“So long as 

the officers ask questions that are reasonably prompted by a concern for the public 

safety, Miranda warnings are not required.” (internal quotation marks and citation 

omitted)).
{49} Because the public safety exception is an exception to the requirement that 

Miranda warnings be given at all, questions permissibly and properly asked for public 

safety cannot constitute interrogation as understood by Miranda. If this were not so and 

properly posed public safety questions could constitute “interrogation,” then such 

questions posed to a suspect in custody could produce a Miranda violation. Indeed, the 

majority in this case holds that Widmer was in custody and subject to interrogation such 

that his Miranda right “attached.” Maj. Op. ¶ 34. In subsequent paragraphs, the 

majority writes that “the Quarles exception lifted the prophylactic rule requiring Miranda

warnings.” Maj. Op. ¶ 41. They conclude that “suppression of a defendant’s 

statements or responses . . . is not required if the Quarles public safety exception 

applies.” Maj. Op. ¶ 7. This is incorrect.

{50} The focus of the Quarles exception is not suppression. Quarles eliminates the 

requirement that Miranda warnings be given. Thus, the majority does not properly 

conceptualize how the Quarles exception functions.

{51} Unfortunately, our case law also has not correctly grasped the effect of the public 

safety exception as it is described in Quarles. In State v. Cooper, this Court explained 

that “[u]nder certain circumstances, such as the ‘public safety’ exception recognized in . 

. . Quarles, 467 U.S. [at] 655-60 . . . a statement taken in violation of Miranda may be 

admissible.” 1997-NMSC-058, ¶ 41, 124 N.M. 277, 949 P.2d 660. Cooper misstates 

the law. Proper public safety questions cannot violate Miranda because there is no 

requirement to Mirandize the accused before asking proper public safety questions.

{52} The cases and treatises discussing Quarles and how the public safety exception 

was incorporated into Fifth Amendment doctrine do not describe the exception as 

“lifting” an “attached” right. As noted, those authorities uniformly indicate that Miranda

has no effect on an officer’s authority to ask public safety questions. The basic point 

here is that no right “attaches” when these questions are asked and, thus, Quarles does 

not “lift” that right or eliminate the need for suppression. Put most simply, a thing not 

subject to a term can never be construed as violating that term.

{53} Having said all of this, it is still possible to ask why it must be true that properly 

posed public safety questions cannot constitute interrogation. The answer to this 

question is that proper public safety questions are not designed to elicit incriminating 

statements. 

{54} Consider Quarles. There can be no doubt that when Mr. Quarles was asked 

“Where is the gun?” his decision to supply an answer was damning. After all, he was

charged with criminal possession of a weapon. Quarles, 467 U.S. at 651. The question 

“Where is the gun?” was undoubtedly a form of direct-police questioning bearing on an 

element of the crime with which Mr. Quarles was charged. Justice Marshall made this 

very point in his dissent and claimed that the majority’s approach effectively eviscerated 

Miranda. See, e.g., id. at 675 (Marshall, J., dissenting). In the end, however, it appears 

it did not matter to the majority that the question asked was a form of direct questioning 

bearing on an element of Mr. Quarles’ crime. The Court decided that the Fifth 
Amendment could not be construed in such a way that it jeopardized public safety and, 

therefore, it was not necessary to Mirandize Mr. Quarles before asking him “Where is 

the gun?” Despite Marshall’s protest, this was not some momentous departure from an 

unbending principle.

{55} It is settled that “[n]ot all express questioning by the police is considered 

interrogation under Miranda and Innis.” Rudstein, supra, § 4.02[3][b], at 4-60. Routine 

booking questions are not interrogation. Id. Similarly, “[r]outine questions asked at bail 

hearings are generally not viewed as ‘interrogation.’” Hollander, supra, § 19:8, at 19-30-

31. “General background questions such as name, address, age, and occupation are 

not usually viewed as interrogation . . . .” Cook, supra, § 6:32, at 6-200-01. 

“Requesting a driver’s license or other permit is not considered interrogation[.]” Id. at 6-

206. “Conversations where the defendant responds to being informed about the charge 

have been held not to constitute interrogation.” Rudstein, supra, § 4.02[3][b], at 4-63. 

Asking a defendant to perform field sobriety tests is not interrogation even if the physical 

and verbal responses the defendant gives incriminate him. LaFave, supra, § 6.7(c), at 

875. If the reader has detected a pattern this is the intended effect. The Quarles public 

safety exception identifies a type of police questioning that is also not interrogation. 

{56} This point is most obvious given Quarles’ observations that “police officers can 

and will distinguish almost instinctively between [1] questions necessary to secure their 

own safety or the safety of the public and [2] questions designed solely to elicit 

testimonial evidence from a suspect.” 467 U.S. at 658-59. The clear implication of this 

observation is that questions posed for public safety are not designed to elicit 

incriminating statements from a suspect.

{57} Federal case law confirms that questions falling within the public safety exception 

do not and cannot constitute interrogation. See, e.g., Reyes, 353 F.3d at 154 (“We are 

likewise persuaded that the arresting officer’s questions were sufficiently limited in 

scope and were not posed to elicit incriminating evidence. . . . The questions that the 

officer asked Reyes concerned the presence of dangerous objects on Reyes’ person.” 

(citations omitted)); DeSantis, 870 F.2d at 541 (“Viewing the totality of the 

circumstances in the present case, the inspectors cannot be said to have coerced 

DeSantis into revealing that there was a gun in the bedroom. . . . [V]iewed objectively, 

Martino’s question was not intended to elicit testimonial evidence, but rather to secure 

the inspectors’ own protection.”); Lackey, 334 F.3d at 1228 (“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 requiring Miranda warnings does precious little to protect the 

arrestee’s privilege against self-incrimination.” (emphasis omitted)).

{58} The validity of the view that public safety questions are not interrogation is also 

apparent given the clear inconsistency in the majority opinion. The majority cannot 

simultaneously hold that the question Officer Apodaca asked Widmer was “limited . . . to 

items on [Widmer’s] person including potentially hazardous items that could affect 

officer safety” and hold that Officer Apodaca’s question was “reasonably likely to elicit 
[from Widmer] an incriminating statement establishing knowledge or possession of 

drugs.” Compare Maj. Op. ¶ 39 with id. ¶ 25. Officer Apodaca’s question was either 

asked for his safety or it was asked to elicit an incriminating response from Widmer. It 

cannot be for both. And what is most troublesome about this inconsistency is that, in 

the wake of this opinion, officers will be unable to discern what, exactly, they can and 

cannot permissibly ask an arrestee before searching them. Officers may feel obligated 

to jeopardize their own safety for concern that a safety question might be deemed 

constitutionally inappropriate interrogation.

II. THE DISTRICT COURT’S FACTUAL DETERMINATIONS

{59} The majority correctly determines as a matter of law that the question Officer 

Apodaca asked Widmer cannot be categorically excluded as a permissible public safety 

question merely because the question was poorly worded. Maj. Op. ¶¶ 38-40. The 

majority also correctly concludes as a matter of law that the officers’ concerns with 

protecting themselves from “weapons” or “sharp and bio-hazardous objects” potentially 

within an arrestee’s clothes or on their body is a safety concern Quarles was certainly 

meant to address. Maj. Op. ¶ 38. What is absent from the majority’s analysis, however, 

is how the district court’s findings, and the inferences supporting those findings factor 

into its resolution of this case.

{60} The facts are undisputed. Officer Apodaca stated that, immediately prior to 

asking Widmer whether he had anything on his person Officer Apodaca needed to know 

about, both officers were in the process of donning protective gloves. Officer Apodaca 

explained that they don these gloves when searching arrestees to protect themselves 

from any unknown and potentially dangerous items arrestees might have in their 

pockets or otherwise on their person. The district court must have credited this 

testimony when it decided that the question Officer Apodaca asked was asked “for the 

purpose of finding out whether or not there were weapons on [Widmer] or something 

that could harm [the officers].”

{61} This fact determination necessarily required the district court to assess the 

credibility of the two officers, to evaluate the coherence of their explanation as to why 

they did what they did, and to bring to bear normative considerations about what 

constitutes appropriate police conduct given the community in which these events 

transpired. Of course, the district court could have resolved this matter in favor of 

Widmer. It could have decided, as a fact matter, that the question Officer Apodaca 

asked was not asked for legitimate safety concerns but was an attempt, or ruse, to elicit 

an incriminating response. It did not.

{62} The question we must ask and answer on appeal is whether the district court 

correctly applied the law to the facts as it found them. There is undoubtedly overlap 

between the fact determinations the district court made and the legal questions we must 

ask and answer on appeal, but this overlap does not make the district court’s factual 

determinations irrelevant. In fact, the district court’s fact determinations are all but 

dispositive in this case.
{63} The twin legal conclusions that officers are not expected to ask perfect questions 

and that they are justified in asking arrestees whether they have weapons or other 

dangerous items in their clothing or on their persons are common sense conclusions 

that are neither novel nor controversial. This case really turns on the fact that the 

district court believed the officers and the explanations they provided for their conduct.

{64} Attention must be given to the district court’s factual determinations for an 

additional reason. The Court of Appeals’ majority opinion claims that “[t]he officers 

expressed no concern of any kind” that their interactions with Widmer “posed a danger 

to their safety.” Widmer, 2018-NMCA-035, ¶ 29. The Court of Appeals went on to 

state that Officer Apodaca “did not say” that Widmer might have something on his 

person that could harm Officer Apodaca. Id. This is not a fair account of the officers’ 

testimony.

{65} Officer Apodaca testified that officers routinely ask the individuals they search if 

they might encounter dangerous objects during the search. This concern is selfevidently reasonable. It is impossible to foresee what members of our society might be 

carrying in the pockets of their clothing. It is even less clear what the individuals police

officers routinely interact with—those involved in the drug trade or who have committed 

crimes—might have in their pockets. Officer Apodaca was not expected to know with 

certainty what was in Widmer’s pockets before asking him questions designed to ensure 

Officer Apodaca did not harm himself during the search. To expect otherwise is 

unreasonable.

{66} For all of these reasons, I respectfully dissent in part.

JUDITH K. NAKAMURA, Chief Justice