FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

ALFONZO WILLIAMS, AKA Fonz,

AKA Relly; ANTONIO GILTON,

AKA TG, AKA Tone; BARRY

GILTON, AKA Prell; LUPE

MERCADO; ADRIAN GORDON,

AKA Tit; REGINALD ELMORE,

AKA Fat Reg; CHARLES HEARD,

AKA Cheese; ESAU FERDINAND,

AKA Sauce; PAUL ROBESON,

AKA P World; MONZELL

HARDING, JR.; JAQUAIN YOUNG,

AKA Loc,

Defendants-Appellees.

No. 15-10475

D.C. No.

3:13-cr-00764-

WHO-1

OPINION

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick III, District Judge, Presiding

Argued and Submitted March 16, 2016

San Francisco, California

Filed December 5, 2016
2 UNITED STATES V. WILLIAMS

Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson,

and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz;

Dissent by Judge Kleinfeld

SUMMARY*

Criminal Law

Affirming the district court’s suppression order, the panel

held that when a defendant charged with murder invokes his

Miranda rights, the government may not admit in its case-inchief evidence of the defendant’s unadmonished responses to

prison officials’ questions about his gang affiliation.

Dissenting, Judge Kleinfeld wrote that the “public safety”

and “booking” exceptions to Miranda make the defendant’s

answer to a gang question admissible.

COUNSEL

Ann M. Voigts (argued), Assistant United States Attorney;

Barbara J. Valliere, Chief, Appellate Division; Brian J.

Stretch, United States Attorney; United States Attorney’s

Office, San Francisco, California; for Plaintiff-Appellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. WILLIAMS 3

Mark Stuart Goldrosen (argued), San Francisco, California,

for Defendants-Appellees.

OPINION

HURWITZ, Circuit Judge:

Antonio Gilton was arrested for murder and promptly

invoked his right to an attorney. Hours later, after Gilton was

taken from police headquarters to a jail, a sheriff’s deputy

asked him whether he was a member of a criminal gang. The

government seeks to introduce Gilton’s responses to that

questioning in its case-in-chief to establish membership in an

“enterprise,” an element of the RICO offense for which he is

charged. 18 U.S.C. § 1962(c), (d). The district court

suppressed Gilton’s statements under the rule of Miranda v.

Arizona, 384 U.S. 436 (1966). We affirm.

I.

On the afternoon of July 4, 2012, San Francisco police

officers arrested Gilton for the murder of Calvin Sneed. 

Officers first took Gilton to a local police station; he was

transported that evening to an interrogation room at the San

Francisco Hall of Justice. At the Hall of Justice, a homicide

inspector advised Gilton of his Miranda rights and attempted

to interrogate him; Gilton unequivocally invoked his right to

an attorney.

Gilton then was taken to county jail and placed in a

holding cell. Around 2:30 a.m. on July 5, a deputy sheriff

removed Gilton from the cell and asked whether he was a

gang member. The deputy did not advise Gilton that he was
4 UNITED STATES V. WILLIAMS

free to return to his cell without answering or to have a

lawyer present; nor was Gilton informed that his answers

could be used to incriminate him. In response to the deputy’s

inquiry whether he was affiliated with the Fillmore/Central

Divisadero Playas (“CDP”) gang, Gilton said, “Yeah, I hang

out there, put me where I’m from.”

Gilton’s answers were entered by the deputy on two

forms used by jail officials in determining where to house

inmates—an “Information Report,” which designates any

gang affiliation, and a “Class Interview,” which reflects

whether the prisoner presents any “High Risks,” including

being a gang member. The deputy designated Gilton a gang

member on the Information Report, and checked off “Gang

Member” on a list of “High Risks” on the Class Interview. 

Absent a direct admission of gang affiliation, a prisoner can

still be designated a gang member on the forms if two other

criteria are met—including a gang-related tattoo, a prior

gang-related arrest, frequent association with validated gang

members, or police intelligence that he is a gang member. In

classifying Gilton, the deputy relied not only on his responses

to questioning, but also on his arrest record and police

intelligence.

Gilton was initially charged in state court with murder,

conspiracy to commit murder, discharge of a firearm at an

occupied motor vehicle, and possession of a firearm by a

felon. In November 2013, he was indicted by a federal grand

jury and the state charges were dismissed. A superseding

indictment charged Gilton with conspiracy to violate the

Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. § 1962(d), murder in aid of racketeering

for the murder of Calvin Sneed, 18 U.S.C. § 1959(a)(1), and

related firearms offenses. An element of the RICO count is
UNITED STATES V. WILLIAMS 5

Gilton’s membership in a RICO enterprise—here, the CDP

gang. See 18 U.S.C. § 1962(c), (d).

Gilton moved to suppress the statements made to the

deputy about gang affiliation. The district court granted the

motion, holding that because “asking about Gilton’s gang

affiliation was reasonably likely to elicit incriminating

information,” the so-called “booking exception” to Miranda

did not apply. This timely appeal followed.1

See 18 U.S.C.

§ 3731 (allowing appeal of order granting motion to

suppress).

II.

Under the iconic rule of Miranda v. Arizona, “the

prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the

defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against selfincrimination.” 384 U.S. 436, 444 (1966). “Prior to any

questioning, the 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.” Id. 

Once the defendant “indicates in any manner and at any stage

of the process that he wishes to consult with an attorney

before speaking there can be no questioning.” Id. at 444–45. 

“[U]nless and until such warnings and waiver are

demonstrated bythe prosecution at trial, no evidence obtained

as a result of interrogation can be used against him.” Id. at

479.

1 The district court also suppressed photographs seized from Gilton’s

home. The government does not challenge that ruling on appeal.
6 UNITED STATES V. WILLIAMS

“[T]he term ‘interrogation’ under Miranda refers . . . to

any 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.” Rhode Island v. Innis, 446 U.S.

291, 301 (1980). The so-called “booking questions

exception” exempts “from Miranda’s coverage questions to

secure the biographical data necessary to complete booking

or pretrial services.” Pennsylvania v. Muniz, 496 U.S. 582,

601 (1990) (plurality opinion) (quotation marks omitted)

(concluding that the answers to questions regarding the

defendant’s name, address, height, weight, eye color, date of

birth, and current age were admissible in the absence of

Miranda warnings); see id. at 608 (assuming the existence of

a “routine booking question” exception but finding it

“unnecessary to determine whether the questions fall within”

it) (Rehnquist, J., concurring). Because such questions

“rarely elicit an incriminating response, routine gathering of

biographical data does not constitute interrogation sufficient

to trigger constitutional protections.” United States v.

Gonzalez-Sandoval, 894 F.2d 1043, 1046 (9th Cir. 1990).

The booking questions exception, however, is subject to

an important qualification: “When a police officer has reason

to know that a suspect’s answer may incriminate him,

however, even routine questioning may amount to

interrogation.” United States v. Henley, 984 F.2d 1040, 1042

(9th Cir. 1993). Thus, we have consistently emphasized,

consistent with Innis, that “the ultimate test for whether

questioning constitutes interrogation is whether, in light of all

the circumstances, the police should have known that a

question was reasonably likely to elicit an incriminating

response.” United States v. Booth, 669 F.2d 1231, 1238 (9th

Cir. 1981); see United States v. Washington, 462 F.3d 1124,
UNITED STATES V. WILLIAMS 7

1132–33 (9th Cir. 2006) (applying Booth). Thus, for

example, when there is reason to suspect that a defendant is

in the country illegally, questions regarding citizenship do not

fall under the booking exception—even if they are

biographical—because a response is reasonably likely to be

incriminating. See Gonzalez-Sandoval, 894 F.2d at 1047;

United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.

1983); see also Henley, 984 F.2d at 1042 (“[W]hile there is

usually nothing objectionable about asking a detainee his

place of birth, the same question assumes a completely

different character when an INS agent asks it of a person he

suspects is an illegal alien.”).

The government insists that the deputy who asked about

Gilton’s gang affiliation could not have known that a

response was reasonably likely to be incriminating, because

no gang-related charges were then pending. But, “[t]he test

is an objective one; the subjective intent of the police is

relevant, but not conclusive.” Washington, 462 F.3d at 1132. 

The absence of specific gang-related charges does not mean

that questions regarding the gang affiliation of a defendant

arrested for a violent crime are not likely to prove

incriminating. As a unanimous California Supreme Court

recently noted, gang membership exposes a defendant to “a

comprehensive scheme of penal statutes aimed at eradicating

criminal activity by street gangs.” People v. Elizalde, 61 Cal.

4th 523, 538 (2015).

The California Street Terrorism Enforcement

and Prevention Act created a substantive

offense, section 186.22(a), which punishes as

a misdemeanor or felony “any person who

actively participates in any criminal street

gang with knowledge that its members engage
8 UNITED STATES V. WILLIAMS

in or have engaged in a pattern of criminal

gang activity, and who willfully promotes,

furthers, or assists in any felonious criminal

conduct by members of that gang.” 

Subdivision (b)(1) of that section imposes

greater punishment when a felony is

committed “for the benefit of, at the direction

of, or in association with any criminal street

gang, with the specific intent to promote,

further, or assist in any criminal conduct by

gang members.” The additional punishment

can be substantial.

Section 12022.53 provides enhancements for

personal use or discharge of a firearm. Its

provisions apply to any principal when the

offense is committed to benefit a criminal

street gang.

Finally, in 2000 the voters passed Proposition

21, which added intentional gang-related

murders to the list of special circumstances

authorizing penalties of death or life without

the possibility of parole. It also created the

crime of conspiracy to commit a felony by

active street gang participants.

Id. at 538–39 (alterations, citations, and quotation marks

omitted).

Gang membership may also expose a defendant to federal

criminal liability. For example, a defendant’s sentence for a

federal drug crime or crime of violence is increased by ten

years if he “participates in a criminal street gang with
UNITED STATES V. WILLIAMS 9

knowledge that its members engage in or have engaged in a

continuing series of” violent or drug offenses or “intends to

promote or further the felonious activities of the criminal

street gang.” 18 U.S.C. § 521(d)(1), (2). The federal

sentencing guidelines note that “an upward departure may be

warranted” “[i]f the defendant is subject to an enhanced

sentence” under § 521. U.S. Sentencing Guideline Manual

§ 5K2.18 (U.S. Sentencing Comm’n 2015). And—as

here—gang membership can give rise to RICO charges when

the gang is alleged to be an “enterprise.” See 18 U.S.C.

§§ 1961(4), 1962.

The risk that information about gang affiliation will prove

incriminating is even greater when a defendant is charged in

California with murder, a crime that the state’s Supreme

Court has acknowledged is “frequently committed for the

benefit of criminal street gangs.” Elizalde, 61 Cal. 4th at 540. 

When the deputy asked Gilton about his gangmembership, he

had already been arrested on charges of murder, conspiracy

to commit murder, discharge of a firearm at an occupied

motor vehicle, and possession of a firearm by a felon. 

Questions about Gilton’s gang affiliation were thus

reasonably likely to elicit an incriminating response, even if

the federal RICO charges had not yet been filed. See People

v. Elizalde, 222 Cal. App. 4th 351, 372–73 (Ct. App. 2013)

(holding statements regarding gang affiliation inadmissible

when officer who asked defendant about his gang affiliation

for housing purposes was “aware that [the defendant] had

been charged with murder” but not that it was gang-related),

aff’d, 61 Cal. 4th 523 (Cal. 2015).
10 UNITED STATES V. WILLIAMS

The government’s assertion that such questions are posed

routinely,

2

and that the deputy asked the questions for a noninvestigatory purpose, does not alter our conclusion. “The

test is an objective one, however, and thus the subjective

intent of the police, while relevant, is not conclusive.” Booth,

669 F.2d at 1238. And, the objective inquiry is simple: Under

the circumstances, are questions about gang affiliation

reasonably likely to produce an incriminating response? In

a case involving Medicare fraud, they are not. But when

murder is the charge, the questions—even if asked for

administrative purposes—are reasonably likely to elicit

incriminating information.

The government argues that this case is controlled by

Washington, in which we held that an officer’s question about

a defendant’s gang nickname was “routine gathering of

background information” that did not rise to the level of

interrogation. 462 F.3d at 1133. The defendant in

Washington argued that his response was likely to be

incriminating because it might be used to identify him as

having committed the charged robbery. We rejected that

argument because, taken “to its logical conclusion, any time

an informant uses a particular name to identify the person

who committed a crime, it would be impermissible

interrogation for the police to ask the suspect his name

because confirming his identity would be ‘incriminating.’” 

Id. We noted that in most cases “simply asking for a

suspect’s name” or its equivalent is not likely to produce an

incriminating response, and even if identification “may help

2 The record contains no evidence about how frequently the gang

questions are asked, or how the decision is made whether to make the

inquiry in a particular case.
UNITED STATES V. WILLIAMS 11

lead to the prosecution of that person for a crime,” a person’s

identity alone is not protected by the Fifth Amendment. Id.

But this is far different case. As discussed above, a

defendant charged with a violent crime in California who is

a gang member is subject to far greater jeopardy than those

who are not gang members. And, the same is true under

federal law. Seeking information about gang membership is

thus far more likely to produce an incriminating response

than inquiring about a defendant’s nickname.

The government also attempts to invoke the “public safety

exception” to Miranda articulated in New York v. Quarles,

467 U.S. 649 (1984). In Quarles, a rape victim approached

police officers, described her assailant, stated that he was

armed with a gun, and said that he had just entered a grocery

store. Id. at 651–52. An officer approached the suspect in

the store, frisked him, and found that “he was wearing a

shoulder holster which was then empty.” Id. at 652. The

officer asked him where the gun was, the suspect responded;

the officer immediately retrieved the loaded gun, placed the

suspect under arrest and read him his Miranda rights. Id.

The Court held that “on these facts there is a ‘public

safety’ exception to the requirement that Miranda warnings

be given.” Id. at 655. The police “in the very act of

apprehending a suspect, were confronted with the immediate

necessity of ascertaining the whereabouts of a gun which they

had every reason to believe the suspect had just removed

from his empty holster and discarded in the supermarket.” Id.

at 657. The Court concluded that in such a “kaleidoscopic

situation . . . where spontaneity rather than adherence to a

police manual is necessarily the order of the day,” officers

should not be placed “in the untenable position of having to
12 UNITED STATES V. WILLIAMS

consider, often in a matter of seconds, whether it best serves

society for them to ask the necessary questions without the

Miranda warnings and render whatever probative evidence

they uncover inadmissible, or for them to give the warnings

in order to preserve the admissibility of evidence they might

uncover but possibly damage or destroy their ability to obtain

that evidence and neutralize the volatile situation confronting

them.” Id. at 656, 657–58.

“In determining whether the public safety exception to

Miranda applies, we ask whether there was an objectively

reasonable need to protect the police or the public from any

immediate danger.” United States v. Carrillo, 16 F.3d 1046,

1049 (9th Cir. 1994) (quotation marks omitted) (holding that

asking a defendant whether he had any drugs or needles on

his person—prior to a body search—fell within the exception

as it “stemmed from an objectively reasonable need to protect

[the officer] from immediate danger”); see also United States

v. Brady, 819 F.2d 884, 887–88 (9th Cir. 1987) (applying

public safety exception to a question whether defendant had

a gun in his car because the officer “had to control a

dangerous situation” in which a crowd had gathered and the

defendant’s car “stood with its door open and the keys in the

ignition”). There was no such danger here. The deputy

retrieved Gilton from a locked holding cell around 2:30

a.m.—hours after Gilton arrived at the jail. There was no

“kaleidoscopic situation,” nor was the deputy put to the

Hobson’s choice of deciding within seconds whether society

was best served by asking the questions without a Miranda

warning or giving such a warning and damaging his ability to

neutralize a “volatile situation.” Quarles, 467 U.S. at 656,

658. That the questions may have been asked in the general

interests of inmate safety does not mean that there was an

urgent need to protect either the deputy or others against
UNITED STATES V. WILLIAMS 13

immediate danger; the narrow “public safety exception”

therefore does not apply.

III.

For the reasons above, we affirm the district court’s

suppression order. But, it is also important to note what we

do not hold. We do not hold that prison officials may not

inquire into a prisoner’s gang membership in the interests of

inmate safety. See, e.g., Florence v. Bd. of Chosen

Freeholders of Cty. of Burlington, 132 S. Ct. 1510, 1518

(2012) (“Gang rivalries spawn a climate of tension, violence,

and coercion.”) (quotation marks omitted). Nor do we hold

that the responses to such questions cannot be used for

purposes of inmate housing. Rather, we hold only that when

a defendant charged with murder invokes his Miranda rights,

the government may not in its case-in-chief admit evidence

of the prisoner’s unadmonished responses to questions about

his gang affiliation.3

AFFIRMED.

KLEINFELD, Senior Circuit Judge, dissenting:

I respectfully dissent. The district court’s suppression

order should be reversed, and the statements admitted. Two

3 The government does not suggest that the deputy was otherwise

unable to secure information needed to house Gilton safely. Indeed, even

had Gilton refused to answer the questions, he apparently would

nonetheless have been classified as a member of CDP on the basis of his

arrest record and officer intelligence.
14 UNITED STATES V. WILLIAMS

exceptions to Miranda, the “public safety exception” and the

“booking exception,” apply. These exceptions make Gilton’s

answer to the gang question admissible against him in his

criminal trial.

Here is the classification form as filled in for Antonio

Gilton, the codefendant at issue:
UNITED STATES V. WILLIAMS 15

It is evident from the form that Gilton was already thought to

be a gang member by sheriff’s department personnel, that he

was asked if he was affiliated with “Fillmore/CDP,” and that

he answered “Yeah, I hang out there, put me where I’m

from.” The acronym “CDP” refers to the Central Divisadero

Playas Gang. This answer was incriminating, both on the

charges against Gilton for killing and conspiring to kill, and

for state gang or federal RICO charges that might

subsequently be filed.

Gilton’s answer was obtained and also was valuable for

an entirely different purpose, determining where to put him

in jail and who should or should not be his roommate. He

needed to be transferred from his holding cell to the jail. A

“holding cell” is a temporary and often solitary and

uncomfortable cell in which people are held for a few hours

until they are transferred to jail. A jail is where prisoners are

held before trial, if not released on bail, and on short

sentences after conviction, typically for misdemeanors rather

than felonies. Gilton’s answer, “put me where I’m from,”

shows that he understood that his reply would be used as an

aid in determining where in jail to put him. He chose to

express a preference. His answer appears to be artfully

worded; he does not say in so many words that he is a

member of the gang, just that he “hang[s] out” with the

people in it. Some gangs have “hangarounds,” non-members

who are considering and being considered for membership. 

Gilton’s declaration in support of his motion to suppress is

also artfully worded. He does not say that he would have

refused to say that he hung around with the gang and wanted

to be placed there, had his Miranda warning been repeated,

or had a lawyer been provided.
16 UNITED STATES V. WILLIAMS

Two exceptions to inadmissibility apply here, the “public

safety exception” and the “routine booking question”

exception. Their purposes overlap in this case.

The “public safety exception” allows admission of a

defendant’s custodial statements against him in his criminal

trial, despite lack of Miranda compliance. This exception is

unaffected by whether the question is likely to elicit an

incriminating response. The Supreme Court established it in

New York v. Quarles.

1 Though the facts are different here,

the rationale applies. In Quarles, the police chased a

suspected rapist, caught him, frisked him and found an empty

holster, and handcuffed him. Then, before Mirandizing him,

the police asked him where the gun was. He replied, nodding

toward some empty cartons and saying “the gun is over

there.”2It was. He was formally placed under arrest,

Mirandized, and asked if it was his gun and where he got it. 

He replied that it was indeed his gun, which he had purchased

in Miami. The Court held that the admission he made while

cuffed but before getting his Miranda warning, that “the gun

is over there,” could not properly be suppressed, despite

Miranda.

3

Quarles held that the statement, “the gun is over there,”

was made while the subject was in police custody. 

Importantly, the officers were no longer concerned for their

own physical safety. The Court held that even though the

police were not in danger, nor was the suspect still dangerous

1

 467 U.S. 649 (1984).

2

Id. at 652.

3

Id. at 655–60.
UNITED STATES V. WILLIAMS 17

to others, “there is a ‘public safety’ exception to the

requirement that Miranda warnings be given.”4 The gun was 

hazardous to the public if found by an accomplice, store

employee, or store customer. The Court explained this in

terms of “social cost.” The rationale was that Miranda

warnings in custodial interrogation were desirable when the

social cost was merely fewer convictions, but not when there

was the additional social cost such as the danger from the

gun. The Court held 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.”5 The

“public safety exception” “will be circumscribed by the

exigency which justifies it.”6 Thus Miranda has no

application where exigencies involving public safety justify

the question, even though the prophylactic against compelled

self incrimination is sacrificed.

Time mattered in Quarles, because the police wanted to

find the gun before someone else did. Time matters here too,

because Gilton needed to be safely housed in jail at the time

of his transfer from the holding cell. No chase or shooting

was going on in Quarles. The only exigency was from the

gun, because Quarles knew where he had tossed it and the

police did not. The Court’s explanation, in terms of “social

cost,” meant that had the only burden of applying Miranda

been suppression of the suspect’s admission at trial, then

Miranda would have applied, but the additional “social cost”

4

Id. at 655.

5

Id. at 657.

6

Id. at 658.
18 UNITED STATES V. WILLIAMS

of danger to the public made the Miranda prophylactic too

risky.

That same “social cost” rationale applies to Gilton’s

request to “put me where I’m from,” with the people he

“hangs around” with. People in jail are part of the “public.” 

Some are innocent, some are nonviolent people there for

nonviolent reasons like unpaid fines, and some are extremely

dangerous violent criminals and gang members. After

confining them and rendering them unable to defend

themselves, the state owes them a duty to protect them from

each other. “California’s other prisoners may be murderers,

rapists, drug dealers, and child molesters, but California is

responsible for protecting even those sorts of people from

murder by other prisoners. Indeed, the Eighth Amendment

requires that prison officials ‘must take reasonable measures

to guarantee the safety of the inmates.’”7 And as the Supreme

Court has said, “[L]aw enforcement officers bear a

responsibility for ensuring that the custody of an arrestee does

not create inordinate ‘risks for facility staff, for the existing

detainee population, and for a new detainee.’”8

A second, independent exception should also be extended

to this case, the “booking exception.” The plurality opinion

in Pennsylvania v. Muniz9holds that routine booking

7 Griffin v. Gomez, 741 F.3d 10, 21 (9th Cir.) (quoting Farmer v.

Brennan, 511 U.S. 825, 832 (1994)), cert. denied sub nom. Griffin v.

Beard, 135 S. Ct. 114 (2014).

8 Maryland v. King, 133 S. Ct. 1958, 1972 (2013) (quoting Florence

v. Bd. of Chosen Freeholders of Cty. of Burlington, 132 S. Ct. 1510, 1518

(2012)).

9

 496 U.S. 582 (1990).
UNITED STATES V. WILLIAMS 19

questions to secure biographical data necessary to complete

booking or pretrial services are exempt from the Miranda

prohibition, so the answers need not be suppressed.10 The

Court distinguished between questions “reasonably related to

the police’s administrative concerns” and questions “designed

to elicit incriminatory admissions.”11 Had the question about

gang membership been asked of Gilton by someone

responsible for prosecuting him, or investigating for his

prosecution, it would be “designed to elicit incriminatory

admissions.” But it was not. Asked by someone responsible

for assigning his housing in jail, as it was, the question was

“reasonably related to the police’s administrative concerns.” 

The administrative concern was safety for Gilton, and safety

for inmates physically accessible to him, while he was in jail.

That Gilton was charged with murder made the need to

ascertain gang affiliation especially important for safety. 

Without the gang knowledge, he could easily have been put

in danger from revenge by someone affiliated with the person

he had allegedly killed.12 As the Court explained in

Maryland v. King, knowing “the type of person whom they

are detaining” mitigates risks to staff, inmates, and the

defendant.13In this case, the sheriff’s department already had

information about Gilton’s gang status, but it could have been

10 Id. at 600.

11 Id. at 601–02 & n.14.

12 People v. Williams, 294 P.3d 1005, 1018 (Cal. 2013) (victim’s

brother in the next room says “you’re a dead man”).

13 King, 133 S. Ct. at 1971–72.
20 UNITED STATES V. WILLIAMS

wrong or outdated,

14

and confirming what they thought they

knew was important to his and others’ safety.

It would be presumptuous of us to limit the Supreme

Court decisions in Quarles and Muniz to their facts, and we

have not.15In United States v. Carillo we held that under

Quarles an officer at a detention facility could ask the incustody suspect if he had any drugs or needles on his person

without Mirandizing him.16 The officer about to pat the

inmate down needed to protect himself from the danger of

getting pricked by a needle. “[A] pressing need for haste is

not essential” to applicability of Quarles.

17 The question in

Carillo might not necessarily have elicited an incriminating

response, but it did: “no, I don’t use drugs, I sell them.”18

We held not merely that the officer could ask the question

and use the response to protect himself, as the majority in the

case before us now would have held; we held that admission

of the answer at trial did not violate Miranda.

Nor have we confined the “booking exception” to the

facts in Muniz. We held that the exception applied to asking

an inmate being booked what his “gang moniker” was, in

14 See Florence v. Bd. of Chosen Freeholders of Cty. of Burlington,

132 S. Ct. 1510, 1521 (2012) (citing Dep’t of Justice v. Reporters Comm.

for Freedom of Press, 489 U.S. 749, 752 (1989)).

15 United States v. Brady, 819 F.2d 884, 888 (9th Cir. 1987).

16 16 F.3d 1046, 1049–50 (9th Cir. 1994).

17 Id. at 1050.

18 Id. at 1049.
UNITED STATES V. WILLIAMS 21

United States v. Washington.

19 Asking the inmate his gang

moniker is similar to asking his gang affiliation, because a

“gang moniker” would signify gang membership. The

question was as likely to produce an incriminating response

in Washington as the similar question was in this case,

because it would imply gang membership, and because the

police had evidence that “Rock,” Washington’s gang

moniker, was the perpetrator.20 We nonetheless treated this

question, likely to elicit an incriminating response, as a

“routine booking question” because gang information is

routinely obtained “to ensure prisoner safety.”21 We should

apply Washington and conclude that the gang question in the

case before us falls within the “booking exception,” so

Miranda does not apply.

The majority relies on four cases for its more restrictive

view of the booking exception, Booth, Henley, Mata-Abundiz,

and Gonzalez-Sandoval. Not a single one of these cases

involves a question during booking. The questions were

asked, respectively, on the street,22in the police car,23in a

holding cell by an officer interrogating to prove a crime,24and

19 462 F.3d 1124, 1132–33 (9th Cir. 2006).

20 Id. at 1129, 1133.

21 Id. at 1133.

22 United States v. Booth, 669 F.2d 1231, 1234 (9th Cir. 1981).

23 United States v. Henley, 984 F.2d 1040, 1042 (9th Cir. 1993).

24 United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1046–47 (9th

Cir. 1990).
22 UNITED STATES V. WILLIAMS

in prison ten days after booking had occurred.25 None of

these cases is in point.

There is an “objectively reasonable need” to ask about

gang affiliation.26 As the Supreme Court stated, “Jails and

prisons . . . face grave threats posed by the increasing number

of gang members who go through the intake process.”27

High-ranking gangmembers are often incarcerated, and direct

the gang’s activities both within and without.28 There is a

high likelihood of violence because jails and prisons are

fertile recruiting grounds where gang members live in forced

proximity to their rivals.29

It is important to protect suspects from being compelled

to incriminate themselves. It is also important to protect

people in jail from violence and death. Gilton, and those

from rival gangs, all had a legitimate interest that the jail was

obligated to protect in waking up alive in the morning. The

deputy served that legitimate and important interest by asking

the gang question. Under both the public safety exception

25United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9thCir. 1983)

(“Moreover, the questioning conducted by Investigator DeWitt had little,

if any, resemblance to routine booking procedures. . . . [A]ny analogy to

routine booking procedures is unwarranted.”).

26 New York v. Quarles, 467 U.S. 649, 659 n.8 (1984); see United

States v. Brady, 819 F.2d 884, 888 n.3 (9th Cir. 1987).

27 Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 132 S.

Ct. 1510, 1518 (2012).

28 See Griffin v. Gomez, 741 F.3d 10, 22 (9th Cir.), cert. denied sub

nom. Griffin v. Beard, 135 S. Ct. 114 (2014).

29 Florence, 132 S. Ct. at 1518.
UNITED STATES V. WILLIAMS 23

and the booking exception, either of which would suffice

without the other, Miranda did not apply to the question, and

the answer was admissible in Gilton’s prosecution.