Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch’s homepage at http://www.courts.state.co.us

. Opinions are also posted on the Colorado Bar Association ’s homepage at http://www.cobar.org

.
ADVANCE SHEET HEADNOTE January 19, 2021
**2021 CO**  **5**
**No. 19SC356,**  **Perez v. People** 
**— Criminal Law** 
**— Miranda**  **Warnings**
**— Public Safety**  **Exception to Miranda** 
**.** After an extended foot chase and discovery of live shotgun shells on the defendant’s person , a police officer asked the defendant about the location of a gun and the defendant answered that he had thrown the gun away. After being charged with possession of a dangerous weapon by a previous offender (“POWPO”), the defendant moved to suppress his answer, arguing that the statement was obtained in violation of
Miranda v. Arizona , 384 U.S. 436 (1966), because he was not provided Miranda warnings before the officer asked the question. Ultimately, the defe ndant’s answer to the question “Where’s the gu n? ” was admitted at trial under the public safety exception to Miranda , and he was convicted

. The defendant appealed, and the court of appeals affirmed, holding that the public safety exception did not apply but that the error was harmless. The defendant petitioned the supreme court for certiorari review. The supreme court holds that the public safety exception applies and therefore affirms on other grounds. Whether the public safety exception applies turns on whether,under the totality of the circumsta nces, the officer’s questioning relates to an objectively reasonable need to protect the public from immediate danger, not whether the officer had “every reason to believe” that a weapon is in play. Moreover, whether an officer was
aware of the existence of a potential weapon at the time of dispatch is not dispositive; the relevant time to evaluate whether there was an objectively reasonable need to protect the public is when the officer asked the question.**The Supreme Court of the Sta te of Colorado**  2 East 14 th Avenue • Denver, Colorado 80203

**2021 CO 5 Supreme Court Case No.**  **19SC356** Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 15CA546
**Petitioner /Cross** 
**- Respondent**  **:** Marcus Perez ,

v. **Respondent /Cross** 
**- Petitioner**  **:** The People of the State of Colorado

. **Judg ment Affirmed**  **and Opinion Vacated** en banc January 19, 2021

**Attorneys for Petitioner/Cross** 
**- Respondent**  **:** Laura E. Schwartz Denver, Colorado The Noble Law Firm, LLC Antony Noble Lakewood , Colorado
**Attor neys for Respondent/Cross** 
**- Petitioner**  **:** Philip J. Weiser, Attorney General Brittany L. Limes, Assistant Attorney General Denver, Colorado
**CHIEF JUSTICE**  **BOATRIGHT** delivered the Opinion of the Court.2 ¶1 As Marcus Perez was being arrested a fter a lengthy foot pursuit, Officer Walsh found two live shotgun shells in Perez ’s pocket. W ithout giving Perez
Miranda warning s , Officer Walsh asked him, “Where’s the gun?” Perez answered
that he had thrown the gun away. At a suppression hearing, Perez argued that his answer should be suppressed because he was not Mirandized before the officer questioned him

. The trial court disagreed, finding that the public safety exception

to Miranda v. Arizona , 384 U.S. 436 (1966), applied. A jury convicted Perez of
second

- degree assault on a peace officer and four counts of possession of a dangerous weapon by a previous offender ( “ POWPO ” ).
¶2 Perez appealed , contending that the public safety exception did not apply. The court of appeals agreed but deemed the error harmless beyond a reasonable
doubt and affirmed the convictions

. People v. Per ez , 2019 COA 48 , ¶ ¶ 21, 24 ,

__ P.3d __

. ¶3 Perez petitioned this court for certiorari review of the court of appeals ’
decision , arguing that the error was not harmless and that his convictions should
be overturned

. The People cross - petitioned , arguing that the court of appeals
erred when it held that the public safety exception did not apply

. We granted3 certiorari on both issues. 1 We now hold that , under the facts of this case, the public safety exception applied , and Officer W alsh was not required to give Miranda warning s before inquiring about the gun’s location . Therefore, we affirm the court of appeals’ opinion on other grounds

. 2


### I. **Facts and Procedural History** 
¶4 In February 2014, police officers stopped a vehicle in which Perez was a
passenger
. As the officers approached the vehicle, they noticed the occupants acting as though they were concealing something

. As a result , one officer approached the driver

- side do or while another approached the passenger

- side
door

. The officers observed Perez act ing nervously , and Perez initially refus ed to
i nteract with the officer on his side of the car. Ultimately , Perez provid ed th at

1 We granted certiorari to review the following issues: 1. Whether the court of appeals erred in finding a Miranda v. Arizona , 384 U.S. 436 (1966), violation harmless beyond a reasonable doubt
w hen the prosecutor and a police officer told the jury that the petitioner said he threw the shotgun away

. 2. Whether the public safety exception to Miranda v. Arizona , 384 U.S. 436 (1966) , applies when an o fficer asks the arrestee, “Where’s the gun?”

2 Becaus e we conclude that the trial court did not err, we do not reach the issue of harmlessness.4 officer with a name. When the officer discovered that no such name existed in a police database, he asked Perez to step out of the vehicle.
¶5 Perez got out of the car and immediately fled. The officer followed on foot. Perez jumped fenc es, running through re s identia l backyards. He crossed a busy
street and , in the parking lot of a liquor store, attempted to steal a n occupied car
. When the occupant refused to get out of the car , Perez ran into the liquor store. At
that point, the officer lost sight of Perez. But a fter an employee of the liquor store
indicated that Perez had run to the back of the store , t he officer regained sight of
Perez as Perez exited the back door.
¶6 Eventually , back up officers, including Officer Walsh, arrived to help. The officers caught up with Perez in a residential backyard. Perez assumed a fighting stance and resisted arrest. Throwing punches, Perez broke an officer’s nose before
he was handcuffed.
¶7 Officer Walsh frisked Perez for weapons and found two live shotgun shells in his pocket. Without providing Perez Miranda warnings , Officer Walsh immediately asked, “Where’s the gun?” Perez responded that he “ threw it away. ”
Officer Walsh again asked Perez about the location of the gun. This time, Perez’s response was unintelligible , and Walsh stopped his questioning. Later, officers discovered a short shotgun in the stopped vehicle , lodged between the center5 c onsole and the passenger seat ; the shotgun wa s capable of firing the live shells
found on Perez.
¶8 The People charged Perez with second

- degree assault on a peace officer and eight counts of POWPO. 3 Before trial, Perez moved to suppress his statemen t that he threw the gun away , arguing that his Fifth Amendment right w as violated
because Officer Walsh did not give him Miranda warnings before asking the whereabouts of the gun

. T he trial court denied the motion, concluding that Officer
Walsh’s question fell within the public safety exception to Mir anda

. The statement

was admitted at trial. Ultimately, t he jury found Perez guilty of second

- degree assault on a peace officer and four of the eight counts of POWPO.
¶9 Perez appealed, reasserting his Fifth Amendment argument. Perez , ¶ 8. A split division of t he court of appeals agreed with him , holding that Officer Walsh’s question was not covered by the public safety exception. The majority reasoned
that , because Officer Walsh had no information suggesting a weapon was
involved until discover ing the two shotgun shells , he did not have “ ‘every reason to believe’ that Perez had just discarded a shotgun while being chased.” Id. at

3 Each POWPO charge was related to the short shotgun found in the stopped vehicle. There were two charges

— possession of a firearm and possession of a “dangerous weapon”

— each connected to four prior felony convictions.6 ¶ ¶ 19

– 20 (quoting New York v. Quarles , 467 U.S. 649, 657 (1984)). The majority thus
concluded that admitting Perez’s r esponse to the impermissible interrogation was

error.
¶10 Nevertheless, the majority affirm ed Perez’s convictions , deeming the error harmlesss beyond a reasonable doubt. Id. at ¶ 24. It reasoned that “evidence of Perez’s possession of the weapon was overwhelming without regard to the
statement.” Id. at ¶ 25. First, the shotgun was located where Perez had easy access
to it

— between the center console and the passenger se at where h e had been sitting.
Id. Second, Perez possessed ammunition that was capabl e of being fired by the shotgun. Id. Last, Perez fled from the police. Id. 4
¶11 Judge Berger specially concurred. People v. Perez , 2019 COA 48 ,

__ P.3d __ (Berger, J., specially concurring). He concluded that this case “presents a straightforward application of Quarles ,” the U.S. Supreme Court case which established the public safety exception. Id. at ¶ 40

. He noted that Perez led police on a lengthy foot chase across a busy street as well as through commercial and
residential areas

. Id. at ¶ 45. H e reasoned that the possibility of Perez having left

4 The court of appeals also reversed the portion of the judgment that imposed multiple POWPO convictions arising from the same incident involving the same weapon. Perez , ¶ ¶ 29

– 30 . This issue is not before the court.7 a loaded gun in any of those locations posed a safety thre at to police and members of the public. Id. Therefore, in Judge Berger’s view , the question “Where’s the gun?” fell squarely within the public safety exception to Miranda

. Id. at ¶ 46.
¶12 We granted certiora ri and now affirm on other ground s
. 

### II. **Analysis**
¶13 We begin by outlining the appropriate standard of review. Next, we detail
relevant case l aw on the Fifth Amendment’s right against self

- incrimination , including the warnings prescribed by the U.S. Supreme Court in the Miranda
decision. We then t urn to the exception to Miranda relevant in this case

— the public safety exception

— reviewing Quarles and Colorado law applying Quarles

. Finally,

we apply the relevant law and hold that , under the facts of this case, the public safety exception applied , meaning Officer Walsh was not required to give Miranda warnings before asking Perez where the gun was. Accordingly, we affirm the court of appeals’ opinion on other grounds

. 

### A. **Standard of Review**
¶14 Whether a custodial interrogation occurred in violation o f Miranda is a mixed question of law and fact. People v. Barraza , 2013 CO 20, ¶ 15 , 298 P.3d 922,
925 . We defer to the trial court’s factual findings if they are sup ported by the
record , but we review the legal effect of those findings de novo. Id. , 298 P.3d at
926

.8 

### B. **Miranda v. Arizona** 
¶15 The Fifth Amendment to the United States Constitut ion ensures that no
criminal defendant may be compelled to testify against himself. In Miranda , the U.S. Supreme Court held that police must inform a person of his right against self

incrimination when he is subjected to custodial interrogation. 384 U.S. at 478

– 79

. The Court held that such a rule is necessary to protect the Fifth Amendment right against self

- incrimination because custodial interrogations create inh erently
coercive environment s that make Miranda warn ings necessary to remind
defend a n ts of their constitutional right

. Id. at 4 45

– 5 8

. ¶16 The rule, however, is not absolute. In some circumstances, officers may question a suspect in custody without first offering Miranda warnings . One such
circumstance involves the public safety exception. 

### C. The Public Safety Exception
¶17 The public safet y exception applies if “the exigency of the circumstances warrant[s] the momentary omission of Miranda warnings.” People v. Ingram , 984 P.2d 597, 605 (Colo. 1999) (citing Quarles , 467 U.S. at 658). The exception exists because, in such cases , the need to protect the public from perceived immediate danger outweighs Miranda ’s prophyl ac tic purpose of guarding a defendant’s Fifth Amendment right. See Quarles , 467 U.S. at 657. In cases involving weapons, t he exception applies only where the officer’s questioning relate s to an objectively9 reasonable need to protect the public from the immediate danger associated with
a weapon. See id. at 656

– 57 ; Ingram , 984 P.2d at 605

. To determine whether officers had a reasonable concern for public safety , a court must consider the totality of the
circumstances

. See Quarles , 467 U.S. at 656

– 57 (discussing the facts that indica ted a threat to public safety); People v. Janis , 2016 COA 69 , ¶ 56 , 441 P.3d 1 , 13 (same) , rev’d on other grounds , 2018 CO 89, 429 P.3d 1198

. ¶18 T he U.S. Supreme Court adopted the public safety exception in Quarles

. 467 U.S. at 657

– 58. In that case, a rape victim told police that her assailant had entered a supermarket with a weapon. Id. at 651

– 52

. Officers arrived at the
super market and spotted the suspect, Quarles. Id. at 652. Quarles ran toward the
back of the store and an officer pursued him. Id. A t one point, the officer lost sight of Quarles. Id. When the officer finally caught up to Quarles, the officer detained
him and discovered that he had an empty shoulder holster. Id. The officer immediately asked Quarles w here the gun was, and Quarles gestur ed toward some empty cartons and re s p onded , “ T he gun is over there.” Id.
¶19 T he Court held that a p ublic s afety exception to the Miranda rule existed
because “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. The Court explicitly held that “the availab i lity of th [ e ] exception does not depend upon the10 motivation of the individual officers involved.” Id. at 656. Rather, where “officers ask questions reasonably prompted by a concern for the public safety,” Miranda should not apply “in all its rigor.” Id. The Court concluded that because the facts
of the case “ confronted [officers] with the immediate necessity of ascertai ning the
whereabouts of a gun which they had every reason to believe

. . . [ was ] in the supermarket , ” the officer’s question about the location of the gun was not barred by Miranda

. Id. at 657, 659.
¶20 Prior to Quarles , this court adopted its own public sa fety exception in People v. Mullins , 532 P.2d 733 (Colo. 1975). In that case, police had arrived at the scene of a homicide and were informed that there had been a shooting. Id. at 735. Upon learning this information, i n an exchange similar to the one in the instant case, an officer

— without giving Miranda warnings

— asked the suspect about the
location of the gun
. Id. T he suspect answered that he had thrown it out the
window. Id. W e held that the officer’s question was “entirely reasonable” to
pro tect the public. Id. We highlighted that the question was related to a “proper defensive purpose” and was not “in the nature of fact gathering as a part of the preparation of proof to be used against a defendant.” Id. (quoting State v. Hudson , 325 A.2d 56, 62 (Me. 1974)).
¶21 But the public safety exception has its limits. For example, i n Ingram , we held that the exception did not apply when the custodial interrogation occurred11 hours after the suspect had been detained. 984 P.2d at 605. There, we reasoned that there was no “immediate necessity” or “exigency” which would justify questioning the suspect about the ownership of a weapon without first giving
Miranda warnings. Id. Indeed , the officer’s interrogation “did not relate to an objectively r easonable need to protect the police or the public from any immediate danger associated with the weapon.” Id. (citing Orozco v. Texas , 394 U.S. 324 (1969)).
¶22 As Quarles demonstrates, the application of the public safety exception turns

on whether the questioning relates to an objectively reasonable need to protect the public from immediate danger

— a necessarily fact

- specific determination

. See Quarles , 467 U.S. at 656

– 57. The court of appeals has repeatedly employed this
fact

- intensive analysis. See , e.g. , People v. Requejo , 919 P .2d 874 , 879 (Colo. App. 1996) (holding that an officer’s question about the location of a knife fell within the exception because it was justifi ed to “protect the safety of officers engaged in immediate, on

- scene investigation of a crime ” ) ; Janis , ¶ 5 6 , 441 P.3d at 13 (holding
that an officer’s question about the location of a knife fell under the exception
because , given the surrounding facts, it was clear that the question was asked for safety purposes ) ; People v. Wakefield , 2018 COA 37, ¶ 57, 428 P.3d 639, 651 (holding
that officers were justified in asking the suspect whether there was anyone else in12 the residence because t here was “legitimate concern that there could be other armed suspects or injured victims in the vicinity”)

. ¶23 In sum, Quarles and Colorado law applying Quarles demonstrate that
whether the public safety exception applies depends on whether , under the
total ity of the circumstances, the officer’s questioning relates to a n objectively reasonable need to protect the public from immediate danger

. With this framework in mind, we now turn to the issue of whether Officer Walsh’s question , “Where’s the gun? , ” fell within the public safety exception.


### D. **Application**
¶24 The court of appeals held that the public safety exception did not apply here because the shotgun shells were the “sole suggestion that Perez may have
discarded or abandoned a shotgun.” Perez , ¶ 21. T he court of appeals distinguished cases such as Quarles , Requejo , Janis , and Wakefield , noting that in
those cases, “the very nature of the dispatch informed the officers that a weapon might be present , ” whereas here, “when the of ficer first contacted Perez, he had no information suggesting that Perez was armed

. ” Id. at ¶ 19. But while a n officer ’s knowledge of the existence of a potential weapon at the time of dispatch may be relevant, it is not dispositive . The key inquiry, rather, is whether the totality of the circumstances made it reasonable for the questioning officer to believe that a threat to public safety existed when the officer asked the question

.13 ¶25 Moreover, the proper standard is not whether the o fficer h a s “every reason to believe” that a weapon is involved or has been discarded

. Rather, t he proper
standard is whether “police officers ask questions reasonably prompted by a concern for the public safety

. ” Quarles , 467 U.S. at 656. It is true that , in Qu arles , the C ourt noted that officers had “every reason to believe” that a weapon had been discarded in a supermarket. Id. at 657. T he officers’ certainty , however, was not determinative of whether the public safety exception applied ; it was simply part

o f the totality of the circumstances that made it reasonable for the officers to
believe that a threat to public safety existed. In the instant case, the court of appeals erred by assuming that the determination of whether the exception applies

turns on whether the questioning officer is certain of the involvement of a weapon

. The legal standard has been and remains whether, under the totality of the circumstances, the officer’s questioning relate s to an objectively reasonable need to protect the public from the immediate danger associated with a weapon

. ¶26 Here, Officer Walsh’s question met that standard and fell within the public safety exception

. The totality of the circumstances made it reasonable for Officer
Walsh to believe that a threat to public sa fety existed when he asked , “Where’s the gun?” From the outset of the encounter, officers had a reasonable belief that Perez was hiding something from them. When officers first stopped the vehicle, Perez acted as though he was tryi ng to conceal something . And when contacted by14 officers, Perez provided them with a false name. Perez then attempted to avoid capture when he immediately fled upon getting out of the stopped vehicle, leading police on a lengthy foot chase and trying to steal an occupied car

. Finally, Perez violently resisted arrest wh en he was ultimately cornered. All of these actions indicate that he sought to conceal criminal conduct or some incriminating
evidenc e. Moreover, o nce Officer Walsh conducted the pat down and recovered

two live shotgun shells from Perez, it was reasonable to believe that Perez had
been armed with a firearm at some point and that the situatio n posed a public safety threat. See Quarles , 467 U.S. at 652 (noting that an officer had “frisked [the defendant] and discovered that he was wearing a shoulder holster which was then empty ” before asking him about the location of the gun). Again, Perez had just
led officers on a lengthy foot chase through com mercial and residential areas. Importantly, officers lost sigh t of Perez for a period of time, raising the possibility
that Perez had discarded the firearm in an area where people could find it, creating

a public safety threat

. Thus, under the totality of the circumstances, at the moment
Officer Walsh asked “Where’s the gun? , ” the question related to an objectively
reasonable need to protect the public from immediate danger

. ¶27 We hold , therefore, that under the facts of this case, the question about the location of the gun fell under the public safety exception to Miranda

. Because we
conclude that no constitutional error occurred when the trial court admitt ed15 Perez’s response that he threw the gun away, we need not consider the court of appeals’ harmlessness analysis.


### III. **Conclusion**
¶28 Accordingly, we vacate the court of appeals’ opinion and affirm the judgment of conviction on the grounds that Officer Walsh’s question , “Where’s the gun? , ” fell under the public safety exception to Miranda

.