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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 defendant’s answer to the question 

“Where’s the gun?” 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 circumstances, 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 State of Colorado

2 East 14th 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.

Judgment 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

Attorneys 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 after a lengthy foot pursuit, Officer 

Walsh found two live shotgun shells in Perez’s pocket. Without giving Perez 

Miranda warnings, 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. Perez, 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 granted 
3

certiorari on both issues.1 We now hold that, under the facts of this case, the public 

safety exception applied, and Officer Walsh was not required to give Miranda

warnings 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 door while another approached the passenger-side

door. The officers observed Perez acting nervously, and Perez initially refused to 

interact with the officer on his side of the car. Ultimately, Perez provided that

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 

when 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 officer asks the arrestee, “Where’s the 

gun?”

2 Because 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 fences, running through residential backyards. He crossed a busy 

street and, in the parking lot of a liquor store, attempted to steal an 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 after an employee of the liquor store

indicated that Perez had run to the back of the store, the officer regained sight of 

Perez as Perez exited the back door. 

¶6 Eventually, backup 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 center 
5

console and the passenger seat; the shotgun was 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 statement that 

he threw the gun away, arguing that his Fifth Amendment right was violated 

because Officer Walsh did not give him Miranda warnings before asking the 

whereabouts of the gun. The trial court denied the motion, concluding that Officer 

Walsh’s question fell within the public safety exception to Miranda. The statement 

was admitted at trial. Ultimately, the 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 the 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 discovering 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 response to the impermissible interrogation was 

error. 

¶10 Nevertheless, the majority affirmed 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 seat where he had been sitting. 

Id. Second, Perez possessed ammunition that was capable 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. He 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 threat 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 certiorari and now affirm on other grounds. 

II. Analysis

¶13 We begin by outlining the appropriate standard of review. Next, we detail 

relevant case law 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 turn 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 of 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 supported 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 Constitution 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 selfincrimination 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 inherently 

coercive environments that make Miranda warnings necessary to remind 

defendants of their constitutional right. Id. at 445–58. 

¶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 safety 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 prophylactic purpose of guarding a defendant’s Fifth 

Amendment right. See Quarles, 467 U.S. at 657. In cases involving weapons, the 

exception applies only where the officer’s questioning relates to an objectively 
9

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 indicated 

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 The 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 

supermarket and spotted the suspect, Quarles. Id. at 652. Quarles ran toward the 

back of the store and an officer pursued him. Id. At 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 where the gun was, and Quarles gestured toward 

some empty cartons and responded, “The gun is over there.” Id. 

¶19 The Court held that a public safety 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 availability of th[e] exception does not depend upon the 
10

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 ascertaining 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 safety 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, in 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. The suspect answered that he had thrown it out the 

window. Id. We held that the officer’s question was “entirely reasonable” to 

protect 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, in Ingram, we 

held that the exception did not apply when the custodial interrogation occurred 
11

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 reasonable 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 justified to “protect the safety of officers engaged in 

immediate, on-scene investigation of a crime”); Janis, ¶ 56, 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 in 
12

the residence because there 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 

totality of the circumstances, the officer’s questioning relates to an 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. The 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 officer first contacted Perez, he had 

no information suggesting that Perez was armed.” Id. at ¶ 19. But while an

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 officer has “every reason 

to believe” that a weapon is involved or has been discarded. Rather, the 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 Quarles,

the Court noted that officers had “every reason to believe” that a weapon had been 

discarded in a supermarket. Id. at 657. The officers’ certainty, however, was not 

determinative of whether the public safety exception applied; it was simply part 

of 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 relates 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 safety 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 trying to conceal something. And when contacted by 
14

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 when he was ultimately cornered. All of these actions 

indicate that he sought to conceal criminal conduct or some incriminating 

evidence. Moreover, once 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 situation 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 commercial and residential areas. 

Importantly, officers lost sight 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 admitted
15

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.