Opinion
No. 10 Cr. 843 (LTS).
April 4, 2011
MEMORANDUM OPINION AND ORDER
The one-count Indictment filed in this action charges Defendant Lamont Ferguson ("Defendant" or "Ferguson") with possessing a firearm that was shipped or transported in interstate or foreign commerce, after conviction of a felony, in violation of 18 U.S.C. § 922(g)(1). Currently pending before the Court is Defendant's motion to suppress certain incriminating statements and physical evidence. Defendant contends that the statements and physical evidence were obtained in violation of the Fifth Amendment's protection from self-incrimination, as interpreted by Miranda v. Arizona and its progeny. On January 26, 2011, the Court held an evidentiary hearing in connection with Defendant's motion. The Court has considered carefully the evidence at the hearing and all of the parties' submissions. For the following reasons, Defendant's motion is denied.
BACKGROUND
The evidence presented in connection with Defendant's motion consists of Ferguson's written declaration (Def.'s Mem. of Law in Supp. of Def's Mot. to Suppress Statements and Property Ex. C ("Def.'s Decl.")), a written statement composed and signed by Ferguson while in police custody (Def.'s Mem. of Law in Supp. of Def's Mot. to Suppress Statements and Property Ex. D ("Def.'s Statement")), the testimony of a law enforcement officer called by the Government, and a video recording of an interview of Ferguson conducted by a Bronx County Assistant District Attorney (Def.'s Mem. of Law in Supp. of Def's Mot. to Suppress Statements and Property Ex. E). Ferguson did not testify at the hearing.
The Court makes the following findings of fact, based on its appraisal of the documentary and testimonial evidence presented in connection with the motion. On or about July 21, 2010, at approximately 11:00 p.m., Ferguson was approached by two police officers in front of his apartment building in the Bronx. (Def.'s Decl. ¶¶ 1-2.) The arrest was prompted by a 911 call reporting that an individual named Lamont had been involved in an altercation with two women in which gunshots had been fired. (Evidentiary Hr'g Tr. ("Tr.") 14-15, Jan. 26, 2011.) The officers asked if he was Lamont Ferguson, and when he responded that he was, he was arrested and taken to the 50th Police Precinct. (Def.'s Decl. ¶¶ 2-3.) NYPD Sergeant Ian Rule ("Sgt. Rule"), a 14-year veteran of the force currently serving as the Field Intelligence Officer for the 50th Precinct, is responsible for debriefing arrestees in order to obtain criminal intelligence information. He makes a distinction between such intelligence-gathering and "enhancing" arrests (i.e., obtaining statements and evidence to aid in a criminal prosecution), denying that his duties include the latter function. (Tr. 8-9.) On the night of Ferguson's arrest, Sgt. Rule learned both from a "SPRINT report" generated by a 911 call and from the officer who arrested Ferguson that gunshots were reported to have been fired during the altercation that led to the 911 call which resulted in Ferguson's arrest. (Id. 14-15.) The arresting officer also informed Sgt. Rule that no gun had been recovered in connection with Ferguson's arrest. (Id. 16.) Sgt. Rule had prior knowledge that there was an individual named Lamont who resided in the vicinity of where the shots were reportedly fired who was said to be in possession of and to have access to firearms. (Id. 16, 18.) Sgt. Rule interviewed Ferguson after he had been brought to the precinct. Two other officers (Donofrio and Pineiro) were present for at least part of the interview. Because the reported altercation had occurred outdoors, near playgrounds, athletic fields and a church, no weapon had been recovered, and he had other information indicating that a Lamont residing in the area possessed guns, Sgt. Rule was concerned and felt a sense of urgency regarding a potential threat to public safety posed by the possibility that the gun could be found by a child or other member of the general public. Sgt. Rule did not have any information as to the location of the gun, and had no reason to believe that it was in a secure location. He decided against administering Miranda warnings to Ferguson, because he felt that such warnings might have "scared [Ferguson] where he wouldn't tell [Rule] where the gun was" and thus prevented the police from determining the location of the gun. (Id. 22.) Sgt. Rule intended to elicit information about the location of the gun and "was also curious to see if Mr. Ferguson knew anything about other people with guns or any other kind of criminal activities." (Id. 23.)
Sgt. Rule questioned Ferguson in an interview room in the precinct house. Ferguson was informed that there had been an incident involving a gun, that shots had been fired, and that the police had been told by two women that Ferguson was involved in the incident. (Def.'s Decl. ¶ 4.) Sgt. Rule began to question Ferguson about the incident, warning him that guns are extremely dangerous, and telling him that the police needed to know the location of the gun. (Id.) In questioning Ferguson about whether he had had a gun and the location of the gun, Sgt. Rule was aggressive, informing Ferguson that family members' homes could be subjected to disruptive searches pursuant to warrants if Ferguson did not supply information as to the location of the gun, emphasizing that guns are extremely dangerous, and indicating that Ferguson could help to make things go easier for himself if he cooperated with the police. Sgt. Rule did not question Ferguson about his role in the alleged altercation, whether he had fired shots, or how he had obtained a gun. In his Declaration, Ferguson asserts that the police told him that he would only be charged with a misdemeanor if he cooperated. This statement was not subjected to cross-examination because Ferguson did not testify at the hearing. Sgt. Rule denied making any promises about what charges Ferguson would face if he cooperated, but acknowledged stating that, while the ultimate nature of a charge would be determined by the prosecutor, cooperation would be looked on favorably.
Ferguson initially denied having a gun, but he eventually agreed to disclose the location of the gun in response to Sgt. Rule's emphasis on the danger posed by someone else finding it. (Tr. 34-35, 60.) It was approximately 1:00 a.m. when the officers left the precinct with Ferguson to retrieve the gun. (Id. 36.) Once at Ferguson's apartment building, Ferguson led the officers to an apartment where Ferguson's sister retrieved the gun from a dresser drawer. (Id. 37-38.)
After the recovery of the gun, Ferguson was taken back to the 50th Precinct at about 1:30 a.m. Donofrio interviewed Ferguson later that morning and, for the first time, informed Ferguson of his Miranda rights. (Def.'s Decl. ¶¶ 10-11.) After receiving theMiranda warning, Ferguson gave an oral and written waiver of hisMiranda rights. (Id. ¶ 11.) Ferguson proceeded to tell the police that he had fired a gun the previous evening and wrote and signed an account of what had occurred prior to his arrest. (Id. ¶ 12.) After about two hours, Ferguson was taken to central booking, where Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") agents asked him questions about the events of the previous evening. (Id. ¶ 14.) Ferguson answered the ATF agents' questions, repeating the same answers he had given the police and informing the agents that he had already made a written statement. (Id.) At approximately 11:00 p.m. on July 22, 2010, Ferguson was interviewed by a Bronx County Assistant District Attorney. (Id. ¶ 15.) Prior to this interview, Ferguson was again read his Miranda rights. (Id. ¶ 16.) Before answering the Assistant District Attorney's questions, Ferguson stated that he had already signed a waiver of his rights and had written a statement as to what had occurred. (Id.)
Ferguson's written statement indicates that, prior to his arrest, he shot a "25 automatic i [sic] the air" to scare away two women with whom he was arguing. (Def.'s Statement.) His statement also indicates that after he was arrested he spoke to police officers by the names of Donofrio, Pineiro, and Rule, and "told them where the weapon could be found." (Id.) The form on which Ferguson wrote his statement is labeled "Miranda Warning," and Ferguson wrote "yes" and initialed after each of the following questions:
1. You have the right to remain silent and refuse to answer any questions. Do you understand?
2. Anything you do say may be used against you in a court of law. Do you understand?
3. You have the right to consult an attorney before speaking to the police and to have an attorney present during any questioning now and in the future. Do you understand?
4. If you cannot afford an attorney, one will be provided for you without cost. Do you understand?
5. If you do not have an attorney available you have the right to remain silent until you had an opportunity to consult with one. Do you understand?
6. Now that I have advised you of your rights, are you willing to answer any questions?
Ferguson also signed above a line labeled "Signature of Arrestee." Officer Donofrio signed the form above a line labeled "Signature of Interviewer." The form is dated July 22, 2010, and the time listed is "0600."
DISCUSSION
The Fifth Amendment guarantee that no person shall be "compelled in any criminal case to be a witness against himself" protects individuals subjected to custodial interrogation by the police. Miranda v. Arizona, 384 U.S. 436, 460-61 (1966). Generally, if a suspect has not been advised of his Miranda rights prior to a custodial interrogation, the prosecution is barred from using statements at trial that were obtained during the interrogation. See Michigan v. Harvey, 494 U.S. 344, 350 (1990). "`The prophylactic Miranda warnings . . . [are] measures to insure that the right against compulsory self-incrimination [is] protected.'" New York v. Quarles, 467 U.S. at 654 (quotingMichigan v. Tucker, 417 U.S. 433 (1974)). Defendant Ferguson seeks the suppression from evidence of his statements to the police, ATF agents, and the district attorney concerning the July 21 incident and the gun, as well as suppression of the gun that was retrieved from his sister's apartment, contending that Sgt. Rule's pre-Miranda interrogation violated his Fifth Amendment rights and that the statements and physical evidence are fruits of that illegal interrogation.
The Supreme Court has, however, recognized a public safety-based exception to the Miranda requirement of prophylactic warnings prior to custodial interrogation. In New York v. Quarles, 467 U.S. 649, 655-56 (1984), the Court held that considerations of public safety can justify an officer's failure to provide Miranda warnings before asking questions which are intended to locate an abandoned weapon because "the need for an answer 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." Quarles, 467 U.S. at 657. Quarles recognized an exception to the Miranda warning requirement for situations in which "police officers ask questions reasonably prompted by a concern for the public safety." Id. at 656. The requisite reasonable connection between the questioning and public safety concerns is not judged on the basis of a determination of the actual motivation of the officer involved but, rather, by an objective standard. Id. The determination turns on whether the questions "relate to an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon." Id. at 659 n. 8. "Where the public safety exception applies, a defendant's statement- and the physical evidence recovered as a result of that statement-may be admitted into evidence at trial." United States v. Estrada, 430 F.3d 606, 610 (2d Cir. 2005) (citingQuarles, 467 U.S. at 657-60 n. 9).
"[T]he public safety exception clearly [also] encompasses questions necessary to secure the safety of police officers."Estrada, 430 F.3d 606, 612 (2d Cir. 2005).
In Quarles, the police were in pursuit of a rape suspect that they had been informed was carrying a gun. Id. at 651-52. When the suspect was apprehended and frisked in a supermarket, the police discovered that he was wearing an empty holster. Id. at 652. Once the suspect was handcuffed and surrounded by police officers, an officer questioned him as to the location of the gun. Id. The suspect's response led to the recovery of the gun.Id. After the gun was recovered, the suspect was formally placed under arrest and read his Miranda rights. Id. The Supreme Court observed that "[s]o long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it." Id. at 657. The Quarles Court held that the failure to Mirandize the suspect prior to questioning him as to the whereabouts of the gun did not violate the Fifth Amendment's protections against self-incrimination, and therefore the statement as to the gun's whereabouts and the gun itself were not properly excluded from evidence. Id. at 659. Quarles also held that the suspect's later, post-Miranda warning, statements regarding his ownership and purchase of the gun were not tainted by failure to administer warnings. Id. at 660.
In deciding that the police officer was justified in failing to provide the suspect with the procedural safeguard of the Miranda warning in Quarles, the Supreme Court noted that the suspect was unquestionably in custody (indeed, the suspect was "surrounded by at least four police officers and was handcuffed when the questioning" took place) and there was nothing to suggest that any of the officers were concerned for their own safety. Id. at 655.
Decisions of the Second Circuit likewise make clear that the public safety exception is applied based on an objective evaluation of whether police questioning is reasonably related to an existing concern for personal or public safety, whether or not the defendant is at the time in a position to use the weapon himself, and whether or not the police have information as to the actual location of the gun. Temporal proximity to the tip regarding the gun has not been a determinative factor. In United States v. Newton, 369 F.3d 659, 677 (2d Cir. 2004), the Second Circuit held that the public safety exception to Miranda applies "so long as the questioning `relates[s] to an objectively reasonable need to protect the police or the public from any immediate danger.'" (quoting Quarles, 467 U.S. at 659 n. 8). See also Newton, 369 F.3d at 679 n. 8 ("to fall within the [public safety] exception, a question must have some rational relationship to defusing the perceived danger.")
In Newton, a social worker relayed to Sewn Newton's parole officer that Newton's mother had said that he had threatened to kill her and her husband (with whom Newton lived) and that Newton kept a gun in a shoe box by the door of her home. Id. at 663. In response to this information, the probation department planned a search of Newton's mother's residence for the following day and requested back-up assistance from the local police department. Id. One parole officer and three police officers conducted the search. Id. After handcuffing Newton, and without Mirandizing him, an officer asked Newton whether there was any "contraband" in the house. Id. In response, Newton directed the officer to the box, which contained a gun.Id. at 664.
The Newton Court held that the officer's knowledge of Newton's mother's statement that her son possessed a gun and had threatened to kill her gave rise to an objectively reasonable need to protect the police and the public from an immediate danger which persisted until the gun was found, such that the officer's objectively reasonable need to protect the police and the public from an immediate danger meant that he could question Newton without giving the otherwise required Miranda warnings.Id. at 678. Newton rejected arguments that there was not an immediate danger to public safety because Newton was handcuffed and because the officers knew the location of the gun before they entered the apartment. Id. The presence of other individuals at Newton's mother's apartment with whom Newton had hostile relationships was found "to support an objective belief that even with Newton handcuffed, the unlocated gun presented a deadly risk to everyone on the premises." Id.
In United States v. Estrada, the public safety exception toMiranda was applied to allow the admission of a defendant's statement, made at the time of his arrest in response to a police question that preceded Miranda warnings, that he had a gun in his jacket. Estrada, 430 F.3d at 608. The statement at issue inEstrada was made during the course of an arrest, while the suspect was already lying face-down on the floor to be handcuffed. Before any Miranda warning was given, another officer asked the suspect if there were any weapons in the apartment. Id. at 608-09. The suspect responded that there was a gun in the pocket of his jacket on a nearby chair. Id. The Estrada Court noted that the arresting officers knew that the suspect had prior convictions for assault, that he was well-known in the narcotics field, and that at least one other person was present in the apartment at the time of the arrest. Id. at 613. In light of these facts, "the arresting officers had an objectively reasonable need to protect themselves from immediate danger." Id. The officers' questions about whether there were any guns in the apartment were also narrow enough in scope that they were found to be appropriately targeted to the safety concern, rather than posed solely to elicit incriminating information. Id. See also United States v. Reyes, 353 F.3d 148, 153-54 (2d Cir. 2003) (finding public safety exception applicable to pre-Miranda questioning of a "known drug dealer" regarding the possession of anything that "could hurt" the arresting officer because "weapons are tools of the drug trade" gave rise to an objectively reasonable belief that the suspect had a weapon on his person);United States v. Allen, 305 F.3d 1046, 1051 (9th Cir. 2002) (police eliciting the location of an unaccounted for gun from a shooting suspect without first Mirandizing him was within the public safety exception because "it was reasonably possible that anyone could have found the gun and used it").
In approving the trial court's admission of Estrada's statement and the gun, the Second Circuit articulated three principles that guide the application of the public safety exception. First, that "Miranda warnings need not precede questions reasonably prompted by a concern for the public safety or for the safety of the arresting officers, so long as the questioning relates to an objectively reasonable need to protect the police or the public from any immediate danger." Id. at 612 (internal quotations and citations omitted). Second, that pre-Miranda questions may not be designed solely to elicit testimonial evidence from a suspect. Id. Third, the exception is narrow and does not permit pre-Miranda questioning of suspects as a routine matter, but rather is "a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of the circumstances in a given case." Id. In sum, in order for the public safety exception to apply, there must be "sufficient indicia supporting an objectively reasonable need to protect the police or the public from immediate harm." Id. at 614.
However, 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." Id.
Application of these principles in the instant case points squarely to the conclusion that Sgt. Rule's initial questioning of Ferguson and the statements and physical evidence obtained in response to that questioning, was within the scope of the public safety exemption to the procedural Miranda warning rule. Ferguson was arrested after a 911 call reporting that he had fired a gun during an altercation. The gun was not retrieved at the time of the arrest, which was effected out of doors; the altercation had also reportedly occurred out of doors and in the vicinity of public spaces in which an unattended weapon could have been found by children or other members of the general public. Sgt. Rule had prior information based upon which he believed that a person with Ferguson's same first name who lived in the area was associated with firearms. The report of an unaccounted-for, recently-fired gun certainly provided objectively reasonable grounds for concern on the part of the police as to public safety. The content and scope of the questioning, even as described in Ferguson's Declaration, was rationally related to the objective of securing public safety by locating the gun. Sgt. Rule's questions focused not on Ferguson's role in the events of the previous evening, but rather on the location of the gun. Sgt. Rule's strategy for extracting information — for instance, emphasizing the dangers that a firearm created — was similarly aimed, at least in substantial part, at the retrieval of the weapon rather than gathering evidence against Ferguson.
The defense argues that the passage of time between Ferguson's arrest and the retrieval of the gun makes the public safety exception to Miranda inapplicable. That some hours had passed after Ferguson's arrest does not, however, mean that the danger to the public posed by a loose firearm had dissipated such that the weapon ceased to pose an immediate threat to the public. Although Quarles involved a situation where a suspect was questioned pre-Miranda at the scene of and relatively contemporaneously with the arrest, courts have applied the logic of Quarles to instances of questioning following an arrest, holding that the passage of an amount of time as elapsed here (i.e., a number of hours) is immaterial if there is an objectively reasonable belief that an unaccounted for gun poses an immediate danger to public safety. See Allen, 305 F.3d at 1051 (rejecting defendant's argument that the "significant" amount of time between the shooting and the suspect's questioning as to the location of the gun meant that there ceased to be immediate danger to the public; holding instead that "[i]f the gun was discarded in a public place, it posed a continuing immediate danger because anyone could have found the gun at any time. Moreover, the danger posed by the gun does not dissipate over time.").
The Court concludes that Sgt. Rule's belief that Ferguson had possessed and in fact discharged a gun was reasonable based on the information provided to him before he interviewed Ferguson. In light of Sgt. Rule's reasonable belief that Ferguson had possessed and fired a gun, and the absence of the gun at Ferguson's arrest, Sgt. Rule's questions related to an objectively reasonable need to protect the public from any immediate danger associated with the missing gun. See Quarles 467 at 659 n. 8. Sgt. Rule's questions had the required "rational relationship to defusing the perceived danger," and were thus within the scope of the public safety exception. See Newton, 369 F.3d at 679 n. 8.
Because Ferguson's statements to Sgt. Rule and the gun recovered based on Ferguson's statements fall within the public safety exception to the prophylactic warnings required byMiranda, the aspect of Defendant's motion to suppress directed toward the statements made in the initial interview and the resulting physical evidence is denied. Because the undisputed evidence demonstrates clearly that Ferguson was advised of hisMiranda rights after he returned to the precinct and waived them before he made further statements regarding the events of the previous evening, the aspect of Defendant's motion to suppress directed toward the statements made after his return to the precinct is also denied. See Estrada, 430 F.3d at 610. Because the initial non-Mirandized questioning of Ferguson was not illegal, it is unnecessary for the Court to address the defense's further arguments as to whether there was improper "two-step" questioning that would preclude the admission of his additional, post-Miranda statements to authorities. Cf. United States v. Capers, 627 F.3d 470 (2d Cir. 2010).
CONCLUSION
For the foregoing reasons, Defendant's motion is denied in its entirety. The next conference in this matter remains scheduled for Monday, April 11, 2011, at 2:45 p.m.
SO ORDERED.