Opinion
Case No. 03-40068-01-RDR
September 9, 2003
ORDER
The defendant is charged with bank robbery in violation of 18 U.S.C. § 2113(a) and use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). This matter is presently before the court upon defendant's motion to suppress statement. The defendant seeks to suppress certain statements that she made after her arrest on July 11, 2003. On August 29, 2003 the court held a hearing on defendant's motion. Having carefully considered the evidence offered during that hearing, the court is now prepared to issue the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. On July 11, 2003, Dean Woolsley, a City of Topeka police officer, was on patrol in southwest Topeka. He was driving a marked police car. He received information from the dispatcher that a bank at 29th and Wanamaker had been robbed. He also learned that the suspects were reportedly black.
2. Officer Woolsley began to drive south on Wanamaker to the bank. As he approached the intersection of 25th and Wanamaker, he noticed a green vehicle traveling north on Wanamaker with three black individuals. Two circumstances caught his attention. First, he noticed that all of the occupants of the car had a frozen stare. He believed that all were purposely avoiding eye contact with him. Second, he observed all of the occupants appeared to be wearing Afro wigs.
3. Officer Woolsley made a u-turn and proceeded to follow the car. He saw the car make a right turn very shortly after he had turned around. He followed the car and, as he turned the corner, he observed the green car was rolling back at him with three doors open. He saw three people running south. He observed the Afro wigs at the edge of the road. He was unaware whether a weapon had been used in the bank robbery, but he knew that such use was typical in bank robberies.
4. Officer Woolsley saw two of the individuals go into an outside stairwell of an apartment complex. He saw one of the individuals trip and fall. He told her to stop. This individual was subsequently identified as Laverna Johnson. Officer Woolsley had his gun drawn and aimed at her. He was unaware where the other individuals were located. He believed that they might be armed. He also did not know where other police officers were.
5. Another officer arrived on the scene approximately a minute later to assist Officer Woolsley. At that time, Ms. Johnson was handcuffed. Officer Woolsley then told Ms. Johnson that he needed information and that, if she provided information, he would make that known to others. He asked her how many people were involved and who they were. Ms. Johnson said she would tell everything. She indicated she had hurt her knee in the fall and she was having trouble breathing. Officer Woolsley called an ambulance. Ms. Johnson was checked by the ambulance crew and then taken to the hospital.
6. Ms. Johnson was later taken to the Topeka Police Department. She met initially with Detective Eby, who gave her a sandwich and a soft drink. She was then interviewed by FBI agent Stacy Lane. Agent Lane began by reading Ms. Johnson the Miranda warning. Ms. Johnson indicated that she understood her rights and that she was willing to waive them.
7. During the interview, Agent Lane found that Ms. Johnson was awake and alert. She had no difficulty answering the questions that were posed. She was very cooperative. She gave specific details, and much of her information was consistent with that given by other witnesses to the robbery. She did have her leg propped up on a chair during the interview. Agent Lane was aware that Ms. Johnson had been to the hospital for treatment of her leg. Agent Lane was also aware that Ms. Johnson was not on any pain medication. Ms. Johnson told Agent Lane that she was fine.
8. Ms. Johnson told Agent Lane that prior to the robbery she had traveled with two others from Tulsa, Oklahoma to Topeka. During the trip, she slept. This trip ordinarily takes about 3 ½ to 4 hours to travel by car. Ms. Johnson also indicated that she slept some more as they drove around Topeka after their arrival. She told Agent Lane that prior to the trip she had been drinking alcohol. She denied the use of any drugs prior to the trip.
9. The interview lasted approximately 1 ½ hours. Agent Lane never threatened or coerced Ms. Johnson at any time during the interview. Towards the end of the interview, Ms. Johnson began to nod off. After Ms. Johnson did this three times, Agent Lane terminated the interview. Ms. Johnson never asked to terminate the interview and never indicated she was tired.
CONCLUSIONS OF LAW
1. The defendant contends that the answers she gave to Officer Woolsley after her arrest were in violation of Miranda. She notes that she was in custody, the questions constituted interrogation, and thatMiranda warnings were not given. The defendant also contends that her statements to Agent Lane were not voluntary. She asserts that, at the time of the interrogation, she was in pain, under the influence of drugs and alcohol, and sleep-deprived.
2. It is now well-settled that the police must advise a person of herMiranda rights before conducting a custodial interrogation.Michigan v. Tucker, 417 U.S. 433, 443-44 (1974). In certain circumstances, however, the "public safety" exception has been applied to overcome this rule. The government has not suggested that the defendant was not in custody at the time that the questions were asked by Officer Woolsley or that these questions did not constitute interrogation. Rather, the government contends that the public safety exception applies to the questions propounded by Officer Woolsley.
3. In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court recognized a public safety exception to the requirement ofMiranda warnings. There, the police learned that a reportedly armed rape suspect was in a supermarket. An officer saw the suspect in the store and pursued him with his gun drawn. The officer caught him and frisked him. The frisk revealed an empty shoulder holster. After the officer had handcuffed the suspect, he asked him where the gun was. The suspect told the officer where the gun was and it was retrieved. The accused was then read his Miranda rights. The Supreme Court concluded that police officers do not need to recite Miranda warnings prior to asking a suspect questions "reasonably prompted" by a concern for the public's safety or the officer's safety. 467 U.S. at 657-58. In so holding, the Court emphasized the distinction between (1) questions necessary to secure the safety of police officers and the public, and (2) questions designed to elicit testimonial evidence from a suspect. Id. The Court stated that regardless of whether the true motive was concern for the safety of the officers or the public, or even the gathering of evidence, the exception applied if the officer's motive could objectively be viewed as a concern for public safety.Id. at 656. The Court recognized that police are often confronted by situations in which urgent matters of safety preclude taking time to consider constitutional niceties. Id. In such situations, the Court stated, the police's duty to protect the public is at its highest, and questioning the suspect may provide the only means of defusing the crisis. Id. at 657, 658 n. 7.
4. After Quarles, the Supreme Court has not provided any significant guidance on the public safety exception. The Court has left it to other courts to define the contours of this exception. The majority of cases have considered the exception in circumstances where the questions asked by the officers involved weapons. However, the exception has also been applied to other questions.
5. The court has found very few federal cases that consider the public safety exception as it relates to questions about accomplices. See Fleming v. Collins, 954 F.2d 1109, 1112-1114 (5th Cir. 1992) (en banc); Howard v. Garvin, 844 F. Supp. 173, 175 (S.D.N.Y. 1994) (Miranda warnings were not required before police questioned perpetrator at scene of social club robbery while hostages were being held because information was needed for immediate public safety and questions did not relate to what perpetrator had done, even though responses were indicative of guilt). In Fleming, two officers, while responding to a silent alarm from a bank, confronted a wounded man being held at gunpoint by a private citizen. The officers, while holding the man at gunpoint, asked him who had shot him and who was with him. The Fifth Circuit applied the public safety exception because the questions were asked in a "still-volatile situation" and the officers did not know whether the individual was a "victim or perpetrator of an offense." 954 F.2d at 1113.
6. There are a number of state court cases where the public safety exception has been applied under circumstances comparable to this case. In most of those cases, the courts reached a conclusion similar to that reached in Fleming. See Commonwealth v. Clark, 432 Mass. 1, 730 N.E.2d 872, 884-85 (2000) (public safety exception applied where officer asked suspect if he was alone after a gun battle but prior to giving Miranda warning); Joppy v. State, 719 So.2d 316, 319 (Fla.Ct.App. 1998) (public safety exception applied where officer asked burglary suspect if anyone else was inside dark building prior to giving Miranda warning); State v. McKessor, 246 Kan. 1, 785 P.2d 1332, 1337, cert. denied, 495 U.S. 937 (1990) (public safety exception applied where officer asked robbery suspect where his companion was prior to giving Miranda warning); Hill v. State, 89 Md.App. 428, 598 A.2d 784, 786-87 (1991) (public safety exception applied where police officer asked armed robbery suspect the location of another suspect prior to givingMiranda warning). But see State v. Hazley, 428 N.W.2d 406, 411 (Minn.App. 1988) (public safety exception not applied where police officer asked robbery suspect who was with him prior to giving Miranda warning).
7. After careful consideration, the court has determined that the public safety exception must be applied here. Officer Woolsley was confronted with a situation where events were unfolding rapidly. He was in an area where he was unprotected, unaware of how much police assistance he had, and unsure what dangers he faced from the other suspects. Although perhaps he should have concluded that there were two other suspects, the quickly developing circumstances did not allow for a certain determination of the numbers he was facing. He knew that at least two others were on the run and perhaps in the area. He further believed, quite properly, that they were probably armed. The identities of the suspects might have useful because the individuals may have been known to him. It is possible that their names may have helped him recall their addresses, which may have been very helpful if the addresses were in the immediate area.
8. In sum, the court finds that Officer Woolsley's questions were based on an objectively reasonable concern for his safety and, therefore, the public safety exception must be applied. This portion of the defendant's motion to suppress must be denied.
9. The court shall next turn to the arguments concerning the statements made by the defendant to Agent Lane. The defendant argues that these statements were involuntary. The government asserts that the defendant voluntarily waived her Fifth Amendment rights and spoke freely and willingly with Agent Lane.
10. If a defendant talks to police after being advised of her right to remain silent, the government bears the burden of proving by a preponderance of the evidence that the waiver of the right was voluntary.Colorado v. Connelly, 479 U.S. 157, 168 (1986). An express statement of waiver by the defendant is not required; instead, waiver can be inferred from the defendant's actions and words. North Carolina v. Butler, 441 U.S. 369, 373 (1979). To establish a voluntary waiver of Fifth Amendment rights, the government must show (1) that the waiver was the product of free and deliberate choice rather than intimidation, coercion, or deception; and (2) that the waiver was made in full awareness of the nature of the right being waived and the consequences of waiving. Moran v. Burbine, 475 U.S. 412, 421 (1986). Only if the totality of the circumstances surrounding the interrogation shows both an uncoerced choice and the requisite level of comprehension can a waiver be effective. Id.; United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996). To evaluate whether a statement or confession was coerced, we consider the characteristics of the defendant, the circumstances surrounding the statements, and the tactics employed by the police. United States v. Guerro, 983 F.2d 1001, 1004 (10th Cir. 1993); see United States v. Short, 947 F.2d 1445, 1449 (10th Cir. 1991), cert. denied, 503 U.S. 989 (1992).
11. The court finds that the defendant voluntarily waived her right to remain silent. She was advised of her Miranda rights and she indicated she understood them. The court is not persuaded that the waiver was the product of coercion or duress. The court finds that the defendant freely and voluntarily spoke with Agent Lane. The court does not find that the defendant's decision to waive her rights and speak with Agent Lane was influenced by alcohol, drugs or lack of sleep. With these findings, the court shall deny defendant's motion to suppress the statements she made to Agent Lane.
IT IS THEREFORE ORDERED that defendant's motion to suppress statement (Doc. # 11) be hereby denied.
IT IS SO ORDERED.