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Media > Newsletters > Law Enforcement Bulletin > October 2014 > Miranda (Public Safety Exception): State v. Brown

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Miranda (Public Safety Exception): State v. Brown

Question: If there is a public safety concern that a loaded weapon used to commit a crime is publicly accessible, can you ask a suspect about it without first giving Miranda warnings?
Quick Answer: Yes, if you have an objectively reasonable need to protect yourself or the public from an immediate danger associated with a weapon and your questions are related to the danger and reasonably necessary to secure public safety.
State of Ohio v. Brown, Second Appellate District, Montgomery County, July 25, 2014
Facts:  Deputy John Eversole of the Montgomery County Sheriff’s Office was dispatched to investigate a shooting that occurred the night before at a local apartment complex. After searching the complex and speaking to the manager, Eversole went to the last known location of the suspect, Decenta Brown. On arrival, Eversole and his partner immediately saw Brown. As they approached, Brown fled. Eversole chased him through the apartment complex where he attempted to escape through a hole in a broken section of a fence. Brown was unable to get through, made an underhand throwing motion through the hole, and ran along the fence. Eversole ordered Brown to stop, and he was apprehended. After securing Brown in the cruiser, Eversole went back to the hole in the fence and found a smartphone, a bag of gel capsules containing heroin, and a magazine from a .40 Glock handgun containing 14 live rounds.
Eversole, believing the gun may have been discarded along the foot chase, called for backup. As this occurred, numerous people were outside including several children. One of the officers who arrived was Deputy Victoria Dingee. Eversole informed Dingee of the circumstances and Dingee went to talk to Brown. She spoke to Brown through the open window of the cruiser. When Dingee later took the stand at trial, she said the following conversation occurred between herself and Brown:
Q: Okay. Tell us about the conversation that you had with Mr. Brown.
A: It was a pretty short conversation. I said to Mr. Brown, I said, “Where is the gun?” I said, “There are a lot of kids and people walking around. It’s dangerous.” And I said, “The problems that you have right now are going to be very small if compared to what it’s going to be like if a child picks up that gun and shoots himself or someone else in this apartment complex.”
Q: Okay. Did you say anything else to him?
A: No. I said – I think I said that twice and [Brown] said, “I don’t have the gun.” He said, “I haven’t seen the gun since last night.” And he said, “I just had the magazine.”
Q: Okay. And are you –
A: I said, “That doesn’t make sense.” I said, “You understand that doesn’t make sense.” And he said, “I know. People probably lie to you all the time, but I don’t have the gun.”
The conversation was also recorded by the video system in the cruiser. No handgun was recovered during the search of the area where Brown was arrested. Brown filed a motion to suppress his statements to Dingee claiming he was not given his Miranda warnings in violation of the Fifth Amendment.
Importance: As a general rule, an individual under custodial interrogation must be given Miranda warnings under the Fifth Amendment prior to the start of questioning. However, under the public safety exception to Miranda, law enforcement, under certain circumstances, are able to temporarily forgo advising a suspect of Miranda rights in order to ask questions necessary to securing their own immediate safety or the public’s safety. In order to properly use the exception, you must have (1) an objectively reasonable need to protect yourself or the public, (2) from an immediate danger, (3) associated with a weapon, and (4) your questions are related to the danger and reasonably necessary to secure public safety.
Keep in Mind:  The public safety exception is a narrow exception and does not apply to situations when a suspect is believed to have used a weapon while committing a crime.  Each case is fact specific. In this case, the deputies had an objectively reasonable need to protect the public and police from immediate danger associated with the missing weapon. In particular, Eversole’s belief that Brown was armed and dangerous was reinforced when he observed Brown discard, among other things, a magazine from a .40 caliber Glock handgun. Eversole also counted 14 live rounds of ammunition in the magazine, leading to a concern that the handgun, which may have been discarded during the chase, contained a live round. With approximately 20-30 people in the nearby vicinity of the incident, including children, it was a major concern that the gun could be picked up and used to harm others.
The exception, however, does not permit law enforcement to ask questions unnecessary to securing the safety of themselves or the public. Dep. Dingee’s custodial interrogation was proper under the exception because it was limited in scope and length. She specifically asked Brown to tell her the location of the gun and expressed that if it was still loaded, the gun posed a grave threat to people in the area. The questions Dep. Dingee asked were directly related to that danger and reasonably necessary to secure public safety.
More on Miranda
Inmate “custody” for Miranda:  An inmate was charged with violating institutional rules and Ohio Revised Code when he made two seven-inch shanks. Due to the seriousness of the incident, the matter went before two administrative bodies within the prison. During the hearing, the inmate admitted to making the shanks. He was not given Miranda warnings during the hearings. You then conduct an investigation under R.C. 2923.131(B) for possession of a deadly weapon under detention. You interview the inmate at the institution. He again admits that the shanks belonged to him. Miranda warnings are given and the inmate requests an attorney. Should the inmate have been mirandized at the administrative hearings prior to your interview?  The court in Platt said no. It seems unusual to say that someone in prison isn’t “in custody,” but they are not for Miranda purposes. The term “custody” is a term of art that specifies circumstances where someone is at risk to be coerced. The environment of questioning must present the same inherent coercive pressure as a police station. In this case, Platt argued that because he was restrained as an inmate, he was in custody. The court determined the environments of questioning in the administrative process and by OSHP was not coercive and Miranda was not necessary. State of Ohio v. Platt, Twelfth Appellate District, Warren County, Aug. 11, 2014
Mental Health and Confessions: You are investigating an alleged sexual battery, and the suspect is now located at a V.A. hospital to receive treatment for suicidal thoughts. Upon arrival, you are taken to a conference room, and the suspect arrives escorted by hospital police. You give Miranda warnings and the suspect signs a waiver form. The interview takes about two hours, ending when the suspect writes a three page detailed confession. Are the statements voluntary even though the suspect is being treated at a hospital for a mental health condition? The court in Maresh said yes. The mental condition of a suspect is only one factor considered in the totality of the circumstance test to determine voluntariness. In this case, Michael Maresh presented himself as alert and lucid, the officers received no evidence from the V.A. that he was not competent, he wrote a three page statement, which was clear and understandable, and intelligently waived his Miranda rights. Even though Maresh was receiving active mental health treatment in a hospital, the totality of the circumstances showed his confession was voluntary. State of Ohio v. Maresh, Eighth Appellate District, Cuyahoga County, Aug. 7, 2014