U.S. v. Lackey

Decision Date11 July 2003
Docket NumberNo. 02-1255.,02-1255.
Citation334 F.3d 1224
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Rodgerick Labon LACKEY, aka Roderick Lackey, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit
334 F.3d 1224
UNITED STATES of America, Plaintiff-Appellee,
v.
Rodgerick Labon LACKEY, aka Roderick Lackey, Defendant-Appellant.
No. 02-1255.
United States Court of Appeals, Tenth Circuit.
July 11, 2003.

Page 1225

Madeline S. Cohen, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, CO, for Defendant-Appellant.

Martha Ann Paluch, Assistant United States Attorney (John W. Suthers, United States Attorney, and William L. Taylor, Assistant United States Attorney, with her on the brief), Denver, CO, for Plaintiff-Appellee.

Before HARTZ and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.

HARTZ, Circuit Judge.


Defendant Rodgerick Labon Lackey appeals his conviction after trial for possession of a firearm by a restricted person, in violation of 18 U.S.C. § 922(g)(1). His sole issue on appeal concerns the denial of his motion to suppress the firearm. He argues that police officers discovered the firearm through an interrogation that violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After Defendant's arrest on a warrant, but prior to his receiving Miranda warnings, officers asked him whether he had any guns or sharp objects on him. He responded that there was a gun in the car he had just left. We affirm Defendant's conviction, holding that officers about to conduct a lawful frisk or search of a suspect need not give Miranda warnings before asking the suspect about the presence of dangerous objects on his person.

I. Factual Background

The relevant facts are not in dispute. On May 16, 2001, a woman contacted the Colorado Springs Police Department (CSPD) to report that a man had fired shots at her house. After some preliminary investigation, the police presented the woman with a photo array, from which she identified Defendant. The CSPD obtained a state arrest warrant for Defendant on felony charges of illegal discharge of a firearm, menacing with a handgun, and possession of a weapon by a previously convicted felon. The CSPD then contacted an agent of the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) to obtain assistance in apprehending Defendant.

On May 23 two CSPD officers and the ATF agent went to the parking lot of an apartment building where Defendant was believed to be living, hoping to arrest him as he arrived at or left the building. Shortly thereafter, the three officers saw a man resembling Defendant approach a car matching the description of Defendant's car. The man opened the car's hatchback and spent about a minute moving things around inside the car.

The officers approached the man, displayed their badges, and identified themselves. The man took a few steps away from the hatchback. One officer asked him his name, and Defendant identified himself. Defendant was told that he was under arrest on an outstanding warrant. Next, an officer asked Defendant, "Do you have anything on you that would hurt me?" R, Vol. 5, at 47, 88. Defendant responded, "What is this about? What is this about?" Id. at 44, 88. An officer replied, "I will tell you about it in a minute," and then handcuffed Defendant. Id.

Once Defendant was handcuffed, but before he was patted down, an officer asked, "Do you have any guns or sharp objects on you?" Defendant responded, "No, I don't

Page 1226

have anything on me, but there was a gun in the car." Id. at 47-48, 89. The officers looked into the car's open hatchback and noticed a gun and its magazine clip, both plainly visible. When an officer asked Defendant whether the car was his, Defendant responded that it belonged to him and his wife. At the officers' request he granted consent to search the car. He then was frisked, but no additional weapons were discovered.

Following the arrest, Defendant was transported to the ATF office, where he received Miranda warnings for the first time. Defendant signed a written waiver and gave a written statement denying his involvement in the May 16 shooting.

Defendant was later charged with possession of a firearm by a restricted person, in violation of 18 U.S.C. § 922(g)(1). He filed motions to suppress the gun and the statements he made to the police officers at the arrest scene. The district court denied the motions to suppress, finding that the officers' questions about whether Defendant had weapons or sharp objects on him were within the public-safety exception to the Miranda requirement, see New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). The court also concluded that Defendant had voluntarily consented to the search of the car, and that the search of the car was proper as a search incident to a lawful arrest.

Defendant's case proceeded to trial, where he was found guilty. This appeal followed. We have jurisdiction under 28 U.S.C. § 1291.

II. Discussion

Whether facts support an exception to the Miranda requirement is a question of law. Because Defendant "challenges the district court's ultimate ruling, not its underlying findings, ... our review is de novo." United States v. Humphrey, 208 F.3d 1190, 1201 (10th Cir.2000).

The sole issue on appeal is whether the officers violated Defendant's constitutional rights by asking him about the presence...

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