United States v. Ferguson

Decision Date06 December 2012
Docket NumberDocket No. 11–3806–cr.
PartiesUNITED STATES of America, Appellee, v. Lamont FERGUSON, Defendant–Appellant.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Michael Hurwitz, Esq., Hurwitz Stampur & Roth, New York, NY, for DefendantAppellant.

Elisha J. Kobre, (Iris Lan, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Before: LEVAL, CABRANES, and KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge:

This case requires us to determine whether the “public safety” exception to the requirement of Miranda warnings—an exception that the United States Supreme Court first recognized in New York v. Quarles, 467 U.S. 649, 655–56, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)—applies where police officers have reason to believe that a suspect may have left a gun in a public place, but where interrogation occurs an hour or more after the suspect's arrest. DefendantAppellant Lamont Ferguson appeals from a judgment of conviction entered on September 13, 2011 in the United States District Court for the Southern District of New York (Swain, J.) after a one-day bench trial. For the reasons set forth below, principally that police officers had an immediate and objectively reasonable need to protect the public from a realistic threat, we hold that the “public safety” exception applies, and thus we affirm Ferguson's conviction.

BACKGROUND
A. Ferguson's Arrest and Interrogation

On the evening of July 21, 2010, Ferguson had a verbal and physical altercation with two women. When Ferguson left the place where the altercation had begun, the two women followed him. After one woman threatened Ferguson with a bottle, he brandished a pistol and fired it into the air, hoping to scare the women away. At approximately 10:10 PM, someone called 911 and informed police officers that an individual named “Lamot” had fired two shots in the vicinity of West 228th Street in the Bronx, New York. During the 911 call, the operator learned that “Lamot” lived at 125 West 228th Street on the twelfth floor.

At approximately 11:00 PM, while Ferguson was standing in front of his apartment building on West 228th Street, two police officers approached him and asked him if his name was “Lamont.” When he indicated that it was, the officers arrested him and took him to the 50th Police Precinct. At the precinct, Ferguson was questioned by Sergeant Ian Rule, in the manner described below, without previously being given Miranda warnings. After interrogation, Ferguson led officers to his sister's apartment—on the seventh floor of 125 West 228th Street—where they recovered a pistol. Upon returning to 50th Precinct, officers informed Ferguson, for the first time, of his Miranda rights under the Fifth Amendment. Ferguson then gave a written statement in which he admittedto possessing and firing the pistol that the officers had recovered.

On September 20, 2010, the Grand Jury issued a one-count indictment charging Ferguson with possessing a firearm, after conviction of a felony, in violation of 18 U.S.C. § 922(g)(1). Ferguson moved to suppress all inculpatory evidence on the ground that police officers had obtained it by questioning him in violation of his rights under the Fifth Amendment. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). On January 26, 2011, the district court held an evidentiary hearing to assess the factual claims on which Ferguson based his motion. At the hearing, Ferguson did not call any witnesses, and the government relied exclusively on the testimony of Sergeant Rule.

Sergeant Rule testified that, on the evening of July 21, 2010, he was working in the 50th Precinct as a Field Intelligence Officer. According to Sergeant Rule, Field Intelligence Officers gather intelligence about criminal activity from arrestees, but generally do not try to develop the evidence necessary to prosecute the arrestees whom they question. During his shift on July 21, 2010, Sergeant Rule read a transcription of the 911 call that reported that “Lamot” had fired two shots near West 228th Street. Several months earlier, Sergeant Rule had received information that an individual named Lamont, who lived at 125 West 228th Street on the twelfth floor, possessed and had access to firearms. After consulting an arresting officer, Sergeant Rule learned that officers had not recovered the weapon Ferguson reportedly had fired when they arrested him earlier on the evening of July 21 in connection with the 911 call.

Sergeant Rule testified that, based on reports of the arrest and the prior information he had received about Ferguson, he began to feel:

a sense of urgency because ... it became more clear to me that there was a firearm possibly out there that we did not—didn't know where it was and the location where this incident happened, 125 West 228, or right across the street from it, it's in very close proximity to a playground and ball fields and also there's a church across the street, so I felt that possibly the weapon could have been out there for anyone to get, to grab, maybe a child or some kid or something like that, so I wanted to make sure that we could try and find out where this gun was as soon as possible.

App'x at 112–13. Concerned with the recovery of the gun, Sergeant Rule began to interrogate Ferguson. Because Sergeant Rule “was trying to find out the location of the firearm,” he did not inform Ferguson of his Fifth Amendment rights. Id. at 115. Sergeant Rule testified that he “felt that if [he] had given Miranda warnings, it might have ... scared [Ferguson] where he wouldn't tell [him] where the gun was.” Id.

During the interrogation, Sergeant Rule explained to Ferguson “that it was very important that if there was gun out there, that [the officers] were able to find it before someone else—before someone got hurt.” Id. at 119–20. While Sergeant Rule told Ferguson that “cooperation would always be looked at in his favor,” id. at 121, he made no promises, instead clarifying that prosecutors would make “the ultimate decision,” id. at 124. Sergeant Rule interrogated Ferguson for approximately thirty to forty-five minutes. Eventually, Ferguson agreed to accompany officers back to his apartment building. The officers left the 50th Precinct with Ferguson to recover the gun at around 1:00 AM on the morning of July 22, 2010. Fergusonled officers to his sister's apartment on the seventh floor, where they recovered the gun.

B. The District Court's Decision

The district court, considering Sergeant Rule's testimony as well as an affidavit submitted by Ferguson, found that: (1) Ferguson's “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”; (2) “Sgt. Rule learned ... from a ‘SPRINT report’ generated by a 911 call ... that gunshots were reported to have been fired during the altercation”; (3) “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”; (4) [t]he arresting officer also informed Sgt. Rule that no gun had been recovered in connection with Ferguson's arrest”; (5) “the reported altercation had occurred outdoors, near playgrounds, athletic fields and a church”; and (6) “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.” United States v. Ferguson, No. 10 Cr. 843(LTS), 2011 WL 1347002, at *1 (S.D.N.Y. Apr. 4, 2011). The district court also found that, as described by Sergeant Rule and by Ferguson in his declaration, the “content and scope of [Sergeant Rule's] questioning ... was rationally related to the objective of securing public safety by locating the gun.” Id. at *6.

Having made these findings, the district court denied Ferguson's motion to suppress both his inculpatory statements and the gun that officers had recovered with his assistance. The district court held that, although Sergeant Rule had not warned Ferguson about his Fifth Amendment rights, his questioning fell “within the scope of the public safety exemption” to the requirement of such warnings. Id. at *3–*6;see also New York v. Quarles, 467 U.S. at 655–56, 104 S.Ct. 2626. Specifically, the district court held that [t]he 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.” Ferguson, 2011 WL 1347002, at *6. In reaching this conclusion, the district court rejected Ferguson's counsel's argument that the public-safety exception did not apply because “some hours” had elapsed between Ferguson's arrest and his interrogation by Sergeant Rule. Id. The district court reasoned that the passage of time did not “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.” Id.

After the district court admitted the evidence in question, the parties consented to a bench trial, which the district court held on May 12, 2011. The parties stipulated to the following facts: (1) that Ferguson had knowingly possessed a firearm on July 21, 2010; (2) that he had previously been convicted of attempted robbery in the second degree; and (3) that the firearm Ferguson had possessed had previously traveled in interstate commerce. Based on these undisputed facts, the district court found that Ferguson had violated 18 U.S.C. § 922(g)(1) by possessing a firearm after having been convicted of a felony. On September 8, 2011, the district court sentenced Ferguson, principally, to a term of imprisonment equal to the approximately 12 months he had already...

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