State v. Smith, SC19322

• Decision Date: 10 May 2016
• Docket Number: SC19322
• Court: Connecticut Supreme Court
• Parties: STATE v. SMITH

STATE v. SMITH

SC19322

Supreme Court of Connecticut

May 10, 2016

CONCURRENCE

McDONALD, J., concurring. I agree with the majority that the public safety exception to the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), applied to the present case because the police officers had a legitimate concern about whether the defendant, Dante Smith, was armed, and whether the weapons identified by the victim, Justin Molinaro, could have been disposed of in a place where a child or other civilian might find them.¹ Here, however, well after the victim provided the police with an account of the attack and was transported for medical treatment, the defendant returned to the scene to speak with the police and was handcuffed before questioning commenced. One of the questions thereafter posed to the defendant was, "What happened?" I cannot agree that this question fell within the scope of the narrow public safety exception. Neither the majority's opinion nor my own research reveals a case in which any other court has concluded that such an open-ended question was properly "circumscribed by the exigency which justifies it"; New York v. Quarles, 467 U.S. 649, 658, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984); under circumstances akin to the present case. The majority's approval of such a question under the facts of this case is an unprecedented, and unwarranted, expansion of this limited exception to Miranda. I would conclude that the trial court improperly failed to suppress the defendant's inculpatory narrative that this impermissibly broad question predictably elicited. Because, however, the admission of the defendant's statements at the scene was harmless error, I concur in the judgment.

It is well settled that pre-Miranda questions "may not be investigatory in nature or designed solely to elicit testimonial evidence from a suspect." (Internal quotation marks omitted.) United States v. Estrada, 430 F.3d 606, 612 (2d Cir. 2005). Statements "are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

As the majority purportedly recognizes, public safety gives rise to a narrow exception to the requirement that Miranda warnings be given before a custodial interrogation takes place. New York v. Quarles, supra, 467 U.S. 658; see also Oregon v. Elstad, 470 U.S. 298, 317, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985) (reaffirming narrow scope of exception). The rationale articulated by the United States Supreme Court for this exception is that "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the [f]ifth [a]mendment's privilege against self-incrimination." New York v. Quarles, supra, 657. Significantly, the court in Quarles explained that the "exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. . . . [P]olice officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect." (Emphasis added.) Id., 658-59; see, e.g., id., 659 ("The facts of this case clearly demonstrate that distinction and an officer's ability to recognize it. [The officer] asked only the question necessary to locate the missing gun before advising [the] respondent of his rights.").

In determining whether a particular question is justified under the public safety exception, some courts have focused on the narrow scope of the exception, as well as the application of the exception in Quarles, and have determined that the question itself must be narrowly tailored to the actual safety concern. See, e.g., United States v. Mengis, Docket No. 04-CR-508-BR, 2006 WL 2552993, *3 (D. Or. August 31, 2006); People v. Cressy, 47 Cal. App. 4th 981, 989, 55 Cal. Rptr. 2d 237 (1996), review denied, 1996 Cal. LEXIS 6214 (Cal. October 30, 1996); State v. Johnson, 46 Kan. App. 2d 387, 395, 264 P.3d 1018 (2011), review denied, 293 Kan. 1111 (2012); State v. Strozier, 172 Ohio App. 3d 780, 791, 876 N.E.2d 1304 (2007), review denied, 116 Ohio St. 3d 1506, 880 N.E.2d 482 (2008); State v. Spotted Elk, 109 Wn. App. 253, 260, 34 P.3d 906 (2001). For example, one court concluded that an officer's question to an arrestee, "Do you have anything on your person I need to be concerned about?"; (internal quotation marks omitted) State v. Spotted Elk, supra, 256; was impermissible because it could elicit information pertaining not only to items that could injure the officer conducting the search (weapons, drug needles, etc.) but also to contraband, like drugs. Id., 260.

I agree with the majority's decision not to adopt this narrowly tailored approach. In my view, such an approach would impose an unrealistic burden on officers and ignore the exigent and unfolding nature of the circumstances justifying the public safety exception. Instead, I agree with the United States Court of Appeals for the Second Circuit and other courts that have concluded that questions "need not be posed as narrowly as possible, because [p]recision crafting cannot be expected in the circumstances of a tense and dangerous arrest. . . . Thus, 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." (Citation omitted; emphasis added.) United States v. Estrada, supra, 430 F.3d 612; see alsoUnited States v. Newton, 369 F.3d 659, 678 (2d Cir.) (recognizing that "public safety questions are framed spontaneously in dangerous situations" and that "[p]recision crafting cannot be expected in such situations"), cert. denied, 543 U.S. 947, 125 S. Ct. 371, 160 L. Ed. 2d 262 (2004). The limiting principles under this standard ensure that public safety is not a guise for an end run around Miranda while adequately accommodating the realities of the circumstances in which such concerns are present.

Although the majority purports to rely on the standard set forth by the Second Circuit, a review of public safety cases from that circuit and others demonstrates that the majority has not faithfully applied it. In those cases, courts carefully considered the focus of each question to determine whether it was framed in a manner that was more likely to elicit incriminating information rather than information related to the public safety concern at issue. See, e.g., United States v. Reyes, 353 F.3d 148, 153 (2d Cir. 2003) (The court cited with approval the United States Court of Appeals for the Tenth Circuit, which "found that the officers' focused questions addressed a real and substantial risk to the safety of the officers and were not designed to acquire incriminating evidence [but] solely to protect the officers, as well as the arrestee, from physical injury. . . . [T]he risk of incrimination is limited to [nonresponsive] answers [such as in this case, when the suspect provides more information than requested] . . . ." [Citations omitted; emphasis altered; internal quotation marks omitted.]).

A few examples demonstrate the reasoning applied in those cases. In United States v. Newton, supra, 369 F.3d 663, 679, the defendant, a convicted felon on parole, was asked whether he had any " 'contraband in his house. In discussing Newton in a subsequent case, the court noted that it found this question permissible because, "while the officer's question about 'contraband could include items not presenting immediate safety concerns, the question plainly encompassed weapons, and the defendant's response indicated that he understood it along those lines. United States v. Estrada, supra, 430 F.3d 612. In United States v. Khalil, 214 F.3d 111, 121 (2d Cir.), cert. denied sub nom. Mezer v. United States, 531 U.S. 937, 121 S. Ct. 326, 148 L. Ed. 2d 262 (2000), the defendant was asked, inter alia, whether he had intended to kill himself in detonating a bomb that he had built. The court concluded that this question fell within the scope of the exception because it "had the potential for shedding light on the bomb's stability." Id. In United States v. Reyes, supra, 353 F.3d 150-51, before the police handcuffed or conducted a patdown search of the defendant, they asked him whether he had " 'anything on him or " 'anything inside [his] pocket that could hurt the officers. Although the defendant responded that he had drugsin his vehicle, the court concluded that "the arresting officer's questions were sufficiently limited in scope and were not posed to elicit incriminating evidence. See [New York v. Quarles, supra, 467 U.S. 658-59]. Police cannot be faulted for the unforeseeable results of their words or actions." United States v. Reyes, supra, 154. In United States v. Simmons, 661 F.3d 151, 153-54 (2d Cir. 2011), the officers, who had escorted a complainant into his apartment to retrieve his belongings after the complainant reported that his roommate, the defendant, had displayed a gun during an argument a few days earlier, asked the defendant, inter alia, whether he had had a dispute with the complainant. The court concluded that this question was permissible because it "had the potential to shed light on the volatility of the situation and the extent to which [the defendant] harbored potentially violent resentment toward [the complainant]," whose presence the officers sought to secure. Id., 156. In sum, in all of these cases, although the question was broader than necessary to elicit information solely related to the public safety concern, it ...