State v. David v. Maloney , 2016 Fla. App. LEXIS 7302 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D14-2702
DAVID VINCENT MALONEY,
Appellee.
________________________________/
Opinion filed May 13, 2016
Appeal from the Circuit Court
for Seminole County,
Marlene M. Alva, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and L. Charlene Matthews,
Assistant Attorney General, Daytona
Beach, for Appellant.
Michael H. LaFay, Orlando, for Appellee.
BERGER, J.
The State of Florida timely appeals the trial court’s order granting David Maloney’s
motion to suppress certain statements he made to police before he was advised of his
Miranda1 rights. Because we conclude the public safety exception to the Miranda
requirement permits the admission of Maloney’s statements, we reverse.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
Maloney was a member of a motorcycle gang known as the Philly Warlocks. On
September 30, 2012, the Philly Warlocks were holding a poker run departing from the
parking lot of the Veterans of Foreign Wars ("VFW") hall in Winter Springs. At about
10:30 a.m., a shootout ensued between the Philly Warlocks and members of a rival gang,
the Florida Warlocks, in the parking lot of the VFW. Soon thereafter, police responded.
Officer Bradley Dula was the first to arrive at the VFW. Once on scene, he saw
several persons spread throughout the parking lot, some of whom were severely injured
or dead.2 Officer Dula observed Maloney and another individual crouching in front of a
small truck. Officer Dula advanced on them with his service firearm and ordered them to
lay down on the ground. They complied immediately.
Officer Dula quickly realized that the situation was of a greater magnitude than his
patrol officers could handle. He requested assistance, through dispatch, from all available
officers and sheriff's deputies in Seminole County and neighboring jurisdictions. The
dispatch request indicated that the shooting was still ongoing at the VFW.
As more law enforcement units arrived, the scene remained chaotic. In an effort
to safely secure the scene, police handcuffed thirty to forty people, including Maloney,
and directed them to lay face down on the ground. The police also roped off the VFW
parking lot with crime-scene tape and controlled and logged access to the area.
Maloney was initially patted down and searched by Officer Nathan Ecalbarger of
the Longwood Police Department. Officer Ecalbarger seized a .22 caliber derringer pistol
and a double-edge fish blade knife from Maloney. Officer Ecalbarger placed the derringer
2Two members of the Florida Warlocks were found deceased in the parking lot. A
third member later died at the hospital.
2
defendant before the interrogation. Miranda, 384 U.S. at 479 ("[U]nless and until such
warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained
as a result of interrogation can be used against him."); see also Elstad, 470 U.S. at 306
n.1, 307; Wright, 161 So. 3d at 447.
Based on the totality of the circumstances, we conclude that Maloney was in
custody for the purposes of Miranda because he was restrained to the degree usually
associated with a formal arrest. See Howes v. Fields, 132 S. Ct. 1181, 1189-90, 1192
(2012); Ramirez, 739 So. 2d at 574; Monroe v. State, 148 So. 3d 850, 855 (Fla. 1st DCA
2014), remanded on other grounds, 41 Fla. L. Weekly S192, S194 n.2 (Fla. Apr. 28,
2016). Maloney was handcuffed for twelve hours; he was held under guard; he was
searched before and during the questioning; some of his property had been seized; and
he was not told he was free to leave.10 Accordingly, we reject the State’s contrary
argument on this point and focus our attention on whether the public safety exception,
established in New York v. Quarles, 467 U.S. 651 (1984), applies to this case. See State
v. Ruiz, 526 So. 2d 171, 172 n.3 (Fla. 3d DCA 1988).
10 A determination of whether a suspect is in custody under Miranda consists of
two parts. The first part involves determining whether a reasonable person would have
felt restrained in his or her freedom of movement to the degree associated with a formal
arrest such that he or she was not free to terminate the interrogation and leave. See
Miranda, 384 U.S. at 444-45; Fields, 132 S. Ct. at 1189; Ramirez, 739 So. 2d at 573. The
second part involves deciding whether the interrogation "presents the same inherently
coercive pressures as the type of station house questioning at issue in Miranda." Fields,
132 S. Ct. at 1190; accord Johnson v. State, 800 So. 2d 275, 278 (Fla. 1st DCA 2001).
We reach only the first part of this analysis because the State waived consideration of the
second part when it did not raise it as an issue in its brief. See Doe v. Baptist Primary
Care, Inc., 177 So. 3d 669, 673 (Fla. 1st DCA 2015) (quoting Polyglycoat Corp. v, Hirsch
Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983)); see also Washburn v. State,
868 N.E.2d 594, 601 n.2 (Ind. Ct. App. 2007) (citing Dunaway v. Allstate Ins. Co., 813
N.E.2d 376, 387 (Ind. Ct. App. 2004)).
7
both of the Warlocks gangs typically carried more than one weapon, Sgt. Heath asked
Maloney if he had any additional weapons that fit his empty holster. 5 Maloney told Sgt.
Heath that he also had a .380 caliber Ruger pistol and gestured his head towards the
area of the parking lot where he had dropped it during the shooting. Sgt. Heath testified
that Maloney was not placed under arrest and, consequently, was not advised of his
Miranda rights during this interaction. According to Sgt. Heath, he did not yet know
whether Maloney was a victim or a suspect.
Maloney was held, in handcuffs, as an investigative detainee for approximately
twelve hours. During that time, Maloney was uncuffed only for brief periods to drink water
and participate in a gunshot residue test. Over the course of the day, the police narrowed
their investigation from the group initially detained down to six persons, including
Maloney. As the investigation progressed, all of the detainees were released except
Maloney6 and three others, who were later arrested and charged early the next morning.7
Prior to trial, Maloney filed a motion to suppress, among other things, the
statements he made regarding his ownership of the .22 caliber derringer and the knife.8
5 Another detainee that Sgt. Heath searched that day had a hidden .380 caliber
firearm on his person that was missed during a previous search.
6 Maloney was not read his Miranda rights until about 10 p.m. when police formally
interviewed him about the shooting.
7 Maloney was charged with three counts of second degree murder and two counts
of attempted first degree premeditated murder. He was acquitted of the second degree
murder charges and all but one charge of attempted first degree murder on which the jury
could not reach a verdict. The state seeks to retry Maloney on the remaining count of
attempted first degree murder.
8 The motion to suppress did not specifically seek to suppress the .380 caliber
Ruger pistol, but it sought to suppress the fruits of the previous search, the .22 caliber
4
He argued these statements were elicited in response to custodial interrogation without
having first been advised of his Miranda rights. The trial court agreed and suppressed
the statements. The State moved for reconsideration on the ground that the police were
not required to give Maloney Miranda warnings based on the public safety exception
established in New York v. Quarles, 467 U.S. 649 (1984). The trial court denied the
motion,9 concluding:
[A]t the point where the Defendant was interrogated by
Sergeant Heath regarding the empty holster, the exigency
had largely dissipated. Approximately 30 minutes had passed
since law enforcement had responded and all 30-40 people
on scene had been secured, searched, and disarmed. . . .
While it is certainly possible that the Defendant's gun had
been tossed aside and not recovered, that theoretical
possibility does not justify an expansion of the public safety
exception. . . . In the instant case, the crime scene perimeter
had been secured and everyone had been placed in custody,
separated, and presumably disarmed. There was no longer
any exigency that would justify this pre-Miranda questioning.
Thus, this Court finds that the question regarding the holster
was asked solely to elicit testimonial evidence from the
Defendant, and was not justified by an immediate concern for
public safety.
The State raises two arguments on appeal. First, the State contends that Maloney
was not in custody when Sgt. Heath questioned him. Second, the State submits that Sgt.
Heath's questions were intended to elicit responses that would locate an unaccounted-
for firearm, which was an imminent threat, in order to protect both the officers on the
scene and the public. Maloney counters that the trial court was correct in ruling that he
derringer pistol and the empty holster, which led Sgt. Heath to ask Maloney if he had
another weapon.
9 Initially the trial court also suppressed the .380 caliber Ruger pistol, but upon
reconsideration it reversed its position, concluding police would have inevitably
discovered it without Maloney's statement to Sgt. Heath.
5
was in custody when Sgt. Heath questioned him and that any exigency or emergency
arising from the shootout dissipated because the scene was secured in the thirty minutes
between the time Officer Dula arrived and detained Maloney and when Sgt. Heath
questioned Maloney about his empty holster.
Under the Florida and United States Constitutions, each person is provided with
the fundamental right of protection against being compelled to become a witness against
himself or herself in criminal cases. U.S. Const. amend. V; art. I, § 9, Fla. Const.; Ramirez
v. State, 739 So. 2d 568, 572-73 (Fla. 1999); Wright v. State, 161 So. 3d 442, 447 (Fla.
5th DCA 2014). In Miranda v. Arizona, the United States Supreme Court held that, under
the Fifth Amendment to the United States Constitution, "the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial interrogation of
the defendant unless it demonstrates the use of procedural safeguards effective to secure
the privilege against self-incrimination." 384 U.S. 436, 444 (1966). Procedural
safeguards include a warning that the person "has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right
to the presence of an attorney, either retained or appointed." Id. at 444, 457, 467-68.
The person must also be advised that he or she may request that an attorney be
appointed if the person cannot afford to retain an attorney. Id. at 479. It is undisputed
that Maloney was not given the Miranda warnings prior to making the admissions at issue.
A Miranda violation gives rise to a presumption of coercion that "is irrebuttable for
the purposes of the State's case in chief." Wright, 161 So. 3d at 447 (citing Oregon v.
Elstad, 470 U.S. 298, 307 (1985)). Evidence obtained from custodial interrogations may
not be used against a defendant at trial if these warnings were not provided to the
6
defendant before the interrogation. Miranda, 384 U.S. at 479 ("[U]nless and until such
warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained
as a result of interrogation can be used against him."); see also Elstad, 470 U.S. at 306
n.1, 307; Wright, 161 So. 3d at 447.
Based on the totality of the circumstances, we conclude that Maloney was in
custody for the purposes of Miranda because he was restrained to the degree usually
associated with a formal arrest. See Howes v. Fields, 132 S. Ct. 1181, 1189-90, 1192
(2012); Ramirez, 739 So. 2d at 574; Monroe v. State, 148 So. 3d 850, 855 (Fla. 1st DCA
2014), remanded on other grounds, 41 Fla. L. Weekly S192, S194 n.2 (Fla. Apr. 28,
2016). Maloney was handcuffed for twelve hours; he was held under guard; he was
searched before and during the questioning; some of his property had been seized; and
he was not told he was free to leave.10 Accordingly, we reject the State’s contrary
argument on this point and focus our attention on whether the public safety exception,
established in New York v. Quarles, 467 U.S. 651 (1984), applies to this case. See State
v. Ruiz, 526 So. 2d 171, 172 n.3 (Fla. 3d DCA 1988).
10 A determination of whether a suspect is in custody under Miranda consists of
two parts. The first part involves determining whether a reasonable person would have
felt restrained in his or her freedom of movement to the degree associated with a formal
arrest such that he or she was not free to terminate the interrogation and leave. See
Miranda, 384 U.S. at 444-45; Fields, 132 S. Ct. at 1189; Ramirez, 739 So. 2d at 573. The
second part involves deciding whether the interrogation "presents the same inherently
coercive pressures as the type of station house questioning at issue in Miranda." Fields,
132 S. Ct. at 1190; accord Johnson v. State, 800 So. 2d 275, 278 (Fla. 1st DCA 2001).
We reach only the first part of this analysis because the State waived consideration of the
second part when it did not raise it as an issue in its brief. See Doe v. Baptist Primary
Care, Inc., 177 So. 3d 669, 673 (Fla. 1st DCA 2015) (quoting Polyglycoat Corp. v, Hirsch
Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983)); see also Washburn v. State,
868 N.E.2d 594, 601 n.2 (Ind. Ct. App. 2007) (citing Dunaway v. Allstate Ins. Co., 813
N.E.2d 376, 387 (Ind. Ct. App. 2004)).
7
There are limited exceptions to the requirement that law enforcement read a
suspect Miranda warnings before conducting a custodial interrogation. One such
exception involves imminent threats to public safety. See Quarles, 467 U.S. at 651, 657
("[T]he need for answers to questions in a situation posing a threat to the public safety
outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege
against self-incrimination."). The availability of this exception does not depend on the
individual officer’s motivation. Id. at 655-56.
In Quarles, the Supreme Court was presented with facts similar to those we have
here. Two officers were approached by a young woman who informed them she had just
been raped at gunpoint by a man wearing a black jacket with the name "Big Ben" printed
in yellow letters on the back. The woman told the officers that the man had just walked
into a nearby supermarket with the gun. Id. at 652. One of the officers spotted the
suspect, Benjamin Quarles, as he was approaching the checkout counter. Id. Quarles
saw the officer and ran towards the rear of the store. Id. When the officer eventually
caught up to Quarles, he ordered him to stop and place his hands over his head. Id. The
officer frisked Quarles, handcuffed him, and discovered an empty shoulder holster. Id.
The officer asked Quarles where the missing gun was located, and Quarles replied that
the "gun is over there" while nodding towards its location. Id. The officer retrieved the
gun and then read Quarles his Miranda rights. Id.
During the ensuing prosecution for illegal possession of a weapon, Quarles
successfully moved to suppress the gun, as well as his statement regarding its location,
because he was not given Miranda warnings before providing the statement. Id. at 652-
53. The Supreme Court reversed, recognizing that the missing gun presented a threat to
8
the safety of the officers and to the public. Id. at 651 ("We conclude that . . . overriding
considerations of public safety justify the officer’s failure to provide Miranda warnings
before he asked questions devoted to locating the abandoned weapon."). Justice
Rehnquist wrote:
We decline to place officers . . . in the untenable position of
having to consider, often in a matter of seconds, whether it
best serves society for them to ask the necessary questions
without the Miranda warnings and render whatever probative
evidence they uncover inadmissible, or for them to give the
warnings in order to preserve the admissibility of evidence
they might uncover but possibly damage or destroy their
ability to obtain that evidence and neutralize the volatile
situation confronting them.
Id. at 657-58.
The public safety exception is "circumscribed by the exigency which justifies it."
Id. at 658. For the public safety exception to apply, the threat must be imminent. See id.
The imminence of the threat must be considered from the objective perspective of a
reasonable person in the position of the officer at the time and without the benefit of
hindsight. See State v. Alexander, 810 So. 2d 552, 558 (Fla. 5th DCA 2002) (quoting
Quarles, 467 U.S. at 655-59)); State v. Nguyen, 779 So. 2d 279, 280-81 (Fla. 2d DCA
1998); see also People v. Attebury, 624 N.W.2d 912, 913, 917-18 (Mich. 2001) ("While
the officers might have, in hindsight, mitigated the exigency by physically restraining
defendant before he was allowed to dress, their failure to do so does not alter our
analysis."). Although imminence may diminish over time, see Alexander, 810 So. 2d at
558, the public safety exception can still apply over an hour after an arrest or detention if
a gun is missing. See United States v. Ferguson, 702 F.3d 89, 95 (2d Cir. 2012); Allen
v. Roe, 305 F.3d 1046, 1051 (9th Cir. 2002) (citing United States v. Brady, 819 F.2d 884,
9
888 (9th Cir. 1987)); Commonwealth v. Dillon D., 863 N.E.2d 1287, 1289-90 (Mass.
2007); State v. Smith, 86 A.3d 524, 526, 529-30 (Conn. App. Ct. 2014).
Here, the trial court declined to apply the public safety exception, holding that the
exigency that would have existed to justify the application of the exception when Officer
Dula first responded had dissipated over time because law enforcement had secured the
scene by the time Sgt. Heath questioned Maloney. Relying on the decision of the United
States Court of Appeals for the Fourth Circuit in United States v. Mobley, 40 F.3d 688,
693 (4th Cir. 1994), Maloney argues that this factual finding precludes the application of
the public safety exception. We disagree.
Mobley is easily distinguished as no danger to public safety was present in that
case. Mobley was encountered naked and unarmed at the door of his apartment. Id. at
690. By the time he was arrested and questioned, a security sweep of Mobley’s
apartment was already complete, indicating he was the only person present and that the
apartment was his alone. Id. at 693. As the Fourth Circuit recognized, there was no
explanation at any time as to what extraordinary circumstances prompted law
enforcement to ask Mobley, after he had invoked his right to counsel, whether there were
any weapons in the apartment. Id. Accordingly, the Fourth Circuit correctly concluded
the public safety exception did not apply. Id.
Here, however, the sheer number of persons being detained constituted an
extraordinary circumstance posing an imminent risk to law enforcement and the public.
See Trice v. United States, 662 A.2d 891, 897 (D.C. 1995) (distinguishing Mobley
because the presence additional persons at the scene was an extraordinary circumstance
justifying the application of the public safety exception); see also Dillon D., 863 N.E.2d at
10
1289-90; Smith, 86 A.3d at 529-30. Indeed, there were still thirty to forty people being
detained outdoors in a public, open area adjacent to the parking lot of the VFW when Sgt.
Heath questioned Maloney. The trial court's analysis does not account for these facts or
for the fact that the missing weapon could have been anywhere, including places where
it might be accessible to Maloney, another detainee, a passerby, or even a child.
We find these distinctions significant, particularly because we are required to
analyze the public safety exception “from the objective perspective of the presence of a
public danger” and not in light of hindsight or the subjective motive of the law enforcement
officer. See Mobley, 40 F.3d at 692 (citing Quarles, 467 U.S. at 655-56, 659); see also
Smith, 86 A.3d at 529-30. Because the danger existing from a missing gun in a public
space does not diminish with time, see Ferguson, 702 F.3d at 95-96; Allen, 305 F.3d at
1051; Borrell v. State, 733 So. 2d 1087, 1088-89 (Fla. 3d DCA 1999), we conclude that a
residual danger to the law enforcement officers and the public existed at the time Sgt.
Heath questioned Maloney about the empty holster.
The relevant facts in this case are virtually indistinguishable from Quarles. We
therefore reverse the portion of the trial court's order suppressing evidence concerning
Maloney's statements to Sgt. Heath and remand for further proceedings consistent with
this opinion. See Borrell, 733 So. 2d at 1088-89.
REVERSED AND REMANDED.
TORPY and LAMBERT, JJ., concur.
11