United States v. Arcadio Hernandez , 751 F.3d 538 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2879
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARCADIO HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11-CR-00360 — Samuel Der-Yeghiayan, Judge.
ARGUED APRIL 2, 2014 — DECIDED MAY 7, 2014
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
MANION, Circuit Judge. Arcadio Hernandez was convicted
by a jury of possessing a gun as a felon. He had confessed to
knowingly possessing a gun, and the jury was so told over his
objection. He argues that his confession should have been
suppressed because it was obtained by a two-step interrogation
process that circumvented Miranda. The district court dis-
agreed, finding that the “interrogation” that took place before
he was given Miranda warnings did not circumvent Miranda
2 No. 13-2879
under the Supreme Court’s jurisprudence. We affirm, but on
the alternative basis that the single question asked before
Hernandez was given Miranda warnings falls within the
“public safety” exception to Miranda.
I. Background
Arcadio Hernandez picked up a red bag from beside a
garbage can in an alley. Chicago Police Officers Anthony
Varchetto and Lenny Pierri, who were patrolling in an un-
marked car, saw him pick up the red bag and run north up the
alley before exiting the alley and turning left towards a nearby
avenue. There, he saw the officers and, realizing he had been
observed, dropped the red bag on the ground beside him. As
the officers approached him, he volunteered, “I just have some
dope,”1 and he handed a key holder to Officer Varchetto.
Looking inside, Officer Varchetto found five small bags of
what appeared to be (and was later determined to be) heroin.
The officers arrested Hernandez, and then Officer Pierri asked
him what was in the red bag that he had dropped on the
ground beside him. Hernandez replied that he had “ripped the
guys around the corner for dope and a gun.” After hearing
that, Officer Pierri opened the bag and found a loaded .38
caliber gun, 61 small bags of crack cocaine, and 55 small bags
of marijuana. At that point, the officers gave Hernandez
Miranda warnings, put him in the patrol car, and took him back
to the station.
1
Apparently, “dope” can mean either marijuana or heroin, depending on
the context. Dope Definition, MERRIAM-WEBSTER.COM, http://www.merriam-
webster.com/dictionary/dope (last visited Apr. 23, 2014).
No. 13-2879 3
During the ride to the station, without being prompted,
Hernandez volunteered more details of the red bag caper. He
let the officers know that he had received fake drugs from
some dealers and was beaten when he complained. The red
bag had belonged to those dealers and taking it was his way of
retaliating. At the station, Hernandez was again given his
Miranda warnings and he repeated the same story with more
detail. The story was essentially a confession since he admitted
that he knew there was a gun in the bag when he took posses-
sion of it.
Before trial, Hernandez moved to suppress his post-
Miranda confession on the ground that it was a product of
having confessed during a pre-Miranda interrogation. The
district court carefully considered the Supreme Court’s rulings
in Oregon v. Elstad, 470 U.S. 298 (1985) and Missouri v. Seibert,
542 U.S. 600 (2004) as well as Seventh Circuit cases interpreting
and applying Seibert. Under this court’s interpretation of
Seibert, the district court must first determine whether the
officers deliberately circumvented Miranda. If not, the volun-
tariness standard of Elstad applies; if so, the district court must
look at the Seibert plurality’s factors and Justice Kennedy’s
“curative steps” to determine whether the taint of the pre-
warning interrogation has been sufficiently removed for
Miranda warnings given “midstream” to have been effective.2
2
There was only a single pre-warning question, so to call the Miranda
warnings here “midstream” is imprecise. But it is the term-of-art. The point
is, the question asked of Hernandez while he was in custody is one
which—absent certain circumstances—would require Miranda warnings,
(continued...)
4 No. 13-2879
See United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004).
The district court found that the officers did not deliberately
circumvent Miranda and that both Hernandez’s pre- and post-
warning statements and confessions were voluntary. Accord-
ingly, it admitted Hernandez’s post-warning confession.
Hernandez appeals.
II. Discussion
If officers were allowed to interrogate a suspect until he
confesses and then warn him of his rights and get him to re-
confess, Miranda’s prophylactic rule would be undermined.
This is the tactic targeted for eradication by Seibert. On appeal,
Hernandez argues that the court erred in finding that the
officers did not deliberately use a pre-warning interrogation to
undermine Miranda and, therefore, that the court erred in
holding that Seibert did not bar his post-warning confession.
But if all the pre-warning questions fall within an exception to
Miranda, the questions do not undermine Miranda’s rule, so
Seibert is not triggered.3 Officers do not violate Miranda by
asking a “routine booking question,” Pennsylvania v. Muniz,
496 U.S. 582, 601–02 (1990), or “questions necessary to secure
2
(...continued)
but they were not given until after it was asked. However, as we later
conclude, “certain circumstances” were present.
3
And similarly, such questions are far less likely to have been part of the
“deliberate use of a two-step interrogation strategy”to circumvent Miranda.
Stewart, 388 F.3d at 1090. But we need not even reach that question if
Miranda is not violated in the first instance.
No. 13-2879 5
their own safety or the safety of the public.” New York v.
Quarles, 467 U.S. 649, 659 (1984).
The latter, to which we turn our focus, is often called the
“public safety” exception. In crafting this exception, the
Supreme Court gave us two guideposts. First, in Quarles,
officers “in the very act of apprehending a suspect, were
confronted with the immediate necessity of ascertaining the
whereabouts of a gun which they had every reason to believe
the suspect had just removed from his empty holster and
discarded in the supermarket,” to which the exception applied
to asking where the gun was. Quarles, 467 U.S. at 657. And
second, the facts of Orozco v. Texas, 394 U.S. 324 (1969)—where
officers, who had burst into a suspect’s bedroom four hours
after a murder, “began vigorously to interrogate him about
whether he had been present at the scene of the shooting and
whether he owned a gun,” which violated Miranda. Quarles,
467 U.S. at 659 n.8 (discussing the facts of Orozco and noting
that it was “in no sense inconsistent” with Quarles). “The
exception … [is] circumscribed by the exigency which justifies
it.” Id. at 658. And the parsing principle is that “questions
necessary to secure [the officer’s] own safety or the safety of
the public” are permissible “and questions designed solely to
elicit testimonial evidence from a suspect” are not. Id. at 659.
Applying Quarles, some slight variations have developed
among the circuits which one commentator has suggested fall
generally into two groups—a “broad approach” where
questions designed to protect officers in inherently dangerous
situations are permitted and a “narrow approach” where only
questions stemming from actual evidence that a suspect or
6 No. 13-2879
others could inflict immediate harm to officers or the public are
permitted. See Rorie A. Norton, Note, Matters of Public Safety
and the Current Quarrel over the Scope of the Quarles Exception to
Miranda, 78 Fordham L. Rev. 1931, 1948 (2010) (grouping the
First, Eighth, and Ninth Circuits into the broad group and the
Second, Fourth, Fifth, Sixth, and Tenth Circuits into the narrow
group).
These nuances among the circuits produce one common
practical distinction. If there is a perceived risk that, when
searching a vehicle or a residence, the officer might
inadvertently bump or otherwise mishandle a hidden firearm
(or other dangerous object) the broad approach would permit
the officer to first ask whether any such danger is present. The
narrow approach would not. Compare United States v. Liddell,
517 F.3d 1007, 1008 (8th Cir. 2008) (asking “is there anything
else in there we need to know about?” “That’s gonna hurt us?”
while searching secured suspect’s vehicle fell within the
exception) with United States v. Williams, 483 F.3d 425, 428 (6th
Cir. 2007) (requiring, as the second part of a formal two-prong
test, “that someone other than police might gain access to that
weapon and inflict harm with it.” (emphasis added)). This
circuit has cited the Eight Circuit’s approach approvingly,
United States v. Are, 590 F.3d 499, 506 (7th Cir. 2009) (citing
United States v. Williams, 181 F.3d 945, 953–54 (8th Cir. 1999)),
but we have not had to decide whether we agreed entirely,
because in Are there was a risk of the suspect or others who
were there obtaining any weapon that was hidden on the
premises. Id. at 506.
No. 13-2879 7
But, even among circuits that otherwise take a narrow
approach, questions designed to prevent officers from hurting
themselves during a search of the suspect’s person are
permitted. See, e.g., United States v. Webster, 162 F.3d 308, 332
(5th Cir. 1998) (holding, under a narrower view, that asking
whether the suspect “had any needles in his pockets that could
injure them during their pat down” fell within the exception);
United States v. Young, 58 F. App'x 980, 981 (4th Cir. 2003)
(unpublished) (same with regard to the question “Do you have
any sharp objects, knives, needles, or guns.”). This type of
question is logical and important to permit. While firearms on
a suspect’s person or in close proximity to him can be lunged
for and used to harm an officer, sharp and bio-hazardous
objects pose a great risk to officers regardless of any action by
the suspect. Accordingly, a search of his person and items in
close proximity is necessary, and a question about what an
item on his person contains is a narrow, practical way of
ensuring officer safety during the immediate and inevitable
search of the item. This is true whether the item is the clothes
the suspect is wearing or something that he is
carrying—especially when there are circumstances that suggest
the possible presence of a hazard. A question about what such
an item contains is “circumscribed by the exigency which
justifies it,” Quarles, 467 U.S. at 658, and “necessary to secure
[the officer’s] own safety.” Id. at 659.
Whatever was in the red bag had prompted its owner to
put it by a garbage can in an alley, had prompted Hernandez
to run when he had it, and had prompted him to drop it when
he saw police officers. Hernandez had already turned over
what appeared to be heroin to the officers—a drug often
8 No. 13-2879
administered by a (sometimes used) syringe and, therefore,
associated with blood-borne disease. See United States v.
Carrillo, 16 F.3d 1046, 1049 (9th Cir. 1994) (stating that “the
danger of transmission of disease or contact with harmful
substances is real and serious enough”).4 Further, “drug
dealers are known to arm themselves” so the officers could
have reasonably suspected a firearm might be in the bag. See
United States v. Are, 590 F.3d at 506 (citing United States v.
Edwards, 885 F.2d 377, 384 (7th Cir. 1989)). Thus, the officers
could not ignore it, see Quarles, 467 U.S. at 657 (firearm left
unattended was a public safety concern), but grabbing or
opening the red bag would place the officers at risk of harm
(impalement on a heroin needle or bumping a loaded gun). See
Carrillo, 16 F.3d at 1049 (holding that asking a suspect whether
he “had any drugs or needles on his person” was within the
public safety exception because “the danger of transmission of
4
See also National Institute on Drug Abuse, Research Report Series - Heroin
(2014), available at http://www.drugabuse.gov/sites/default/files/rrheroin-
14.pdf (“Heroin use increases the risk of being exposed to HIV, viral
hepatitis, and other infectious agents through contact with infected blood
or body fluids (e.g., semen, saliva) that results from the sharing of syringes
and injection paraphernalia that have been used by infected individuals… .
Injection drug users (IDUs) are the highest-risk group for acquiring
hepatitis C (HCV) infection and continue to drive the escalating HCV
epidemic: Each IDU infected with HCV is likely to infect 20 other people.
Of the 17,000 new HCV infections occurring in the United States in 2010,
over half (53 percent) were among IDUs. Hepatitis B (HBV) infection in
IDUs was reported to be as high as 20 percent in the United States in 2010,
which is particularly disheartening since an effective vaccine that protects
against HBV infection is available. There is currently no vaccine available
to protect against HCV infection.”).
No. 13-2879 9
disease or contact with harmful substances is real and serious
enough; a pressing need for haste is not essential.”); see also
United States v. McDaniel, 182 F.3d 923 at *3 (7th Cir. 1999)
(unpublished table decision) (“The need to determine whether
McDaniel was armed or carrying potentially harmful drug
paraphernalia falls squarely within the Quarles exception.”).
That the officers did not articulate these concerns is no matter;
the public safety exception applies based on objective facts, not
subjective motivations. See Quarles, 467 U.S. at 655–56. Accord-
ingly, Officer Pierri’s question about what the red bag con-
tained was within the public safety exception to Miranda.
III. Conclusion
Because Officer Pierri’s asking what was in the red bag falls
within the public safety exception, it does not violate Miranda.
Accordingly, it cannot form the basis of a Seibert challenge to
Hernandez’s later confession. For that reason, we AFFIRM the
judgment of the district court.