Appeal from the Superior Court of the District of Columbia (M-12962-99) (Hon. Frederick H. Weisberg, Trial Judge)
Before Terry and Ruiz, Associate Judges, and Nebeker, Senior Judge.
Submitted December 18, 2001
Opinion for the court by Associate Judge TERRY.
Concurring opinion by Associate Judge RUIZ at p. 14.
TERRY, Associate Judge: This case involves the public safety exception to the Miranda rule, *fn1 as established by the Supreme Court in New York v. Quarles, 467 U.S. 649 (1984). Appellant Dyson was convicted of possession of marijuana. Before trial, he moved to suppress an inculpatory statement he made to the police in response to a question about a gun that he was suspected of carrying. The trial court denied the motion on the ground that the statement was made in response to a question within the public safety exception. Dyson now challenges that ruling. We affirm.
Officers John Alioto and Jeffrey Dixon were patrolling near North Capitol and S Streets in the early morning hours of October 23, 1999. After turning east onto S Street from North Capitol Street, Alioto noticed Dyson suspiciously ducking his head behind a car. Officer Alioto told Officer Dixon first to stop the police car and then to shift it into reverse. When Dyson began walking westbound on S Street, Officer Alioto got out of the car and told him to stop. Dyson, however, dropped a crumpled-up paper bag in the tree box area between the curb and the sidewalk, and then started to run. After taking note of where the bag landed, Alioto began to chase Dyson.
Dyson crossed North Capitol Street at S Street, ran north on North Capitol Street for one block, turned left on Seaton Place, and then turned right (north again) into the first alley off Seaton. During the chase, Officer Alioto saw Dyson "tugging at his waistband," which caused the officer to suspect that Dyson had a gun. Officer Alioto also stated that he thought he "saw the butt of a handle of a gun." *fn2 He broadcast his suspicions about the gun over the police radio while he continued to chase Dyson.
When Dyson turned into the alley, Officer Alioto lost sight of him. He sealed off the alley and began to search it. Dyson, who was hiding in the alley, attempted to escape by running back out, but was apprehended by Officer Dixon. *fn3 Dyson was immediately searched, but no gun was found. Other officers, including a canine unit, then cordoned off the alley and began to look for the gun that Officer Alioto suspected Dyson of possessing.
While the other officers were searching the alley, Officers Dixon and Alioto went back to S Street to retrieve the paper bag that Dyson had dropped. They found the bag in the same spot where it had fallen, and inside it they discovered six blue ziplock bags of what was later determined to be marijuana. Officers Dixon and Alioto then returned to the alley where Dyson had been arrested. Officer Alioto approached Dyson, who was seated in the transport vehicle, and asked him where the gun was. Alioto said, "If there's a gun, we need to find it, so no little kids get it and hurt themselves." Dyson responded, "That was my weed, but I don't have a gun." At that point Dyson had not been read his Miranda rights.
Just before trial, Dyson made an oral motion to suppress his statement. *fn4 At the suggestion of defense counsel, the court agreed to begin the trial and make a ruling on the motion after hearing the testimony of Officer Alioto instead of holding a separate suppression hearing. After Alioto testified, the court ruled that, although Dyson was in custody at the time he was asked about the gun, his response was admissible under the "very narrow" public safety exception described in New York v. Quarles. The court found that Officer Alioto had a good faith belief that Dyson had a gun and that he had a reasonable basis for that belief. The court noted its concern about "whether the officer's belief that there's a gun has to be based on stronger objective evidence, either direct or circumstantial," but nevertheless concluded:
[T]he frequency of the coincidence of guns and drugs, coupled with Officer Alioto's observations as Mr. Dyson was running and his good-faith reasonable belief that Mr. Dyson might be concealing a gun as he ran, are sufficient, in my view, to permit at least one question and one direct question about the gun.
The court therefore denied the motion to suppress the statement ...