*1 H09 FLEMING, Petitioner- Freddie Joe
Appellant, Director, COLLINS, Texas De A.
James Justice, Institu partment of Criminal Division, Respondent-Appellee.
tional 88-1334.
No. Fleming, pro se. Freddie Joe Appeals, Bozarth, Gen., Atty. States Court Jim United Asst. S. Michael Gen., Austin, Tex., Circuit. Mattox, Fifth for re- Atty. spondent-appellee. 6, 1992. March BROWN, CLARK, Judge,1
Before Chief WILLIAMS, GARWOOD, POLITZ, KING, HIGGINBOTHAM, DAVIS, JOLLY, SMITH, DUHÉ, WIENER, JONES, GARZA, EMILIO M. BARKSDALE and Judges.2 Circuit JONES, Judge: EDITH H. Circuit corpus case this habeas We voted state public explore the reach en banc to prophylac- safety exception to Miranda’s3 rights. amendment protecting fifth tic rules 104 York v. New (1984). Dis- 550 81 L.Ed.2d S.Ct. apply majority, we agreeing panel with case and safety exception denial of Flem- court’s affirm the district corpus.4 of habeas ing’s petition for writ I. FACTS men, 20, 1979, includ- three February On State the Buckner ing Fleming, entered appar- Dallas, pistols, armed Bank attempt it. Their intending to ently rob security efforts foiled the heroic who, being pistol after Hider guard Hubert head, managed to knock whipped about the of the felons of one gun out of the hand Arizona, S.Ct. U.S. 86 Judge Miranda v. Chief 3. opinion This was concurred 1. (1966). 16 L.Ed.2d resignation from the Court on prior Clark to his January 1992. alleged grounds for Fleming raised two appeal. original brief on in his habeas relief DeMoss, 2.Judge Jr. was sworn R. Harold The en issues. panel those did not consider argued the En Banc Court after this case those non-en remands court herewith banc bancworthy participate en banc in this not to resolu- and elected for final issues Fleming’s case. decision. tion of *2 Q: location was that? And what weapon. were his own Shots and retrieve the assailants fled Hider. As fired at Bank at 3600 The Buckner State A: bank, Fleming, con- but Hider Buckner. North a used car dealer- running toward tinued partner you, or Q: you have a Did away. ship a block squad you your car? were alone working at the dealer- Adams was Don partner. A: I had a of his Fleming crossed the front ship when you got to the Buckner State Q: When gunshot, that it heard a saw Adams lot. call, your you did no- Bank to answer Fleming, and saw the hit seemed to have going anything unusual on there? tice guards in a commotion. security bank A: I never made the bank. stop Adams’s at Fleming refused Q: something stop you be- Did unusual going into the medi- kept on command and you got to the Buckner State fore retreat, road, looking for a safe Bank? jumped into his He Adams followed. Yes, ma’am. A: truck, pistol was a loaded wrecker where Q: that have been? What would nearby in a stored, Fleming off and cut Adams, standing beside the wrecker field. Buckner, In of North A: the 3500 block pinned Fleming brandishing pistol, his field, men in a and one there were two ground. kneeling on the hand, pistol in of them had a one was over on the the other bent frieze riveted the attention This dramatic ground on his knees. Montgomery police officers Jan of Dallas partner driving Q: Okay. you your Did and Valerie Dentherio in the field? approach to its silent the two men the bank toward alarm, triggered a few minutes earlier. Yes, ma’am, we did. A: the bank and did not They never reached time, Q: you any have con- At that did gone off whether the alarm then know with either of the men? versation in error. A: both of the men. With described What followed can best be Q: Okay. you your pistol have Did testimony at Montgomery’s Officer drawn? hearing.5 suppression Yes, ma’am, did. A: we you man Q: Okay, and did order the EXAMINATION DIRECT standing there with a who was BY MS. LUDWICK: ground to pointed at the one on the name, Q: please. your State drop gun? Montgomery. A: Jan Yes, A: we did. Q: Montgomery, I notice that Ms. Q: you Did later determine that you’re wearing a uniform of the Dallas not a robber? a witness and bank long have Department. Police How Yes, did. we you with the Dallas Police De- been the bank Q: later determine partment? the one who was on robber years August.
A: Nine ground? Q: duty on around 1:15 in the Were ma’am, Yes, we did. February the 20th of afternoon you to Q: long did it take About how 1979? figure that out? ma’am, Yes, was. minutes. to three A: About two time, did receive a About that go to a silent alarm location? figured call out you finally And when the man on Yes, ma’am, the bank robber was I did. testimony. Montgomery’s quoted panel opinion excerpts trial testimony, is consistent with the above- which
HH object leading, Your under MR. BERG: you place him ground, Honor. arrest? Ludwick) Q: (By say any- Did he Ms. did. we anybody thing about whether or not the man was on time that At the *3 shot or shots had been fired been drop, to so you and ground at the bank? guy in front of speak, on said, him,” robber, “I A: Yes. He did not shoot as well as bank
wrecker any- referring guard. to the ground say on the the man did thing? within, say, Q: Okay. Did all this occur you of the time that Yes, three minutes he did. A: placed him arrived on the scene and say? he Q: did What arrest? under said, I’m shot.” “I’m shot. A: He A: In minutes from the time we three any- you Did tell him to do Q: Okay. thirty got the call. We were seconds thing? up from the call when we came on the up put him to his hands I told A: Yes. men in the field. he I tell whether in the air. couldn’t Q: happened incredibly it all fast? So I know who he was. armed. didn’t was A: Yes. up, put him his hands And so I told said, I’m Q: you talking “I can’t. I’m shot. At the time that were he shot, you if he the man didn’t know shot.” or the robber was a bank robber bank out a you check that Q: Okay. Did guy or what? was the with little further? if were con- A: I didn’t even know finally raised or ma’am. He A: robbery. nected to the bank and I left arm attempted to raise his he weapons Q: him for he told search down Until did guard he did have a hole—I at the bank? shot determined just jacket hole in his could see the Right. He had shot. his elbow. been above cross-examination, Montgom- Officer On Q: put him to his After instructed give not ery acknowledged that she did else to up, you say anything hands warnings until after she Fleming Miranda him? he was connected determined that him, you?” be- I “Who shot asked explained again her robbery. She bank if it the man I didn’t know was cause Fleming: questioning for reason gun. I didn't know who he holding the him, you?” be- “Who was with I asked said, “The man anything and he was or more if there was cause we didn’t know at the bank.” and I didn’t want people involved the bank said that the man at He back, to a were close in the and we him? had shot buildings a half a block about row of Yes. bank, if there and I didn’t know from running loose around anything else? more of them you ask him was him, what, I “Who was and asked or questions. I asked him several said, alone,” and “I was and he you?” said, you?” And he “Who was with him his name. I asked then said, alone,” “I and I asked me, “Johnny Ray name and he told
his not acknowledged that She gave us. the name he Powers” was time she arrived from the free to leave Q: Okay. if he know “I didn’t the scene because I don’t or what and [Fleming] was a victim gun?” I asked “Where figure out away until anybody get said, he let dropped “I it.” And and he an of a crime or they are a victim get any money,” and whether “I didn’t foregoing testi- on the in it.” Based minutes actor couple the first of
that was
Flem-
admitted
trial court
mony, the state
conversation—
II. DISCUSSION
part
as
incriminating statements
ing’s
gestae.
the res
designed
pro-
warnings were
Miranda
rights
fifth amendment
tect an individual’s
two
trial,
Adams testified that
Don
At
interrogation by law en-
during custodial
him and
approached
police officers
female
suspect
They advise a
officers.
forcement
drawn, told him to
guns
quarry with
to have
rights to remain silent and
of his
Fleming. He
frisked
drop
incriminating
any
attorney
and that
continued:
against him. That
may
used
statement
be
away
from
far
How
custody”
“in
here and that at
Fleming was
officer,
from
and the
Montgomery’s ques-
least some Officer
officer?
lady police
interrogation
tions could be described
*4
are not contested.6
him
Well,
I wasn’t far from
at first
ground,
him
the
but
I had
when
recognized,
has
how-
Supreme
they
up
they
up,
drove
drove
when
ever,
narrow, exigent
certain
situa-
separated
kind of
pretty fast and
exception
an
to the otherwise
tions demand
off
us and I kind of backed
require-
the two of
rigorously enforced Miranda
drop
exigency
she told me to
dubbed the
a little bit and then
ments.7 The
ap-
my
“public safety exception” and was
I
and held
hands
my gun and did
Quarles, supra.
v.
proved
New York
her that I was not with
up and I told
rationale, analogous
jus-
to the
The Court’s
up
me
anyway, she made
back
but
exigent
ex-
tification for an
circumstances
again.
ception
fourth amendment warrant
lady police officer?
The dark-headed
3,
Quarles,
654 n.
requirement,
far from here—
Right.
I was as
3,
simple
compel-
104
2630 n.
is
and
S.Ct.
foot,
twenty
guess.
I
ling:
your identification
show her
the need for answers
We conclude that
identify yourself
posing
to her?
in a situation
a
questions
or
outweighs
public safety
the
the
threat to
myself.
I
I
I didn’t touch
did.
protecting
prophylactic
rule
need for
just told her who was.
against
privilege
the Fifth Amendment’s
Q: Okay.
get
didn’t
arrested out
You
place
We decline to
self-incrimination.
there,
you?
in the un-
such as Officer Kraft
officers
going
consider,
I was afraid was
having to
position
tenable
seconds, whether it
killed.
in a matter of
often
society for them to ask
best serves
long you
Do
recall about how
questions
the Mi-
necessary
without
out there
the field before
warnings and render whatever
randa
go
left to
somewhere else with
two
they uncover inadmis-
probative evidence
Fleming?
lady police officers and
sible,
give
warnings
or
them to
for
Goodness, I don’t know. There was
admissibility
of evi-
preserve
order to
at a
many people
so
around—time was
possibly
they might uncover but
dence
loss.
ability to obtain
damage
destroy their
or
and neutralize the volatile
that evidence
Montgomery later confirmed that
Officer
confronting them.
situation
In her
Fleming’s gun was never found.
Quarles exemplify
its hold-
testimony,
trial
she said that
situation
The facts of
had
by a
that she
confusing.
ing.
Informed
woman
very
526,
ration,”
Thieret,
colloquy
v.
903 F.2d
531-
be-
Andersen
6.
cases have dissected the
Some
cases).
(7th Cir.1990)
argu
(citing
No such
concluding
32
suspect
police,
tween a
us.
ments were made before
"interroga-
questions
identification-type
are not
Miranda,
Edwards,
v.
tion" under
United States
— U.S. —,
See,
(7th Cir.1989),
e.g.,
Mississippi,
nor are
F.2d
384-86
Minnick
(1990).
"clarify” "puzzling
1H3
assailant, carrying
raped
fully
and her
had been
just been
subdued and handcuffed
supermarket,
before the officer asked
gun,
nearby
had entered a
where he
Moreover,
gun.
thrown his
gave pursuit.
just
Inside the
officers
Quarles rested on the
store,
necessity for the
them saw
who
one of
officers to determine where a
gun
loaded
description.
matched
victim’s
discarded,
prevent
in order to
its
ran,
Quarles
the officer chased him toward
falling
wrong hands,
into the
so Officer
pistol
of the store with
drawn.
the back
Montgomery
right
had the
inquire
Quarles
stop
put
The officer ordered
whether,
so, where,
and if
Fleming had
head,
his hands over his
frisked and hand-
dropped
gun.
See United States v. De
and,
holster,
finding
empty
cuffed
Santis,
(9th Cir.1989);
870 F.2d
538-39
Quarles
put
gun.
where
asked
Edwards,
United States v.
885 F.2d
Quarles
place
nodded toward the
he had
(7th Cir.1989);
Brady,
United States v.
“the
hidden a loaded
(9th Cir.1987).
819 F.2d
887-89
Supreme
over there.” As
result
decision, this statement was al-
Court’s
majority’s hindsight parsing
Quarles’
lowed in evidence at
trial.
testimony concerning
spanned
events that
less
squared
than five minutes cannot be
that a
The Court did not believe
Quarles. First,
with the intent of
a cold
safety exception to
would inter-
Miranda
*5
trial
convey
record cannot
the anxiety in
significantly
clarity
the
of that
fere
herent in this armed confrontation. Shots
Indeed,
prophylactic
majority
the
decision.
already
had
been fired and a man wounded.
exception
recog-
stated “that the
which we
Guns were drawn. For all the officers
today
necessity
nize
lessens the
of that on-
knew,
guns
might
than Adams’s
be
balancing process.”
the-scene
The Court
pointing
proper
at them.
It is
require
to
added:
police not to use excessive force amid such
exception
The
will not be difficult for
tension, for to do so saves life and limb.
police
apply
officers to
in
because
each
See,
Garner,
e.g.,
Tennessee v.
471 U.S.
by
case it will be circumscribed
the exi-
9-10,
1694, 1700,
105 S.Ct.
1H5 Q: say? What did he name and its answer proper under the public safety exception to Miranda. A: He said the man at the bank. Q: you your Did ask “Where is justification Some might doubt of be gun?” raised question about as to where Yes, A: I did. Fleming’s gun was and his Q: question? Did he answer that he had long thrown it down. But as as a Yes, A: he did. possibly reach, could be within his Q: say? he What did there danger public was immediate safe- said, “I ty. record, A: He threw it down.” Elsewhere in the the evidence Fleming shows that also Q: subject- Did ask him name what his was? patdown ed to a weapon by search for a I did. policewoman question, before the Q: say he What did his name was? your gun?” “Where is Johnny Ray Powers. ask him whether or not he The clear constitutional invasion of Flem- robbery been involved ing’s rights occurred with the next critical Buckner Bank? State question asking him whether he had been Yes, I did. robbery involved and the testimony say— replied Did he that he that he had. It is conceded parties all at that time objections leading question; [Defense under constraint. He was not free to overruled] leave. The clearly record also reveals that Q: Tell us whether or not the man who by this time there was no threat to Johnny Ray identified himself as Powers safety. ground, The man was on the told he had been involved wounded, and unarmed. This occurred in a robbery at the Buckner State Bank? vacant field per- and there were no other counsel; [Objection by defense over- except sons around the man who had ruled] chased him policewomen. down and the two Yes, he did. warnings, Without Miranda offi- your After conversation with Flem- gun pointed cer with a loaded at ing, you place him under arrest? participated asked him if he had in a bank I did. *7 robbery and elicited the that he you place What did him under arrest had. for? robbery By admitting testimony against A: For the of the Buckner this proper objection, State Bank. the court moved far be- Quarles yond exception. the narrow The questioning Prior to this by of clearly recognized, exception is but it is so policewoman, the already she had ascer- applied restricted that it has in never been standing tained that the man him over rarely this Circuit before and has even pursued a was a citizen who had any prosecu- in been considered case. The explained from the bank. That citizen had tor should never have been allowed to ask dropped gun upon his situation and had court, question in the and the court should policewoman. question- order of the That it never have allowed and its answer to be ing questions and the first asked privilege admitted. The essence of the obviously justified were under the against prohibition self-incrimination is the safety exception. police the Until knew of the use in court of confessions and ad- every what the situation was there was missions in this manner. How right explore exactly obtained what the circum- many persons of in thousands unfortunate stances were that led to the tableau that policewomen the totalitarian countries have confessed at the upon. two had come Fleming objected testimony While to all the end of the loaded barrel of a held a above, officer, police set out it is or not clear that the line of whether questioning road, through question guilty? the as to start that We must not down Quarles any opinion other deci- harmless error. The for the Court nothing in or says rely upon a harmless error claim Supreme Court we must. does not
sion the properly so. The district court erred in holding urge upon that I this Court holding This otherwise. record shows be- holding as a that must not be mistaken any prosecution yond question that the re- police.” of the The criti- “ties the hands heavily upon this admission in the trial lied not lie as much with cism in this case does implicating of this case. Other evidence prosecutor and the police as with the strong guilt fully per- was far from questioning police trial court. The state suasive. expected precise to hue constitu- cannot be questioning suspects in cir- tional lines summary, In the admission was obtained example, such as these. For cumstances gunpoint by police at a officer while questions police often ask which call for ground lying unarmed accused was on the hearsay and for that reason the answers suffering he a vacant field and because There are other rea- are not admissible. had been shot twice a few minutes before. why police questioning sons as it occurs public safety Any threat had been re- immediacy may of the arrest transcend given The accused had been no solved. the critical boundaries. is crucial is What warning any rights. kind as to his prosecutor and the court must reversed, This case should be and the testimony from the at trial those eliminate corpus granted. deeply writ of habeas questions and asked answers which were regret upheld this Court has rights. transcend constitutional which grievous reaching and far constitutional vi- Supreme shortly itself after right olation of the of a fair trial untainted Quarles opinion its inter- stated own by self-incrimination. Quarles pretation public safety of the ex- ception effectively which summarizes and only fully supports compels not
which but verity my dissenting in this view McCarty, Berkemer v. In
case. 491 n. 104 S.Ct. 3145 n. (1984),
L.Ed.2d 317 less than month after Supreme Court stated that KENNEDY, Plaintiff-Appellee, H. Willie Quarles implication decision is: suspect arrest under presenting circumstances an imminent PLAN, ELECTRICIANS PENSION danger public safety, they may al., et IBEW # Defendants- informing without him of his constitu- Appellants. essential rights questions tional ask No. 91-3158. *8 necessary elicit information to neutralize in- public. Once such the threat to the Appeals, United States Court of obtained, has been the sus- Fifth Circuit. formation pect given must be the standard warn- March added). ings (emphasis public clearly The threat
neutralized the time the admission was gunpoint. Supreme
elicited at succinctly
statement and with unusual clar-
ity articulates the law which this Court case,
erroneously apply refuses to to this Quarles.
and it is the law only possible remaining issue can be
disposed briefly. The use of this admis-
sion or confession cannot be considered