                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1000
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RYAN MARK PESKA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Mark D. Cleve,

Judge.



      The defendant appeals his conviction for possession of a firearm,

contending the district court erred in denying his motion to suppress statements

allegedly obtained in violation of the defendant’s Miranda rights. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

      Clinton police officers responded to the Peska home shortly after midnight

on the morning of April 4, 2015, in response to a call that Ryan Peska was

suicidal and may have possession of a firearm. The responding officers secured

the scene and placed a largely-compliant Peska in custody.         Peska’s wife

explained to the officers what happened that evening and directed the officers to

a handgun hidden in the vent of the Peskas’ bedroom. Officer Ottens decided to

transport Peska to the hospital for examination and commitment because of

concerns for Peska’s mental health. Officer Ottens transported Peska to the

hospital and supervised Peska for approximately one hour until Peska could be

examined by a physician and, potentially, committed. During the time Ottens

was with Peska, Peska stated the handgun was his and he did not feel safe

without it. Peska was charged, tried, and convicted of having possession or

control of a firearm or offensive weapon as a felon, in violation of Iowa Code

section 724.26(1) (2013). The strongest evidence at trial was Officer Ottens’

testimony that Peska admitted ownership and possession of the gun.

      On appeal, Peska contends the district court erred in denying his motion

to suppress the statements Peska made to Ottens allegedly obtained in violation

of Peska’s rights under Miranda v. Arizona, 384 U.S. 436, 444 (1966).        We

review do novo the ruling on the motion to suppress. See State v. Tyler, 867

N.W.2d 136, 152 (Iowa 2015). We make “an independent evaluation of the

totality of the circumstances as shown by the entire record, considering both the

evidence introduced at the suppression hearing as well as the evidence

introduced at trial.” Id. (marks and citations omitted). We give deference to the
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district court’s findings of fact, but we are not bound by them. See State v.

Palmer, 791 N.W.2d 840, 844 (Iowa 2010). “When the alleged error concerns

the erroneous admission of evidence in violation of a defendant’s constitutional

rights, such error is typically subject to harmless-error analysis.”     Tyler, 867

N.W.2d at 153.

        The general rule is that statements made while a defendant is subject to

custodial interrogation are inadmissible in the absence of the defendant being

advised of his Miranda rights and waiving the same. See State v. Davis, 446

N.W.2d 785, 788 (Iowa1989) (“A Miranda inquiry is not triggered, however,

unless there is both custody and interrogation.”).      Custodial interrogation is

“questioning initiated by law enforcement officers after a person has been taken

into custody or otherwise deprived of his freedom of action in any significant

way.”   Miranda, 384 U.S. at 444.      “The Miranda safeguards come into play

whenever a person in custody is subjected to either express questioning or its

functional equivalent.”   Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).

Interrogation encompasses “any words or actions on the part of the police (other

than those normally attendant to arrest and custody) that the police should know

are reasonably likely to elicit an incriminating response from the subject.” Id. at

301.

        The State concedes the defendant was in custody when the statements

were made.       The disputed issue is whether the defendant was subject to

interrogation. Officer Ottens testified he transported Peska to the hospital for the

purpose of seeking mental health treatment for Peska. His intention was to keep

Peska calm until Peska could be examined by a doctor. During the course of
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Officer Ottens’ supervision of Peska, Peska did most of the speaking. Peska

discussed the personal troubles he was facing that precipitated the events of that

evening. He spoke about his military service and post traumatic stress disorder.

And he also made a statement regarding his ownership and possession of the

gun. Ottens testified he did not ask any questions about the night in question,

whether Peska owned the gun, or any other questions designed to elicit

incriminating information from Peska. Officer Ottens was adamant he mainly

listened to Peska for the purpose of keeping Peska calm so Peska could receive

medical assistance. Officer Ottens’ testimony regarding his supervision of Peska

is largely undisputed. Peska testified at trial but not the suppression hearing.

There is nothing in Peska’s testimony from which it could be inferred Ottens

interrogated Peska.     Peska testified Officer Ottens told him they were at the

hospital for the purposes of seeking mental health treatment.

       On de novo review, we conclude Officer Ottens did not subject Peska to

“interrogation” within the meaning of Miranda doctrine. It seems undisputed the

officer merely listened to Peska to keep Peska calm while waiting for medical

treatment and made no attempt to elicit incriminating information.       See, e.g.,

State v. Betances, 828 A.2d 1248, 1257 (Conn. 2003) (“[T]he public safety

exception applies to individual members of the public, including defendants, as

well as to the public at large. . . .[W]hen a life is in danger, the law should make

no distinctions.” (citation omitted)).
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      For the foregoing reasons, we conclude the district court did not err in

denying Peska’s motion to suppress evidence. The defendant’s conviction is

affirmed.

            AFFIRMED.
