Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.

GERALD LORENZO ANDERSON
                                           OPINION BY
v.   Record No. 090738           JUSTICE LAWRENCE L. KOONTZ, JR.
                                        January 15, 2010
COMMONWEALTH OF VIRGINIA

              FROM THE COURT OF APPEALS OF VIRGINIA

      In this appeal, we consider the denial of a defendant’s

motion to suppress the statements he made to the police before

and after being advised of his rights under Miranda v.

Arizona, 384 U.S. 436, 474-75 (1966).   The principal issue we

consider is whether the public safety exception to the Miranda

rule, recognized in New York v. Quarles, 467 U.S. 649, 658-59

(1984), applies under the particular circumstances of this

case to the defendant’s response to a police officer’s

question whether a gun was loaded.

                           BACKGROUND

      The material facts are not in dispute.   On January 31,

2007, Officer Dean Waite of the Richmond City Police

Department was working off-duty at a private apartment

complex.   The apartment complex employed Officer Waite to

enforce its “no trespassing” policy to ensure that only

residents and those who have reason to be on the property are

present.   Officer Waite was dressed in his police uniform,

wearing a police badge, and carrying a weapon.
        At approximately 4:00 p.m., while patrolling the

apartment complex in his police vehicle, Officer Waite saw

Gerald Lorenzo Anderson standing near an automobile with a

woman inside it.    Because he did not recognize Anderson or the

woman as residents of the apartment complex, Officer Waite

approached the automobile to investigate a possible trespass.

        As Officer Waite drove near, Anderson walked away from

the automobile.    When Officer Waite exited his vehicle,

Anderson looked at him.    Officer Waite said to Anderson,

“[S]ir, I need to talk to you.”       Anderson continued to walk

away from him.    After Anderson looked back a second time,

Officer Waite said to him, “[D]on’t do it.”      At that point,

Anderson “took off running.”

        Officer Waite gave chase and yelled two times, “[P]olice,

stop.”    Anderson fell twice during the chase.    After the

second fall, Anderson stood up, turned and faced Officer

Waite, and put his left hand in the left front pocket of his

pants.    Anderson then threw a “silverish, grayish object,”

hitting a tree behind him and landing about five or six feet

away.

        Anderson lay down on his back, and at Officer Waite’s

direction, rolled over on his stomach.      As he was on top of

Anderson handcuffing him, Officer Waite looked over to where

the object had landed and saw a “silverish, gray revolver.”


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Officer Waite rolled Anderson over, brushed the grass off of

him, “leaned over,” and asked, “Is it loaded?”   Anderson

replied, “[Y]eah, there can be one in it.”

     Officer Waite retrieved the gun, a .38 caliber revolver,

and put it in his pocket without unloading it.   Officer Waite

then walked Anderson back to his vehicle.    As they approached

the vehicle, Officer Waite’s “backup” officer, Officer Jason

Reece, arrived.   Officer Waite handed the gun to Officer

Reece, who unloaded it.

     Officer Reece conducted a computer background check to

determine whether the gun was stolen and whether Anderson was

a convicted felon.    After learning that Anderson was a

convicted felon, Officer Waite arrested him and advised him of

his Miranda rights.    Officer Waite then asked Anderson where

he got the gun.   Anderson replied that he had been shot at two

weeks prior and that he obtained the gun from his uncle for

protection.

     Anderson was indicted for possession of a firearm by a

convicted felon in violation of Code § 18.2-308.2.   Anderson

subsequently filed a motion to suppress the statements he made

about the gun.    At the suppression hearing, Anderson argued

that his initial statement about the gun was obtained in

violation of the Fifth Amendment because he was “in custody”

and interrogated without first being advised of his Miranda


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rights.   Anderson also argued that, pursuant to Missouri v.

Seibert, 542 U.S. 600, 615-16 (2004), his subsequent

statements about the gun should also be excluded.

     The trial court denied the motion to suppress, finding

that when Officer Waite handcuffed Anderson, he was in

“investigatory detention,” not custody, and therefore,

Anderson’s initial statement that the gun was loaded was not

obtained in violation of the Fifth Amendment.   The court

further found that Anderson’s subsequent statements about his

possession of the gun were not illegally obtained because

Anderson was advised of his Miranda rights prior to giving

those statements.

     On motion to rehear the suppression issue, Anderson again

asserted that he was “in custody” for purposes of Miranda at

the time he answered Officer Waite’s question about whether

the gun was loaded.   Accordingly, pursuant to Seibert, he

maintained that his statements made both before and after he

was given the Miranda warnings should be suppressed.     Anderson

also asserted that the public safety exception to the Miranda

rule recognized in Quarles did not apply to this case because

Officer Waite knew the location of the gun and should have

assumed that it was loaded.

     The trial court denied relief under Anderson’s motion to

rehear, ruling that the first statement “comes in” under the


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public safety exception to the Miranda rule.       Additionally,

the court found that because Anderson had been advised of his

Miranda rights, his second statements about the gun “come[] in

as well.”

     Anderson entered a conditional guilty plea, reserving his

right to appeal the denial of his motion to suppress.          See

Code § 19.2-254.    The trial court accepted Anderson’s plea,

found him guilty of possession of a firearm by a convicted

felon in violation of Code § 18.2-308.2, and sentenced him to

four years imprisonment with two years suspended.

     The Court of Appeals, in an unpublished opinion,

affirmed the trial court’s denial of Anderson’s motion to

suppress.     Anderson v. Commonwealth, Record No. 2182-07-

2, slip op. at 6 (Mar. 17, 2009).       The Court concluded

that it need not decide whether Anderson was “in custody”

for purposes of Miranda.     Instead, the Court held that

the public safety exception to the Miranda rule

recognized in Quarles permitted admission of Anderson’s

response to Officer Waite’s question of whether the gun

was loaded.     Id., slip op. at 3-4.    The Court also held

that, because Miranda warnings were not required prior to

Officer Waite’s initial question about the gun, “the

failure to give them could not taint the statements

[Anderson] made after [he] received the warnings.”       Id.,


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slip op. at 5.   Accordingly, the Court affirmed

Anderson’s conviction.     We awarded Anderson this appeal.

                           DISCUSSION

     The applicable standard of appellate review is well

established.   When reviewing a trial court’s denial of a

defendant’s motion to suppress, we review the evidence in the

light most favorable to the Commonwealth, according it the

benefit of all reasonable inferences fairly deducible from the

evidence.   Hasan v. Commonwealth, 276 Va. 674, 679, 667 S.E.2d

568, 571 (2008).    The defendant bears the burden of

establishing that the denial of his suppression motion was

reversible error.    Id.

     The Fifth Amendment to the United States Constitution

guarantees that “[no] person . . . shall be compelled in any

criminal case to be a witness against himself.”     In Miranda,

the United States Supreme Court extended the Fifth Amendment

privilege against self-incrimination to individuals subjected

to custodial interrogation by the police.     384 U.S. at 478-79.

“Under Miranda, before a suspect in police custody may be

questioned by law enforcement officers, the suspect must be

warned that he has a right to remain silent, that any

statement he makes may be used as evidence against him, and

that he has a right to have an attorney, either retained or

appointed, present to assist him.”      Dixon v. Commonwealth, 270


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Va. 34, 39, 613 S.E.2d 398, 400 (2005).          The failure to give

Miranda warnings prior to custodial interrogation violates an

individual’s constitutional rights under the Fifth Amendment;

therefore, “[s]tatements obtained by law enforcement officers

in violation of [the Miranda] rule generally will be subject

to exclusion for most proof purposes in a criminal trial.”

Id.    One “narrow exception” to the Miranda rule, however, is

the public safety exception.     Quarles, 467 U.S. at 658.

       In Quarles, a woman reported to police that a man with a

gun had raped her and entered a grocery store.          Id. at 651-52.

Officers located the man in the store and, while frisking him,

discovered that he wore an empty shoulder holster.          Id. at

652.   After handcuffing the man, and without giving him

Miranda warnings, an officer asked him where the gun was

located.    Id.   The man nodded toward some empty cartons and

responded, “the gun is over there.”        Id.

       The United States Supreme Court held “that on these facts

there is a ‘public safety’ exception to the requirement that

Miranda warnings be given before a suspect’s answers may be

admitted into evidence.”     Id. at 655.    The Court recognized

that the “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




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against self-incrimination.”   Id. at 657.   As the Court

explained:

     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 Court also noted that this “exception does

not depend upon the motivation of the individual officers

involved,” but rather an officer’s “objectively reasonable

need to protect the police or the public from any immediate

danger associated with [a] weapon.”   Id. at 656, 659 n.8.

     Anderson contends that both the circuit court and the

Court of Appeals overextended the public safety exception to

the Miranda rule by permitting the admission in evidence his

response to Officer Waite’s question of whether the gun was

loaded.   According to Anderson, the public safety exception

applies to questions where there is a need to determine the

location of a gun, not to determine whether a gun is loaded.

Because Officer Waite knew the location of the gun, Anderson

contends that Officer Waite did not have an “objectively

reasonable need” to know whether the gun was loaded in order

to protect the public or himself.   Finally, Anderson contends



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that his statements regarding how and why he obtained the gun,

made after being given Miranda warnings, should have been

suppressed because they were derivative of the statement he

made about the gun without the benefit of Miranda warnings.

     The Commonwealth responds that Anderson was not “in

custody” at the time Officer Waite asked him whether the gun

was loaded and, therefore, Miranda warnings were not required.

Nevertheless, the Commonwealth asserts that even if Anderson

were “in custody,” the public safety exception to the Miranda

rule applies.   In either event, the Commonwealth maintains

that Anderson’s subsequent statements made after he received

the Miranda warnings, should not be suppressed.

     Assuming, without deciding, that Anderson was “in

custody” when Officer Waite asked him whether the gun was

loaded, we hold that Officer Waite’s question was “objectively

reasonable” to protect the public and himself from the danger

associated with the gun and, thus, the public safety exception

to the Miranda rule applies.   We recognize that the

“prototypical example” for application of the public safety

exception is the situation, as in Quarles, of a missing

weapon.   See United States v. Day, 590 F. Supp. 2d 796, 804

(E.D. Va. 2008).   Nonetheless, nothing in Quarles, limits the

application of the public safety exception to questions about

the location of a missing weapon.   Rather, we are of opinion


                                9
that the application of the public safety exception is to be

determined by the particular circumstances surrounding the

need for a police officer to ask questions to protect the

safety of the public and the officer.

       As the United States Supreme Court stated:

       The exception will not be difficult for police
       officers to apply because in each case it will be
       circumscribed by the exigency which justifies it.
       We think police officers can and will distinguish
       almost instinctively between questions necessary to
       secure their own safety or the safety of the public
       and questions designed solely to elicit testimonial
       evidence from a suspect.

Quarles, 467 U.S. at 658-59.    “The facts of this case clearly

demonstrate that distinction and an officer’s ability to

recognize it.”    Id. at 659.   Officer Waite secured Anderson

some distance from any backup support.    Meanwhile, the gun lay

five to six feet away, in a public area during the afternoon,

with the danger that if loaded someone “might later come upon

it.”    Id. at 657.   These circumstances do not suggest that

Officer Waite asked Anderson whether the gun was loaded in

order to “elicit testimonial evidence.”    Rather, these

circumstances suggest that an “objectively reasonable” police

officer in Officer Waite’s position would “instinctively” need

to know whether the gun was loaded in order to determine how

quickly to retrieve the gun and “neutralize the volatile

situation confronting [him].”     Id. at 658-59 n.8.   It was only



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after arresting Anderson and advising him of his Miranda

rights that Officer Waite continued with investigatory

questions about Anderson’s possession of the gun.

     Thus, we conclude that the public safety exception to the

Miranda rule permitted the admission of Anderson’s response to

Officer Waite’s question whether the gun was loaded.

Furthermore, because Miranda warnings were not required under

the public safety exception, we conclude that the failure to

administer them did not taint Anderson’s subsequent statements

after he was advised of his Miranda rights.   Accordingly, the

Court of Appeals did not err in upholding the circuit court’s

denial of Anderson’s motion to suppress any of his statements

to the police.

                           CONCLUSION

     For these reasons, we will affirm the judgment of the

Court of Appeals upholding the circuit court’s denial of

Anderson’s motion to suppress his statements to the police and

affirming his conviction for a violation of Code § 18.2-308.2. ∗

                                                         Affirmed.




     ∗
      In light of our resolution of this appeal on the public
safety exception issue, we need not address the remaining
issues raised.

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