          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


STATE OF FLORIDA,

               Appellant,

 v.                                                    Case No. 5D14-2702

DAVID VINCENT MALONEY,

               Appellee.

________________________________/

Opinion filed May 13, 2016

Appeal from the Circuit Court
for Seminole County,
Marlene M. Alva, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and L. Charlene Matthews,
Assistant Attorney General, Daytona
Beach, for Appellant.

Michael H. LaFay, Orlando, for Appellee.


BERGER, J.

      The State of Florida timely appeals the trial court’s order granting David Maloney’s

motion to suppress certain statements he made to police before he was advised of his

Miranda1 rights.    Because we conclude the public safety exception to the Miranda

requirement permits the admission of Maloney’s statements, we reverse.



      1   Miranda v. Arizona, 384 U.S. 436 (1966).
       Maloney was a member of a motorcycle gang known as the Philly Warlocks. On

September 30, 2012, the Philly Warlocks were holding a poker run departing from the

parking lot of the Veterans of Foreign Wars ("VFW") hall in Winter Springs. At about

10:30 a.m., a shootout ensued between the Philly Warlocks and members of a rival gang,

the Florida Warlocks, in the parking lot of the VFW. Soon thereafter, police responded.

       Officer Bradley Dula was the first to arrive at the VFW. Once on scene, he saw

several persons spread throughout the parking lot, some of whom were severely injured

or dead.2 Officer Dula observed Maloney and another individual crouching in front of a

small truck. Officer Dula advanced on them with his service firearm and ordered them to

lay down on the ground. They complied immediately.

       Officer Dula quickly realized that the situation was of a greater magnitude than his

patrol officers could handle. He requested assistance, through dispatch, from all available

officers and sheriff's deputies in Seminole County and neighboring jurisdictions. The

dispatch request indicated that the shooting was still ongoing at the VFW.

       As more law enforcement units arrived, the scene remained chaotic. In an effort

to safely secure the scene, police handcuffed thirty to forty people, including Maloney,

and directed them to lay face down on the ground. The police also roped off the VFW

parking lot with crime-scene tape and controlled and logged access to the area.

       Maloney was initially patted down and searched by Officer Nathan Ecalbarger of

the Longwood Police Department. Officer Ecalbarger seized a .22 caliber derringer pistol

and a double-edge fish blade knife from Maloney. Officer Ecalbarger placed the derringer



       2Two members of the Florida Warlocks were found deceased in the parking lot. A
third member later died at the hospital.



                                            2
defendant before the interrogation. Miranda, 384 U.S. at 479 ("[U]nless and until such

warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained

as a result of interrogation can be used against him."); see also Elstad, 470 U.S. at 306

n.1, 307; Wright, 161 So. 3d at 447.

      Based on the totality of the circumstances, we conclude that Maloney was in

custody for the purposes of Miranda because he was restrained to the degree usually

associated with a formal arrest. See Howes v. Fields, 132 S.Ct. 1181, 1189-90, 1192

(2012); Ramirez, 739 So. 2d at 574; Monroe v. State, 148 So. 3d 850, 855 (Fla. 1st DCA

2014), remanded on other grounds, 41 Fla. L. Weekly S192, S194 n.2 (Fla. Apr. 28,

2016). Maloney was handcuffed for twelve hours; he was held under guard; he was

searched before and during the questioning; some of his property had been seized; and

he was not told he was free to leave.10 Accordingly, we reject the State’s contrary

argument on this point and focus our attention on whether the public safety exception,

established in New York v. Quarles, 467 U.S. 651 (1984), applies to this case. See State

v. Ruiz, 526 So. 2d 171, 172 n.3 (Fla. 3d DCA 1988).




      10   A determination of whether a suspect is in custody under Miranda consists of
two parts. The first part involves determining whether a reasonable person would have
felt restrained in his or her freedom of movement to the degree associated with a formal
arrest such that he or she was not free to terminate the interrogation and leave. See
Miranda, 384 U.S. at 444-45; Fields, 132 S.Ct. at 1189; Ramirez, 739 So. 2d at 573. The
second part involves deciding whether the interrogation "presents the same inherently
coercive pressures as the type of station house questioning at issue in Miranda." Fields,
132 S.Ct. at 1190; accord Johnson v. State, 800 So. 2d 275, 278 (Fla. 1st DCA 2001).
We reach only the first part of this analysis because the State waived consideration of the
second part when it did not raise it as an issue in its brief. See Doe v. Baptist Primary
Care, Inc., 177 So. 3d 669, 673 (Fla. 1st DCA 2015) (quoting Polyglycoat Corp. v, Hirsch
Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983)); see also Washburn v. State,
868 N.E.2d 594, 601 n.2 (Ind. Ct. App. 2007) (citing Dunaway v. Allstate Ins. Co., 813
N.E.2d 376, 387 (Ind. Ct. App. 2004)).

                                            7
both of the Warlocks gangs typically carried more than one weapon, Sgt. Heath asked

Maloney if he had any additional weapons that fit his empty holster. 5 Maloney told Sgt.

Heath that he also had a .380 caliber Ruger pistol and gestured his head towards the

area of the parking lot where he had dropped it during the shooting. Sgt. Heath testified

that Maloney was not placed under arrest and, consequently, was not advised of his

Miranda rights during this interaction. According to Sgt. Heath, he did not yet know

whether Maloney was a victim or a suspect.

      Maloney was held, in handcuffs, as an investigative detainee for approximately

twelve hours. During that time, Maloney was uncuffed only for brief periods to drink water

and participate in a gunshot residue test. Over the course of the day, the police narrowed

their investigation from the group initially detained down to six persons, including

Maloney. As the investigation progressed, all of the detainees were released except

Maloney6 and three others, who were later arrested and charged early the next morning.7

      Prior to trial, Maloney filed a motion to suppress, among other things, the

statements he made regarding his ownership of the .22 caliber derringer and the knife.8




      5  Another detainee that Sgt. Heath searched that day had a hidden .380 caliber
firearm on his person that was missed during a previous search.

      6  Maloney was not read his Miranda rights until about 10 p.m. when police formally
interviewed him about the shooting.

      7 Maloney was charged with three counts of second degree murder and two counts
of attempted first degree premeditated murder. He was acquitted of the second degree
murder charges and all but one charge of attempted first degree murder on which the jury
could not reach a verdict. The state seeks to retry Maloney on the remaining count of
attempted first degree murder.

      8 The motion to suppress did not specifically seek to suppress the .380 caliber
Ruger pistol, but it sought to suppress the fruits of the previous search, the .22 caliber

                                            4
He argued these statements were elicited in response to custodial interrogation without

having first been advised of his Miranda rights. The trial court agreed and suppressed

the statements. The State moved for reconsideration on the ground that the police were

not required to give Maloney Miranda warnings based on the public safety exception

established in New York v. Quarles, 467 U.S. 649 (1984). The trial court denied the

motion,9 concluding:

             [A]t the point where the Defendant was interrogated by
             Sergeant Heath regarding the empty holster, the exigency
             had largely dissipated. Approximately 30 minutes had passed
             since law enforcement had responded and all 30-40 people
             on scene had been secured, searched, and disarmed. . . .
             While it is certainly possible that the Defendant's gun had
             been tossed aside and not recovered, that theoretical
             possibility does not justify an expansion of the public safety
             exception. . . . In the instant case, the crime scene perimeter
             had been secured and everyone had been placed in custody,
             separated, and presumably disarmed. There was no longer
             any exigency that would justify this pre-Miranda questioning.
             Thus, this Court finds that the question regarding the holster
             was asked solely to elicit testimonial evidence from the
             Defendant, and was not justified by an immediate concern for
             public safety.

      The State raises two arguments on appeal. First, the State contends that Maloney

was not in custody when Sgt. Heath questioned him. Second, the State submits that Sgt.

Heath's questions were intended to elicit responses that would locate an unaccounted-

for firearm, which was an imminent threat, in order to protect both the officers on the

scene and the public. Maloney counters that the trial court was correct in ruling that he



derringer pistol and the empty holster, which led Sgt. Heath to ask Maloney if he had
another weapon.

      9 Initially the trial court also suppressed the .380 caliber Ruger pistol, but upon
reconsideration it reversed its position, concluding police would have inevitably
discovered it without Maloney's statement to Sgt. Heath.

                                           5
was in custody when Sgt. Heath questioned him and that any exigency or emergency

arising from the shootout dissipated because the scene was secured in the thirty minutes

between the time Officer Dula arrived and detained Maloney and when Sgt. Heath

questioned Maloney about his empty holster.

       Under the Florida and United States Constitutions, each person is provided with

the fundamental right of protection against being compelled to become a witness against

himself or herself in criminal cases. U.S. Const. amend. V; art. I, § 9, Fla. Const.; Ramirez

v. State, 739 So. 2d 568, 572-73 (Fla. 1999); Wright v. State, 161 So. 3d 442, 447 (Fla.

5th DCA 2014). In Miranda v. Arizona, the United States Supreme Court held that, under

the Fifth Amendment to the United States Constitution, "the prosecution may not use

statements, whether exculpatory or inculpatory, stemming from custodial interrogation of

the defendant unless it demonstrates the use of procedural safeguards effective to secure

the privilege against self-incrimination."       384 U.S. 436, 444 (1966).       Procedural

safeguards include a warning that the person "has a right to remain silent, that any

statement he does make may be used as evidence against him, and that he has a right

to the presence of an attorney, either retained or appointed." Id. at 444, 457, 467-68.

The person must also be advised that he or she may request that an attorney be

appointed if the person cannot afford to retain an attorney. Id. at 479. It is undisputed

that Maloney was not given the Miranda warnings prior to making the admissions at issue.

       A Miranda violation gives rise to a presumption of coercion that "is irrebuttable for

the purposes of the State's case in chief." Wright, 161 So. 3d at 447 (citing Oregon v.

Elstad, 470 U.S. 298, 307 (1985)). Evidence obtained from custodial interrogations may

not be used against a defendant at trial if these warnings were not provided to the




                                             6
defendant before the interrogation. Miranda, 384 U.S. at 479 ("[U]nless and until such

warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained

as a result of interrogation can be used against him."); see also Elstad, 470 U.S. at 306

n.1, 307; Wright, 161 So. 3d at 447.

      Based on the totality of the circumstances, we conclude that Maloney was in

custody for the purposes of Miranda because he was restrained to the degree usually

associated with a formal arrest. See Howes v. Fields, 132 S.Ct. 1181, 1189-90, 1192

(2012); Ramirez, 739 So. 2d at 574; Monroe v. State, 148 So. 3d 850, 855 (Fla. 1st DCA

2014), remanded on other grounds, 41 Fla. L. Weekly S192, S194 n.2 (Fla. Apr. 28,

2016). Maloney was handcuffed for twelve hours; he was held under guard; he was

searched before and during the questioning; some of his property had been seized; and

he was not told he was free to leave.10 Accordingly, we reject the State’s contrary

argument on this point and focus our attention on whether the public safety exception,

established in New York v. Quarles, 467 U.S. 651 (1984), applies to this case. See State

v. Ruiz, 526 So. 2d 171, 172 n.3 (Fla. 3d DCA 1988).




      10   A determination of whether a suspect is in custody under Miranda consists of
two parts. The first part involves determining whether a reasonable person would have
felt restrained in his or her freedom of movement to the degree associated with a formal
arrest such that he or she was not free to terminate the interrogation and leave. See
Miranda, 384 U.S. at 444-45; Fields, 132 S.Ct. at 1189; Ramirez, 739 So. 2d at 573. The
second part involves deciding whether the interrogation "presents the same inherently
coercive pressures as the type of station house questioning at issue in Miranda." Fields,
132 S.Ct. at 1190; accord Johnson v. State, 800 So. 2d 275, 278 (Fla. 1st DCA 2001).
We reach only the first part of this analysis because the State waived consideration of the
second part when it did not raise it as an issue in its brief. See Doe v. Baptist Primary
Care, Inc., 177 So. 3d 669, 673 (Fla. 1st DCA 2015) (quoting Polyglycoat Corp. v, Hirsch
Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983)); see also Washburn v. State,
868 N.E.2d 594, 601 n.2 (Ind. Ct. App. 2007) (citing Dunaway v. Allstate Ins. Co., 813
N.E.2d 376, 387 (Ind. Ct. App. 2004)).

                                            7
       There are limited exceptions to the requirement that law enforcement read a

suspect Miranda warnings before conducting a custodial interrogation.         One such

exception involves imminent threats to public safety. See Quarles, 467 U.S. at 651, 657

("[T]he 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

against self-incrimination."). The availability of this exception does not depend on the

individual officer’s motivation. Id. at 655-56.

       In Quarles, the Supreme Court was presented with facts similar to those we have

here. Two officers were approached by a young woman who informed them she had just

been raped at gunpoint by a man wearing a black jacket with the name "Big Ben" printed

in yellow letters on the back. The woman told the officers that the man had just walked

into a nearby supermarket with the gun. Id. at 652. One of the officers spotted the

suspect, Benjamin Quarles, as he was approaching the checkout counter. Id. Quarles

saw the officer and ran towards the rear of the store. Id. When the officer eventually

caught up to Quarles, he ordered him to stop and place his hands over his head. Id. The

officer frisked Quarles, handcuffed him, and discovered an empty shoulder holster. Id.

The officer asked Quarles where the missing gun was located, and Quarles replied that

the "gun is over there" while nodding towards its location. Id. The officer retrieved the

gun and then read Quarles his Miranda rights. Id.

       During the ensuing prosecution for illegal possession of a weapon, Quarles

successfully moved to suppress the gun, as well as his statement regarding its location,

because he was not given Miranda warnings before providing the statement. Id. at 652-

53. The Supreme Court reversed, recognizing that the missing gun presented a threat to




                                              8
the safety of the officers and to the public. Id. at 651 ("We conclude that . . . overriding

considerations of public safety justify the officer’s failure to provide Miranda warnings

before he asked questions devoted to locating the abandoned weapon.").               Justice

Rehnquist wrote:

                 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 public safety exception is "circumscribed by the exigency which justifies it."

Id. at 658. For the public safety exception to apply, the threat must be imminent. See id.

The imminence of the threat must be considered from the objective perspective of a

reasonable person in the position of the officer at the time and without the benefit of

hindsight. See State v. Alexander, 810 So. 2d 552, 558 (Fla. 5th DCA 2002) (quoting

Quarles, 467 U.S. at 655-59)); State v. Nguyen, 779 So. 2d 279, 280-81 (Fla. 2d DCA

1998); see also People v. Attebury, 624 N.W.2d 912, 913, 917-18 (Mich. 2001) ("While

the officers might have, in hindsight, mitigated the exigency by physically restraining

defendant before he was allowed to dress, their failure to do so does not alter our

analysis."). Although imminence may diminish over time, see Alexander, 810 So. 2d at

558, the public safety exception can still apply over an hour after an arrest or detention if

a gun is missing. See United States v. Ferguson, 702 F.3d 89, 95 (2d Cir. 2012); Allen

v. Roe, 305 F.3d 1046, 1051 (9th Cir. 2002) (citing United States v. Brady, 819 F.2d 884,




                                               9
888 (9th Cir. 1987)); Commonwealth v. Dillon D., 863 N.E.2d 1287, 1289-90 (Mass.

2007); State v. Smith, 86 A.3d 524, 526, 529-30 (Conn. App. Ct. 2014).

       Here, the trial court declined to apply the public safety exception, holding that the

exigency that would have existed to justify the application of the exception when Officer

Dula first responded had dissipated over time because law enforcement had secured the

scene by the time Sgt. Heath questioned Maloney. Relying on the decision of the United

States Court of Appeals for the Fourth Circuit in United States v. Mobley, 40 F.3d 688,

693 (4th Cir. 1994), Maloney argues that this factual finding precludes the application of

the public safety exception. We disagree.

       Mobley is easily distinguished as no danger to public safety was present in that

case. Mobley was encountered naked and unarmed at the door of his apartment. Id. at

690.   By the time he was arrested and questioned, a security sweep of Mobley’s

apartment was already complete, indicating he was the only person present and that the

apartment was his alone. Id. at 693. As the Fourth Circuit recognized, there was no

explanation at any time as to what extraordinary circumstances prompted law

enforcement to ask Mobley, after he had invoked his right to counsel, whether there were

any weapons in the apartment. Id. Accordingly, the Fourth Circuit correctly concluded

the public safety exception did not apply. Id.

       Here, however, the sheer number of persons being detained constituted an

extraordinary circumstance posing an imminent risk to law enforcement and the public.

See Trice v. United States, 662 A.2d 891, 897 (D.C. 1995) (distinguishing Mobley

because the presence additional persons at the scene was an extraordinary circumstance

justifying the application of the public safety exception); see also Dillon D., 863 N.E.2d at




                                             10
1289-90; Smith, 86 A.3d at 529-30. Indeed, there were still thirty to forty people being

detained outdoors in a public, open area adjacent to the parking lot of the VFW when Sgt.

Heath questioned Maloney. The trial court's analysis does not account for these facts or

for the fact that the missing weapon could have been anywhere, including places where

it might be accessible to Maloney, another detainee, a passerby, or even a child.

       We find these distinctions significant, particularly because we are required to

analyze the public safety exception “from the objective perspective of the presence of a

public danger” and not in light of hindsight or the subjective motive of the law enforcement

officer. See Mobley, 40 F.3d at 692 (citing Quarles, 467 U.S. at 655-56, 659); see also

Smith, 86 A.3d at 529-30. Because the danger existing from a missing gun in a public

space does not diminish with time, see Ferguson, 702 F.3d at 95-96; Allen, 305 F.3d at

1051; Borrell v. State, 733 So. 2d 1087, 1088-89 (Fla. 3d DCA 1999), we conclude that a

residual danger to the law enforcement officers and the public existed at the time Sgt.

Heath questioned Maloney about the empty holster.

       The relevant facts in this case are virtually indistinguishable from Quarles. We

therefore reverse the portion of the trial court's order suppressing evidence concerning

Maloney's statements to Sgt. Heath and remand for further proceedings consistent with

this opinion. See Borrell, 733 So. 2d at 1088-89.

       REVERSED AND REMANDED.

TORPY and LAMBERT, JJ., concur.




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