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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
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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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