Coleman Eugene Benton v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Annunziata, Frank and Senior Judge Bray
Argued by teleconference
COLEMAN EUGENE BENTON
OPINION BY
v. 	Record No. 0105-02-1 	JUDGE ROSEMARIE ANNUNZIATA
MARCH 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Joseph Canada, Jr., Judge
William P. Robinson, Jr. (Robinson, Neeley &
Anderson, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Coleman Benton appeals his conviction of possession of a
firearm by a convicted felon, in violation of Code § 18.2-308.2.
Benton contends the court erred in denying his motion to
suppress his statements to a police officer, which Benton argues
were made in violation of his Fifth Amendment rights under the
federal and Virginia Constitutions. 	Benton bases his appeal on
the contention that the trial court erroneously invoked the
"public safety exception" to the Miranda requirements. 	He also
contends that the police had no grounds to arrest him under Code
§ 19.2-81 and that his arrest and detention were therefore
unlawful. 	Finding no error in the trial court's decision, we
affirm.

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FACTS
On appeal, we review the evidence in the light most
favorable to the party prevailing below, together with all
reasonable inferences that may be drawn. 	Quinn v. Commonwealth,
25 Va. App. 702, 712, 492 S.E.2d 470, 475 (1997). 	So viewed,
the evidence establishes that on September 28, 2000, Officer
Kevin Sullivan of the Virginia Beach police responded to a
"nonemergency" report of a domestic disturbance at Benton's home
address. 	When the officers were advised via another radio
dispatch that the situation was "turning physical and was
continuing to escalate and get out of control," they changed
their response to "emergency mode." 	The officers were
subsequently informed by the dispatcher that a gun had been
discharged inside the residence. 	Two children, aged nine and
four, were in an adjacent room during Benton's dispute with his
wife.
Based on a description Officer Sullivan received from the
dispatcher, he stopped Benton's car. 	Benton was handcuffed and
placed on the ground, frisked for weapons and, after a search of
the vehicle disclosed no weapons, placed in a patrol car.
Before advising Benton of his Miranda rights, Officer Sullivan
asked Benton if he had just come from his residence and he
replied, "Yes." 	He also acknowledged that "he was part of the
situation that was going on there." 	Sullivan asked Benton if he
had been arrested before and whether he was on probation or

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parole. 	Benton told the police he had been arrested before. 	He
denied he was armed with a handgun, stating, "there's no way
[he] would have a handgun with [him] or on [him] because . . .
[he] had been convicted of a prior felony." 	He agreed to
accompany the police back to the residence where the domestic
violence had occurred.
Once the officers and Benton arrived at Benton's residence,
Sullivan entered the residence to speak with Benton's wife.
When he returned to the police car, Sullivan asked "if he knew
where the gun was at." 	Benton responded he had taken the gun
outside the residence and "thrown it" and "it could be in the
bushes." 	A search of the bushes did not yield the gun.
Sullivan then read Benton his Miranda rights and, after
verifying that Benton understood his rights, proceeded to
question him further. 	Benton admitted that he brought a gun
into his wife's house and that he later threw it down a storm
drain. 	Police never found the gun.
Analysis
When reviewing a trial court's denial of a motion to
suppress:
[T]he burden is on the appellant to show
that the trial court's decision constituted
reversible error. 	[This Court views] the
evidence in the light most favorable to the
prevailing party granting to it all
reasonable inferences deducible therefrom.
[This Court will] review the trial court's
findings of historical fact only for "clear
error," but [this Court reviews] de novo the

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trial court's application of defined legal
standards to the particular facts of a case,
such as determinations of reasonable
suspicion and probable cause.
Quinn, 25 Va. App. at 712-13, 492 S.E.2d at 475-76 (internal
citations omitted).
"[W]hen an individual is taken into custody or otherwise
deprived of his freedom by the authorities in any significant
way and is subjected to questioning, the privilege against
self-incrimination is jeopardized" and the individual must,
prior to questioning, be given certain warnings. 	Miranda v.
Arizona, 384 U.S. 436, 478-79 (1966). 	The failure to give
Miranda warnings prior to custodial interrogation violates that
individual's constitutional rights under the Fifth Amendment and
requires suppression of any illegally obtained statements. 	Id.
at 479. However, in New York v. Quarles, 467 U.S. 649 (1984),
the United States Supreme Court created an exception to the
general Miranda rule, recognizing 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 against self-incrimination." 	Id. at
656.
In Quarles, the police were alerted that the defendant was
carrying a gun and had entered a supermarket. 	The officers
located him at the supermarket and, while frisking him,
discovered that the defendant wore an empty shoulder holster.

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After handcuffing the defendant, and without giving him Miranda
warnings, an officer asked him where the gun was, and the
defendant responded, "the gun is over there." 	The Court found
the circumstances presented a threat to public safety and that
the officers were not required to issue Miranda warnings prior
to inquiring about the gun. 	The Court stated:
The police . . . were confronted with the
immediate necessity of ascertaining the
whereabouts of a gun which they had every
reason to believe the suspect had just
removed from his empty holster and discarded
. . . [s]o long as the gun was concealed
somewhere . . . with its actual whereabouts
unknown, it obviously posed . . . danger to
the public safety . . . . 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.
Quarles, 467 U.S. at 657.
The "public safety" exception to Miranda's dictates was
applied in this Court's decision in Shelton v. Commonwealth, 34
Va. App. 109, 538 S.E.2d 333 (2000). 	In Shelton, the police
apprehended the defendant after being told that he robbed and
carjacked a taxicab at gunpoint. 	When the police apprehended
the defendant in a residential neighborhood near a school, they
handcuffed and frisked him. 	The officers did not find a gun on

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his person. 	Before reading the defendant his Miranda rights,
one of the officers asked him where the gun was. 	We held the
officers did not violate the defendant's Fifth Amendment rights
because "[t]he circumstances posed the risk that a resident of
the neighborhood or a school child 'might later come upon [the
gun].'" 	Id. at 118, 538 S.E.2d at 337 (quoting Quarles, 467
U.S. at 657).
Benton contends that the case at bar is distinguishable
from Shelton because the defendant in Shelton was apprehended in
a residential neighborhood, near a school, while he was stopped
near a convenience store. 	Thus, Benton argues the threat to the
public was greater in Shelton, and therefore, unlike the case at
bar, warranted the application of the public safety exception.
We find this argument is without merit. 	The police had been
informed that a gun was discharged inside Benton's house. 	When
they frisked him, Benton did not have a gun in his possession,
nor did the officers observe a gun inside Benton's vehicle. 	The
circumstances gave rise to an immediate need to determine the
location of the gun to safeguard the public. 	See Quarles, 467
U.S. at 657. 	If Benton had been carrying the gun which was
discharged at his residence, it reasonably follows that he
discarded it at a location between his residence and where he
was stopped. 	As a result, an immediate public threat arose: the
children at Benton's home, someone in his neighborhood, or any
individual along the route between his home and the convenience

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store may have found the gun. 	The fact that Benton was not
apprehended in a residential neighborhood or near a school, as
in Shelton, is not dispositive.
Benton further contends the police were not motivated by
the "public safety exception." 	Rather, he contends the concern
for the public safety was an afterthought, articulated to
justify the questions. 	The argument is without merit. 	In
Quarles, the Supreme Court noted "the availability of [the
public safety] exception does not depend on the motivation of
the individual officers involved." 	Quarles, 467 U.S. at 655-56.
In a kaleidoscopic situation such as the one
confronting these officers, where
spontaneity rather than adherence to a
police manual is necessarily the order of
the day, the application of the exception
which we recognize today should not be made
to depend on post hoc findings at a
suppression hearing concerning the
subjective motivation of the arresting
officer. 	Undoubtedly most police officers
. . . would act out of a host of different,
instinctive, and largely unverifiable
motives - their own safety, the safety of
others, and perhaps as well the desire to
obtain incriminating evidence from the
suspect.
Id. at 656. 	"Whatever the motivation . . . we do not believe
that the doctrinal underpinnings of Miranda require that it be
applied in all its rigor to a situation in which police officers
ask questions reasonably prompted by a concern for public
safety." 	Id.

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Benton also contends on appeal that the police did not have
grounds to arrest him under Code § 19.2-81 and that his arrest
and detention were unlawful. 	Benton failed to properly preserve
this issue at trial, precluding review by this Court. 	See Rule
5A:18. 	His contention that the "ends of justice" exception to
the rule cures the procedural default is without merit. 	"'The
ends of justice exception is narrow and is to be used
sparingly'" and only when an error at trial is "'clear,
substantial and material.'" 	Redman v. Commonwealth, 25 Va. App.
215, 220, 487 S.E.2d 269, 272 (1997) (quoting Brown v.
Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10 (1989)).
Moreover, the record must "'affirmatively show[] that a
miscarriage of justice has occurred not . . . that a miscarriage
might have occurred.'" 	Mounce v. Commonwealth, 4 Va. App. 433,
436, 357 S.E.2d 742, 744 (1987). 	The record does not support
the application of the exception to the rule.
For the reasons stated, we affirm the decision of the trial
court.
Affirmed.