UNITED STATES of America, Plaintiff-Appellee, v. Delbert MOBLEY, Defendant-Appellant, 40 F.3d 688

Affirmed by published opinion. Chief Judge ERVIN wrote the opinion, in which Senior Judge SPROUSE joined. Senior Judge HARVEY wrote a concurring opinion. OPINION ERVIN, Chief Judge: Delbert Mobley was indicted under 18 U.S.C. § 922(g)(1) as a felon in possession of a firearm. His suppression motions failed, his case proceeded to trial and he was convicted. The government moved to hav.e him sentenced as a career. criminal under 18 U.S.C. § 924(e).

While the court was reluctant to give such a sentence on the facts of the case, believing it had no choice because the facts fit the statute, it sentenced Mobley to the mandatory minimum of 15 years in prison. Mobley now appeals on both the suppression matter and the construction of the armed career criminal provision. For the reasons set forth below, we affirm. I. On December 5, 1990, at approximately 8:30 a.m., FBI special agents arrived at Mob-ley’s apartment in Falls Church, Virginia with arrest and search warrants.

The arrest warrant charged Mobley with conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846. According to the government, both warrants were supported by wiretap evidence and statements of confidential informants indicating that Mobley was involved in a large-scale crack cocaine distribution ring centered in Baltimore. The FBI personnel at the scene were approximately eight, two to arrest Mobley, and five or six to execute the search of the premises. An agent knocked on Mobley’s door, and he responded from within.

The agent identified himself and indicated that he had a warrant for Mobley’s arrest. Mobley opened the door, and as he did so one of the agents secured him against the wall while the others made a security sweep of the apartment to see that there was no one else present. Once they determined that Mobley was alone, the officers seemed to relax. Mobley had answered the door naked, and it was quite apparent that he was unarmed. Deborah Martin, one of the special agents assigned to arrest Mobley, advised him that he was under arrest. He then went into the other room, apparently under surveillance, and got dressed.

After he returned to the living room area, Martin read him his Miranda rights. Mobley indicated that he understood his rights, and that he wished to speak to a lawyer. The detail of what happened next is not exact. At the suppression hearing, Martin indicated, vaguely, that after this point, there was general conversation [impliedly with Mobley] about leaving the apartment, and I also asked him if there was anything in the apartment and specifically any weapons that were in the apartment that could be of danger to the agents who would be remaining at the apartment to conduct the search warrant.

J.A. 36 (emphasis supplied). At trial, Martin was more precise: I told him, again, we would be leaving the apartment because he was under arrest, and I indicated that there would be people there who would stay and conduct a search warrant of his place. At that time I asked him if there was anything in the apartment that could be of danger to the agents who would be staying to conduct the search warrant, such as a weapon. J.A. 101. In response to the question, Mob-ley stated that there was a weapon in the bedroom closet on one of the shelves, and he led the agents to it.

Mobley eventually was indicted on two counts involving drugs in the District of Maryland, and proceeded to trial on November 4,1991. He was acquitted on both counts on April 10, 1992. Having lost the first round, the government came back for a second round. On July 22,1992, the Grand Jury for the Eastern District of Virginia returned an indictment in one count against Mobley, charging him as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mobley filed a number of pretrial motions, including a motion to suppress for violation of Miranda v.

Arizona and its progeny based on Martin’s question as to whether there were any dangerous devices or guns in the house following Mobley’s election to claim his right to counsel. The motion was denied, under the reasoning that the question fell within the “public safety exception” enunciated in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Mobley went to trial on the felon in possession charge and was convicted. Having provided proper notice, the government moved to have Mobley sentenced under the armed career criminal provision of 18 U.S.C. § 924(e)(1).

Application of this sentence enhancement provision was based on Mobley’s three prior felony convictions in the District of Columbia under its broad “robbery” statute, D.C.Code § 22-2901. The third of these convictions was essentially a pickpocketing offense, and Mobley argued that it did not fit the statutory definition of a violent felony. The district court rejected the approach urged by Mobley (and adopted by the D.C.Circuit) in a published opinion, United States v. Mobley, 818 F.Supp. 164 (E.D.Va.1993), and sentenced him to the mandatory minimum of 15 years. II. A. In Miranda v.

Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court established a prophylactic procedural shield to support every citizen’s Fifth Amendment right against compelled self-incrimination. Part of this shield is the .requirement that, prior to any custodial interrogation, the police advise the individual that he has the right to remain silent and the right to the presence of an attorney. Id. at 479, 86 S.Ct. at 1630. In Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Court held that, where a person subject to the Miranda requirements claims his right to speak to an attorney, the accused is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police. Id. at 484-85, 101 S.Ct. at 1884-85.

In the present case, it is clear that Mobley had exercised his right to speak to an attorney prior to Martin’s questioning regarding the presence of a weapon on the premises, and that, absent some exception, the rule of Edwards would require a court to suppress this statement. In response, the prosecution argues that there is an applicable “public safety” exception to the rule of Edwards. This is a question of first impression in this circuit. In New York v.

Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), two police officers on patrol encountered a woman who stated that she had just been raped by a man with a gun, and that he had gone into a nearby grocery store. The police entered the store and saw a man fitting the suspect’s description approaching the check-out counter. When the suspect saw the police, he dropped his items and fled into the aisles. When he was caught and frisked, it was discovered that he had an empty shoulder holster.

Before he was advised of his Miranda rights, the police asked him where the gun was, and he indicated to them where he had put it. The Supreme Court acknowledged that this questioning violated Miranda, but went on to carve out an exception to the Miranda rule. The police, in this ease, in the very act of apprehending a suspect, 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 in the supermarket.

So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it. Id. at 657, 104 S.Ct. at 2632. The Court recognized that the administration of the Miranda warnings in this situation might deter some people from answering.

It reasoned that, while “when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost,” id., under the circumstances of this case, “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.

It is also clear that the exception applies not only to protect the public safety but also police safety as well, and that the exception is not to be analyzed in light of the subjective motive of the questioner but rather from the objective perspective of the presence of a public danger. Id. at 655-56, 659, 104 S.Ct. at 2631-32, 2633.

Thus, Quarles stands for the existence of a ‘public safety’ exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. Id. at 655-56, 104 S.Ct. at 2631-32. In the present case, the question is whether this “public safety” exception prior to the administration of the Miranda warnings should be recognized after Miranda warnings are given and the right to counsel claimed. Only one circuit has addressed this question. In United States v.

DeSantis, 870 F.2d 536 (9th Cir.1989), the Ninth Circuit, faced with facts quite similar to those of the present circumstances, examined the reasoning behind Quarles regarding the concern for public safety and stated that [t]his reasoning would apply with equal force to the procedural safeguards established when the accused asks for the aid of counsel. Society’s need to procure the information about the location of a dangerous weapon is as great after, as it was before, the request for counsel. Id. at 541.

It therefore held that, absent evidence of actual coercion by the arresting officers, such questions should not be suppressed. Id. We agree with the Ninth Circuit that the “public safety exception” to the Miranda framework should be recognized under the present circumstances.

While the reasoning of Quarles is not on all points with the situation in which the accused has claimed his right to counsel, the danger to the public and police from hidden traps and discarded weapons is as evident after the Miranda warnings have been given as before, and [t]he same considerations that allow the police to dispense with providing Miranda warnings in a public safety situation also would permit them to dispense with the prophylactic safeguard that forbids initiating further questioning of an accused who requests counsel. Id.

For this reason, we hold that the public safety exception articulated in Quarles will apply in an Edwards situation as well. Nevertheless, it is imperative that the scope of this exception be recognized and followed. Quarles is an exception to the Miranda rule, and its exceptive nature is evident throughout the opinion.

See, e.g., Quarles, 467 U.S. at 653 n. 3, 104 S.Ct. at 2630 n. 3 (“[W]e conclude today that there are limited circumstances where the judicially imposed strictures of Miranda are inapplicable.”); id. at 655, 104 S.Ct. at 2631 (“We hold 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_”). As an exception, it must be construed narrowly.

As the Quarles Court indicated, the “public safety” exception applies only where there is “an objectively reasonable need to protect the police or the public from any immediate danger associated with [a] weapon.” Id. at 659 n. 8, 104 S.Ct. at 2633 n. 8. Absent such circumstances posing an objective danger to the public or police, the need for the exception is not apparent, and the suspicion that the questioner is on a fishing expedition outweighs the belief that public safety motivated the questioning that all understand is otherwise improper. No such danger is apparent in the present case.

As noted, Mobley was encountered naked; by the time he was arrested, the FBI already had made a security sweep of his premises, and they had found that he was the sole individual present, and that the apartment was a residence for Mobley alone. As he was being led away, an FBI agent asked him whether there were any weapons present. These facts contrast sharply with those of Quarles, and we are persuaded that they fall without, rather than within, the exception Quarles recognized. There is nothing that separates these facts from those of an ordinary and routine arrest scenario.

There was no explanation at any time as to what extraordinary circumstances prompted this question, and we must conclude that there were none. Although we believe that the public safety exception is a valid and completely warranted exception to the Miranda and Edwards rules, we are persuaded that there was no demonstration of an “immediate need” that would validate protection under the Quarles exception in this instance. Absent an objectively reasonable concern for immediate danger to police or public, we must follow the rule, not the exception. B.

Because the questioning was in violation of Edwards, it remains for us to consider whether the conviction can stand. We believe that it can. Under the exclusionary rule, Mobley’s answer to the FBI agent’s questioning regarding the presence of a weapon should not have been admitted at trial. Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). Although the “fruit of the poisonous tree” doctrine would suggest that the gun to which Mobley then led the police as a direct result of the questioning also should not have been admitted, see Wong Sun v.

United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), in this instance the FBI had a search warrant for Mobley’s residence and at least five agents were on hand to execute the search. • Both the government and Mobley agree that discovery of the gun would have been inevitable. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Since Mobley’s statement ultimately was introduced at trial, it remains for us to determine whether the error was harmless beyond a reasonable doubt. United States v. Khan, 993 F.2d 1368, 1376 (9th Cir.1993); United States v.

Throneburg, 921 F.2d 654, 658 (6th Cir.1990). In this instance, a review of the evidence introduced at trial convinces us that the government has demonstrated the harmlessness of the error. Mobley was the sole occupant of the apartment; it was leased in his name, and only one parking spot was leased for it. Although it was a two bedroom apartment, only one bedroom was furnished, and there was no other location that could accommodate a sleeping individual. The gun was located amid Mobley’s sweaters in a clothes closet adjoining the single utilized bedroom.

Further, although Mobley attempted to demonstrate evidence that the gun was placed in his belongings by a nephew during a recent visit, we believe that the government’s evidence also makes this theory untenable. Thus, despite the violation of the Edwards rule, we believe the introduction of the impermissible material was harmless beyond a reasonable doubt and that Mobley’s conviction as a felon in possession of a firearm must be affirmed. III.

Defendants who are convicted as felons in possession of a weapon can, under certain circumstances, be subjected to a significant mandatory minimum sentence for being armed career criminals. Mobley’s counsel presents a forceful and well-stated argument, for which he should be commended, against the appropriateness of imposition of a mandatory minimum sentence in the present circumstances. Nevertheless, we believe a faithful adherence to the statute and Supreme Court precedent disclose that such sentence was proper. The text of the mandatory minimum statute is as follows: In the case of a person who violates

section 922(

g) of this title and has three previous convictions by any court referred to in

section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less than fifteen years 18 U.S.C. § 924(e)(1). The question is whether the defendant has the three predicate acts required for the mandatory minimum to apply. In the present case, the question is whether Mobley has committed three “violent felonies.” “Violent felony” is defined as: any crime punishable by imprisonment for a term exceeding one year ... that— (

i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). Mobley has only three relevant convictions, all from the District of Columbia in the mid-to late-1970s. The first conviction, in 1975, was for assault with intent to rob. He concedes that this meets the definition of sub-part (

i) of the definition. His remaining two convictions, in 1975 and 1978, were for violation of D.C.Code § 22-2901, which, at the relevant time, stated: Whoever by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, shall take from the person or immediate actual possession of another anything of value, is guilty of robbery, and any person convicted thereof shall suffer imprisonment for not less than two years nor more than fifteen years. As the district court recognized, see United States v. Mobley, 818 F.Supp. 164, 165 (E.D.Va.1993), the definition facially appears to fall within the scope of subpart (

i) because of the requirement of “force or violence.” The “force” the D.C. statute requires, however, as the district court also noted, is merely the “de minimis force directed at the stolen property rather than force directed at the person of the victim” necessary to remove the property from its place. Id. Thus, the statute does not fall within subpart (

i) because it does not have as an element “the use, attempted use, or threatened use of physical force against the person of another.” The court then proceeded to determine that Mobley’s offense fits within subpart (ii). Mobley objects to that determination. In his mind, subpart (ii) applies only to property crimes rather than crimes against the person: The intent of the Congress was to broaden the classification of violent felonies, including property crimes.

Congress specified several property crimes, burglary, arson, or extortion, involving the use of explosives and then added language intended to be applied to other property crimes that presented serious potential risk of physical injury to another. Appellant’s Br. at 14. Mobley cites United States v. Mathis, 963 F.2d 399 (D.C.Cir.1992), in support of his position. In that case, the District of Columbia Circuit, construing the same D.C. statute that is before this court, interpreted subpart (

i) to include “felonies against the person that have as an element the use or threat of physical force,” id. at 405 (emphasis in original), while sub-part (ii) includes only “felonies against property (such as burglary, arson, extortion, etc.) that present a serious potential risk of physical injury.” Id. (emphasis in original). It also should be noted that this court gave this approach support in brief dicta in United States v. Headspeth, 852 F.2d 753 (4th Cir.1988), a case that was later overruled by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Head-speth required the court to determine whether storehouse breaking under Maryland law fit within the violent felony definition. Because the statute clearly was not within sub-part (i), the court scrutinized subpart (ii).

After detailing the legislative history of the provision, particularly as to the robbery language, the opinion lays out the present language of § 924(e)(2)(B), and then notes that [t]he § 924(e)(2)(B)(ii) catch-all, which permits certain felonies against property to serve as the basis for sentence enhancement, was designed to satisfy the proponents of H.R. 4639, while the limitations of that provision to crimes which present a serious risk of injury to the person was a concession to those who favored H.R. 4768. Headspeth, 852 F.2d at 758 (emphasis supplied).

Since Headspeth, however, the Supreme Court weighed in with Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). That case addressed the same question as Headspeth, i.e., how to determine whether a state burglary statute meets the “burglary” provision of subpart (ii).

The Court agreed that it would be unfair simply to rely on the fact that a state called something burglary, since different states define that crime' differently; instead, the Court attempted to formulate a “generic” burglary definition against which a state statute, or the indictment or jury charge in a particular case, could be measured. Taylor argued for a “generic” definition of burglary that included as an element necessary for conviction conduct that presents a serious risk of physical injury to another, tracking the language of subpart (ii)’s catch-all.

The Court squarely rejected that approach, reasoning that it would make the enumerated crimes of subpart (ii) mere surplusage. According to the Court, “if this were Congress’ intent, there would have been no reason to add the word ‘burglary’ to § 924(e)(2)(B)(ii), since that provision already includes any crime that ‘involves conduct that presents a serious potential risk of physical injury to another.’ ” Id. at 597, 110 S.Ct. at 2157 (emphasis in original).

It is important to note that the Court stated that it was not just property crimes that fall within the catch-all, but rather “any crime”; and it underlined the any, which suggests that it was not a mere slip of the tongue in throwaway dicta. We note that a straightforward reading of the statute indicates such a result. The statute defines violent felony as: any crime ... that— (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

While it is possible to infer a' property restriction into the structure of the statute, a plain reading of the words suggests that it covers any crime of various enumerated types, and also those crimes of whatever variety that involve conduct that presents a serious potential risk of physical injury to another. Given this construction, it is necessary to determine whether pickpocketing fits the definition. “[T]he courts must necessarily make common-sense judgments about whether a given offense proscribes generic conduct with the potential for serious physical injury to another.” United States v.

Custis, 988 F.2d 1355, 1363 (4th Cir.1993), aff'd on other grounds, — U.S. -, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). In Custis, the court held that attempted breaking and entering met that requirement because of the “substantial risk of confrontation” inherent in such a crime involving a dwelling. Id. at 1363-64. Similarly, we believe that insofar as the D.C. statute outlaws pickpocketing “by sudden or stealthy seizure or snatching ... from the person or immediate actual possession of another,” the offense has the requisite potential for serious physical injury to another.

As the quotation indicates, the statute requires that the taking be “from the person or immediate actual possession of another.” Thus, whenever the pickpocketing fails and the criminal is detected, a confrontation is likely, and the stealthy pickpocketing can progress into something far uglier. This is not an abstract hypothetical, as Mobley discloses in his brief: In fact, two of the three predicate offenses used by the District Court below were crimes which were initiated as pickpocketing offenses, but developed, at least in one instance, into a robbery offense.

This concession points up the fact that the crime is one that can be considered to “present a serious risk of physical injury to another.” This being the case, we believe that the armed career criminal provision applies in these circumstances and that we must affirm Mobley’s sentence. IV. For the reasons set forth above, we affirm. AFFIRMED. .

The opinion in Quarles is rather narrowly tailored; central to its reasoning was that the administration of Miranda warnings would possibly deter the person in custody from responding to a question prompted by concerns for public safety, thus justifying the exception to the Miranda requirement. Of course, the deterrence approach is not applicable once the Miranda warnings have been given. . The government suggests in the proceedings below and on appeal what approaches a per se position as to questioning people in custody on narcotics charges.

Absent other information, a suspicion that weapons are present in a particular setting is not enough, as a general matter, to demonstrate an objectively reasonable concern for immediate danger to police or public; each case must be examined on its own facts to determine whether the deviation from the standard rule is justified by the totality of the circumstances in which the questioning takes place.

Such an approach, which clearly follows the lead of Quarles, should fairly balance the general need to bolster Fifth Amendment rights through a faithful adherence to the prophylactic rules of Miranda while recognizing the exceptional circumstances that will justify the occasional departure in order to protect police and public alike from objectively reasonable danger of harm. . The law originally only made robbery and burglary predicate offenses, and included a definition for each. That law was later repealed and replaced with the current provision, which does not include any

definitions for the enumerated crimes (burglary, arson, extortion). What "sort” of burglary fit within subpart (ii) thus became a major concern in the courts, and led the Supreme Court to enter the fray in Taylor.