MANION, Circuit Judge.
Arcadio Hernandez was convicted by a jury of possessing a gun as a felon. He had confessed to knowingly possessing a gun, and the jury was so told over his objection. He argues that his confession should have been suppressed because it was obtained by a two-step interrogation process that circumvented Miranda. The district court disagreed, finding that the "interrogation" that took place before he was given Miranda warnings did not circumvent Miranda under the Supreme Court's jurisprudence. We affirm, but on the alternative basis that the single question asked before Hernandez was given Miranda warnings falls within the "public safety" exception to Miranda.
Arcadio Hernandez picked up a red bag from beside a garbage can in an alley. Chicago Police Officers Anthony Varchetto and Lenny Pierri, who were patrolling in an unmarked car, saw him pick up the red bag and run north up the alley before exiting the alley and turning left towards a nearby avenue. There, he saw the officers and, realizing he had been observed, dropped the red bag on the ground beside him. As the officers approached him, he volunteered, "I just have some dope,"
During the ride to the station, without being prompted, Hernandez volunteered more details of the red bag caper. He let the officers know that he had received fake drugs from some dealers and was beaten when he complained. The red bag had belonged to those dealers and taking it was his way of retaliating. At the station, Hernandez was again given his Miranda warnings and he repeated the same story with more detail. The story was essentially a confession since he admitted that he knew there was a gun in the bag when he took possession of it.
Before trial, Hernandez moved to suppress his post Miranda confession on the ground that it was a product of having confessed during a pre-Miranda interrogation. The district court carefully considered the Supreme Court's rulings in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) and Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) as well as Seventh Circuit cases interpreting and applying Seibert. Under this court's interpretation of Seibert, the district court must first determine whether the officers deliberately circumvented Miranda. If not, the voluntariness
If officers were allowed to interrogate a suspect until he confesses and then warn him of his rights and get him to reconfess, Miranda's prophylactic rule would be undermined. This is the tactic targeted for eradication by Seibert. On appeal, Hernandez argues that the court erred in finding that the officers did not deliberately use a pre-warning interrogation to undermine Miranda and, therefore, that the court erred in holding that Seibert did not bar his post-warning confession. But if all the pre-warning questions fall within an exception to Miranda, the questions do not undermine Miranda's rule, so Seibert is not triggered.
The latter, to which we turn our focus, is often called the "public safety" exception. In crafting this exception, the Supreme Court gave us two guideposts. First, in Quarles, officers "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," to which the exception applied to asking where the gun was. Quarles, 467 U.S. at 657, 104 S.Ct. 2626. And second, the facts of Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) — where officers, who had burst into a suspect's bedroom four hours after a murder, "began vigorously to interrogate him about whether he had been present at the scene of the shooting and whether he owned a gun," which violated Miranda. Quarles, 467 U.S. at 659 n. 8, 104 S.Ct. 2626 (discussing the facts of Orozco and noting that it was "in no sense inconsistent" with Quarles). "The exception ... [is] circumscribed by the exigency which justifies it." Id. at 658, 104 S.Ct. 2626. And the parsing principle is that "questions necessary to secure [the officer's] own safety or the safety of the public" are permissible "and questions designed solely to elicit testimonial evidence from a suspect" are not. Id. at 659, 104 S.Ct. 2626.
These nuances among the circuits produce one common practical distinction. If there is a perceived risk that, when searching a vehicle or a residence, the officer might inadvertently bump or otherwise mishandle a hidden firearm (or other dangerous object) the broad approach would permit the officer to first ask whether any such danger is present. The narrow approach would not. Compare United States v. Liddell, 517 F.3d 1007, 1008 (8th Cir.2008) (asking "is there anything else in there we need to know about?" "That's gonna hurt us?" while searching secured suspect's vehicle fell within the exception) with United States v. Williams, 483 F.3d 425, 428 (6th Cir.2007) (requiring, as the second part of a formal two-prong test, "that someone other than police might gain access to that weapon and inflict harm with it." (emphasis added)). This circuit has cited the Eight Circuit's approach approvingly, United States v. Are, 590 F.3d 499, 506 (7th Cir.2009) (citing United States v. Williams, 181 F.3d 945, 953-54 (8th Cir.1999)), but we have not had to decide whether we agreed entirely, because in Are there was a risk of the suspect or others who were there obtaining any weapon that was hidden on the premises. Id. at 506.
But, even among circuits that otherwise take a narrow approach, questions designed to prevent officers from hurting themselves during a search of the suspect's person are permitted. See, e.g., United States v. Webster, 162 F.3d 308, 332 (5th Cir.1998) (holding, under a narrower view, that asking whether the suspect "had any needles in his pockets that could injure them during their pat down" fell within the exception); United States v. Young, 58 Fed.Appx. 980, 981 (4th Cir. 2003) (unpublished) (same with regard to the question "Do you have any sharp objects, knives, needles, or guns."). This type of question is logical and important to permit. While firearms on a suspect's person or in close proximity to him can be lunged for and used to harm an officer, sharp and bio-hazardous objects pose a great risk to officers regardless of any action by the suspect. Accordingly, a search of his person and items in close proximity is necessary, and a question about what an item on his person contains is a narrow, practical way of ensuring officer safety during the immediate and inevitable search of the item. This is true whether the item is the clothes the suspect is wearing or something that he is carrying — especially when there are circumstances that suggest the possible presence of a hazard. A question about what such an item contains is "circumscribed by the exigency which justifies it," Quarles, 467 U.S. at 658, 104 S.Ct. 2626, and "necessary to secure [the officer's] own safety." Id. at 659, 104 S.Ct. 2626.
Whatever was in the red bag had prompted its owner to put it by a garbage can in an alley, had prompted Hernandez to run when he had it, and had prompted him to drop it when he saw police officers.
Because Officer Pierri's asking what was in the red bag falls within the public safety exception, it does not violate Miranda. Accordingly, it cannot form the basis of a Seibert challenge to Hernandez's later confession. For that reason, we AFFIRM the judgment of the district court.