OPINION OF THE COURT
CHARLES J. MARKEY, J. The major legal issue presented by this case is whether the court should employ the "public safety exception" to the
Miranda rule, enunciated in
New York v Quarles (467 US 649 [1984]), in deciding whether or not to suppress defendant Laura Swoboda's statements concerning the whereabouts of her baby who had been missing for 11 days. If the "public safety" exception is not squarely applicable, the next issue is whether or not this court should adopt a "rescue doctrine/private safety exception" regarding the mother's pre-
Miranda statements. Defendants Charles Swoboda and Laura Swoboda, by a misdemeanor information dated November 21, 2000, are accused of the crimes of reckless endangerment in the second degree (Penal Law § 120.20) and endangering the welfare of a child (Penal Law § 260.10 [1]). Both defendants were granted
Huntley/Dunaway hearings. The court held such a hearing over three days, on May 29, June 22, and July 23, 2001. Two witnesses testified for the People, Detective Edward G. Dowd and Detective Joanne Toole of the 102nd Police Precinct Detectives Squad. The court finds that their testimony is credible. The defense did not present witnesses.
Findings of Fact
According to the accusatory instrument, an eyewitness, Ms. Arlet Dipini, stated that she observed the defendants, on November 5, 2000, injecting themselves with heroin. Ninety minutes later, defendant Laura Swoboda gave birth to a son, Christopher. Her husband, defendant Charles Swoboda, participated in the birth by allegedly tying the umbilical cord with a garbage twist tie and cutting the cord with a dirty razor. The defendants had four other children removed by the City of New York Administration for Children's Services. Based on information supplied by Ms. Dipini, the Family Court of the City of New York (Clark, J.) issued a bench warrant on November 15, 2000, for the arrest of the defendants concerning the birth of Christopher, the Swoboda's fifth child. Police officers of the 102nd Police Precinct arrested the defendants pursuant to the warrant on November 16, 2000, at about 4:00 P.M. Detective Dowd was the "catch detective" for that particular tour of duty, assigned to handle miscellaneous cases as they were assigned or arose. of November 16, 2000, at 10:30 P.M., defendant Charles Swoboda and Detective Toole looked at each other, in silence, and Detective Toole finally said: "Your child is doing okay, but the child is shaking, and the nurse said the child is going through withdrawal symptoms." (Transcript, July 23, 2001, at 6.) He responded: "I'm surprised I'm not going through withdrawal symptoms. I take heroin every day." Detective Toole then said, "I hope you're not going to have any [more] children." Defendant Charles Swoboda replied that he planned to have more children, but not in Queens County. "To[o] many snitches in Queens," he added. (Transcript, July 23, 2001, at 6.) This conversation between Detective Toole and defendant Charles Swoboda was not preceded by any Miranda warnings.
Conclusion of Law
Although this court gave the parties an extended period of time to brief what the court believed were significant issues of law posed by this case, none of the submissions confronted the relevant issues of law, mentioned the correct and applicable legal doctrines as exceptions to Miranda, or discussed whether they should apply. The principal question on this suppression motion, although not briefed by any of the parties, is whether the exception to Miranda set forth in New York v Quarles (467 US 649, supra) covers the questioning of defendant Laura Swoboda at the police station house. In Quarles, a woman flagged down police and reported to them that she had just been raped and that her gun-carrying assailant fled into a supermarket. (467 US at 651-652.) A police officer apprehended the alleged attacker and, upon discovering his empty shoulder holster, asked him where the gun was—without providing the suspect Miranda warnings. The attacker, already handcuffed, nodded in the direction of some empty cartons and said, "the gun is over there." (Id. at 652.) The officer then asked him other questions concerning the purchase and ownership of the gun, which the perpetrator answered. (Id.) The United States Supreme Court in Quarles stated: "[T]his case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda." (Id. at 653.) In creating a "public safety exception," the Supreme Court stated that the subjective motivation of the individual officer was irrelevant. (Id. at 653, 656.) The Court believed that the concern for the public's safety outweighed the interest of protection of the Fifth Amendment privilege embodied in Miranda. (Id. at 656-657.) Key to the Court's thinking was the immediacy of the situation. The Court made repeated references to such exigent circumstances. First, the Court stated that the police officer in Quarles, upon seeing an empty shoulder holster, was confronted "with the immediate necessity of ascertaining the whereabouts of a gun." (Id. at 657 [emphasis added]). So long as the gun was hidden in the supermarket, "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.) Underscoring the exigency, the majority of the Supreme Court again cited sympathetically the rapidly developing circumstances and choices that confront a police officer's daily duties. The Court stated:
"We decline to place officers such as Officer Kraft 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." (
467 US at 657-658 [emphasis added].)
Finally, the Court in
Quarles, quoting its decision in
Dunaway v New York (442 US 200, 213-214 [1979]), remarked that police officers "have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront." (
467 US at 658.) In order to establish the need for invoking the "public safety exception" to
Miranda, adopted by the Supreme Court in
Quarles (467 US at 657), the state generally must demonstrate that: (1) there was an objectively reasonable need to protect the police or the public; (2) from an immediate danger; (3) associated with a weapon; and (4) the questions asked were related to that danger and reasonably necessary to secure public safety. (
State v Prim, 134 Ohio App 3d 142, 154,
730 NE2d 455, 463 [1999].) Interestingly, although the Supreme Court in
Quarles reversed a 4 to 3 holding of the New York Court of Appeals (
58 NY2d 664 [1982]), a few months before the reversal, the New York Court of Appeals held that a defendant's Sixth Amendment right to counsel was not violated when police questioned him as to the whereabouts of a kidnap victim. Specifically, in
People v Krom (61 NY2d 187 [1984]), the Court of Appeals recognized an "emergency exception" in not suppressing the responses to questioning of an alleged kidnapper who had invoked his Sixth Amendment right to counsel. The Court of Appeals stated:
"When the police are searching for a person who has recently disappeared, the need to provide prompt assistance is not terminated once the police learn that the person has been abducted. Even if the suspected kidnapper has been arrested the police emergency role may continue as long as the victim's whereabouts remains unknown. It would not be reasonable or realistic to expect the police to refrain from pursuing the most obvious, and perhaps the only source of information by questioning the kidnapper, simply because the kidnapper asserted the right to counsel after being taken into custody." (
Krom, 61 NY2d at 199-200;
accord,
People v Molina, 248 AD2d 489, 490 [2d Dept],
lv denied 92 NY2d 902 [1998].)
The Court of Appeals in
Krom excluded statements made once the victim's body was found. (
61 NY2d at 200;
accord, People v Molina, supra, 248 AD2d at 490.) In cases decided after
Quarles, involving negotiations over hostages, the New York courts have permitted the questioning under the "public safety exception" enunciated in
Quarles. (
See, e.g., People v Scott, 269 AD2d 96 [4th Dept],
lv denied 95 NY2d 892 [2000];
People v Treier, 165 Misc 2d 665 [Monroe County Ct 1995];
accord, People v Mayfield, 14 Cal 4th 668, 733-734,
928 P2d 485, 521-522,
cert denied 522 US 839 [1997].) These hostage cases showed that the courts were lumping into the "public safety exception" not simply cases involving a risk to the public at large, but also situations where a particular individual's life was threatened. Other cases have followed suit in not distinguishing between a danger or harm posed to the public at large as opposed to a specific individual's life. (
See, e.g., Thomas v State, 128 Md App 274,
737 A2d 622,
cert denied 357 Md 192,
742 A2d 521 [1999] [suspect, who bit police detective, apologized and permitted blood tests to be done for fear of possible transmission of infectious
that he needed to be reminded of his
Miranda rights thus rings hollow. (
See People v John, 288 AD2d 848 [4th Dept 2001];
People v Hotchkiss, supra, 260 AD2d at 241;
People v Strother, 234 AD2d 571, 572 [2d Dept 1996],
lv denied 89 NY2d 1016 [1997];
People v Sobchik, 228 AD2d 800, 802-803 [3d Dept 1996];
People v Bennett, 221 AD2d 349, 350 [2d Dept 1995],
lv denied 87 NY2d 970 [1996].) The motions by defendants to suppress the statements made to police are, accordingly, in all respects, denied.