USA v. Alfonzo Williams, et al

Filing

FILED OPINION (ANDREW J. KLEINFELD, JOHNNIE B. RAWLINSON and ANDREW D. HURWITZ) AFFIRMED. Judge: AJK Dissenting, Judge: ADH Authoring. FILED AND ENTERED JUDGMENT. [10219744]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
ALFONZO WILLIAMS, AKA Fonz,
AKA Relly; ANTONIO GILTON,
AKA TG, AKA Tone; BARRY
GILTON, AKA Prell; LUPE
MERCADO; ADRIAN GORDON,
AKA Tit; REGINALD ELMORE,
AKA Fat Reg; CHARLES HEARD,
AKA Cheese; ESAU FERDINAND,
AKA Sauce; PAUL ROBESON,
AKA P World; MONZELL
HARDING, JR.; JAQUAIN YOUNG,
AKA Loc,
Defendants-Appellees.

No. 15-10475
D.C. No.
3:13-cr-00764WHO-1

OPINION

Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick III, District Judge, Presiding
Argued and Submitted March 16, 2016
San Francisco, California
Filed December 5, 2016

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UNITED STATES V. WILLIAMS
Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz;
Dissent by Judge Kleinfeld

SUMMARY*

Criminal Law
Affirming the district court’s suppression order, the panel
held that when a defendant charged with murder invokes his
Miranda rights, the government may not admit in its case-inchief evidence of the defendant’s unadmonished responses to
prison officials’ questions about his gang affiliation.
Dissenting, Judge Kleinfeld wrote that the “public safety”
and “booking” exceptions to Miranda make the defendant’s
answer to a gang question admissible.

COUNSEL
Ann M. Voigts (argued), Assistant United States Attorney;
Barbara J. Valliere, Chief, Appellate Division; Brian J.
Stretch, United States Attorney; United States Attorney’s
Office, San Francisco, California; for Plaintiff-Appellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Mark Stuart Goldrosen (argued), San Francisco, California,
for Defendants-Appellees.

OPINION
HURWITZ, Circuit Judge:
Antonio Gilton was arrested for murder and promptly
invoked his right to an attorney. Hours later, after Gilton was
taken from police headquarters to a jail, a sheriff’s deputy
asked him whether he was a member of a criminal gang. The
government seeks to introduce Gilton’s responses to that
questioning in its case-in-chief to establish membership in an
“enterprise,” an element of the RICO offense for which he is
charged. 18 U.S.C. § 1962(c), (d). The district court
suppressed Gilton’s statements under the rule of Miranda v.
Arizona, 384 U.S. 436 (1966). We affirm.
I.
On the afternoon of July 4, 2012, San Francisco police
officers arrested Gilton for the murder of Calvin Sneed.
Officers first took Gilton to a local police station; he was
transported that evening to an interrogation room at the San
Francisco Hall of Justice. At the Hall of Justice, a homicide
inspector advised Gilton of his Miranda rights and attempted
to interrogate him; Gilton unequivocally invoked his right to
an attorney.
Gilton then was taken to county jail and placed in a
holding cell. Around 2:30 a.m. on July 5, a deputy sheriff
removed Gilton from the cell and asked whether he was a
gang member. The deputy did not advise Gilton that he was

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free to return to his cell without answering or to have a
lawyer present; nor was Gilton informed that his answers
could be used to incriminate him. In response to the deputy’s
inquiry whether he was affiliated with the Fillmore/Central
Divisadero Playas (“CDP”) gang, Gilton said, “Yeah, I hang
out there, put me where I’m from.”
Gilton’s answers were entered by the deputy on two
forms used by jail officials in determining where to house
inmates—an “Information Report,” which designates any
gang affiliation, and a “Class Interview,” which reflects
whether the prisoner presents any “High Risks,” including
being a gang member. The deputy designated Gilton a gang
member on the Information Report, and checked off “Gang
Member” on a list of “High Risks” on the Class Interview.
Absent a direct admission of gang affiliation, a prisoner can
still be designated a gang member on the forms if two other
criteria are met—including a gang-related tattoo, a prior
gang-related arrest, frequent association with validated gang
members, or police intelligence that he is a gang member. In
classifying Gilton, the deputy relied not only on his responses
to questioning, but also on his arrest record and police
intelligence.
Gilton was initially charged in state court with murder,
conspiracy to commit murder, discharge of a firearm at an
occupied motor vehicle, and possession of a firearm by a
felon. In November 2013, he was indicted by a federal grand
jury and the state charges were dismissed. A superseding
indictment charged Gilton with conspiracy to violate the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1962(d), murder in aid of racketeering
for the murder of Calvin Sneed, 18 U.S.C. § 1959(a)(1), and
related firearms offenses. An element of the RICO count is

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Gilton’s membership in a RICO enterprise—here, the CDP
gang. See 18 U.S.C. § 1962(c), (d).
Gilton moved to suppress the statements made to the
deputy about gang affiliation. The district court granted the
motion, holding that because “asking about Gilton’s gang
affiliation was reasonably likely to elicit incriminating
information,” the so-called “booking exception” to Miranda
did not apply. This timely appeal followed.1 See 18 U.S.C.
§ 3731 (allowing appeal of order granting motion to
suppress).
II.
Under the iconic rule of Miranda v. Arizona, “the
prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against selfincrimination.” 384 U.S. 436, 444 (1966). “Prior to any
questioning, the person must be warned that he has a right to
remain silent, that any statement he does make may be used
as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.” Id.
Once the defendant “indicates in any manner and at any stage
of the process that he wishes to consult with an attorney
before speaking there can be no questioning.” Id. at 444–45.
“[U]nless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evidence obtained
as a result of interrogation can be used against him.” Id. at
479.
1

The district court also suppressed photographs seized from Gilton’s
home. The government does not challenge that ruling on appeal.

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“[T]he term ‘interrogation’ under Miranda refers . . . to
any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating
response from the suspect.” Rhode Island v. Innis, 446 U.S.
291, 301 (1980). The so-called “booking questions
exception” exempts “from Miranda’s coverage questions to
secure the biographical data necessary to complete booking
or pretrial services.” Pennsylvania v. Muniz, 496 U.S. 582,
601 (1990) (plurality opinion) (quotation marks omitted)
(concluding that the answers to questions regarding the
defendant’s name, address, height, weight, eye color, date of
birth, and current age were admissible in the absence of
Miranda warnings); see id. at 608 (assuming the existence of
a “routine booking question” exception but finding it
“unnecessary to determine whether the questions fall within”
it) (Rehnquist, J., concurring). Because such questions
“rarely elicit an incriminating response, routine gathering of
biographical data does not constitute interrogation sufficient
to trigger constitutional protections.” United States v.
Gonzalez-Sandoval, 894 F.2d 1043, 1046 (9th Cir. 1990).
The booking questions exception, however, is subject to
an important qualification: “When a police officer has reason
to know that a suspect’s answer may incriminate him,
however, even routine questioning may amount to
interrogation.” United States v. Henley, 984 F.2d 1040, 1042
(9th Cir. 1993). Thus, we have consistently emphasized,
consistent with Innis, that “the ultimate test for whether
questioning constitutes interrogation is whether, in light of all
the circumstances, the police should have known that a
question was reasonably likely to elicit an incriminating
response.” United States v. Booth, 669 F.2d 1231, 1238 (9th
Cir. 1981); see United States v. Washington, 462 F.3d 1124,

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1132–33 (9th Cir. 2006) (applying Booth). Thus, for
example, when there is reason to suspect that a defendant is
in the country illegally, questions regarding citizenship do not
fall under the booking exception—even if they are
biographical—because a response is reasonably likely to be
incriminating. See Gonzalez-Sandoval, 894 F.2d at 1047;
United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir.
1983); see also Henley, 984 F.2d at 1042 (“[W]hile there is
usually nothing objectionable about asking a detainee his
place of birth, the same question assumes a completely
different character when an INS agent asks it of a person he
suspects is an illegal alien.”).
The government insists that the deputy who asked about
Gilton’s gang affiliation could not have known that a
response was reasonably likely to be incriminating, because
no gang-related charges were then pending. But, “[t]he test
is an objective one; the subjective intent of the police is
relevant, but not conclusive.” Washington, 462 F.3d at 1132.
The absence of specific gang-related charges does not mean
that questions regarding the gang affiliation of a defendant
arrested for a violent crime are not likely to prove
incriminating. As a unanimous California Supreme Court
recently noted, gang membership exposes a defendant to “a
comprehensive scheme of penal statutes aimed at eradicating
criminal activity by street gangs.” People v. Elizalde, 61 Cal.
4th 523, 538 (2015).
The California Street Terrorism Enforcement
and Prevention Act created a substantive
offense, section 186.22(a), which punishes as
a misdemeanor or felony “any person who
actively participates in any criminal street
gang with knowledge that its members engage

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in or have engaged in a pattern of criminal
gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal
conduct by members of that gang.”
Subdivision (b)(1) of that section imposes
greater punishment when a felony is
committed “for the benefit of, at the direction
of, or in association with any criminal street
gang, with the specific intent to promote,
further, or assist in any criminal conduct by
gang members.” The additional punishment
can be substantial.
Section 12022.53 provides enhancements for
personal use or discharge of a firearm. Its
provisions apply to any principal when the
offense is committed to benefit a criminal
street gang.
Finally, in 2000 the voters passed Proposition
21, which added intentional gang-related
murders to the list of special circumstances
authorizing penalties of death or life without
the possibility of parole. It also created the
crime of conspiracy to commit a felony by
active street gang participants.

Id. at 538–39 (alterations, citations, and quotation marks
omitted).
Gang membership may also expose a defendant to federal
criminal liability. For example, a defendant’s sentence for a
federal drug crime or crime of violence is increased by ten
years if he “participates in a criminal street gang with

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knowledge that its members engage in or have engaged in a
continuing series of” violent or drug offenses or “intends to
promote or further the felonious activities of the criminal
street gang.” 18 U.S.C. § 521(d)(1), (2). The federal
sentencing guidelines note that “an upward departure may be
warranted” “[i]f the defendant is subject to an enhanced
sentence” under § 521. U.S. Sentencing Guideline Manual
§ 5K2.18 (U.S. Sentencing Comm’n 2015). And—as
here—gang membership can give rise to RICO charges when
the gang is alleged to be an “enterprise.” See 18 U.S.C.
§§ 1961(4), 1962.
The risk that information about gang affiliation will prove
incriminating is even greater when a defendant is charged in
California with murder, a crime that the state’s Supreme
Court has acknowledged is “frequently committed for the
benefit of criminal street gangs.” Elizalde, 61 Cal. 4th at 540.
When the deputy asked Gilton about his gang membership, he
had already been arrested on charges of murder, conspiracy
to commit murder, discharge of a firearm at an occupied
motor vehicle, and possession of a firearm by a felon.
Questions about Gilton’s gang affiliation were thus
reasonably likely to elicit an incriminating response, even if
the federal RICO charges had not yet been filed. See People
v. Elizalde, 222 Cal. App. 4th 351, 372–73 (Ct. App. 2013)
(holding statements regarding gang affiliation inadmissible
when officer who asked defendant about his gang affiliation
for housing purposes was “aware that [the defendant] had
been charged with murder” but not that it was gang-related),
aff’d, 61 Cal. 4th 523 (Cal. 2015).

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The government’s assertion that such questions are posed
routinely,2 and that the deputy asked the questions for a noninvestigatory purpose, does not alter our conclusion. “The
test is an objective one, however, and thus the subjective
intent of the police, while relevant, is not conclusive.” Booth,
669 F.2d at 1238. And, the objective inquiry is simple: Under
the circumstances, are questions about gang affiliation
reasonably likely to produce an incriminating response? In
a case involving Medicare fraud, they are not. But when
murder is the charge, the questions—even if asked for
administrative purposes—are reasonably likely to elicit
incriminating information.
The government argues that this case is controlled by
Washington, in which we held that an officer’s question about
a defendant’s gang nickname was “routine gathering of
background information” that did not rise to the level of
interrogation. 462 F.3d at 1133. The defendant in
Washington argued that his response was likely to be
incriminating because it might be used to identify him as
having committed the charged robbery. We rejected that
argument because, taken “to its logical conclusion, any time
an informant uses a particular name to identify the person
who committed a crime, it would be impermissible
interrogation for the police to ask the suspect his name
because confirming his identity would be ‘incriminating.’”
Id. We noted that in most cases “simply asking for a
suspect’s name” or its equivalent is not likely to produce an
incriminating response, and even if identification “may help

2

The record contains no evidence about how frequently the gang
questions are asked, or how the decision is made whether to make the
inquiry in a particular case.

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lead to the prosecution of that person for a crime,” a person’s
identity alone is not protected by the Fifth Amendment. Id.
But this is far different case. As discussed above, a
defendant charged with a violent crime in California who is
a gang member is subject to far greater jeopardy than those
who are not gang members. And, the same is true under
federal law. Seeking information about gang membership is
thus far more likely to produce an incriminating response
than inquiring about a defendant’s nickname.
The government also attempts to invoke the “public safety
exception” to Miranda articulated in New York v. Quarles,
467 U.S. 649 (1984). In Quarles, a rape victim approached
police officers, described her assailant, stated that he was
armed with a gun, and said that he had just entered a grocery
store. Id. at 651–52. An officer approached the suspect in
the store, frisked him, and found that “he was wearing a
shoulder holster which was then empty.” Id. at 652. The
officer asked him where the gun was, the suspect responded;
the officer immediately retrieved the loaded gun, placed the
suspect under arrest and read him his Miranda rights. Id.
The Court held that “on these facts there is a ‘public
safety’ exception to the requirement that Miranda warnings
be given.” Id. at 655. The police “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.” Id.
at 657. The Court concluded that in such a “kaleidoscopic
situation . . . where spontaneity rather than adherence to a
police manual is necessarily the order of the day,” officers
should not be placed “in the untenable position of having to

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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 656, 657–58.
“In determining whether the public safety exception to
Miranda applies, we ask whether there was an objectively
reasonable need to protect the police or the public from any
immediate danger.” United States v. Carrillo, 16 F.3d 1046,
1049 (9th Cir. 1994) (quotation marks omitted) (holding that
asking a defendant whether he had any drugs or needles on
his person—prior to a body search—fell within the exception
as it “stemmed from an objectively reasonable need to protect
[the officer] from immediate danger”); see also United States
v. Brady, 819 F.2d 884, 887–88 (9th Cir. 1987) (applying
public safety exception to a question whether defendant had
a gun in his car because the officer “had to control a
dangerous situation” in which a crowd had gathered and the
defendant’s car “stood with its door open and the keys in the
ignition”). There was no such danger here. The deputy
retrieved Gilton from a locked holding cell around 2:30
a.m.—hours after Gilton arrived at the jail. There was no
“kaleidoscopic situation,” nor was the deputy put to the
Hobson’s choice of deciding within seconds whether society
was best served by asking the questions without a Miranda
warning or giving such a warning and damaging his ability to
neutralize a “volatile situation.” Quarles, 467 U.S. at 656,
658. That the questions may have been asked in the general
interests of inmate safety does not mean that there was an
urgent need to protect either the deputy or others against

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immediate danger; the narrow “public safety exception”
therefore does not apply.
III.
For the reasons above, we affirm the district court’s
suppression order. But, it is also important to note what we
do not hold. We do not hold that prison officials may not
inquire into a prisoner’s gang membership in the interests of
inmate safety. See, e.g., Florence v. Bd. of Chosen
Freeholders of Cty. of Burlington, 132 S. Ct. 1510, 1518
(2012) (“Gang rivalries spawn a climate of tension, violence,
and coercion.”) (quotation marks omitted). Nor do we hold
that the responses to such questions cannot be used for
purposes of inmate housing. Rather, we hold only that when
a defendant charged with murder invokes his Miranda rights,
the government may not in its case-in-chief admit evidence
of the prisoner’s unadmonished responses to questions about
his gang affiliation.3
AFFIRMED.

KLEINFELD, Senior Circuit Judge, dissenting:
I respectfully dissent. The district court’s suppression
order should be reversed, and the statements admitted. Two

3
The government does not suggest that the deputy was otherwise
unable to secure information needed to house Gilton safely. Indeed, even
had Gilton refused to answer the questions, he apparently would
nonetheless have been classified as a member of CDP on the basis of his
arrest record and officer intelligence.

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exceptions to Miranda, the “public safety exception” and the
“booking exception,” apply. These exceptions make Gilton’s
answer to the gang question admissible against him in his
criminal trial.
Here is the classification form as filled in for Antonio
Gilton, the codefendant at issue:

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It is evident from the form that Gilton was already thought to
be a gang member by sheriff’s department personnel, that he
was asked if he was affiliated with “Fillmore/CDP,” and that
he answered “Yeah, I hang out there, put me where I’m
from.” The acronym “CDP” refers to the Central Divisadero
Playas Gang. This answer was incriminating, both on the
charges against Gilton for killing and conspiring to kill, and
for state gang or federal RICO charges that might
subsequently be filed.
Gilton’s answer was obtained and also was valuable for
an entirely different purpose, determining where to put him
in jail and who should or should not be his roommate. He
needed to be transferred from his holding cell to the jail. A
“holding cell” is a temporary and often solitary and
uncomfortable cell in which people are held for a few hours
until they are transferred to jail. A jail is where prisoners are
held before trial, if not released on bail, and on short
sentences after conviction, typically for misdemeanors rather
than felonies. Gilton’s answer, “put me where I’m from,”
shows that he understood that his reply would be used as an
aid in determining where in jail to put him. He chose to
express a preference. His answer appears to be artfully
worded; he does not say in so many words that he is a
member of the gang, just that he “hang[s] out” with the
people in it. Some gangs have “hangarounds,” non-members
who are considering and being considered for membership.
Gilton’s declaration in support of his motion to suppress is
also artfully worded. He does not say that he would have
refused to say that he hung around with the gang and wanted
to be placed there, had his Miranda warning been repeated,
or had a lawyer been provided.

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Two exceptions to inadmissibility apply here, the “public
safety exception” and the “routine booking question”
exception. Their purposes overlap in this case.
The “public safety exception” allows admission of a
defendant’s custodial statements against him in his criminal
trial, despite lack of Miranda compliance. This exception is
unaffected by whether the question is likely to elicit an
incriminating response. The Supreme Court established it in
New York v. Quarles.1 Though the facts are different here,
the rationale applies. In Quarles, the police chased a
suspected rapist, caught him, frisked him and found an empty
holster, and handcuffed him. Then, before Mirandizing him,
the police asked him where the gun was. He replied, nodding
toward some empty cartons and saying “the gun is over
there.”2 It was. He was formally placed under arrest,
Mirandized, and asked if it was his gun and where he got it.
He replied that it was indeed his gun, which he had purchased
in Miami. The Court held that the admission he made while
cuffed but before getting his Miranda warning, that “the gun
is over there,” could not properly be suppressed, despite
Miranda.3
Quarles held that the statement, “the gun is over there,”
was made while the subject was in police custody.
Importantly, the officers were no longer concerned for their
own physical safety. The Court held that even though the
police were not in danger, nor was the suspect still dangerous

1

467 U.S. 649 (1984).

2

Id. at 652.

3

Id. at 655–60.

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to others, “there is a ‘public safety’ exception to the
requirement that Miranda warnings be given.”4 The gun was
hazardous to the public if found by an accomplice, store
employee, or store customer. The Court explained this in
terms of “social cost.” The rationale was that Miranda
warnings in custodial interrogation were desirable when the
social cost was merely fewer convictions, but not when there
was the additional social cost such as the danger from the
gun. The Court held 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.”5 The
“public safety exception” “will be circumscribed by the
exigency which justifies it.”6 Thus Miranda has no
application where exigencies involving public safety justify
the question, even though the prophylactic against compelled
self incrimination is sacrificed.
Time mattered in Quarles, because the police wanted to
find the gun before someone else did. Time matters here too,
because Gilton needed to be safely housed in jail at the time
of his transfer from the holding cell. No chase or shooting
was going on in Quarles. The only exigency was from the
gun, because Quarles knew where he had tossed it and the
police did not. The Court’s explanation, in terms of “social
cost,” meant that had the only burden of applying Miranda
been suppression of the suspect’s admission at trial, then
Miranda would have applied, but the additional “social cost”

4

Id. at 655.

5

Id. at 657.

6

Id. at 658.

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of danger to the public made the Miranda prophylactic too
risky.
That same “social cost” rationale applies to Gilton’s
request to “put me where I’m from,” with the people he
“hangs around” with. People in jail are part of the “public.”
Some are innocent, some are nonviolent people there for
nonviolent reasons like unpaid fines, and some are extremely
dangerous violent criminals and gang members. After
confining them and rendering them unable to defend
themselves, the state owes them a duty to protect them from
each other. “California’s other prisoners may be murderers,
rapists, drug dealers, and child molesters, but California is
responsible for protecting even those sorts of people from
murder by other prisoners. Indeed, the Eighth Amendment
requires that prison officials ‘must take reasonable measures
to guarantee the safety of the inmates.’”7 And as the Supreme
Court has said, “[L]aw enforcement officers bear a
responsibility for ensuring that the custody of an arrestee does
not create inordinate ‘risks for facility staff, for the existing
detainee population, and for a new detainee.’”8
A second, independent exception should also be extended
to this case, the “booking exception.” The plurality opinion
in Pennsylvania v. Muniz9 holds that routine booking
7

Griffin v. Gomez, 741 F.3d 10, 21 (9th Cir.) (quoting Farmer v.
Brennan, 511 U.S. 825, 832 (1994)), cert. denied sub nom. Griffin v.
Beard, 135 S. Ct. 114 (2014).
8

Maryland v. King, 133 S. Ct. 1958, 1972 (2013) (quoting Florence
v. Bd. of Chosen Freeholders of Cty. of Burlington, 132 S. Ct. 1510, 1518
(2012)).
9

496 U.S. 582 (1990).

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questions to secure biographical data necessary to complete
booking or pretrial services are exempt from the Miranda
prohibition, so the answers need not be suppressed.10 The
Court distinguished between questions “reasonably related to
the police’s administrative concerns” and questions “designed
to elicit incriminatory admissions.”11 Had the question about
gang membership been asked of Gilton by someone
responsible for prosecuting him, or investigating for his
prosecution, it would be “designed to elicit incriminatory
admissions.” But it was not. Asked by someone responsible
for assigning his housing in jail, as it was, the question was
“reasonably related to the police’s administrative concerns.”
The administrative concern was safety for Gilton, and safety
for inmates physically accessible to him, while he was in jail.
That Gilton was charged with murder made the need to
ascertain gang affiliation especially important for safety.
Without the gang knowledge, he could easily have been put
in danger from revenge by someone affiliated with the person
he had allegedly killed.12 As the Court explained in
Maryland v. King, knowing “the type of person whom they
are detaining” mitigates risks to staff, inmates, and the
defendant.13 In this case, the sheriff’s department already had
information about Gilton’s gang status, but it could have been

10

Id. at 600.

11

Id. at 601–02 & n.14.

12

People v. Williams, 294 P.3d 1005, 1018 (Cal. 2013) (victim’s
brother in the next room says “you’re a dead man”).
13

King, 133 S. Ct. at 1971–72.

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wrong or outdated,14 and confirming what they thought they
knew was important to his and others’ safety.
It would be presumptuous of us to limit the Supreme
Court decisions in Quarles and Muniz to their facts, and we
have not.15 In United States v. Carillo we held that under
Quarles an officer at a detention facility could ask the incustody suspect if he had any drugs or needles on his person
without Mirandizing him.16 The officer about to pat the
inmate down needed to protect himself from the danger of
getting pricked by a needle. “[A] pressing need for haste is
not essential” to applicability of Quarles.17 The question in
Carillo might not necessarily have elicited an incriminating
response, but it did: “no, I don’t use drugs, I sell them.”18
We held not merely that the officer could ask the question
and use the response to protect himself, as the majority in the
case before us now would have held; we held that admission
of the answer at trial did not violate Miranda.
Nor have we confined the “booking exception” to the
facts in Muniz. We held that the exception applied to asking
an inmate being booked what his “gang moniker” was, in

14

See Florence v. Bd. of Chosen Freeholders of Cty. of Burlington,
132 S. Ct. 1510, 1521 (2012) (citing Dep’t of Justice v. Reporters Comm.
for Freedom of Press, 489 U.S. 749, 752 (1989)).
15

United States v. Brady, 819 F.2d 884, 888 (9th Cir. 1987).

16

16 F.3d 1046, 1049–50 (9th Cir. 1994).

17

Id. at 1050.

18

Id. at 1049.

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United States v. Washington.19 Asking the inmate his gang
moniker is similar to asking his gang affiliation, because a
“gang moniker” would signify gang membership. The
question was as likely to produce an incriminating response
in Washington as the similar question was in this case,
because it would imply gang membership, and because the
police had evidence that “Rock,” Washington’s gang
moniker, was the perpetrator.20 We nonetheless treated this
question, likely to elicit an incriminating response, as a
“routine booking question” because gang information is
routinely obtained “to ensure prisoner safety.”21 We should
apply Washington and conclude that the gang question in the
case before us falls within the “booking exception,” so
Miranda does not apply.
The majority relies on four cases for its more restrictive
view of the booking exception, Booth, Henley, Mata-Abundiz,
and Gonzalez-Sandoval. Not a single one of these cases
involves a question during booking. The questions were
asked, respectively, on the street,22 in the police car,23 in a
holding cell by an officer interrogating to prove a crime,24 and

19

462 F.3d 1124, 1132–33 (9th Cir. 2006).

20

Id. at 1129, 1133.

21

Id. at 1133.

22

United States v. Booth, 669 F.2d 1231, 1234 (9th Cir. 1981).

23

United States v. Henley, 984 F.2d 1040, 1042 (9th Cir. 1993).

24

United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1046–47 (9th
Cir. 1990).

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in prison ten days after booking had occurred.25 None of
these cases is in point.
There is an “objectively reasonable need” to ask about
gang affiliation.26 As the Supreme Court stated, “Jails and
prisons . . . face grave threats posed by the increasing number
of gang members who go through the intake process.”27
High-ranking gang members are often incarcerated, and direct
the gang’s activities both within and without.28 There is a
high likelihood of violence because jails and prisons are
fertile recruiting grounds where gang members live in forced
proximity to their rivals.29
It is important to protect suspects from being compelled
to incriminate themselves. It is also important to protect
people in jail from violence and death. Gilton, and those
from rival gangs, all had a legitimate interest that the jail was
obligated to protect in waking up alive in the morning. The
deputy served that legitimate and important interest by asking
the gang question. Under both the public safety exception
25

United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983)
(“Moreover, the questioning conducted by Investigator DeWitt had little,
if any, resemblance to routine booking procedures. . . . [A]ny analogy to
routine booking procedures is unwarranted.”).
26

New York v. Quarles, 467 U.S. 649, 659 n.8 (1984); see United
States v. Brady, 819 F.2d 884, 888 n.3 (9th Cir. 1987).
27
Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 132 S.
Ct. 1510, 1518 (2012).
28

See Griffin v. Gomez, 741 F.3d 10, 22 (9th Cir.), cert. denied sub
nom. Griffin v. Beard, 135 S. Ct. 114 (2014).
29

Florence, 132 S. Ct. at 1518.

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and the booking exception, either of which would suffice
without the other, Miranda did not apply to the question, and
the answer was admissible in Gilton’s prosecution.