United States of America v. Larry D. Smith

* We granted Smith’s unopposed motion to waive oral argument, and thus
the appeal is submitted on the briefs and record. See Fed. R. App. P. 34(f).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 20, 2006*
Decided December 21, 2006
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 05-4378
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY D. SMITH,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois
No. 04-20072
Michael P. McCuskey,
Chief Judge.
O R D E R
Larry Smith, a fugitive, was hiding out in a hotel when federal authorities
finally arrested him. Almost immediately after his arrest—but before the officers
gave him Miranda warnings—they asked Smith where he kept his gun. Smith told
them, then received and waived his Miranda rights, and consented to a search of
his hotel room. The officers found the gun in Smith’s room just where he had
indicated and he was later charged with illegal firearm possession. The district
court refused to suppress Smith’s statement about the gun’s location and the gun
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-4378 Page 2
itself, and after a jury trial Smith was convicted of possessing a firearm as a felon.
See 18 U.S.C. § 922(g)(1). He was sentenced to 41 months. On appeal he argues
that the district court erred in denying his motion to suppress. We affirm.
The district court found the following facts after the suppression hearing,
none of which are claimed to be clearly erroneous, the applicable standard of
review. See United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006). Federal
authorities received a tip that Smith—wanted on several outstanding
warrants—was armed and hiding out at a hotel. Five officers went to the hotel and
staked out the room next to Smith’s. When officers saw Smith come out of his room,
they ran into the hall—outfitted in riot gear and brandishing guns—and yelled that
Smith was under arrest. Smith resisted. Investigator Kendall, who could tell from
Smith’s light clothing that he wasn’t armed, tackled him. Smith’s head hit the door
frame. Because Smith continued to resist, the officers tasered him in the leg.
Smith then relaxed his arms, and he was handcuffed.
Kendall and a U.S. Marshal immediately asked Smith if he had a gun; Smith
replied that there was a gun back in his room in a footlocker. Before this
questioning, other officers had already performed a twenty-second, protective sweep
of Smith’s room and secured it but saw no weapons. Kendall didn’t know about this
protective sweep before he questioned Smith about the gun.
After Smith acknowledged that a gun was in his room, Kendall told him to
relax, and cleaned the minor abrasion Smith received after he hit his head on the
door frame. Kendall then read Smith his Miranda rights, and asked if he would
consent to a search of his hotel room. Smith answered yes, and an agent obtained a
waiver of rights and consent form. Smith was read his rights for a second time
before he signed the form. When Smith consented, no weapons were pointed at him
and nobody threatened or hit him. After Smith waived his Miranda rights and
consented to the search, Kendall asked Smith where the key to the footlocker was.
Smith told him and the officers found the gun.
The district court denied the motion to suppress Smith’s initial answer about
the location of his gun, relying upon the public safety exception to Miranda
articulated in New York v. Quarles, 467 U.S. 649, 655-59 (1984). This exception
allows police to question an arrestee without first giving Miranda warnings if the
police reasonably believe doing so will protect them or the public from an immediate
danger, like a nearby concealed weapon. Id. at 659.
When reviewing the denial of a motion to suppress we review questions of
law de novo. See Mendoza, 438 F.3d at 795. On appeal, Smith again argues that
the district court should not have admitted into evidence his pre-Mirandized
statement about the gun under Quarles. Specifically, Smith argues that when

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No. 05-4378 Page 3
Kendall and the Marshal asked him if he had a gun they had no objectively
reasonable need to protect themselves or the public because they had already
handcuffed Smith, believed he did not have a weapon on his body, and other officers
had already gone into Smith’s room—which they secured from the public—to
perform a protective sweep.
Following Quarles, we have held that when arresting officers have reason to
believe that a suspect has concealed a weapon near the place of arrest, they may
ask about the weapon to protect themselves or the public “from the immediate
danger that a weapon would pose” even after the suspect is handcuffed and
searched. United States v. Edwards, 885 F.2d 377, 384 n.4 (7th Cir. 1989); see also
United States v. Knox, 950 F.2d 516, 519 (8th Cir. 1991) (police were not required to
give Miranda warnings before asking arrestee where his gun was; even though pat-
down indicated arrestee did not have a gun, police had reason to believe it could be
close by or in a public area).
Here, the officers had reason to believe Smith had a concealed gun nearby.
He was wanted on weapons charges and the tipster had told police that Smith was
recently armed. The officers could tell that the gun was not on his body, so there
was reason to believe Smith had hidden or disposed of it somewhere else close by.
Even though Smith was handcuffed and his hotel room was secured, the gun could
be elsewhere nearby and thus might pose a threat either to members of the public
who could discover it, or even to the officers should Smith again resist arrest.
Reasonably believing that Smith had a concealed gun but having not yet seen it, the
officers properly invoked the public safety exception to ask Smith where it was.
Smith’s second argument—that his waiver and consent to search were
involuntary so that the gun itself should have been suppressed—is also meritless.
He says that he “consented” only after being tackled and tasered by police, and
hitting his head on the door frame. We initially note that Smith “signed a consent
form, which weighs heavily toward finding that his consent was valid.” United
States v. Taylor, 31 F.3d 459, 463 (7th Cir. 1994). Moreover, the district court
determined that under the totality of the circumstances, Smith’s waiver and
consent were not coerced, a factual finding we review for clear error. See
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); Mendoza, 438 F.3d at 795.
The record shows that the officers did not use weapons or any kind of force to obtain
the waiver and consent (only the arrest), and that any physical injury Smith
sustained during his arrest was insignificant. We have found that arrest-related
injuries do not necessarily vitiate valid consent, see Watson v. DeTella, 122 F.3d
450, 454 (7th Cir. 1997) (consent voluntary even though defendant had been kicked
in the head by police at the time of his arrest), particularly when arresting officers
inflict injuries solely to bring suspects into compliance with police orders and not as
a form of interrogation. See id. (suspect was kicked in the head during his arrest

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not to make him confess but because he refused to raise his hands). That is the
case here, so the district court’s consent finding was not clearly erroneous.
AFFIRMED.

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