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HOWARD v. GARVIN

February 18, 1994

IRIS HOWARD, Petitioner,
v.
HENRY GARVIN, Superintendant, Mid-Orange Correctional Facility, Respondent.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Petitioner Iris Howard was convicted on April 9, 1987 of robbery, grand larceny and unauthorized use of a motor vehicle. Petitioner seeks habeas corpus relief from that conviction under 28 USC 2254. The petition is denied.

 Petitioner's conviction was affirmed by the Appellate Division, Second Department on June 18, 1990. The Appellate Division held (a) that where an emergency exists at a crime scene, police can put questions to persons present without previously giving Miranda warnings and that this was such a case, and (b) that failure to give petitioner advance notice concerning such evidence under state law was harmless.

 II

 Failure to provide a warning pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), may be raised on a petition for habeas corpus under 28 USC 2254 where such a warning was necessary to admissibility of statements of the accused used at trial. Withrow v. Williams, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993).

 New York v. Quarles, 467 U.S. 649, 657-58, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984), however, held that Miranda warnings were not required prior to questioning during an emergency situation at a crime scene:

 
We conclude 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 . . . .

 The Court continued:

 Quarles reflects the reality that the Constitution "is not a suicide pact," Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963).

 In the present case, at approximately 5 AM on a Saturday morning police were confronted with an alleged robbery at a social club involving holding of hostages; many patrons were inside the club and a large crowd was outside. Witnesses at the scene identified petitioner as a perpetrator. Police did not ask petitioner questions relating to what petitioner had done, but focused on who else was present who might threaten police or others at the scene - how many people were with petitioner and how many people were in the club? Petitioner replied that there were two more men that were with him inside the club. See Tr. Book 1 at 343-55; Book 2 at 312-22.

 Obtaining this information at once was urgently necessary for immediate public safety, even though also potentially indicative of guilt. The existence of the latter side effect can hardly forbid the ...


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