COURT OF APPEALS OF VIRGINIA


Present:  Judges Annunziata, Frank and Senior Judge Bray
Argued by teleconference


COLEMAN EUGENE BENTON
			OPINION BY
v.	Record No. 0105-02-1	JUDGE ROSEMARIE ANNUNZIATA
									MARCH 25, 2003
COMMONWEALTH OF VIRGINIA


	FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Joseph Canada, Jr., Judge

		William P. Robinson, Jr. (Robinson, Neeley & 
Anderson, on brief), for appellant.

		Stephen R. McCullough, Assistant Attorney 
General (Jerry W. Kilgore, Attorney General, 
on brief), for appellee.


	Coleman Benton appeals his conviction of possession of a 
firearm by a convicted felon, in violation of Code  18.2-308.2.  
Benton contends the court erred in denying his motion to 
suppress his statements to a police officer, which Benton argues 
were made in violation of his Fifth Amendment rights under the 
federal and Virginia Constitutions.  Benton bases his appeal on 
the contention that the trial court erroneously invoked the 
"public safety exception" to the Miranda requirements.  He also 
contends that the police had no grounds to arrest him under Code 
 19.2-81 and that his arrest and detention were therefore 
unlawful.  Finding no error in the trial court's decision, we 
affirm.
FACTS
	On appeal, we review the evidence in the light most 
favorable to the party prevailing below, together with all 
reasonable inferences that may be drawn.  Quinn v. Commonwealth, 
25 Va. App. 702, 712, 492 S.E.2d 470, 475 (1997).  So viewed, 
the evidence establishes that on September 28, 2000, Officer 
Kevin Sullivan of the Virginia Beach police responded to a 
"nonemergency" report of a domestic disturbance at Benton's home 
address.  When the officers were advised via another radio 
dispatch that the situation was "turning physical and was 
continuing to escalate and get out of control," they changed 
their response to "emergency mode."  The officers were 
subsequently informed by the dispatcher that a gun had been 
discharged inside the residence.  Two children, aged nine and 
four, were in an adjacent room during Benton's dispute with his 
wife.
	Based on a description Officer Sullivan received from the 
dispatcher, he stopped Benton's car.  Benton was handcuffed and 
placed on the ground, frisked for weapons and, after a search of 
the vehicle disclosed no weapons, placed in a patrol car.  
Before advising Benton of his Miranda rights, Officer Sullivan 
asked Benton if he had just come from his residence and he 
replied, "Yes."  He also acknowledged that "he was part of the 
situation that was going on there."  Sullivan asked Benton if he 
had been arrested before and whether he was on probation or 
parole.  Benton told the police he had been arrested before.  He 
denied he was armed with a handgun, stating, "there's no way 
[he] would have a handgun with [him] or on [him] because . . . 
[he] had been convicted of a prior felony."  He agreed to 
accompany the police back to the residence where the domestic 
violence had occurred.
	Once the officers and Benton arrived at Benton's residence, 
Sullivan entered the residence to speak with Benton's wife.  
When he returned to the police car, Sullivan asked "if he knew 
where the gun was at."  Benton responded he had taken the gun 
outside the residence and "thrown it" and "it could be in the 
bushes."  A search of the bushes did not yield the gun.  
Sullivan then read Benton his Miranda rights and, after 
verifying that Benton understood his rights, proceeded to 
question him further.  Benton admitted that he brought a gun 
into his wife's house and that he later threw it down a storm 
drain.  Police never found the gun.
Analysis
	When reviewing a trial court's denial of a motion to 
suppress:
[T]he burden is on the appellant to show 
that the trial court's decision constituted 
reversible error.  [This Court views] the 
evidence in the light most favorable to the 
prevailing party granting to it all 
reasonable inferences deducible therefrom.  
[This Court will] review the trial court's 
findings of historical fact only for "clear 
error," but [this Court reviews] de novo the 
trial court's application of defined legal 
standards to the particular facts of a case, 
such as determinations of reasonable 
suspicion and probable cause.

Quinn, 25 Va. App. at 712-13, 492 S.E.2d at 475-76 (internal 
citations omitted).
	"[W]hen an individual is taken into custody or otherwise 
deprived of his freedom by the authorities in any significant 
way and is subjected to questioning, the privilege against  
self-incrimination is jeopardized" and the individual must, 
prior to questioning, be given certain warnings.  Miranda v. 
Arizona, 384 U.S. 436, 478-79 (1966).  The failure to give 
Miranda warnings prior to custodial interrogation violates that 
individual's constitutional rights under the Fifth Amendment and 
requires suppression of any illegally obtained statements.  Id. 
at 479. However, in New York v. Quarles, 467 U.S. 649 (1984), 
the United States Supreme Court created an exception to the 
general Miranda rule, recognizing 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."  Id. at 
656.  
	In Quarles, the police were alerted that the defendant was 
carrying a gun and had entered a supermarket.  The officers 
located him at the supermarket and, while frisking him, 
discovered that the defendant wore an empty shoulder holster. 
After handcuffing the defendant, and without giving him Miranda 
warnings, an officer asked him where the gun was, and the 
defendant responded, "the gun is over there."  The Court found 
the circumstances presented a threat to public safety and that 
the officers were not required to issue Miranda warnings prior 
to inquiring about the gun.  The Court stated: 
The police . . . 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 
. . . [s]o long as the gun was concealed 
somewhere . . . with its actual whereabouts 
unknown, it obviously posed . . . danger to 
the public safety . . . . We decline to 
place officers . . . 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.

Quarles, 467 U.S. at 657.	
	The "public safety" exception to Miranda's dictates was 
applied in this Court's decision in Shelton v. Commonwealth, 34 
Va. App. 109, 538 S.E.2d 333 (2000).  In Shelton, the police 
apprehended the defendant after being told that he robbed and 
carjacked a taxicab at gunpoint.  When the police apprehended 
the defendant in a residential neighborhood near a school, they 
handcuffed and frisked him.  The officers did not find a gun on 
his person.  Before reading the defendant his Miranda rights, 
one of the officers asked him where the gun was.  We held the 
officers did not violate the defendant's Fifth Amendment rights 
because "[t]he circumstances posed the risk that a resident of 
the neighborhood or a school child 'might later come upon [the 
gun].'"  Id. at 118, 538 S.E.2d at 337 (quoting Quarles, 467 
U.S. at 657).  
	Benton contends that the case at bar is distinguishable 
from Shelton because the defendant in Shelton was apprehended in 
a residential neighborhood, near a school, while he was stopped 
near a convenience store.  Thus, Benton argues the threat to the 
public was greater in Shelton, and therefore, unlike the case at 
bar, warranted the application of the public safety exception.  
We find this argument is without merit.  The police had been 
informed that a gun was discharged inside Benton's house.  When 
they frisked him, Benton did not have a gun in his possession, 
nor did the officers observe a gun inside Benton's vehicle.  The 
circumstances gave rise to an immediate need to determine the 
location of the gun to safeguard the public.  See Quarles, 467 
U.S. at 657.  If Benton had been carrying the gun which was 
discharged at his residence, it reasonably follows that he 
discarded it at a location between his residence and where he 
was stopped.  As a result, an immediate public threat arose: the 
children at Benton's home, someone in his neighborhood, or any 
individual along the route between his home and the convenience 
store may have found the gun.  The fact that Benton was not 
apprehended in a residential neighborhood or near a school, as 
in Shelton, is not dispositive.
	Benton further contends the police were not motivated by 
the "public safety exception."  Rather, he contends the concern 
for the public safety was an afterthought, articulated to 
justify the questions.  The argument is without merit.  In 
Quarles, the Supreme Court noted "the availability of [the 
public safety] exception does not depend on the motivation of 
the individual officers involved."  Quarles, 467 U.S. at 655-56.
In a kaleidoscopic situation such as the one 
confronting these officers, where 
spontaneity rather than adherence to a 
police manual is necessarily the order of 
the day, the application of the exception 
which we recognize today should not be made 
to depend on post hoc findings at a 
suppression hearing concerning the 
subjective motivation of the arresting 
officer.  Undoubtedly most police officers  
. . . would act out of a host of different, 
instinctive, and largely unverifiable 
motives - their own safety, the safety of 
others, and perhaps as well the desire to 
obtain incriminating evidence from the 
suspect.

Id. at 656.  "Whatever the motivation . . . we do not believe 
that the doctrinal underpinnings of Miranda require that it be 
applied in all its rigor to a situation in which police officers 
ask questions reasonably prompted by a concern for public 
safety."  Id. 
	Benton also contends on appeal that the police did not have 
grounds to arrest him under Code  19.2-81 and that his arrest 
and detention were unlawful.  Benton failed to properly preserve 
this issue at trial, precluding review by this Court.  See Rule 
5A:18.  His contention that the "ends of justice" exception to 
the rule cures the procedural default is without merit.  "'The 
ends of justice exception is narrow and is to be used 
sparingly'" and only when an error at trial is "'clear, 
substantial and material.'"  Redman v. Commonwealth, 25 Va. App. 
215, 220, 487 S.E.2d 269, 272 (1997) (quoting Brown v. 
Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10 (1989)).  
Moreover, the record must "'affirmatively show[] that a 
miscarriage of justice has occurred not . . . that a miscarriage 
might have occurred.'"  Mounce v. Commonwealth, 4 Va. App. 433, 
436, 357 S.E.2d 742, 744 (1987).  The record does not support 
the application of the exception to the rule.   
	For the reasons stated, we affirm the decision of the trial 
court. 
											Affirmed.
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