A defendant’s unwarned response to booking question regarding gang affiliation may not be used against him at trial. Gilton was arrested for murder and immediately invoked his right to counsel. When he was booked into jail, he was asked about his gang affiliation and he admitted he was in a gang. Initially charged in state court, Gilton was indicted by a federal grand jury on racketeering charges and the state case was dismissed. His response to the gang-affiliation question was relevant to establish his membership in an “enterprise” for purposes of the RICO charges against him (18 U.S.C. § 1962(c), (d)). The district court suppressed the gang statements based on Miranda v. Arizona (1966) 384 U.S. 436, and the government appealed. Held: Affirmed. The prosecution may not use a defendant’s statements, made during a custodial interrogation, unless it demonstrates the use of procedural safeguards (Miranda warnings) effective to secure the defendant’s privilege against self-incrimination. Once the defendant indicates in any manner and at any stage of the process that he wants to consult with an attorney before speaking, questioning must cease. “Interrogation” refers to police words or actions that are reasonably likely to elicit an incriminating response. It is true there is a “booking questions” exception to Miranda’s coverage to allow collection of biographical data, but when a police officer has reason to know that the defendant’s answer may incriminate him, even booking questions may constitute an interrogation. Gang membership exposes a defense to a number of penal consequences (citing People v. Elizalde (2015) 61 Cal.4th 523). In this case, questions regarding Gilton’s gang membership were likely to elicit incriminating responses because, at the time, he was facing murder, conspiracy to commit murder, and other charges to which this information might pertain.

The “public safety” exception to Miranda does not allow a defendant to be questioned regarding gang membership during the booking process. In New York v. Quarles (1984) 467 U.S. 649, the Court held that a police officer’s question regarding the location of the defendant’s gun was not an impermissible interrogation because it fell within the “public safety” exception to the giving of Miranda warnings. In that case police approached a rape suspect in a store and found him wearing an empty shoulder holster. Thus, in the act of apprehending the suspect, police were confronted with the immediate necessity of ascertaining the location of a gun recently discarded by the suspect, in order to protect both the police and the public from danger. There was no similar danger in Gilton’s case and the narrow “public safety” exception does not apply.

The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/05/15-10475.pdf