Officer’s ‘Where’s the gun?’ question properly admitted in shooter’s trial

August 11, 2015

A suspect who fled the scene of a Lafayette shooting and later was found with ammunition in his shirt pocket was not prejudiced when a police officer asked, “Where’s the gun?”

The Indiana Court of Appeals affirmed Bryan Gavin’s multiple felony convictions and 13-year executed sentence Tuesday. The panel held the officer’s question wasn’t a Miranda violation because the officer had reasonable concern for the safety of Gavin’s 3-year-old stepdaughter, who was in the car when police stopped Gavin at a gas station.

In October 2013, Michael Winston went to the Cambridge Estates Apartments in Lafayette, from which his girlfriend had called and asked him to pick her up. Gavin came to the door and said she wasn’t there and threatened Winston, who went to his car to retrieve a tire iron and tried again to call his girlfriend. Gavin then fired several shots from a .40 caliber semi-automatic handgun, two of which struck Winston.

Gavin grabbed his stepdaughter and fled just ahead of police, Chief Judge Nancy Vaidik wrote in the opinion. Officers soon pulled over a car matching Gavin’s description and ordered him out.

“Gavin ‘jumped’ out of the driver’s side and said there was a baby in the car,” Vaidik wrote in Bryan Gavin v. State of Indiana, 79A02-1501-CR-27.  An officer found a box of ammo on Gavin then asked where the gun was, and Gavin replied, “in the car.” A jury convicted Gavin of Class B felony unlawful possession of a firearm by a serious violent felon; Class C felony counts of battery, carrying a handgun without a license by a convicted felon, and criminal recklessness; and Class D felony neglect of a dependent. He was sentenced to an executed term of 13 years in prison.

The panel rejected Gavin’s appeal that the officer’s question should not have been admitted because he had not been informed of his Miranda rights.

Miranda warnings are subject to a public-safety exception. That is, Miranda warnings are not required when police officers ask questions reasonably prompted by a concern for the public safety,” Vaidik wrote. “Because the police officer’s question to Gavin about the location of the gun was reasonably prompted by a concern for Gavin’s three-year-old stepdaughter’s safety, we find that the trial court did not err in admitting Gavin’s statement. We therefore affirm Gavin’s convictions.”   



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