City of Wahpeton v. Skoog

• Decision Date: 19 December 1980
• Docket Number: No. 707-A,707-A
• Citation: 300 N.W.2d 243
• Parties: CITY OF WAHPETON, Plaintiff and Appellee, v. Kenneth SKOOG, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 243

300 N.W.2d 243

CITY OF WAHPETON, Plaintiff and Appellee, v. Kenneth SKOOG, Defendant and Appellant.

Crim. No. 707-A.

Supreme Court of North Dakota.

Dec. 19, 1980.

Steven J. Lies, Wahpeton, for plaintiff and appellee; appearance on briefs only no oral argument.

Johnson, Milloy, Johnson & Stokes, Wahpeton, for defendant and appellant; appearance on briefs only no oral argument.

SAND, Justice.

This is an appeal on the merits of a case previously before this Court on the City of Wahpeton's (City) motion to dismiss. City of Wahpeton v. Skoog, 295 N.W.2d 313 (N.D. 1980). We held the City's motion to dismiss in abeyance and ordered Skoog to file a transcript of the proceedings at trial within 30 days. Skoog complied with this order and we now reach the merits of Skoog's appeal.

Skoog was convicted in Wahpeton municipal court of driving while under the influence of intoxicating liquor and appealed to the Richland County Court of Increased Jurisdiction. ¹ Prior to trial in county court, Skoog filed a motion to suppress all "oral or tangible evidence, testimonial or communicated acts, or statements obtained directly or indirectly from the illegal arrest, detention or custody of Kenneth Skoog on August 27, 1979" because he was not advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Skoog's motion was denied, ² and after trial in Richland County court Skoog was convicted of the offense.

Skoog asserts that the trial court erred in not suppressing testimony concerning the field sobriety tests ³ because a Miranda warning was not given prior to the tests.

Skoog's assertion involves the Fifth Amendment privilege against self-incrimination. The Fifth Amendment provides in pertinent part as follows:

"No person ... shall be compelled in any Criminal Case to be a witness against himself ...."

In Miranda v. Arizona, supra, the Supreme Court spoke to the underlying policies supporting the privilege and stated:

"All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government state or federal must accord to the dignity and integrity of its citizens. To maintain a 'fair state-individual balance,' to require the government 'to shoulder the entire load,' (citation omitted) to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. Florida, 309 U.S. 227, 235-238, 60 S.Ct. 472 (476-477), 84 L.Ed. 716, 721, 722 (1940). In sum, the privilege is fulfilled only when the person is guaranteed the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will.' " Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694, 715 (1950).

The Miranda court went on to hold that the prosecution may not use statements stemming from custodial interrogation of the defendant unless it can be shown that the defendant has been informed of his constitutional rights prior to being questioned. The Miranda warning requires that an accused person who is in custody must be advised, prior to the time that a statement is taken, that he has the right to remain silent, that any statement he does make may be used against him, and that he has the right to the presence of an attorney, and that an attorney will be provided for him if he cannot afford to hire one.

The scope of the term "statement" within the meaning of the Fifth Amendment was reviewed by the Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber, the defendant was forced to submit to the withdrawal and chemical analysis of a blood sample to determine the alcohol level in his blood. The court held that the privilege against self-incrimination only protected the accused from being compelled to testify against himself or to otherwise provide the prosecution with evidence of a "testimonial or communicative" nature. The court went on to state:

"It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. (Citation omitted.) On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it." Schmerber v. California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 1831-1832, 16 L.Ed.2d 908, 916 (1966).

Thus, the Supreme Court has distinguished between testimonial compulsion and compulsion which does not force the accused to be a witness against himself, but merely requires him to be the source of real or physical evidence. Testimonial compulsion is proscribed by the Fifth Amendment.

In light of Schmerber and Miranda, Skoog asserts that the field sobriety tests are...