Salt Lake City v. Carner

• Decision Date: 29 April 1983
• Docket Number: No. 18587,18587
• Citation: 664 P.2d 1168
• Parties: SALT LAKE CITY, Plaintiff and Respondent, v. Steven R. CARNER, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1168

664 P.2d 1168

SALT LAKE CITY, Plaintiff and Respondent, v. Steven R. CARNER, Defendant and Appellant.

No. 18587.

Supreme Court of Utah.

April 29, 1983.

Ronald J. Yengich, Earl G. Xaiz, Salt Lake City, for defendant and appellant.

Roger F. Cutler, City Atty., Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

Defendant was charged with driving under the influence of alcohol and improper lane change, both in violation of the Revised Ordinances of Salt Lake City. A circuit court judge dismissed the charges on the ground that the defendant had taken certain field sobriety tests in violation of his right against self-incrimination afforded by Article I, Section 12 of the Utah Constitution. On appeal to the district court, a district court judge in a memorandum decision, reversed the ruling of the circuit court and remanded the case for further proceedings. Defendant appeals to this court seeking the reversal of the district court's decision and a reinstatement of the circuit court's ruling.

The facts are undisputed. In the early morning hours of July 18, 1980 a Salt Lake City police officer saw the defendant driving a red Datsun in the area of Tenth West and North Temple. He observed defendant's car cross the center line of the street three separate times while travelling approximately one block. After defendant's car made a sweeping left turn, the officer pulled him over. Upon approaching the car, the officer smelled an odor of alcohol coming from the car's interior. In talking to the defendant, the officer noticed that his speech was slurred. The officer asked the defendant to get out of the car and requested that he perform some field sobriety tests. He verbally agreed to the tests. Also, when instructed on how to perform the heel-to-toe test, the finger count test, the hand slap test, and the balance test he attempted to comply with each separate request. However, he was unable to effectively perform any of those tests. Based upon his observations of the driving pattern, field sobriety tests, the odor, and defendant's speech, the officer formed the opinion that the defendant was intoxicated to the point that it impaired his driving. He arrested defendant, advised him of the implied consent law, and asked him if he would take a breathalyzer test. The defendant agreed and the test was administered by another officer who observed the defendant and who also formed the opinion that he was under the influence of alcohol.

At trial, the breathalyzer test result of 0.14% blood alcohol was admitted into evidence without objection. (This result was .06% above the .08% which is the statutory presumptive threshold for driving under the influence). However, defense counsel moved that the results of defendant's performance of the field sobriety tests be suppressed since he was not given a Miranda warning in violation of this state's constitutional guarantee against self-incrimination. Apparently under the fruit of the poisonous tree doctrine, but without comment, the circuit court granted the motion and dismissed all charges against defendant.

Article 1, Section 12 of the Utah Constitution states:

The accused shall not be compelled to give evidence against himself ...

Defendant contends that performing field sobriety tests constituted giving evidence against himself, as defined in Hansen v. Owens, Utah, 619 P.2d 315 (1980). ¹ He also contends that at the time he was asked to perform the tests he was in custody, or otherwise significantly deprived of his freedom, and thereby "compelled" to give evidence against himself. The first contention is premised upon the second since there is no violation of constitutional rights if one voluntarily gives evidence against oneself. We shall therefore turn to a consideration of defendant's second contention.

The basis for defendant's contention that he was "compelled" to give evidence against himself is that he agreed to perform and did perform the field sobriety tests under "some substantial physical or psychological control or restraint." In State v. Martinez, Utah, 595 P.2d 897, 899 (1979), we held such restraint requires that a person be advised of his Miranda rights. ² Since he was not so advised, defendant argues that he did not knowingly and voluntarily waive those rights. The implication is that he did not voluntarily perform the field sobriety tests but was compelled to do so.

The dictum upon which defendant relies in State v. Martinez, supra, was written in the context of an affirmance of a conviction for possession of a controlled substance where the accused unsuccessfully contended that his Miranda rights should have been repeated within one-half hour of their first explication even though the sequence of events was continuous. The facts of that case do not offer a guide for what is "substantial physical or psychological control." Similarly distinguishable from the case before us is the language "detained in any significant way" found in State v. Ruggeri, 19 Utah 2d 216, 429 P.2d 969 (1967), which was uttered in the context of a grand jury proceeding and concerned testimonial evidence. More helpful is State v. Carlsen, 25 Utah 2d 305, 480 P.2d 736 (1971), where this Court held that an officer could, without giving a Miranda warning, investigate suspicious circumstances surrounding the disposal of meat taken from a packing company. We stated:

It would be wholly impractical and the law does not require an officer who is investigating suspicious circumstances to give the "Miranda" warning to everyone of whom he asks a question.

Id. 25 Utah 2d at 308, 480 P.2d 737. Similarly, in State v. Abbott, 21 Utah 2d 307, 445 P.2d 142 (1968), we held that a prisoner was not entitled to a Miranda warning prior to his engaging in a very short dialogue with the captain of the guards in which the prisoner was asked whether a knife, which he handed the captain shortly after another prisoner was stabbed, belonged to the prisoner.

It has been widely held that temporary detention for the purpose of investigating alleged traffic violations is not synonymous with in-custody interrogation which requires a Miranda warning. State v. Gray, 3 Wash.App. 146, 473 P.2d 189 (1970); State v. Tellez, 6 Ariz.App. 251, 431 P.2d 691, 25 A.L.R.3d 1063 (1967). See generally Annot., 31 A.L.R.3d 565 (1970). An accused must be apprised of his Miranda rights if the setting is custodial or accusatory rather than investigatory. In other words, at the point the environment becomes custodial or accusatory, a police officer's questions must be prefaced with a Miranda warning. However, for the purpose of determining whether a crime has been committed, investigation and interview are critical; under such circumstances, the warning is not required. Annot., 25 A.L.R.3d 1076 (1969); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); State v. Carlsen, supra.

Illustrative of the above rule is State v. Tellez, supra. There two police officers stopped the defendant driver for weaving back and forth across the double center line of the street. The officers directed the defendant to get out of his car and they proceeded to question him. The defendant admitted that the car he was driving was his and that he had been taking drugs. The officers told him to remove his coat and to roll up his sleeves, whereupon they observed a fresh puncture mark in the bend of each arm. The court observed that the formal arrest is not an adequate dividing line to use as a rule to determine when the warnings of constitutional rights must be given after a suspect has been stopped, since the temptation would be too great for officers to postpone formal arrest until a full questioning was completed. Instead, the court opted for the rule that the Miranda warning need not be given until police have both reasonable grounds to believe that a crime has been committed and also reasonable grounds to believe that the defendant committed it. Said the court:

We believe that the point where the warning must be given is when the two generally coincide, for from that point forward the police can be expected to pursue the case against the defendant with vigor. The police must have focused generally upon the crime so that they would have cause for arrest without a warrant. When the offense is a misdemeanor the crime must be committed in the presence of the officer. A.R.S., § 13-1403, subsection 1. The time for caution is when the arrest could be made. Everything prior to that time may be considered "the general on the scene questioning" which is permissible under Miranda. The officers smelled defendant's breath and looked at his arms. This was part of the investigation for determining if a crime had been committed. Questions asked at this time would also be investigative. Without such questions and answers, the police would be limited in knowing whether a person was drunk, a narcotics addict, diabetic, victim of an illness, or under the influence of medication or non-narcotic drugs.

6 Ariz.App. 256, 431 P.2d 696, 25 A.L.R.3d 1071. The test suggested by the court in that case comports with our decision of State v. Shuman, Utah, 639 P.2d 155 (1981) which held that a Miranda warning was not necessary when police were investigating whether a crime had been committed at all.

In Riddle v. State, Okl.Cr., 506 P.2d 1405 (1973), a defendant was held not to be entitled to a warning of his constitutional rights prior to performing the coordination tests which led to his arrest for the offense of public drunk. The court determined that the requests made by the police officer were non-custodial in nature. We find the instant case to be comparable to that case. The field sobriety tests here, like the coordination tests there, were not requested in a custodial setting.

The court in State v. Riffle, 131 Ariz. 65, 638 P.2d 732 (1981), restated four of the most important factors in determining whether an accused who has not...