State v. Brown

• Decision Date: 02 March 1990
• Citation: 100 Or.App. 204,785 P.2d 790
• Parties: STATE of Oregon, Respondent, v. Warren Covey BROWN, Appellant. 10-86-07260; CA A46671.
• Court: Oregon Court of Appeals

Page 790

785 P.2d 790

100 Or.App. 204

STATE of Oregon, Respondent, v. Warren Covey BROWN, Appellant.

10-86-07260; CA A46671.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted Oct. 28, 1988.

Resubmitted In Banc Oct. 11, 1989.

Decided Jan. 17, 1990.

Reconsideration Denied March 2, 1990.

Lawrence J. Hall, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

GRABER, Judge.

Defendant appeals his conviction for manufacturing a controlled substance, ORS 475.992(1), and challenges the denial of a motion to suppress his statements and evidence seized from his vehicle. He argues that the statements and evidence resulted from an unlawful stop and that he did not receive necessary Miranda warnings. We affirm.

Lane County Sheriff's officers began surveillance of a heavily wooded section of BLM property after noticing several plots of marijuana plants during an aerial observation. No one came into the area during the first day and a half of surveillance. On the second day, defendant's truck came up the dead end gravel road and stopped. An officer hiding nearby saw defendant get out of the truck and enter the woods in the direction of the marijuana plants. ¹

Defendant emerged from the woods about an hour and 15 minutes later, went to his pickup, and then reentered the woods. The officer could see an implement hanging from defendant's belt that he described as "a pair of clippers or some other tool." Defendant returned to his truck approximately 45 minutes later and drove toward the highway. Officer Purdue, who was in a car with another officer and who had received radio reports from the hidden officer, stopped defendant's truck when it reentered the highway. Purdue told defendant that he wanted to discuss his activities in the area and to show him that a trailer hitch was partially blocking his truck's license plate. Both men walked to the rear of the truck to look at the hitch and the license plate.

Defendant handed his driver's license to Purdue on request. At about that time, Officer Jenkins arrived; he took defendant's license and ran a record check by radio. Purdue and the other officer left shortly after completing the record check, after which Jenkins was the only officer present. Jenkins told defendant about the surveillance of the marijuana plants and asked him if he would mind talking to him. Defendant said no, that he had nothing to hide and had done nothing wrong.

At first, defendant responded that he was in the woods looking for animal tracks and had no knowledge of any marijuana plants. After further discussion, he told Jenkins that he had found the marijuana and had contemplated stealing it, but decided not to. Defendant ultimately admitted that the marijuana plants were his. Jenkins searched defendant's truck, with defendant's consent, and seized two machetes. Defendant was not arrested or given a citation but was allowed to leave.

The entire encounter lasted approximately 30 minutes. Defendant testified that he repeatedly asked Jenkins whether he was under arrest and that Jenkins told him that he was not. Part of the conversation took place at the rear of defendant's pickup, where he and the officer had gone to inspect the license plate. At some point, Jenkins asked defendant if they could continue the discussion in his vehicle, because he could not hear defendant over the road noise. Defendant agreed. Jenkins told him that "[b]ecause you are in my truck doesn't mean you're arrested." Jenkins testified that he returned defendant's driver's license some time during the conversation, but defendant testified that it was not returned until he was expressly allowed to leave.

Defendant was charged with manufacturing a controlled substance. He moved to suppress all the evidence and argued that the initial stop was unlawful, that the inquiry after the stop was unreasonable, and that his consent to search was not voluntary. The court denied the motion. Defendant was convicted by a jury.

On appeal, defendant challenges the denial of his motion to suppress. He first renews his challenge to the initial stop. ORS 131.615. ² He argues that the officers lacked a "reasonable suspicion" ³ that he had committed a crime. In determining whether the officer had a reasonable suspicion, we use an "objective test of observable facts." State v. Valdez, 277 Or. 621, 629, 561 P.2d 1006 (1977). Defendant was the only person seen during the two-day surveillance. He was in the vicinity of the plants for approximately two hours and carried a tool that looked like clippers. Those facts were sufficient to create a reasonable suspicion that he was cultivating the marijuana.

Defendant next contends that neither officer gave him Miranda warnings; therefore, the incriminating statements should be suppressed. ⁴ The state does not dispute the absence of Miranda warnings but contends that they were not required.

Defendant argues that Miranda warnings are required under Article I, section 12, ⁵ and that the Oregon Constitution provides him more protection than the federal constitution in this case. The Supreme Court has told us, although somewhat cryptically, that Article I, section 12, requires Miranda warnings; however, that provision did not require warnings here.

In State v. Smith, 301 Or. 681, 725 P.2d 894 (1986), the plurality opinion of the Supreme Court concluded that Miranda warnings are not necessary under the state constitution. A fourth judge concurred in the result, but concluded that warnings are warranted under Article I, section 12, when a defendant is in "full custody." 301 Or. at 701-02, 725 P.2d 894 (Jones, J., concurring).

In State v. Magee, 304 Or. 261, 744 P.2d 250 (1987), the Supreme Court reversed the defendant's conviction, because he had not received Miranda warnings. After discussing some of the federal cases on the subject, the court said:

"We need not decide the multifarious cases that arise in the state courts by matching their facts with those in the few cases decided by the United States Supreme Court. This is a needlessly speculative and ultimately wasteful exercise at least when Oregon law furnishes an independent basis of decision. * * * It does so in this case." 304 Or. at 266, 744 P.2d 250. (Emphasis supplied; citations omitted.)

The "independent basis of decision," in context, is Article I, section 12. Four judges joined the majority. Three concurring judges would have held that Article I, section 12, does not require warnings. 304 Or. at 266-67, 744 P.2d 250 (Carson, J., concurring). The result in Magee makes no sense except as a rejection of the views of the plurality in Smith.

State v. Vu, 307 Or. 419, 425, 770 P.2d 577 (1989), cites State v. Magee, supra, as the only pertinent case under the heading: "Failure to Give Miranda Warnings * * * Under the Oregon Constitution." The court's brief discussion assumes that the Oregon Constitution requires warnings:

"We allowed review in this case primarily to determine, under the Oregon Constitution, the admissibility for impeachment purposes of a defendant's statement once the statement had been suppressed because of a failure to give Miranda warnings. We do not reach that issue." 307 Or. at 425, 770 P.2d 577. (Emphasis supplied.)

That passage confirms that Article I, section 12, requires warnings--under some circumstances.

Defendant asserts, and the dissent agrees, that State v. Magee, supra, provides a new standard for determining when the police are required by Article I, section 12, to give a person Miranda warnings before questioning: when the situation involves "compelling" conditions. He derives that argument from the Supreme Court's discussion of "full custody" in Magee:

"We asked the parties to discuss the term 'full custody' as a concept that might be applicable to this case, and they helpfully did so. * * * The concept of 'full custody' is important and useful in the sense that it informs officers of a point at which no further question about the need to warn a detained person arises; the term describes a sufficient but not a necessary condition. Its usefulness ends when it shifts attention away from the effect of questioning in another form or setting that judges would and officers should recognize to be 'compelling' to a debate whether the setting meets a judicial concept of 'full custody.' " 304 Or. at 265, 744 P.2d 250.

However, the discussion about "compelling" conditions is dictum, because the court held that

"[w]hen this defendant was told by an officer investigating assault charges that he could not leave the police station because he was involved in the fight, this constituted 'custody' adequate to require a warning before questioning." 304 Or. at 266, 744 P.2d 250.

The concurrence also recognized that the defendant was in custody within the meaning of the federal cases. 304 Or. at 267, 744 P.2d 250. (Carson, J., concurring).

The last quoted passage did not establish a new standard for when the Oregon Constitution requires warnings. Read in context, the court was describing that "level of custody" which gives rise to warnings and explaining how it derived a requirement that the police give Miranda warnings to a person who is in custody from the words of Article I, section 12, which prohibits "compelled" testimony. However, the court's analysis still focused on whether the situation involved custodial interrogation in determining that the police should have given the defendant warnings before questioning him. State v. Magee, supra, 304 Or. at 266, 744 P.2d 250.

The court later confirmed that State v. Magee, supra, did not eliminate the requirement of "custody." The opinion in State v. Vu, supra, assumes that warnings are required only when a defendant...