State v. Crossen

• Decision Date: 26 September 1972
• Citation: 10 Or.App. 442,499 P.2d 1357,95 Adv.Sh. 604
• Parties: STATE of Oregon, Respondent, v. Haskell Leroy CROSSEN, Appellant.
• Court: Oregon Court of Appeals

Page 1357

499 P.2d 1357

10 Or.App. 442

STATE of Oregon, Respondent, v. Haskell Leroy CROSSEN, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted July 26, 1972.

Decided Aug. 10, 1972.

Rehearing Denied Sept. 6, 1972.

Review Denied Sept. 26, 1972.

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

John L. Snyder, Dist. Atty., Dallas, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

Upon trial by jury, defendant was convicted on two counts of negligent homicide and one count of failing to remain at the scene of an accident. On appeal he contends that his statements to the police should not have been admitted into evidence, because defendant was not advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), before making the statements in question.

The charges against defendant arose out of an automobile accident which was investigated by three police officers. Upon arriving at the scene of the accident, the officers determined that two cars had collided, one of them a Ford and the other a Rambler. They also determined that two persons who had been occupants of the Rambler had been killed in the accident.

The occupants of the Ford were unable to tell the police who had been driving the Rambler. However, a witness told one of the officers that a person other than the two victims had been in the Rambler when the cars collided. A records check revealed that the owner of the Rambler was the defendant, who lived less than two miles from the scene of the accident.

One of the officers, a county deputy sheriff, then went to defendant's home, arriving there about an hour after the accident occurred. The deputy sheriff asked defendant if he knew where his car was. The defendant indicated that he did not. The deputy noticed that the defendant had an arm injury, and said to the defendant, 'You got the injury in the accident, didn't you?' The defendant admitted he had. The deputy then requested the defendant to return to the accident scene and the defendant did so.

At the scene, in the course of questioning by a state policeman, the defendant told a story inconsistent with his having been in the car at the time of the accident. As these conversations were going on, the officers kept studying the scene and came to the conclusion that it was not likely that either of the dead men had been driving the Rambler. They also came to the conclusion that the defendant was intoxicated and they then placed him under arrest on a charge of driving while under the influence. At this time the police gave the defendant Miranda advice. None of them had done so previously.

Only the three policeman testified at the In camera hearing on the admissibility of defendant's statements. They testified that up until the time the defendant was placed under arrest he was not in custody, was free to go at any time, and that generally, until the time he was arrested, they were investigating the accident to determine if a crime had been committed. The defendant offered no evidence at the In camera hearing or at trial. The record supports the trial judge's finding that at the time the defendant made the statements in question he was not in custody, and that, therefore, at that time Miranda advice was not constitutionally required.

We base our conclusion on a line of Oregon Supreme Court cases, commencing with State v. Evans, 241 Or. 567, 573, 407 P.2d 621 (1965). The opinion which well articulates the majority view of the Oregon Supreme Court is State v. Travis, 250 Or. 213, 441 P.2d 597 (1968), pertinent portions of which we restate:

'The complaining witness had reported to the police that the defendant, with whom she was acquainted, had broken into her house at night while her husband was away and that she had awakened to find the defendant on her bed. A police officer called at the defendant's home for the purpose of checking on the complaint. The defendant and his wife were both at home, and the defendant invited the officer inside. The officer declined the invitation, suggesting instead that it might be better if they talked in the officer's car.

'After the officer and the defendant were seated in the police car, the officer said, 'this is a criminal matter,' and advised the defendant 'that he had an absolute right to an attorney before making a statement.' The officer did not, however, advise the defendant of his right to counsel at public expense and of his absolute right to remain silent if he wished to do so. Accordingly, the advice fell short of the advice required under our decisions in cases of custodial interrogation. See State v. Edwards, 244 Or. 317, 417 P.2d 766 (1966); State v. Keller, 240 Or. 442, 402 P.2d 521 (1965).

'When the officer told the defendant about the woman's complaint, the defendant promptly admitted his presence in her home. The officer then told the defendant that the police would 'contact him later' if a warrant should be issued for his arrest. The officer took his leave and the defendant returned to his house. The next day, the defendant was arrested and charged with burglary.

'On the foregoing facts, the trial court found that the defendant had not been under arrest or 'otherwise deprived of his freedom of action in any significant way,' within the meaning of Miranda v. State of Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). Defendant's statements to the officer were received in evidence.

'Prior to the Miranda decision, this court had permitted the police to testify to conversations with focal suspects who had been questioned while not under arrest even though the officers had not first advised them of their rights. See State v. Evans, 241 Or. 567, 573, 407 P.2d 621 (1965). Since the trial court deemed State v. Evans controlling, this appeal seeks to have that decision overruled.

'This court was not unanimous in the Evans case, and the defendant now argues that the Miranda case has made the Evans case obsolete even if Evans correctly stated Oregon law at the time it was published.

'The defendant argues that the exclusionary rule now must be applied whenever a focal suspect is interviewed or interrogated without being advised of his rights. He would have us exclude the evidence regardless of the degree of police control or custody being exercised over the suspect at the time of the interview. By focal suspect, the defendant presumably means one whom the police have probable cause to arrest; this is the meaning we give to the term.

'Though the facts of the Miranda case involved police-station interrogation, the reasoning in that decision applies to custodial questioning outside the police station. It is clear that the police may not avoid the Miranda rules by questioning an arrested suspect on the way to the police station or in the field. See State v. Keller, 240 Or. at 448, 402 P.2d 521. And see Graham, What Is 'Custodial Interrogation?': California's Anticipatory Application of Miranda v. Arizona, 14 U.C.L.A.L.Rev. 59, 83 (1966). It is not always clear, however, at what point field questioning of a suspect becomes custodial interrogation. See, e.g., State v. Taylor, 249 Or. 268, 437 P.2d 853 (1968).

'The badge of a police officer representing governmental authority, in and of itself, may have a subtly coercive effect. But we cannot believe that any psychological pressure emanating from an officer's authority is likely to cause an innocent person, who knows that he is free to come and go, to confess a crime he did not commit. Nor is a question by an officer likely to produce involuntary self-incrimination on the part of a guilty person if that person is not under arrest or under any other form of restraint.

'The basis of the exclusionary rule is the Fifth Amendment guarantee against compulsion. The Miranda case held that police custody is 'inherently coercive.' If, in fact, there is no custody, there is no danger that a coercive environment will be created. There is no need, therefore, to indulge in a fictitious assumption that we are preventing coercion when we exclude otherwise admissible evidence.

'Some Post-Miranda cases have held that field interrogation of suspects requires all the Miranda warnings if police have probable cause to believe the suspect is guilty. See, e.g., People v. Terrell, 53 Misc.2d 32, 277 N.Y.S.2d 926, 939 (Sup.Ct.1967); Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967). On the other hand, the New York Court of Appeals has held that answers produced by field interrogation of a focal suspect without the Miranda warnings could be received in evidence where the suspect was not yet under arrest and the coercive elements described in Miranda were not present. People v. P., 21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255, (1968). See, to like effect, Evans v. United States, 377 F.,2d 535 (5th Cir. 1967); United States v. Agy, 374 F.2d 94 (6th Cir. 1967)...