State v. Fasching

• Citation: 453 N.W.2d 761
• Decision Date: 27 March 1990
• Docket Number: No. 890196,890196
• Parties: The STATE of North Dakota, Plaintiff and Appellant, v. Julie Ann FASCHING, Defendant and Appellee. Crim.
• Court: United States State Supreme Court of North Dakota

Page 761

453 N.W.2d 761

The STATE of North Dakota, Plaintiff and Appellant, v. Julie Ann FASCHING, Defendant and Appellee.

Crim. No. 890196.

Supreme Court of North Dakota.

March 27, 1990.

Allen M. Koppy (argued), States Atty., Mandan, for plaintiff and appellant.

Vinje Law Firm, Bismarck, for defendant and appellee; argued by Ralph A. Vinje.

MESCHKE, Justice.

We consider whether custodial interrogation without a Miranda warning requires suppression of all evidence, testimonial and non-testimonial. We hold that only testimonial evidence must be suppressed. Therefore, we reverse the trial court's suppression of all evidence gathered after the custodial interrogation began.

At 12:26 A.M. on January 1, 1989, Morton County Deputy Sheriff Duane Snider observed a car accelerate rapidly onto Interstate 94 and, while following it, saw it "wander" in its lane several times. He stopped the car driven by Julie Fasching.

Deputy Snider approached the driver, asked for her driver's license, and identified Fasching. Suspecting that she was under the influence of alcohol, Snider asked Fasching to step out of her vehicle and to have a seat in his patrol car. While Fasching was doing so, Snider observed her sidestep once to maintain her balance. Fasching's passenger, Debra Holter, identified herself as Fasching's attorney and attempted to accompany Fasching to the patrol car. Snider ordered Holter to wait in Fasching's car.

After Fasching was seated in the patrol car, Holter again got out of Fasching's car and approached the patrol car. After writing the patrol car's license number, Holter tapped on the passenger window to get the occupants' attention. Holter told the deputy that she was Fasching's attorney and wanted to advise her client. Snider instructed Holter to get back into Fasching's car, which Holter did. During this approach by Holter, Snider locked the doors of his patrol car.

In the patrol car, Deputy Snider questioned Fasching and administered sobriety tests. Snider asked Fasching about where she had been and about the amount of alcohol she had consumed. Fasching performed an alphabet recital, a numerical countdown, and a lateral nystagmus test. During the questions and tests, Fasching asked to consult with Holter, but Snider denied her request. After completion of the sobriety tests, Snider arrested Fasching for driving under the influence and then gave her the customary Miranda advisory of rights. Fasching and Holter were taken in separate patrol cars to the law enforcement center where Fasching was given an intoxilyzer test before seeing Holter.

Before trial, Fasching moved to dismiss the charge or, "in the alternative, suppress [the] evidence gained as the result of an illegal arrest and subsequent illegal questioning." After an evidentiary hearing, the trial court found that "at the time [Fasching] was taken back to the patrol car by Deputy Snider she was in custody and deprived of her freedom in a significant way.... [A] reasonable person in [Fasching's] position, who just had her attorney ordered back into the car by a Deputy, would have understood that she was in custody and deprived of her freedom in a significant way." Concluding that "a custodial situation existed when Deputy Snider placed [her] in the patrol car," the trial court ruled that Fasching "should have been advised of her rights under Miranda prior to any questioning." The trial court ordered suppression of "all the evidence gained by Deputy Snider after [Fasching] was placed in the patrol car."

The State appealed, arguing that the trial court erroneously suppressed "nontestimonial," physical evidence, including the deputy's observations of Fasching's physical condition after she entered the patrol car (the look of her eyes, the odor of her breath, her gait, and her speech pattern), her performance on the physical sobriety tests, and the result of her intoxilyzer test. In response, Fasching argued that she had been "arrested" when she was placed in the squad car because she had been denied access to her accompanying attorney, locked in the patrol car, and kept there with the windows rolled up. Fasching extended this argument by insisting that she was arrested without probable cause and that, since the arrest was illegal, "all evidence derived from the illegal arrest should be (and was) suppressed." (Fasching's emphasis). Recognizing that this argument went beyond the trial court's finding of custodial interrogation without a Miranda warning, Fasching argued that "in relying on Miranda, [the trial court] simply did not express all the reasons that all evidence was suppressed." (Fasching's emphasis). In addition, Fasching argued that she was denied her right to counsel which also required suppression of all evidence.

The Fifth Amendment to the United States Constitution proclaims: "No person ... shall be compelled, in any criminal case, to be a witness against himself...." In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court implemented this privilege against compelled self-incrimination:

[T]he prosecution may not use statements, whether exculpatory or inculpatory stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. (footnote omitted).

384 U.S. at 444, 86 S.Ct. at 1612. If the police take someone into custody and question that person without warning about this basic constitutional right, the responses cannot be used as evidence to establish guilt.

Concurrent with its Miranda decision, the United States Supreme Court ruled in Schmerber v. California, 384 U.S. 757, 764-65, 86 S.Ct. 1826, 1832-33, 16 L.Ed.2d 908 (1966), that the Fifth Amendment privilege against self-incrimination did not protect an accused from compulsion as the source of "real or physical evidence," such as blood tests, fingerprints, photographs, measurements, and identification through writing, speaking, or physical activity. "Since the blood test evidence, although an incriminating product of compulsion, was neither [the accused's] testimony nor evidence relating to some communicative act or writing by the [accused], it was not inadmissible on privilege grounds." 384 U.S. at 765, 86 S.Ct. at 1833. Non-testimonial, "physical" evidence can be obtained and used without regard to the Fifth Amendment privilege against self-incrimination.

Both the procedural safeguard of the Miranda warning and the "physical" evidence exception apply to traffic stops for intoxicated driving. In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the United States Supreme Court held that a person subjected to custodial interrogation was entitled to the Miranda procedural safeguard regardless of the nature or severity of the offense suspected. Since McCarty was not informed of his constitutional rights when he was formally arrested for driving while intoxicated and when he was instructed to get into the police car, McCarty's statements made later at the police station were inadmissible. McCarty was then "in custody." However, a person temporarily detained for an "ordinary traffic stop" is not "in custody" for the purposes of Miranda. Therefore, McCarty's questioning by an officer at the roadside, outside of his car, during the temporary traffic stop was not "custodial interrogation," so...