State v. Gesinger

• Decision Date: 05 December 1996
• Docket Number: No. 19620,19620
• Citation: 1997 SD 6,559 N.W.2d 549
• Parties: STATE of South Dakota, Petitioner and Appellant, v. Thomas J. GESINGER, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 549

559 N.W.2d 549

1997 SD 6

STATE of South Dakota, Petitioner and Appellant, v. Thomas J. GESINGER, Defendant and Appellee.

No. 19620.

Supreme Court of South Dakota.

Considered on Briefs Dec. 5, 1996.

Decided Jan. 22, 1997.

Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for petitioner and appellant.

Jeffrey T. Sveen of Siegel, Barnett & Schutz, Aberdeen, for defendant and appellee.

GILBERTSON, Justice.

¶1 State of South Dakota petitioned for an intermediate appeal from a trial court's order suppressing certain statements made by Thomas Gesinger (Gesinger) both prior to and after his arrest for driving while under the influence of alcohol (DUI). We granted the State's petition, and following review of the substantive issues raised, we reverse.

FACTS AND PROCEDURE

¶2 On November 15, 1994, at 10:45 p.m., a South Dakota Highway Patrolman Mark Nelson (Trooper Nelson) stopped a vehicle driven by Gesinger on U.S. Highway 212 in Potter County for speeding. Trooper Nelson's radar clocked Gesinger traveling 73 miles per hour in a 55-mile per hour zone. Trooper Nelson approached the driver's side of the vehicle and, while Gesinger was still sitting inside, Trooper Nelson detected the odor of alcohol. Trooper Nelson told Gesinger he was being stopped for speeding, asked to see his driver's license, and asked Gesinger to have a seat in the patrol car. Gesinger obliged.

¶3 Trooper Nelson joined Gesinger in the patrol car and issued him a speeding ticket. At that time, Trooper Nelson detected a stronger odor of alcohol emanating from Gesinger and also noted Gesinger's slurred speech. Trooper Nelson asked Gesinger "if he had anything to drink" and Gesinger replied he "had a couple of drinks." Trooper Nelson did not inform Gesinger of his Miranda rights at this time. He would later testify Gesinger was not free to leave the patrol car, although he did not communicate this to Gesinger.

¶4 After Gesinger failed several field sobriety tests, Trooper Nelson arrested him for DUI, and took him in handcuffs to the Potter County Jail. At the jail, Gesinger's handcuffs were removed and he was informed of his Miranda rights for the first time. Gesinger waived his rights and agreed to speak with Trooper Nelson. When asked again by Trooper Nelson if he had been drinking, Gesinger replied in the affirmative. When asked what and how much he had had to drink, Gesinger replied "four or five ... Lords and 7s." Gesinger's statements made at this time, as well as his statements made to Trooper Nelson while sitting in the patrol car, are the subject of this appeal. The facts are not in dispute.

¶5 Gesinger moved for suppression of these statements claiming they were involuntarily made and made during a custodial interrogation without his having been informed of his Miranda rights. He claimed his statements made after he had been Mirandized were tainted under the "fruit of the poisonous tree" doctrine. Following a hearing, the trial court agreed and ordered both sets of statements suppressed, finding that Gesinger's constitutional rights against self-incrimination had been violated.

¶6 State petitioned this Court for intermediate appeal of the trial court's order. We granted the petition and State raises the following issues:

1. Whether the trial court erred in concluding Gesinger's statements, given both before and after Miranda warnings were issued, were involuntary?

2. Whether the trial court erred in concluding that Gesinger was subjected to custodial interrogation while seated in the patrol car?

3. Whether the trial court erred in holding the statements given after Gesinger was Mirandized were tainted as "fruit of the poisonous tree?"

STANDARD OF REVIEW

¶7 In Thompson v. Keohane, --- U.S. ----, ----, 116 S.Ct. 457, 460, 133 L.Ed.2d 383 (1995), the Supreme Court held that "whether a suspect is 'in custody,' and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review."

¶8 We recently stated that we review a trial court's decision on a suppression motion under an abuse of discretion standard of review. State v. Ramirez, 535 N.W.2d 847, 848 (S.D.1995) (citing State v. Flegel, 485 N.W.2d 210, 213 (S.D.1992)). "Unless such discretion is exercised to an end or purpose not justified by, and clearly against reason and evidence, the trial court's decision should stand." Id. (citing State v. Almond, 511 N.W.2d 572, 574 (S.D.1994)).

¶9 We have also held that a finding of voluntariness by the trial court is binding upon this Court unless it is found to be clearly erroneous. State v. DeNoyer, 541 N.W.2d 725, 731 (S.D.1995) (citing State v. Tapio, 459 N.W.2d 406, 411 (S.D.1990)). " 'In reviewing the trial court's findings, we consider the evidence in the light most favorable to the finding.' " Id. The State has the burden of proving beyond a reasonable doubt that Gesinger's statements were given voluntarily. State v. Blue Thunder, 466 N.W.2d 613, 616 (S.D.1991) (citing State v. Volk, 331 N.W.2d 67, 70 (S.D.1983)).

¶10 We proceed to address the issues in the same order as presented to us by the State in its appeal.

ANALYSIS AND DECISION

¶11 1. Whether the trial court erred in concluding Gesinger's statements, given both before and after Miranda warnings were issued, were involuntary?

¶12 The test for determining voluntariness of incriminating statements or confessions requires the trial court to consider the effect the totality of the circumstances had upon the will of the defendant and whether that will was overborne. State v. Oltmanns, 519 N.W.2d 602, 605 (S.D.1994) (citing State v. Dickey, 459 N.W.2d 445, 447 (S.D.1990); State v. Jenner, 451 N.W.2d 710, 716 (S.D.1990); State v. Hartley, 326 N.W.2d 226 (S.D.1982); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). " '[T]he question we must answer is not whether the interrogators' statements were the cause of [Gesinger's] confession, but whether those statements were so manipulative or coercive that they deprived [him] of his ability to make an unconstrained, autonomous decision to confess.' " State v. Kaiser, 504 N.W.2d 96, 101 (S.D.1993) (Kaiser I ) (quoting Dickey, 459 N.W.2d at 448).

¶13 We recently examined the factors the trial court must consider in determining whether the defendant's will was overborne. State v. Darby, 1996 SD 127, p 28, 556 N.W.2d 311. Therein, we cited these factors as including: 1) the defendant's youth; 2) the defendant's lack of education or low intelligence; 3) the absence of any advice to the defendant of his constitutional rights; 4) the length of detention; 5) the repeated and prolonged nature of the questioning; and 6) the use of physical punishment such as the deprivation of food or sleep. Id. (citing Dickey, 459 N.W.2d at 447). "A defendant's prior experience with law enforcement officers and the courts may also be a factor for the court's consideration." Id. at p 30, 556 N.W.2d at 320 (citing State v. Caffrey, 332 N.W.2d 269, 272 (S.D.1983)).

¶14 The trial court found that Gesinger's "incriminating statement" ¹ was not voluntarily made. We are bound by this finding unless it is clearly erroneous. DeNoyer, 541 N.W.2d at 731. ² Here, Gesinger made his statement at approximately 10:45 p.m. on U.S. Highway 212, three or four miles west of Gettysburg, while sitting with Trooper Nelson in the patrol car. The evidence shows he was cooperative at all times in answering the officer's question and understood what was being asked of him. The evidence also shows Gesinger was 46 years old at the time and had prior experience with a traffic stop of this type, having been previously arrested for DUI. The questioning which led to Gesinger's incriminating statement began after he had been cited for speeding and, according to the evidence, within a matter of minutes from the time Gesinger was stopped. The questioning which led to this DUI charge was not long in duration, in fact, it consisted of only one question: have you had anything to drink? Thereafter, Trooper Nelson performed field sobriety tests on Gesinger.

¶15 We cannot find, under the totality of the circumstances which must be considered, that Gesinger's statements were the product of police coercion or that his will was overborne. State v. Corder, 460 N.W.2d 733, 737 (S.D.1990). Accordingly, we find the trial court was clearly erroneous in determining Gesinger's statements, both before and after the Miranda warnings were given, to have been involuntarily made and we reverse the trial court on this issue. Compare Blue Thunder, 466 N.W.2d at 618 (defendant's statements found by this Court to be involuntary where defendant was kept in police car for 45 minutes while "dead drunk" and extensively questioned).

¶16 2. Whether the trial court erred in concluding that Gesinger was subjected to custodial interrogation while seated in the patrol car?

¶17 When analyzing whether an individual is "in custody" for purposes of activating the need for Miranda warnings, "a court must examine all of the circumstances surrounding the interrogation," Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528, 128 L.Ed.2d 293 (1994), but "the ultimate inquiry is simply whether there [was] a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)). "[P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warning to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.' " Darby, 1996 SD...