State v. Medenbach
| Decision Date | 08 September 1980 |
| Docket Number | No. 79-24345,79-24345 |
| Citation | 616 P.2d 543,48 Or.App. 133 |
| Parties | STATE of Oregon, Appellant, v. Harry William MEDENBACH, Respondent. ; CA 16956. |
| Court | Oregon Court of Appeals |
Frank R. Papagni, Jr., Asst. Dist. Atty., Eugene, argued the cause for appellant. With him on the brief were J. Pat Horton, Dist. Atty., and Dennis L. Ulsted, Asst. Dist. Atty., Eugene.
No appearance for respondent.
Before RICHARDSON, P. J., and THORNTON and BUTTLER, JJ.
The state appeals from a pretrial ruling of the district court suppressing certain recorded statements made by defendant to a police officer at the time defendant was stopped for erratic driving. The court held the evidence inadmissible because 1) defendant had indicated his desire not to talk to the officer, and 2) the officer had told defendant that if defendant did not cooperate the officer would arrest him and take him to jail.
The essential facts presented at the pretrial hearing on defendant's motion to suppress were as follows:
Following the stop, the officer advised defendant that their conversation was being tape-recorded. The officer explained why he had stopped defendant and began asking defendant questions about his consumption of alcohol that evening. When the officer asked what time defendant began drinking, defendant replied: The officer replied that he could not determine whether to give him a ticket unless he asked some questions. Defendant replied, "All right, go ahead." Immediately thereafter, the officer asked defendant to perform a heel-to-toe-walking field sobriety test, as well as standing at attention, touching his nose with his finger, and reciting the alphabet. The officer testified that while he did not feel he had enough evidence to arrest defendant at the time defendant first said he didn't want to "go on with this," he did testify that he felt defendant did poorly on all the field tests which followed. After attempting the alphabet test just mentioned, defendant told the officer,
The officer responded by telling defendant, Defendant then agreed to do the rest of the tests, including reciting the alphabet, and was thereafter arrested for driving under the influence of intoxicants and advised of his Miranda rights.
The trial court found that all statements made by defendant between the time he was told by the officer that he would be arrested if he did not consent to perform some field sobriety tests and the time he was advised of his Miranda 1 rights were inadmissible on the ground that defendant had expressed a "definite desire not to talk to the officer" and that the officer had responded by threatening to arrest defendant. The court found further that the manner in which defendant recited the alphabet field sobriety test was testimonial in nature and also inadmissible because it was not voluntarily made.
On appeal the state argues that defendant was not in custody at the time the officer questioned him, that the questioning was part of an ongoing investigation to determine if defendant was fit to drive, and that defendant's statements were purely voluntary. Second, even assuming, arguendo, that defendant's incomplete recitation of the alphabet was involuntary, it was a part of the same ongoing investigation and was not testimonial in nature.
Defendant filed no appearance or brief in this court.
For reasons which follow, we conclude that the challenged statements by defendant to the police officer were voluntary and were admissible.
ORS 131.615 provides:
In State v. Taylor, 249 Or. 268, 437 P.2d 853 (1968), our Supreme Court held that, although a police officer investigating an automobile accident, precipitated by the fact that defendant entered a highway by way of an exit ramp rather than an entrance ramp, asked more questions than the minimum necessary to establish probable cause for arresting defendant on a charge of drunken driving, the officer's preliminary questioning did not produce inadmissible evidence under the Miranda rule.
Similarly, in State v. Ferrell, 41 Or.App. 51, 596 P.2d 1011 (1979), where a police officer reasonably suspected that the driver of a car he saw on the highway was intoxicated and saw the driver switch places after the car was flagged down, we held that the officer was justified in making reasonable inquiry, that defendant driver was not in custody while answering the officer's questions immediately following the stop, and no Miranda warnings were required as to incriminating admission made by defendant during the course of the officer's questioning. Accord: ...
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...His ‘threat’ did not constitute coercion and does not render defendant's subsequent statements involuntary. See State v. Medenbach , 48 Or. App. 133, 138, 616 P.2d 543 (1980)." Id . Seeking to understand the significance of that otherwise unadorned statement in Bates , we turn to the single......
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