State v. Nieman
| Decision Date | 20 April 2011 |
| Docket Number | No. 06CR0094; A139607. |
| Citation | 256 P.3d 126,242 Or.App. 269 |
| Parties | STATE of Oregon, Plaintiff–Respondent,v.Scott W. NIEMAN, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Peter Gartlan, Chief Defender, and Brandon G. Williams, Appellate Division, Office of Public Defense Services, filed the brief for appellant.John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Erin C. Lagesen, Assistant Attorney General, filed the brief for respondent.Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge pro tempore.ORTEGA, P.J.
Defendant appeals from a judgment of conviction for one count of unlawful possession of methamphetamine, a Schedule II controlled substance, ORS 475.894, assigning error to the trial court's denial of his motion to suppress. Defendant argues that the investigating officer placed him in compelling circumstances that required Miranda warnings,1 and that the investigating officer continued to question him despite his unequivocal request for an attorney. Further, defendant contends that even if his request for an attorney could be characterized as equivocal, the investigating officer failed to limit his follow-up questions to clarifying defendant's intent. We conclude that the officer's interview of defendant did not occur in the context of compelling circumstances; therefore, the officer was not required to limit his questions once defendant mentioned the prospect of contacting an attorney. Accordingly, we affirm.
We state the following facts consistently with the trial court's factual findings and its decision to deny defendant's motion to suppress. State v. Shaff, 343 Or. 639, 641, 175 P.3d 454 (2007). Officer Lidey noticed a white pick-up truck with a single occupant parked in front of a restaurant. The occupant was “kind of bent over a little bit” in his seat. Lidey drove away, but returned after a few minutes and parked his patrol car in a parking spot approximately 50 feet behind the truck. Lidey got out of the car and approached the truck, where he again noticed a lone silhouette inside. He observed defendant seated in the driver's seat using a small flashlight to view some papers, and noted that the steering column appeared to be broken.
Lidey greeted defendant and asked him what he was doing there, and defendant indicated that he had just come from the restaurant. Lidey noticed that defendant was nervous and that there was a “large pile of keys” on the front passenger seat. Lidey asked defendant if he had any identification, and defendant started searching, indicating that he knew he was supposed to carry identification when he drove. In response to further questions from Lidey, defendant indicated that he had driven the truck to its current location. Lidey emphasized the importance of carrying and presenting identification and noted that one could be arrested for not doing so, and defendant acknowledged that he was aware of the possible consequences of driving without a license. Lidey then asked defendant if he could search him for identification, and defendant refused consent.
Lidey asked defendant if he would mind stepping out of the truck to continue their conversation. Defendant agreed and got out, but appeared to become more nervous and asked why he had been stopped. Lidey responded, “I have not stopped you.” He explained that they “were just having a conversation here and that [defendant] was free to go.” Lidey pointed out to defendant that his patrol car was parked some distance away, that he had not activated his lights, and noted, “I'm not running you on the radio or anything like that.” Lidey explained to defendant that he routinely patrolled the area, which was known for frequent illegal drug activity, and that when he observed someone acting suspiciously, he would contact them to see what they were doing. Lidey explained some of the suspicious activity that he had observed from defendant and noted the late hour. Defendant acknowledged that he could understand Lidey's suspicions, but explained that he had done nothing wrong.
At that point, another officer arrived, and Lidey again asked defendant if he could search him for identification. Defendant refused, but indicated that his identification might be inside the truck and stated, “Maybe I should have an attorney present.” Lidey immediately retrieved his recorder and began taping the encounter. He started by recounting on the recording what had occurred up to that point, with defendant occasionally interjecting comments. Then defendant indicated that he wanted to retrieve his identification from the truck, but Lidey asked him not to for officer safety reasons. Lidey informed defendant that he was not under arrest, but nevertheless gave him Miranda warnings.
After defendant indicated that he understood his rights, Lidey again asked him whether he had identification, and defendant said that he thought it might be inside his truck. Lidey told defendant that he could look for it if he allowed Lidey to pat him down for weapons first. Defendant agreed and Lidey patted him down, finding nothing. Defendant retrieved his Oregon driver's license from the truck, which Lidey examined and returned to him. Lidey then asked defendant for consent to search the truck for anything illegal. Defendant granted consent, but Lidey did not find anything illegal. Lidey then asked defendant if he could search his person for anything illegal, and defendant responded, “I'd rather you didn't.”
Lidey then asked if he could look at defendant's eyes, and defendant agreed. Lidey observed that defendant's pupils
Lidey informed defendant that, based on his observations, he suspected that defendant had recently used stimulants and that, based on the totality of the circumstances, he suspected that defendant “might have something illegal on [his] person.” He told defendant that, if defendant gave him the illegal substance, he would give him a citation to appear rather than arresting him, encouraging defendant to “draw a line in the sand * * * and stop using drugs, if that is in fact what you're doing, which I suspect that you are.”
Defendant then produced a used syringe from his left sock. Initially defendant denied that the syringe was his, but ultimately he admitted that it belonged to him and that he had used drugs that morning. At that point, Lidey informed defendant that he was detained. After some additional back and forth, defendant produced a small bag containing a crystalline substance, and indicated that it was $20 worth of methamphetamine. Lidey transported defendant to the police station to issue him a citation to appear for the crime for which he was ultimately convicted.
Before trial, defendant, citing the Fifth Amendment to the United States Constitution and Article I, section 12, of the Oregon Constitution, moved to suppress all statements that he made after Lidey gave him Miranda warnings—all of which were captured on the recording—and all evidence that resulted from the search “based upon statements made by defendant after his rights under Miranda were disregarded.” Defendant contended that his interaction with Lidey triggered defendant's right to counsel and the necessity for the warnings, and that he invoked his right to counsel when he stated, “Maybe I should have an attorney present.”
After a hearing, at which the recording made by Lidey during the encounter with defendant was played, the trial court denied defendant's motion. The court explained that the evidence showed that the encounter between Lidey and defendant was casual and that defendant was free to leave up until the time he produced the syringe and bag of methamphetamine. The court noted that the patrol car was parked 50 feet away with its lights off and no siren activated, that Lidey had not drawn his gun or handcuffed defendant, and that Lidey specifically told defendant that he was free to leave and was not stopped or arrested. The court also pointed out that defendant felt comfortable enough to deny Lidey's request for consent to search on three different occasions during the encounter, while consenting to some of his other requests. The court concluded that after Lidey gave defendant Miranda warnings, defendant continued to cooperate with the investigation and waived “any possible equivocal request for counsel[.]”
Defendant entered a conditional guilty plea on a single count of possession of a Schedule II controlled substance, and the trial court entered judgment. We review the trial court's denial of a motion to suppress for legal error. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court's historical findings of fact if there is evidence in the record to support them. Shaff, 343 Or. at 648, 175 P.3d 454.
On appeal, defendant raises only the state constitutional issue. Article I, section 12, of the Oregon Constitution provides, in part, that “[n]o person shall be * * * compelled in any criminal prosecution to testify against himself.” To protect a person's right against compelled self-incrimination, Miranda warnings must be given before questioning when a person is in “full custody” or in “circumstances that create a setting which judges would and officers should recognize to be compelling.” Shaff, 343 Or. at 645, 175 P.3d 454 (internal quotation marks omitted). When a suspect unequivocally asserts the right to counsel while in custody or compelling circumstances, the questioning must immediately cease. State v. Montez, 309 Or. 564, 572, 789 P.2d 1352 (1990). If the assertion of the right to counsel is equivocal, the officer's follow-up...
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