State v. Shevyakov

• Decision Date: 05 May 2021
• Docket Number: A167831
• Citation: 311 Or.App. 82,489 P.3d 580
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Dimitry Fedorivch SHEVYAKOV, Defendant-Appellant.

311 Or.App. 82

489 P.3d 580

STATE of Oregon, Plaintiff-Respondent,

v.Dimitry Fedorivch SHEVYAKOV, Defendant-Appellant.

A167831

Court of Appeals of Oregon.

Submitted February 11, 2020.

May 5, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Brett J. Allin, Deputy Public Defender, Office of Public Defense Services, filed the brief for Appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and Powers, Judge, and Hadlock, Judge pro tempore.

LAGESEN, P. J.

Defendant fell asleep at the wheel while parked at an intersection in Fairview.The ensuing encounter with police led, ultimately, to convictions for driving under the influence of intoxicants (DUII), ORS 813.010(Count 1); unlawful possession of heroin, ORS 475.854(Count 2); and unlawful possession of a controlled substance, ORS 475.752(Count 3).He assigns error to the trial court's denials of his motions (1) to suppress evidence of his physical performance on the field sobriety tests (FSTs) and related derivate evidence; (2) in arrest of judgment on Counts 2 and 3; and (3) for a new trial on Counts 2 and 3.We reverse and remand, concluding that defendant's motion to suppress must be granted because he was unconstitutionally interrogated, in violation of Article I, section 12, of the Oregon Constitution, when a police officer asked him to perform the FSTs after defendant invoked his Miranda rights.

Motion to suppress .Defendant first contends that the trial court erred in denying his motion to suppress the evidence of his physical performance on the FSTs and evidence obtained as a product of a search warrant that was based, in part, on evidence of defendant's FST performance.Defendant's theory is that the evidence was obtained in violation of his Article I, section 11, of the Oregon Constitution right to counsel and also in violation of his Article I, section 12, Miranda right to counsel.We review by "accepting the trial court's supported factual findings and determining ‘whether the trial court applied legal principles correctly to those facts.’ "State v. Soto-Navarro , 309 Or. App. 218, 223, 482 P.3d 150(2021)(quotingState v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421(1993) ).

This case began when Officer Shropshire found defendant parked at an intersection in Fairview and asleep at the wheel of his car.Detecting signs of intoxication, Shropshire arrested defendant for DUII and read him his Miranda rights.Defendant spoke to Shropshire briefly but then invoked his Miranda right to remain silent and his Miranda right to counsel, telling him: "I don't want to talk [to] you guys anymore.I want to speak with my attorney."

After taking defendant to the police station, Shropshire asked if defendant would consent to performing the physical FSTs.Defendant was nervous but agreed after Shropshire explained that he could tell the difference between nervousness and impairment.Shropshire then used the evidence obtained from defendant's performance of the FSTs to obtain a warrant that, in turn, revealed that defendant possessed heroin and Xanax.

Before trial, defendant moved to suppress the evidence of his performance on the FSTs and the derivative evidence obtained under the warrant.Defendant's theory was that, after he invoked his Miranda rights, Shropshire impermissibly interrogated him in violation of those rights by requesting that he consent to performing the physical FSTs and then, when defendant was unsure about consenting, reassuring him that he could differentiate between nervousness and impairment.

The trial court denied the motion.It ruled that "[t]here's no problem with asking the defendant to perform a Field Sobriety Test after—after Miranda has been given and invoked.The *** Oregon courts have consistently said that the physical aspects of [the FSTs] are not testimonial."Although the court concluded that defendant's rights were not violated, it suppressed any verbal statements that defendant made while performing the FSTs.

On appeal, defendant challenges that ruling, making two arguments in support of suppression.The first is one he did not make to the trial court: that Shropshire violated his Article I, section 11, rights under State v. Spencer , 305 Or. 59, 74-75, 750 P.2d 147(1988), when Shropshire did not offer him the opportunity to consult with counsel before deciding whether to perform the FSTs.The second is one that he did: that by asking defendant to consent to performing the FSTs and reassuring defendant that he could differentiate between nervousness and impairment, Shropshire impermissibly interrogated him in violation of Article I, section 12, after he had invoked his Miranda rights.In particular, defendant argues that Shropshire's request and statements were interrogation under State v. Boyd , 360 Or. 302, 312, 316-19, 380 P.3d 941(2016) —that is, reasonably likely to elicit an incriminating response—because, in defendant's view, they were reasonably likely to elicit a refusal.Defendant reasons that a refusal is, in and of itself, an incriminating response because it is something from which an adverse inference of guilt may be drawn.

The state responds first that defendant's Article I, section 11, argument is not preserved and does not demonstrate plain error.It points out that, in Spencer , the case on which defendant relies, the court held that Article I, section 11, required that a DUII suspect be given an opportunity to consult with a lawyer before deciding whether to take a breath test, but did not address or hold that the same opportunity to consult with counsel must be afforded to a suspect asked to perform the FSTs.Thus, the state asserts, any error in declining to suppress the FST evidence under Spencer is not an obvious one correctable as plain error.

As for the FSTs, the state contends that the request that defendant perform the physical FSTs was not a problem because the physical FSTs are nontestimonial in nature and, therefore, under State v. Fish , 321 Or. 48, 58-60, 63, 893 P.2d 1023(1995) do not implicate Article I, section 12.See alsoState v. Nielsen , 147 Or. App. 294, 306, 936 P.2d 374, rev. den. , 326 Or. 68, 950 P.2d 892(1997)("[A] test that reveals an individual's intoxicated state, without requiring the individual to reveal his or her thoughts, beliefs or ‘state of mind,’ is not testimonial.").Addressing defendant's argument about a refusal to consent to the FSTs being incriminating testimonial evidence, the state does not directly respond to defendant's argument that that makes the request to consent impermissible post-Miranda interrogation under Boyd .Instead, the state argues that the request to consent comported with Article I, section 12, because defendant had the option of choosing between performing the FSTs, which would produce nontestimonial evidence, or refusing, which would produce testimonial evidence.The state reasons that, because defendant had a choice to produce nontestimonial evidence rather than testimonial evidence, he was not compelled to incriminate himself.

We agree with the state that defendant's Article I, section 11, argument is not preserved and does not qualify for review as plain error.Spencer held that, under Article I, section 11, "an arrested driver has the right upon request to a reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test."305 Or. at 74-75, 750 P.2d 147.That holding has never been extended to require a similar opportunity to consult with counsel before agreeing to perform the FSTs, and it is not obvious that Article I, section 11, requires such a rule.Accordingly, the trial court did not plainly err by declining to suppress the FST-related evidence under the theory that it was obtained in violation of defendant's Article I, section 11, rights.Ailes v. Portland Meadows, Inc ., 312 Or. 376, 381-82, 823 P.2d 956(1991)(error is not plain unless it is "obvious, not reasonably in dispute").

Starting with some housekeeping, although Fish does inform the analysis in this case, as we will explain, it does not answer the question presented: Whether a request to perform the physical FSTs constitutes impermissible interrogation in violation of Miranda .Fish did not address any Miranda issues.Rather, at issue, among other things, was whether the admission of a refusal to perform the FSTs at trial violated the Article I, section 12, prohibition against compelled self-incrimination.Fish , 321 Or. at 54-58, 893 P.2d 1023.The court held that, with respect to the FSTs that produce testimonial evidence, the admission of a refusal would violate Article I, section 12.Id . at 63, 893 P.2d 1023.With respect to the FSTs that did not produce testimonial evidence, however, the admission of a refusal would not violate Article I, section 12.The court reasoned that, in that instance, although a refusal was both testimonial and incriminating, it would not constitute compelled testimony when the defendant was given the option to do something that would not produce testimonial evidence.Id. at 58-60, 893 P.2d 1023.And the court was not called upon to address, and did not address, whether asking a defendant to perform the nontestimonial FSTs after the defendant has invoked the Miranda rights constitutes impermissible interrogation.

As for whether asking defendant to perform the physical FSTs after he invoked his Miranda rights constituted impermissible interrogation, answering that question is not easy and is a reminder that our process for developing the law in our state and country—over time, through case-by-case decisions—inevitably leads to knots and imperfections.That is, we have some snarls to untangle to resolve the parties’ dispute.Ultimately, we conclude that, under current case law, asking defendant to participate in the physical FSTs after he invoked his Mira...