State v. Smith

• Citation: 691 P.2d 484,70 Or.App. 675
• Parties: STATE of Oregon, Respondent, v. Grant SMITH, Appellant. M3 44; CA A29648.
• Decision Date: 06 February 1985
• Court: Court of Appeals of Oregon

Page 484

691 P.2d 484

70 Or.App. 675

STATE of Oregon, Respondent, v. Grant SMITH, Appellant.

M3 44; CA A29648.

Court of Appeals of Oregon.

Argued and Submitted June 15, 1984.

Decided Nov. 7, 1984.

Reconsideration Denied Jan. 25, 1985.

Review Allowed Feb. 6, 1985.

Thomas J. Crabtree, Bend, argued the cause and filed brief for appellant.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.

VAN HOOMISSEN, Judge.

Defendant appeals his conviction for driving while under the influence of intoxicants. ORS 487.540. He contends that the trial court erred in denying his motion to suppress evidence of statements that he made to the police both before and after he was advised of his Miranda rights and in denying his motion to suppress evidence of his refusal to take a breath test. We affirm.

Sheriff's deputies received a report of an accident. When they arrived at the scene, they found a vehicle off the road. No one was in or near it. They saw a pair of crutches inside. The deputies asked their dispatcher to check the vehicle's registration. Minutes later, they saw defendant near a warehouse 150 yards away. He ran when he saw the deputies. They ordered him to stop. He tripped and fell. He was still on the ground when the deputies caught up with him. He told them that he had just had knee surgery, and he offered to show them his knee brace or scar. The deputies helped him to his feet, held him and took him back to their car. It was apparent that he had been drinking. Deputy Swearingen testified that he was not free to leave at that time.

After defendant had identified himself, the deputies began questioning him about the disabled vehicle. At first, he denied that he owned or had driven the vehicle. He then stated that he had been drinking with friends in the warehouse, but that he could not remember their names. After the deputies learned from their dispatcher that the vehicle was defendant's, he admitted that he owned it and that he had been driving it when it went off the road. Swearingen then arrested him and advised him of his Miranda rights.

Defendant was taken to the county jail for booking. When he asked to contact a specific attorney, he was incorrectly informed that that attorney was a deputy district attorney who could not represent him. In fact, there were two attorneys in the area, father and son, with the same name. One was a deputy district attorney; the other was in private practice. Defendant then attempted, without success, to contact a second attorney. He did not attempt to contact a third attorney. At that time, he was asked to take a breath test. He refused. After Swearingen told him the consequences of his refusal, he stated that he would not take the test until after he had spoken to an attorney. Swearingen took that to be a second refusal.

Defendant contends that the trial court erred in refusing to supress evidence of statements he made to the arresting officers before he was advised of his Miranda rights. He relies on the Fifth Amendment to the United States Constitution, and Article I, section 12, of the Oregon Constitution, and State v. Roberti, 293 Or. 236, 646 P.2d 1341 (1982), vacated and remanded sub nom Oregon v. Roberti, 468 U.S. ----, 104 S.Ct. 3574, 82 L.Ed.2d 873 (1984). He argues that, from the time the deputies held him and took him back to their car, he was not free to leave, and that, therefore, he was "in custody" under State v. Roberti, supra.

In denying defendant's motion, the trial court stated, in relevant part:

"Well, I agree I guess you can read Roberti to require suppression in this case * * * since Mr. McCabe got Deputy Swearingen to say that [defendant] was not free to leave until they got through talking to him or some words to that effect. However [the district attorney makes] a pretty good point that * * * there really wasn't any reason to arrest him until they found out for sure which car it was that [he was] driving. Unless they found out after they got back to the police car and then about that time they arrested him and then someone gave him his Miranda rights. So, I'm going to rule that they gave him his Miranda rights * * * timely and that what he said before the Miranda rights was not while he was in custody in the sense of for any crime. They didn't know if there was a crime at that point. They suspected it, but didn't know. So they were conducting field interrogation and not trying to get evidence for a crime they already knew about * * * that they weren't sure that there was a crime at all."

We agree with the trial court's conclusion.

In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), a case that was decided after the trial here, the United States Supreme Court held that a motorist is not entitled to Miranda warnings unless he is "subjected to restraints comparable to those associated with formal arrest." 468 U.S. at ----, 104 S.Ct. at 3151. In State v. Hackworth, 69 Or.App. 358, 361, 685 P.2d 480 (1984), we stated:

"Thus, our inquiry in this case is not to determine when [the arresting officer] formed the subjective intent to arrest defendant, but rather at what point a reasonable person in defendant's situation would have understood himself to be in custody or under restraints comparable to those associated with a formal arrest.

" * * *

"We thus consider whether, under the standards expressed in McCarty, defendant was entitled to Miranda warnings before he was formally arrested. This case involves an accident investigation rather than a traffic stop, and thus some of the factors for determining the 'atmosphere' vary from those the Court discussed in McCarty. Our conclusion is the same, however; the circumstances of this encounter did not trigger the requirement of Miranda warnings. First, defendant was not pulled over by the officer; he was already detained by the accident itself. [The arresting officer] testified that defendant would not have been free to leave until he had completed his accident investigation. Assuming a reasonable person in defendant's position would have been aware of that unarticulated intent, such detention--like the traffic stop in McCarty --does not rise to the level of the 'functional equivalent of formal arrest.' Berkemer v. McCarty, supra, 468 U.S. 420 . Had defendant not been arrested, any restraint would have been temporary. A motorist questioned at an accident scene, expecially when there is no serious injury, reasonably expects that he will have to answer some questions and have his license and registration checked and that shortly he or the officer will depart. Like the traffic stop discussed in McCarty, the accident investigation took place in public and involved an encounter with only one officer." (Footnote omitted.)

See Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); State v. Hervey, 70 Or.App. 547, 689 P.2d 1322 (1984); State v. Gainer, 70 Or.App. 199, 689 P.2d 323 (1984).

We conclude that defendant here was not "subjected to restraints comparable to those associated with formal arrest" until he was formally arrested. The deputies were investigating an accident. When they saw defendant, they did not know what relation, if any, he had with the disabled vehicle. Initially, there was no evidence that a crime had been committed and they had no reason to arrest him. Defendant argues that he was in custody from the time that the deputies held him and took him back to their car. However, the totality of the circumstances do not support his conclusion. Defendant told the deputies that he had just had knee surgery. He was on rocky terrain and had fallen. He had been drinking. We conclude that the deputies were merely rendering him assistance. Neither is the fact that Swearingen testified defendant was not free to leave prior to being questioned controlling. Once it was established that defendant owned the disabled vehicle, it was reasonable to expect that he would be asked some questions. See State v. Hackworth, supra. If defendant had not been arrested, any restraint would have been temporary. The investigation took place in public. This was not the type of oppressive setting to which Miranda is directed. See Berkemer v. McCarty, supra. We find no violation of defendant's federal constitutional rights.

We address defendant's state constitutional argument, see State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983), only to say that we perceive no principled basis, and defendant has presented us with none, to require earlier warnings under Article I, section 12, of the Oregon Constitution than those required under the federal constitution. See State v. Scott, 68 Or.App. 386, 389, 681 P.2d 1188, rev. den. 297 Or. 547, 685 P.2d 998 (1984); see also State v. Lowry, 295 Or. 337, 351-53, 667 P.2d 996 (1983) (Jones, J., specially concurring). The Miranda warnings given here satisfied Article 1, section 12, of the Oregon Constitution. See State v. Sparklin, 296 Or. 85, 87-89, 672 P.2d 1182 (1983). We find no error.

Defendant also contends that the trial court erred in denying his motion to suppress statements he made after he was advised of his Miranda rights. See State v. Hibdon, 57 Or.App. 509, 512, 645 P.2d 580 (1982)...