State v. Stone

• Decision Date: 18 March 2015
• Docket Number: 114624FE,A152000.
• Citation: 346 P.3d 595,269 Or.App. 745
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Steven Michael STONE, Defendant–Appellant.
• Court: Oregon Court of Appeals

269 Or.App. 745

346 P.3d 595

STATE of Oregon, Plaintiff–Respondent

v.Steven Michael STONE, Defendant–Appellant.

114624FE

A152000.

Court of Appeals of Oregon.

Submitted May 27, 2014.

Decided March 18, 2015.

Peter Gartlan, Chief Defender, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and MOONEY, Judge pro tempore.

Opinion

SERCOMBE, P.J.

Defendant appeals a judgment of conviction for unlawful possession of marijuana, arguing that the trial court erred in denying his motion to suppress. An officer found defendant in a parking lot, observed that he was intoxicated, and decided to take him to a detoxification center. While still standing in the parking lot, the officer told defendant that he would be handcuffed and transported to “detox,” and he asked defendant if he had anything that he was not supposed to have. Defendant responded that he had “weed” in his backpack, which the officer later found pursuant to a consent search. On appeal, defendant argues that, contrary to the trial court's conclusion, the officer was required to give him Miranda warnings because he was questioned in compelling circumstances for purposes of Article I, section 12, of the Oregon Constitution.¹ For the reasons that follow, we conclude that the trial court properly rejected that argument and denied defendant's motion. Accordingly, we affirm.

We state the facts consistently with the trial court's factual findings and its decision denying defendant's motion to suppress. State v. Shaff, 343 Or. 639, 641, 175 P.3d 454 (2007). On July 30, 2011, an officer on patrol first saw defendant sitting in a Wal–Mart parking lot at around 7:00 p.m. When the officer later saw defendant walking his bicycle across the parking lot, he observed that defendant “had an overall drunk like appearance”: He was having balance issues, he had a flushed complexion and disheveled look, and he was bleeding from abrasions on his elbows that appeared to be “road rash” from having fallen down.

The officer decided to perform a welfare check because he was worried that defendant might decide to cross a busy, four-lane highway nearby. Upon making contact with defendant, the officer noticed that he smelled of alcohol and that his speech was slurred. Defendant told the officer that he was walking his bike to his home, which was not far away.

The officer decided to take defendant to a detoxification center in Medford. At the officer's request, defendant provided his identification. When the officer asked about his condition, defendant explained that he had drunk “too much to be riding his bike” and that he was bleeding because he had been “X–Gaming” on his bike, which the officer understood to mean “extreme sports.” At that point, in the officer's view, defendant would not have been free to retrieve his possessions and leave.

The officer asked defendant to put down his bike and the backpack defendant was wearing, though the officer told him that he could finish his cigarette. Defendant asked the officer if he would be handcuffed, and the officer responded that defendant “would be because [the officer] was taking him to detox.” As defendant was finishing his cigarette, the officer asked defendant a series of questions:

“[Officer]: Do you have anything you're not supposed to have?

“[Defendant]: Yeah.

“[Officer]: What is it?

“[Defendant]: Weed.

“[Officer]: How much?

“[Defendant]: One ounce.”²

The officer then asked defendant where the “weed” was. Defendant said that it was in his backpack and began to reach for the backpack. The officer stopped defendant because the officer was concerned for his safety. Defendant ultimately gave oral and written consent to allow the officer to search the backpack.

The officer handcuffed defendant and placed him in the patrol car, but did not ask him any other questions. He searched the backpack and discovered what he thought was less than one ounce of marijuana. The officer took defendant to the detoxification center and later determined that the quantity of marijuana was 1.57 ounces.

After being charged with unlawful possession of marijuana, defendant moved to suppress his answers to the officer's questions and the marijuana found in his backpack under various state and federal constitutional provisions, including Article I, section 12, and the Fifth Amendment to the United States Constitution.³ He argued that he should have been given Miranda warnings before the officer asked, “Do you have anything you aren't supposed to have?” because that question was asked while defendant was in custody or compelling circumstances. The circumstances were compelling, in defendant's view, because he was told he would be handcuffed and taken to “detox,” and defendant could appreciate that he was not free to leave. Defendant argued that, at that point, the circumstances were “different than a stop” because the officer had said, “I'm taking you somewhere.” He further asserted that the officer's question was designed to elicit, and did provoke, an incriminating response. In response, the state acknowledged that the officer's question “elicited a statement that was incriminating,” but argued that defendant was not in a custodial setting or in compelling circumstances because “[t]his [was] a civil detox hold,” defendant was not in handcuffs, there were no guns drawn, and there was only one officer present at the time of questioning.

The trial court denied defendant's motion, concluding that, although defendant was not free to leave, Miranda warnings were not required because defendant was not in custody or in compelling circumstances:

“Because this was a relatively brief encounter during day-light hours in a public place where Defendant's admissions occurred in a non-coercive conversation between [him] and the officer, I find that he was not entitled to Miranda warnings prior to that verbal exchange. Further, because there was really no evidence that the subsequent search of the backpack was anything but voluntary, I find that the search was not unlawful.”

Defendant entered a conditional guilty plea, reserving an appellate challenge to the trial court's ruling.

On appeal, defendant reprises his argument, under Article I, section 12, that, because he was questioned in compelling circumstances, he should have been given Miranda warnings, and the failure to give those warnings required suppression of his statements and the marijuana found in his backpack.⁴ To protect a person's right against compelled self-incrimination, Article I, section 12, requires that, “before questioning, police must give Miranda warnings to a person who is in full custody or in circumstances that create a setting which judges would and officers should recognize to be compelling.” State v. Roble–Baker, 340 Or. 631, 638, 136 P.3d 22 (2006) (internal quotation marks omitted). Whether a defendant was in compelling circumstances is a question of law that “turns on how a reasonable person in the [defendant's] position would have understood his or her situation.” Shaff, 343 Or. at 645, 175 P.3d 454. In making that determination, we examine the totality of the circumstances, including “(1) the location of the encounter—that is, whether the venue was familiar to the suspect or subject to police control; (2) the length of the encounter; (3) the amount of pressure exerted on the defendant, including, e.g., officers' affect and whether officers confronted the suspect with evidence of guilt in a coercive manner; and (4) the defendant's ability to terminate the encounter.” State v. Northcutt, 246 Or.App. 239, 246, 268 P.3d 154 (2011) (internal quotation marks omitted). With those considerations as our guide, the “overarching inquiry is whether the officers created the sort of police-dominated atmosphere that Miranda warnings were intended to counteract.” Roble–Baker, 340 Or. at 641, 136 P.3d 22.

Relying on that framework, defendant acknowledges that the encounter was not particularly lengthy and occurred in a public parking lot rather than a stationhouse subject to police control. But he emphasizes that he was not free to leave and that the officer “exerted pressure on [him] by questioning him regarding illegal activity.” He asserts that “the character of the question [as to whether defendant had anything he should not have] transformed the nature of the encounter from a welfare check into compelling circumstances.” Alternatively, defendant argues that the circumstances became compelling once defendant admitted that he was in possession of an ounce of marijuana, which defendant describes as an admission that “he was in the process of committing a felony.” The state responds that there is no legal support to the view that “noncompelling circumstances are rendered compelling * * * if either of two things occurs during a suspect's interaction with a police officer: the officer asks the suspect about possible criminal activity or the suspect admits to a crime.”

To determine whether particular questioning creates compelling circumstances under Article I, section 12, our concern is with “the use of aggressive and coercive police interrogation practices, especially including, but not limited to, those explicitly predicated on assumption of a suspect's guilt or calculated to contradict a suspect's assertions of innocence.” Northcutt, 246 Or.App. at 250, 268 P.3d 154. Contrary to defendant's claim, the officer's question here, which merely suggested that he was concerned about possible “illegal activity,” did not meet that threshold.

To start with, the Supreme Court has counseled that “the fact that police question a person as a suspect in a crime ‘does not inherently create a “compelling” setting for Oregon constitutional purposes.’ ” State v. Carlson, 311...