State v. Werowinski

• Decision Date: 13 February 2002
• Citation: 40 P.3d 545,179 Or. App. 522
• Parties: STATE of Oregon, Appellant, v. Jeff Michael WEROWINSKI, Respondent.
• Court: Oregon Court of Appeals

40 P.3d 545

179 Or. App. 522

STATE of Oregon, Appellant, v. Jeff Michael WEROWINSKI, Respondent.

991306; A111307

Court of Appeals of Oregon.

Argued and Submitted November 28, 2001.

Decided February 13, 2002.

Jonathan Fussner, Assistant Attorney General, argued the cause for appellant. On the brief were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Janet A. Klapstein, Assistant Attorney General.

Jennelle I. Hall, Deputy Public Defender, argued the cause for respondent. With her on the brief was David E. Groom, Public Defender.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and BREWER, Judge.

BREWER, J.

The state appeals from a pretrial order suppressing statements made by defendant before his arrest on two counts of second-degree assault, ORS 163.175, and one count of fourth-degree assault, ORS 163.160. The issue on appeal is whether defendant made those statements while in custody or under "compelling circumstances" such that Miranda warnings relating to self-incrimination were first required under the United States or Oregon Constitutions. We conclude that, although defendant was not in full custody, his statements were made under compelling circumstances. Because Article I, section 12, of the Oregon Constitution, required that defendant first be told of the rights that safeguard him against self-incrimination in such circumstances, see State v. Magee, 304 Or. 261, 265, 744 P.2d 250 (1987),

we affirm.

The following facts were undisputed or were found by the trial court and are supported by evidence in the record. See State v. Smith, 310 Or. 1, 791 P.2d 836 (1990)

(relying on trial court's findings of fact in analysis of custody and compelling circumstances). On October 18, 1999, Officer Swanson was dispatched to the scene of a tavern fight that reportedly involved four people. Swanson called for backup from a block away from the tavern. As he waited, a dispatcher reported that the fight had escalated, and "One of the subjects now has a steel bar and is hitting people with it." From his vantage point, Swanson could see that the fight had moved to the parking lot, where five or six people were yelling. When one person crossed the street away from the parking lot, Swanson stepped out of his car to approach. The person, who was visibly intoxicated, was later identified as defendant's roommate, Julie Moore.

As Swanson reached Moore, Moore lay down on the sidewalk and stated that "they all had guns, and they're gonna kill him." Defendant reached Moore at about the same time, and Swanson asked him what was happening. Defendant told Swanson that no one had a gun or steel bar but that he had had a hammer and that he had hit a person with it. Swanson asked why, and defendant replied, "Well, I was in a fight, and * * * there was two of them and only one of me." Defendant was no longer carrying the hammer. Swanson directed defendant to his patrol car and placed him in the back seat. On cross-examination, Swanson testified:

"I do not believe I put him in an escort hold and walked him over there, as he was extremely cooperative. I said `Well, let's go over to my patrol car, you can have a seat in there.' Just walked over there, is what I recollect."

Swanson noted abrasions on defendant's knees. Swanson asked defendant if he needed medical attention; defendant declined. Swanson told defendant that he was not under arrest, but that he was being detained. "I'm gonna go speak with everybody and find out what happened here," Swanson told defendant, "and I'll come back to talk to you again." Defendant was not handcuffed while he sat in the back seat of the patrol car. A plexiglass partition separated the back seat from the front seat, the interior rear doors were inoperable, and the rear windows could not be opened from the rear seat.¹ Defendant was able to observe the investigation scene through the car window. Moore approached the car, and the two communicated through the window. Moore, who was yelling, became disruptive and was detained in another police vehicle. Defendant smoked a cigarette while he was waiting. Swanson returned briefly to tell defendant not to smoke in the car. Defendant discarded his cigarette, and Swanson returned to his investigation.

Approximately 10 to 15 minutes after placing defendant in the patrol car, Swanson returned from interviewing other participants in the fight. Swanson opened the door but did not let defendant out of the patrol car. Swanson told defendant that the other participants had stated that, after an initial scuffle, defendant obtained a hammer and returned to the scene, where he hit people with the hammer. Swanson asked if the reports were true, and defendant replied that he did not think the fight was over and that his antagonists were still coming after him. Swanson responded, "Everybody else said you got in your vehicle, and you were driving away, and then you got your hammer." Defendant replied, "Yes, that's correct." Swanson then advised defendant of his Miranda rights and placed him under arrest. The questioning upon Swanson's return lasted less than one minute.

Defendant was charged with two counts of second-degree assault and one count of fourth-degree assault. He moved to suppress the statements made to Swanson after Swanson returned from interviewing the other participants in the fight, arguing that Miranda warnings were required because, at the time of Swanson's questioning, he was either under arrest and in custody or the circumstances were compelling. The trial court suppressed defendant's statements:

"Where a person is in custody or in a `setting which judges would and officers should recognize to be "compelling"' then Miranda-like warnings are required to be given. I believe that this is one of those situations and therefore would require that the statements that the defendant made to [Swanson] after he returned to the police vehicle and before the defendant was advised of his rights should be suppressed."

The state appeals from the suppression order.

Miranda warnings against self-incrimination are required under the Oregon Constitution when a defendant is in full custody or "when circumstances exist which, although they do not rise to the level of full custody, create a setting that is `compelling.' " State v. Widerstrom, 109 Or.App. 18, 21, 818 P.2d 934, rev. den. 312 Or. 526, 822 P.2d 1195 (1991). The state argues that the circumstances of the questioning were not so compelling as to require Miranda warnings under the United States and Oregon Constitutions. Defendant responds that Miranda warnings were required because he actually was under arrest—and, therefore, in full custody—regardless of Swanson's assurances to the contrary. In the alternative, he argues that the trial court correctly determined that the circumstances were compelling enough to require Miranda warnings.

We begin with defendant's contention that, when questioned, he actually was under arrest and in full police custody. The state responds that (1) "arrest" is defined by statute; (2) the definition of "arrest" expressly excludes a "stop"; and (3) defendant's detention in this case fits the statutory definition of a stop.

"A `stop' as authorized under ORS 131.605 to ORS 131.625 is not an `arrest.'" ORS 133.005(1). ORS 131.605(6) defines a "stop" as a "temporary restraint of a person's liberty by a peace officer lawfully present in any place." Defendant does not contend that Swanson violated any statutory requirements for the conduct of a stop.² Instead, he asserts that the stop was converted to an arrest when he was confined in the back of the locked patrol car. He relies on State v. Morgan, 106 Or.App. 138, 806 P.2d 713,rev. den. 312 Or. 235, 819 P.2d 731 (1991), where this court held that a handcuffed suspect who had been placed by police in the back of a patrol car had been arrested. By extension, defendant argues, his confinement in the back of a patrol car—even without handcuffs—constituted arrest. He notes that an arrest is no less such merely because a police officer has advised a suspect that he has not been arrested. State v. Koester, 117 Or.App. 139, 843 P.2d 968 (1992),rev. den. 315 Or. 644, 849 P.2d 524 (1993).

In Morgan, the defendant was stopped after police received a report that "there was possibly a person taking a person from a car or putting a person into a car at gunpoint." 106 Or.App. at 140, 806 P.2d 713. Investigating officers frisked the defendant. The frisk revealed no evidence of a gun. The officers then handcuffed the defendant and placed him in a patrol car. Meanwhile, officers searched the defendant's car and found some bullets inside a zippered eyeglass case, but no gun. An officer then asked the defendant if he had a gun, and the defendant described the exact location of a gun in his car. The officer retrieved the gun. The defendant was charged with and convicted of being a felon in possession of a firearm. On appeal, the defendant conceded that the stop was justified by reasonable suspicion, but he argued that police had lacked probable cause to arrest him. This court held:

"A stop authorized by ORS 131.605 to ORS 131.625 is not an arrest. ORS 133.005(1). However, even when a stop is authorized, a restraint that goes beyond the scope of a stop will result in an illegal arrest, if it is not based on probable cause. The question, then, is whether handcuffing defendant and placing him in the police car resulted in an arrest.

"* * * * *

"* * * The police initially had reasonable suspicion that defendant was armed with a gun and in the course of a possible kidnaping. That suspicion entitled them to take reasonable precautions for their safety. However, once defendant was taken out of the car and frisked, any concern about immediate danger dissipated, especially in light of [the officer's] description of defendant as `polite and cooperative.' On these facts, we find that, when defendant was handcuffed and placed

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