State v. White

• Decision Date: 26 June 1984
• Citation: 685 P.2d 983,297 Or. 302
• Parties: STATE of Oregon, Petitioner on Review, v. Allen G. WHITE, Respondent on Review. TC 81-9-102; CA A23660; SC 29082. . *
• Court: Oregon Supreme Court

Page 983

685 P.2d 983

297 Or. 302

STATE of Oregon, Petitioner on Review, v. Allen G. WHITE, Respondent on Review.

TC 81-9-102; CA A23660; SC 29082.

Supreme Court of Oregon,

In Banc. ^*

Argued and Submitted Oct. 5, 1983.

Decided June 26, 1984.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the briefs were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Marilyn C. McManus, Deputy Public Defender, Salem, argued the cause for respondent on review. With her on the brief was Gary D. Babcock, Public Defender, Salem.

LENT, Justice.

The key issue is whether certain inculpatory statements made by the defendant stemmed from custodial interrogation as that term was defined by the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). That court said:

"By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."

384 U.S. at 444, 86 S.Ct. at 1612. A subsidiary issue is whether evidence seized in a search subsequent to defendant's inculpatory statements must be suppressed.

The facts we state are either undisputed or are binding upon us because they are taken from those found by the trial court in deciding defendant's motion to suppress his statements and the real evidence. See, e.g., State v. Warner, 284 Or. 147, 585 P.2d 681 (1978).

A farm building was burglarized on August 28, and eggs, milk and a radio were taken. Near midnight an informant telephoned to the Hermiston police, and a policeman named Duke came to interview the informant. The informant told Duke that defendant had come to the informant's home about an hour earlier and given the informant eggs and milk. ¹ The containers had the farm name on them. The informant recounted that the defendant told the informant that the defendant had taken the milk and eggs from the farm because the farm owner had refused to pay defendant wages for labor at the farm. The informant told Duke where defendant and his family were camping.

At about 4 a.m. on August 29, Duke, Umatilla Policeman Storment and Oregon State Trooper Christensen arrived at the campsite to contact defendant about the burglary and to contact one Perkins, reportedly staying at defendant's campsite, about another burglary and an attempted murder. The officers had a warrant for the arrest of Perkins. Concerning the officers' intent with respect to arresting defendant, Duke testified:

"Q Were you prepared to arrest him at the time you went out there?

"A Yes, we were.

"Q Was that dependent upon what you found out, or were you simply going to arrest him if you found him?

"A I don't understand.

"Q Were you simply going to go out and arrest him?

"A Yes, him, first we were.

"Q Had you made up your mind to arrest him?

"A Not thoroughly, no."

When the officers arrived, defendant, his wife and his children were asleep in the tent. During the ten minutes immediately after arrival at the campsite, Duke unsuccessfully looked around in the bushes near defendant's tent for Perkins.

Meanwhile, the other officers by words ² awakened defendant, who came just outside the tent. They asked him if he had gone to the farm and taken the eggs and milk, and he responded that he had. They asked why he had done so, and he answered that his family was hungry and that the farm owner had not paid defendant his wages for farm work.

Duke testified that when he had completed his ten-minute search of the area for Perkins, he returned to the place where Storment and Christensen were talking to defendant. Duke testified that he heard Storment, "pursuant to Miranda," advise defendant of his rights, that defendant "indicated" that he understood his rights and that thereafter defendant made the inculpatory statements about taking the property from the farm. Defendant testified that the questions were asked and his answers given before he was advised of his rights.

Duke testified that after the inculpatory answers were given, Storment asked defendant if they could look in defendant's car, that defendant answered that they could do so and told them where the "items" were. Duke then opened the car and found eggs and the radio where defendant said they were.

At the conclusion of the hearing on the motion to suppress, the trial judge stated from the bench:

"And, therefore, in view of the fact that he [defendant] was the center of the attention, he was a strong suspect, and he [Duke] had somewhat of an intention to arrest him when he went out there, the Miranda warning should have been given before he discussed the allegations of theft whether or not for 10 minutes."

The judge allowed the motion to suppress the inculpatory statements. ³ He noted that the evidence was uncontradicted that defendant gave his "personal consent" to the search of the car and denied the motion to suppress the evidence found in the car. Later the court made and entered an order in conformance with those rulings.

The state did not appeal prior to trial, as it might have under ORS 138.060(3), from the order suppressing the statements. Upon jury trial the defendant was found guilty, and judgment of conviction was entered.

Defendant appealed, assigning denial of his motion to suppress the items seized from the car. In the Court of Appeals, 59 Or.App. 61, 650 P.2d 184, the state virtually conceded that the items should have been suppressed if the trial court was correct in its ruling on the suppression of the statements. The state argued, however, that the trial court did not err in denying suppression of the items because the trial court did err in holding that the statements were to be suppressed. The state argued that the interrogation was not custodial and that the trial judge had mistakenly applied the pre-Miranda "focal suspect" test from Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). ⁴

The Court of Appeals stated that the facts here permitted no other conclusion than that defendant was "in fact, under arrest" at the time he made the inculpatory statements and, therefore, the statements were properly suppressed under the final decision of this court in State v. Roberti, 293 Or. 236, 646 P.2d 1341 (1982), petition for cert filed. ⁵ Having held that the trial court did not err in suppressing the statements, the Court of Appeals held that the items seized in the search of the car should have been suppressed and reversed.

We allowed the state's petition for review to determine whether our final decision in State v. Roberti, supra, was properly applied by the Court of Appeals to this case. ⁶

This case presents a clear case of interrogation by the police officers. The only issue is whether it was custodial interrogation as defined in Miranda.

Analysis does not begin with fixing the time of "arrest." The definition of custodial interrogation given in Miranda cannot depend upon the concept of "arrest" as such, for if it did, the various states, by diverse definitions, could fix varying meanings to the Due Process clause as it encompasses the self incrimination clause of the Fifth Amendment to the Constitution of the United States. Although in Oregon ⁷ "arrest" as defined in ORS 133.005 will ordinarily subsume custody, the obverse is not necessarily true.

Analysis must begin with determining whether the person being questioned is in custody. If he is, he must be warned prior to putting the questions in order to enable the government to use his statements against him. If he is not in custody, it still remains, by definition, to determine whether he is "otherwise deprived of his freedom of action in any significant way." If he is, a predicate for using his answers to interrogation against him is the giving of the warnings prior to putting the question. If he is not so deprived, warnings are not a predicate for governmental use of his answers against him.

In the final decision in Roberti, when a majority of this court decided that a statement of the defendant should have been suppressed because it was made pursuant to custodial interrogation, that majority did not evince complete agreement as to the exact point in the sequence of events that custodial interrogation commenced. The final majority members of the court agreed that

"at least as early as the time when the officer had arrived at a decision, although uncommunicated to the motorist, to arrest him"

interrogation thereafter was custodial. 293 Or. at 76, 644 P.2d 1104. The final majority held that the injunction of the Miranda decision was directed to the questioning officer, not to the person being questioned and, consequently, it was the officer's realization that the person was not free to go that was important, not a realization by the questioned person that he was not free to leave. The final majority also noted "It defies common sense to suggest that in those circumstances a reasonable person would believe anything other than that he was not free to leave.

" * * * Immediately prior to the time the question was asked, a reasonable person in the same circumstances would have believed he was not free to leave, and this defendant was, in fact, not free to leave by reason of the officer's decision to prevent defendant's leaving. I would hold that the question was, therefore, custodial interrogation * * *." (Original emphasis.)

293 Or. at 90-91, 644 P.2d 1123.

One member of the final majority, Judge Linde, in dissenting in the initial decision, drew particular attention to the proposition that judicial decisions should afford to the police officer guidelines that tell him how he is to comport himself in the field investigating crime. 293 Or. at 91, 644 P.2d at 1123. He pointed out that it is the factual setting, not later legal analysis, that is important to the officer in deciding when the warnings...