549 So. 2d 623 | Ala. Crim. App. | 1989
Donald Ward McCall was convicted in the circuit court of Montgomery County for the offense of driving under the influence of alcohol in violation of Ala. Code 1975, §
In determining the facts of this case, this Court has considered the testimony presented at both the hearing on the motion to suppress and at trial. Henry v. State,
The State's evidence shows that at approximately 3:45 on the afternoon of October 25, 1987, Alabama State Trooper Robert Thompson stopped the vehicle being driven by the defendant for traveling 72 miles per hour on a two-lane highway with a speed limit of 55 miles per hour. Trooper Thompson testified that the defendant "was opening his door about the time [he] approached his vehicle." Although the exact sequence of some of the events is unclear, it appears that, while the defendant was trying to tell the trooper that he was returning from a fishing trip in Florida, the trooper observed unopened liquor bottles on the back seat of the defendant's vehicle, observed that the defendant had "real bloodshot eyes," and smelled the "good strong odor" of alcoholic beverage on the defendant's breath. The trooper testified that he formed the opinion the defendant had been drinking.
Trooper Thompson asked the defendant for his driver's license and "asked" the defendant "to have a seat in the patrol car." The trooper testified that he "asked him to come back to the car to fill out a speeding ticket and do a field test." A review of Trooper Thompson's testimony shows that he asked the defendant to have a seat in the patrol car for three reasons: (1) for their personal safety in avoiding the potential danger posed by passing vehicles, (2) to write the defendant a traffic ticket for speeding, and (3) to obtain evidence that the defendant had been driving under the influence.
In the patrol car, Trooper Thompson told the defendant why he had stopped him and read the defendant his Miranda rights at 3:50 — approximately five minutes after he had stopped the defendant and "[a]lmost within fifteen to thirty seconds" after they were in the patrol car. A consideration of all of the trooper's testimony convinces this Court, with no degree of uncertainty, that the trooper first informed the defendant of his Miranda rights and then "started on the DUI part." He told the defendant that he knew he had been drinking and asked him "when did he take his last drink." According to Trooper Thompson, the defendant replied that "he took it when he had been down fishing."
In the patrol car, Trooper Thompson gave the defendant an Alcosensor test and a horizontal gaze nystagmus (HGN) test after which he informed the defendant that he was under arrest for DUI. The defendant was then handcuffed, placed in the back seat of the patrol car and taken to the Montgomery County Jail where his blood-alcohol level registered .136 percent on the Intoxilyzer 5000. The trooper testified that the defendant remained in the front seat of the patrol car for "probably five minutes maybe."
We find that the motion to suppress was properly denied because, as a matter of fact, the evidence shows that the defendant was given his Miranda rights before being asked any questions about his drinking, and, as a matter of law, the defendant was not entitled to be warned of his Miranda rights because he was not subjected to custodial interrogation.1 *625
Even though the defendant was in custody, he was not entitled to be warned of his Miranda rights. The term "custody" has different meanings depending upon the context in which it is employed. Minnesota v. Murphy,
"[A] person who is in custody for fourth amendment purposes,i.e., a person who has been 'seized,' is not necessarily entitled to 'Miranda warnings.' " Blake v. State,
Although an investigatory stop for purposes of the Fourth Amendment does not necessarily trigger a right toMiranda warnings, "[i]f a motorist is detained under circumstances substantially more coercive than the typical traffic stop, and that coercion actually impairs the free exercise of the privilege against self-incrimination, Miranda
warnings would be required." Blake,
The facts of this case do not support a finding that the defendant was "detained under circumstances substantially more coercive than the typical traffic stop," or that he was subjected to treatment that rendered him in custody for practical purposes. "[T]he fact that the brief questioning of defendant took place in the patrol car [does not] convert an ordinary traffic stop into a custodial interrogation."State v. Herem,
In Pittman, supra, the driver of the automobile was the co-defendant, Robinette. Robinette had been stopped for speeding. In the patrol car, he was informed that he was under arrest for speeding. While the state trooper was completing the UTTC, he smelled the odor of what he believed to be marijuana about Robinette's person. The trooper asked him if he had been smoking marijuana and Robinette replied, "Well, yeah, we had a joint on the way to work this morning." This Court held that Robinette "was properly arrested for speeding and was properly detained and placed in custody while Trooper Merritt was writing the traffic ticket." This Court also held that the trooper was not required to advise Robinette of his Miranda rights before asking him about the marijuana.
"Once the trooper smelled the odor of marijuana on Robinette's person, he was justified in asking him if he had been smoking marijuana without having advised Robinette of his Miranda rights.
" 'Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to "investigate the circumstances that provoke suspicion." United States v. Brignoni-Ponce,
422 U.S. 873 ,881 ,95 S.Ct. 2574 ,2580 ,45 L.Ed.2d 607 (1975). "[T]he stop and inquiry must be 'reasonably related in scope to the justification for their initiation.' " Ibid. (quoting Terry v. Ohio, supra, 392 U.S. [1], at 29, 88 S.Ct. [1868], at 1884 [20 L.Ed.2d 889 (1968)]). Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. [Berkemer v.] McCarty, 468 U.S. [420] at 439-440, 104 S.Ct. [3138] [at] 3150 [82 L.Ed.2d 317 (1984)].(Footnotes omitted.)'"See also State v. Wilson,
529 So.2d 1061 ,1063 (Ala.Cr.App. 1988); McBride v. State,355 So.2d 750 ,752 (Ala.Cr.App. 1978)." Pittman, 541 So.2d at 586.
For these reasons, we find that the motion to suppress was properly denied. The defendant was not taken into custody for the purposes of Miranda until Trooper Thompson arrested him for DUI. Consequently, the statements the defendant made prior to that point were admissible against him.
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.