*1 September 4, April 6, Argued reargued judgment and submitted of Court of reversed, allowed; Appeals May 4, petition rehearing district court affirmed for withdrawn; affirmed; Appeals June decision 22, Court remanded to District Court (293 1341), allowed, Oregon Or 646 P2d U.S. certiorari remanded to 873) July 5, (82 Supreme Court L Ed2d (See Oregon Reports) later issue OREGON, STATE OF Review, on Petitioner ROBERTI, GARY PATRICK Respondent on Review.
(TC T79-12-0348, 27840) CA SC
TANZER, J. concurring opinion. Roberts, J., filed a dissenting opinion Lent, J., Peterson, J., filed a in which joined. dissenting opinion.
Linde, J., filed a *3 60-b
TANZER, J. appeals of of the crime his conviction
Defendant assigns driving of intoxicants. He the influence under objection, a evidence, over admission into error the police questioning response after statement he made pulled to the case was tried his car. The the had over officer judge defendant’s statements the relied court and coming Appeals finding guilt. Court of its holding officer made after the reversed, that the statement arrest communicated, his intention to formed, but had interrogation product and was the custodial defendant uphold suppressed. reverse and have been We should trial court.
THE FACTS driving car at a.m. on Defendant was 2:10 paced major highway defen- in a rural The officer area. per it at miles hour dant’s car about 80 and observed crossing fogline weaving right lane, in the hand over the traveling guardrail. times, close to several and times lights turned on the on his The officer overhead stop patrol brought car, his car to at the and defendant response apparently road, to the officer’s side of the signal given lights. the overhead stepped began out his car and to walk Defendant car, met officer. rear of the where he was toward the beverage on alcoholic officer detected an odor of eyes also that defendant’s breath. He noticed defendant’s watery his face was flushed. bloodshot and were of the officer’s observa-
The officer told defendant concerning operation vehicle. defendant’s tions Defendant fast, going too he had been his
answered that knew “fight” passenger wife, he had had a with over the vehicle, he had three drinks had preceding 11:00 hours, last after six two course of talking p.m. swayed forth while Defendant back and officer. sobriety administering tests, the field
Before had, and education he how much officer asked defendant defendant got replied, it, officer name I’ve it.” The “You say alphabet, and defendant then asked defendant *5 very correctly unable, however, did so well. Defendant was Next, to count backward from 100 to 85. the “heel-to-toe” asphalt-paved portion test was conducted on an roadway slight uphill grade, being awith the area illumi- by lights” nated car’s “rear and the officer’s flashlight. Defendant did not maintain his and balance well staggered leg, several times. asked to on When stand one immediately, try defendant lost his balance and on a second maintained balance for about four seconds. Defendant did “finger-to-nose” say test, well on the but asked to when year, barely months of the he so slurred his words as to be understandable. point
At that the officer had determined that he going driving was influence of intoxicants. He did not communicate that to arrest defendant for while under the determination to defendant or utter words arrest to Rather, defendant. the officer then asked defendant to rate “being ten, himself on a scale of intoxication of zero to zero anything being falling- like he hadn’t had to drink” and ten responded down drunk. Defendant that he was a “low five” driving and that he should not have been and should have passenger let another drive. It is this statement which is issue. placed
The officer “then the defendant under rights and read the defendant his at 2:20 arrest for DUII A.M.”
THE TRIAL Upon the defendant was successful in exclud- trial tape recording ing from evidence a made the officer on stopped Moreover, test the scene after defendant results related his car. analysis of a chemical of defendant’s breath testimony stricken the test was found were because improperly rulings are not have been conducted. These in issue. objected reception
Defendant of the officer’s testimony concerning response to the the defendant’s on the scale of intoxica- officer’s invitation to rate himself tion: Honor, improper going object I’m based on “Your having and he’s
foundation because he’s now him, to arrest determination he’s made a him do tests point. rights at this advised of to be he’s entitled me he hasn’t It seems to overruled. “Judge: Objection certainly made yet although he arrest him he’s under told decision.” finder, the trial as fact making his decision time of At the stated: judge disregard carefully I
“Well,
and have
I listened to this
But all
breath test.
put
state on the
the evidence
in
that defen-
all,
beyond reasonable doubt
I’m
convinced
time
at the
influence of intoxicants
was under the
dant
to,
testified
the officer
weaving which
based on the
*6
up, the
he had all fouled
he said
which
count backwards
himself
very good, and the defendant
balance he said wasn’t
—
ten
zero and
himself between
asked to rate
when
—
That
a ‘low 5’.
real drunk
said
whether sober to
that he was
thought
he
himself
to me that
indicates
somewhat
charge.”
guilty of the
finding will be
affected. So the
THE APPEAL
error was the
assignment
the sole
Upon appeal
the
testimony
objection
failure to sustain
rate
the invitation to
response
defendant’s
officer as to
brief,
made it clear that
was
In his
defendant
himself.
defendant of
to advise
on the failure of the officer
relying
Arizona,
436,
Ct
under Miranda v.
86 S
rights
his
of the
(1966), and several decisions
1602,
question was trial court erred interrogation, a custodial become not the error was and that sustaining objection, in not the state’s allowed doubt. We a reasonable beyond harmless urged: review, in the state which petition for “* * * bring is needed this Court A decision conformity the decisions with Oregon into law State v. rev den [1] Defendant P2d 1011 Campbell, Or 189 relied (1979); [43] Or upon App State v. and State v. [607] Brown, P2d Paz, [745] 44 Or Or (1979); App App State v. [606] Ferrell, P2d 1036 P2d 678 41 Or (1980); (1977), App Court, clarify analysis Supreme States and
United especially in interrogation, constitutes ‘custodial’ what questioning.” of on-the-scene context CUSTODIAL INTERROGATION any right guar- has not contended that Defendant the statutes of him either the constitution or anteed to rights claim is that his state has been violated. His sole this Amendments to United under the Fifth Fourteenth approach do not have been invaded. We States Constitution any independent ground; state the case therefore rather, Supreme seek to divine what the United States we this case. should do if it had Court that his statements Defendant makes no assertion involuntary his will was overborne. in the sense that were n evidentiary only use of contention is His product improper it was the was because statement interrogation that term is used in Miranda as custodial preceded by supra, advice and Arizona, it not required rights case. in that waiver of yet simple was not answer is that defendant challenged custody made and statement was when the applicable. procedures Lent, in Justice were Appeals however, did the Court of dissent, would hold as defendant, defendant decided to arrest once the officer that was not though actually even and was in free to leave Linde, him. Justice had not so informed the officer *7 investigat- an officer dissent, hold that whenever would stops ing not, or a car crime, whether a traffic crime a questions, to be deemed is sufficient detention asks requirements. triggering custody purposes of Miranda for closely inquire fully views, must more these we To examine “custody” meaning as used in Miranda. of into the dealing with case is a Fifth Amendment Miranda put the defen issue of voluntariness voluntariness. subjective The histor issue, not the officer’s. state in dant’s setting indicates that its of Miranda and the text ical simplify judicial purpose of volun- determinations towas custody. pre Miranda was made of statements tariness generation the court made of cases in which a ceded case-by-case from the of voluntariness determinations e.g., age, “totality circumstances,” educa- defendant’s of the
65 length interrogation, intelligence, access of tion and family counsel, etc., will was as to whether defendant’s laying specific An intended effect of out overborne.2 obvious prior rights procedures of to custodial for advice and waiver necessity interrogation to eliminate the in Miranda was subjective making determinations about the circumstantial simple advice- state of each defendant and to substitute a readily procedure followed whenever a and-waiver to be custody. pro- objective i.e., exists, If those discernible cedures are fact may generally followed, voluntariness be infer- custody, pre-Miranda here, red.3 Absent the law totality-of-circumstances apply. cases continues to Were we (i.e., subjective state his uncom- to decide that officer’s arrest) triggered exactly contrary pro- municated intention to holding cedures, that would be
purpose opinion: looking of the Miranda Instead of to an custody, objective subjective i.e., event, we would look to a officer’s, state —the not the defendant’s. That cannot be. requires The answer to Justice Linde’s thesis review of the nature of the restriction which in Miranda is “custody.” premise referred to as custody of Miranda is that inherently pro coercive situation and that necessary safeguards cedural are a device to assure volun- answering interrogation. tariness in custodial The intert relationship custody, safeguards wined coercion and clearly underpinning opinion: stated as the of the Miranda
“* * *
proper safeguards
We have concluded that without
process
in-custody interrogation
persons suspected
inherently
pres-
compelling
of crime contains
or accused
sures which work to undermine
the individual’s will
compel
speak
resist and to
him to
where he would not
freely.
pressures
In
to combat
these
otherwise do so
order
permit
opportunity
full
to exercise
and to
New
365 US
Crooker v.
[2]
83 S
See,
York,
privilege against self-incrimination,
the accused must be
adequately
effectively
apprised
rights
of his
and the
exercise
rights
of those
fully
must be
honored.”
“Custody” is an “elastic” term which in criminal law generally “imprisonment.” denotes Black’s Law Dic- tionary. The concern of the court in Miranda touched coercive situations less restrictive than actual imprison- ment. Part I opinion of that dwells extensively on the court’s concern potential about evils of arrests on suspicion for purpose of incommunicado, knee-to-knee, unceasing interrogation gray, windowless recesses of police stations, intended to obtain evidence of guilt warrant a formal arrest. The totality-of-circumstances cases involving that widespread practice culminated with Illinois, Escobedo v US 12 L Ed 2d In retrospect, Escobedo awas false start: it applied Sixth Amendment analysis based on whether defen- dant Miranda, was a “focal suspect.” In the court corrected course and returned to Fifth analysis Amendment of volun- tariness of custodial interrogation. doing so, In the court specified that it intended a broader meaning custody which would include situations short of imprisonment, such as detention for questioning:
“* * * By interrogation, custodial we mean questioning initiated law enforcement officers after a has custody been taken into deprived otherwise of his free- * * * any dom of significant way.4 action US investigation “4. at 444. This which had focused on an accused.” Miranda u is what we meant Escobedo when we spoke Arizona, of an significance of the disjunctive definition emphasized by repetition. In passages opinion later says: principles
“The
today
announced
protec-
deal with the
tion which
given
must be
privilege
against self-
incrimination when the
subjected
individual
is first
police interrogation
custody
while in
the station or
deprived
otherwise
of his
any
freedom of action in
signifi-
* * *”
way.
cant
summarize,
“To
we hold that when an individual
taken into
or otherwise
of his freedom
significant way
authorities
subjected
and is
privilege against
jeop-
questioning,
self-incrimination is
* * *”
added.)
(Emphasis
applicable Rather, in addition to the custody recognition imposition of is a realistic that reflects always Custody may the not formal. commence without being presum- word “arrest” uttered. Involuntariness which ably police-dominated atmosphere caused of cus- is tody, procedures which the are intended to Miranda equally likely overcome, situationally are in circumstances which custody, equivalent to actual whether formal arrest been made or has not. post-Miranda Supreme
A review of United States interpretive persuades Court cases and our own cases us phrase deprived that “otherwise of his freedom of any significant way,” “bright action blurs the line” somewhat, but was intended refer to situations which are inherently way custody coercive in the that formal inherently deemed to be coercive. It refers to situations greater deprival ordinary stop of freedom of action than the (or pedestrian, matter), of a car aof for that but short of formal arrest.
The four cases decided under the name Miranda v. custody, all Arizona involved actual so there was no occa- meaning sion to on elaborate the intended of the alternate phrase. post-Miranda There are a few United States Supreme dealing meaning phrase custody Court cases with imprisonment, other i.e., than “otherwise deprived any significant way.” of his freedom of action in Texas, In Orozco v 22 L Ed 2d (1969), equally the court made clear that Miranda was applicable custody outside the confines of stations. policemen, investigating There, four homicide, entered suspect’s They bedroom him, uninvited. identified arrested questioned him and then him.4 That held was to be pre-arrest conclusion, ambiguous The dissent of interrogation he infers that and concludes Lent, J., regards was nevertheless custodial. As he the United States it occurred after the references Supreme the time Court in Orozco held that interrogation. puts of Orozco’s arrest it: From resi- interrogation though
custodial even in the defendant’s italics, this By dence. the use of the court indicated an arrest illustrated what following situation they deprived” to describe their “otherwise had meant phrase:
«* * * According
testimony, petitioner
to the officer’s
questioned
when
was under arrest and
free to leave
was
morning.
early
his
hours of
bedroom
required
opinion
declared that
were
‘in
person being interrogated
when the
was
action
otherwise
station
freedom
* *
way.’
any significant
(Emphasis in Orozco
opinion.)
arrest. In the case at
although
as
defendant had
him
him and would not have let
had decided to arrest
officer
(Footnote omitted.)
depart.”
A. No.
So,
you
right,
during
that
had this conversation with
so
the time
all
Q.
arrest,
gun,
pertaining
he
under
is that correct?
him
to the
was
”
State,
674.
I
v.
428 SW2d at
A. Yes. After
found out
name.’ Orozco
contrast,
case, by
custody by
having
In
in
virtue of
been arrested.
this
Orozco was
future,
yet
in
done
but had not
the officer had decided to arrest
defendant
so.
only
point
the dissent’s
this factual error
demonstrate
We
out
Perhaps
not
reasoning
misreading
if
had
Orozco is erroneous.
Orozco
from its
formally
initially,
interrogation
have been
would nevertheless
been
arrested
entering
custodial,
in
reason. The
conduct
but for a different
deemed
room,
strong,
him would cause
and then
uninvited and four
Orozco’s
liberty
pressures
inherent
reasonably
and the
believe he
Orozco to
opinions
v.
equally
in State
See both
inhere in Orozco’s situation.
would
(1977),
Paz,
851,
App
rev den
“* * *
part
Consent searches are
of the standard investi-
gatory techniques
They
agencies.
law enforcement
nor-
mally
highway,
occur
person’s
on the
or in
office,
home or
and under
and unstructured conditions. The cir-
informal
prompt
request
may
cumstances that
the initial
to search
develop quickly
logical
or be a
investigative
extension of
police questioning.
police may
seek
investigate
suspicious
up
further
circumstances or to follow leads devel-
oped
questioning persons
at the
crime.
scene
These
cry
situations are a
atmosphere
the structured
far
from
where,
chooses,
trial
if
assisted
counsel
a defendant
Boykin
Alabama,
informed
rights.
of his trial
Cf.
v.
238, And,
U.S.
L
(1969)].
Ed 2d
function of in investigating officers crime. custody probable cause, When an individual is in on police may, course, of seek out evidence in the field to against investigations may be used at trial him. Such persons inquiry include of not under restraint. General questioning surrounding on-the-scene as to facts a crime general other or of citizens the fact- finding process holding. is not affected our It is an responsible citizenship give act for individuals to they may whatever information have aid in to law US, Arizona,] enforcement.’ [Miranda 477-478.” added.) 412
(Emphasis
US at 231-232.
previously
This court has
examined the
nature
triggers
safeguards.
restraint which
the need for Miranda
they
Although
facts,
on their
cases differ
demonstrate
(not potential) custody
principle
signifi
that actual
deprival
triggers
cant
freedom is what
the Miranda
safeguards.
(1968),
Travis,
v
250 Or
In State upheld investigat use of made an this court ing statements to police during interrogation car, conducted in a officer recognized, Orozco, as in that Mir without an arrest. We police applies questioning outside the We anda to station. (as recognized in its out also Miranda states footnote set above) custody restraint, in the form of arrest or that actual suspicion, triggering focal is the event. This court not mere said: police representing governmental badge “The of a officer itself, subtly authority, may in and of have a coercive effect. any pressure psychological we cannot believe that But authority likely emanating an officer’s is to cause an from person, go, who that he is free to come and innocent knows question by not commit. Nor is a confess crime did involuntary likely produce an self-incrimination officer part guilty person if is not under on that restraint. or under other form of arrest exclusionary Fifth rule is the Amend- “The basis of against compulsion. The Miranda case held guarantee ment fact, If, ‘inherently there is coercive.’ custody, danger is environ- there no coercive no need, therefore, indulge no will be There is ment created. preventing assumption are coercion a fictitious we evidence.” 250 Or at we exclude otherwise admissible when 217. significant went on
It is to this case that court also early implicitly reject post-Miranda cases from note and applies to “field inter- held that Miranda elsewhere which rogation * * * probable suspects have cause if suspect guilty.” ibid. believe (1968), Taylor, 249 Or 437 P2d In State v questioned investigating accident, defendant an officer *12 gave the scene. The defendant answers incriminating he had been indicating drinking intoxicants. The officer’s observations also indicated that defendant was intoxicated. Upon completion interrogation, the defendant was testified, formally however, arrested. The officer that from the he would not have allowed the defendant to beginning Thus, investigation completed.5 Tay- leave until the was in lor, here, questioning occurred at a time when the officer had questioning subjectively determined that he leave, i.e., would not allow defendant that he would deprive the defendant of signifi- his freedom of action in a way, cant yet actually but had not restrained him or communicated intention to the defendant. In that situation, this court custody, held that actual not the subjective taken, officer’s intent yet as to action not controlling. [Miranda, Escobedo and two
“It will be noted that Oregon deal with interrogation.’ ‘custodial The thrust cases] compulsory danger of each is of self-incrimination that arises out the psychological of effect of the custodial atmo- sphere overpower which tends to the mental resistance of a Miranda states suspect questioned. or an accused when in-custody proper ‘that safeguards process without interrogation persons suspected or accused of crime inherently compelling contains pressures which work to compel to resist and him undermine the individual’s will speak where he freely.’ would not otherwise do so (Emphasis supplied.) 467. Taylor by This is a correct statement of the facts of as verified reference to transcript excerpts Lent, J., by dissent, in the briefs. The statement * * * Taylor proceeded upon implicit assumption decision “[o]ur questions officer asked no after he concluded that defendant should be arrested” is (293 81-82.) unsupportable. beginning Or at The statement of facts at the Taylor opinion is: out, “Subsequent to the interview above set the officer advised the arresting driving defendant he was intoxicating liquor him for while under the influence of right right him and notified of his remain silent and his attempted
to counsel. The officer also testified that had the defendant
to leave
permitted
completed
he would not have
him to do so until he had
investigation.”
“There is right investigations inter- in on-the-scene any subject person not in to coercion view purpose determining form for the whether a crime it. has been committed who committed ‘* * * questioning facts General on-the-scene as to surrounding general a crime or other fact-finding process in the is not affected our citizens *13 responsible citizenship indi- holding. It is act of for they give may have to viduals to whatever information compel- in In such aid law enforcement. situations the in-custody ling atmosphere process in inherent Miranda interrogation necessarily present.’ not Arizona, supra, 384 US 477-478. Nor is there otherwise an iota of evidence that the state- anywise by were in result of ments made the defendant Taylor, v State compulsion.” 249 Or at 271-272. possible case
It is defendant in this was motivated lofty by purpose “responsible citizenship,” a less than but yet subject he was not custody to the coercion which inheres when voluntarily likely, begins. a under- More driver who sobriety hopes pass goes field does so in that he will tests see them and not be arrested. We never those cases. only pressure which inheres in Miranda deals with custody, may trying in to that which inhere avoid Taylor custody. opinion correctly of this court in applies holding of Miranda.
Finally, Mathiason, in 549 P2d State v 275 Or (1976), police to 673 the defendant came a station suspect He in told that he was a officer’s invitation. was guilt, burglary of his but that and that there was evidence questions He and was he was not under arrest. answered By decision, to 4-3 this court held that allowed leave. compliance required questioning was because the Miranda “ ” equivalent place in a ‘coercive environment’ took Miranda “ phrase compelling atmosphere ‘the inherent in ” in-custody interrogation.’ process Or at 4-5. Oregon holding Mathiason, Our was reversed in v (1977). L S Ct Ed 2d 714 holding Supreme Court made clear its in United States applied custody regarding was intended be literally expansively. That court rather than held: police in Miranda
“Our decision
set forth rules of
procedure
applicable
‘By
interrogation.’
to ‘custodial
interrogation,
questioning
custodial
we mean
initiated
law enforcement officers after a
has been taken into
custody
deprived
or otherwise
in
freedom of action
any
way.’
U.S.,
significant
Subsequently
444.
we
* * *
applicable
principle
ques
have found the Miranda
home,
tioning taking place
suspect’s
in a
after he has been
longer
go
pleases,
arrested and is no
free
where
Texas,
Orozco v.
“Such a noncustodial situation is not converted to one applies simply which Miranda reviewing because a court that, concludes even in the absence of formal arrest or movement, restraint on freedom of the questioning took place in Any a ‘coercive environment.’ interview of one suspected of a crime officer will have coercive it, aspects simply by virtue of the fact that part officer is system may of a law enforcement which *14 ultimately suspect charged cause the to be with a crime. But required officers are not Miranda administer warnings everyone they question. whom Nor is the requirement warnings imposed simply of to be because the place house, in takes the station or because the questioned person is one suspect. whom the Miranda required only are where there has been such a person’s restriction on a freedom as to render him ‘in custody.’ It was that of sort coercive environment to which by applicable, its terms was made and to which it Mathiason, (Original emphasis.) Oregon is limited.” v US at 495-496.
There are factual differences between this case and Mathiason, sure, to be but Mathiason reflects continuing adherence the Supreme of United States Court to what it held in Miranda and gives any no evidence of intention to expand holding. that suggests custody
Justice Linde the rule of should be more definite so that police officers will know certainty with greater procedures. when to follow Miranda so, Perhaps but the uncertainty exists virtue of imprecision deprived phrase of “otherwise of his free- any significant way.” improve action in We cannot dom of on Miranda only opinion; can do our best to discern we apply meaning. its summary, subsequent Miranda, In cases Supreme dealing and this court United States Court custody Miranda, with as that term is used hold way custody deprival liberty significant investigation actual or in a greater is than that involved in on-the-scene triggering safeguards. In the absence event for Miranda custody liberty, significant deprival there is of actual or upon subjective pressure a defendant which inheres not the custody that intended to overcome. in actual Miranda was merely impose or If an officer intends restrict freedom yet custody, has that intention or but not communicated pressures action, it into with which Miranda converted being. necessarily come into It would be deals have not apply inchoate, it to unwarranted extension of Miranda only contemplated custody subjective inten that exists as to future action. Actual tion in custody, mind of officer custody, “bright line” intended is the so-called
not triggering device. argues: Lent, dissent,
Justice *«** js says nothing in There Miranda that custody must awarethat he is otherwise defendant be way.” significant action a freedomof Or at 89. expressly opinion does not
It true that the Miranda misinterpretation, interpreta- every possible but the exclude Appeals with the tion is inconsistent the Court Psychological pressures underlying rationale of Miranda: are which inhere in the fact of a defendant custody. necessarily present It also there is no where dealing subsequent interpretive cases with all inconsistent with custody.6 *15 Kinn, Also, upon by NW2d v 288 Minn the reliance the dissent State holding opinion (1970), misplaced. of is inconsistent with the is That also holding The of Minnesota court that
Miranda. * * “* point investigation a has a where officer an reaches When grounds crime has been committed and believe both reasonable duty culprit, into to take such interviewee is the and it becomes was intended conclude that Miranda
We therefore apply of or those situations to custodial situations degree deprival in and are sufficient of freedom which similarly inherently apparent coercive. to be indefiniteness greater line with case, need not define the To decide this we precision Miranda; here, sufficient to conclude in it is than custody refers to restrictions that the definition of Miranda apparent greater magnitude duration than exist stop ordinary investigative such as this. an traffic Therefore, we would conclude that the statements properly they in issue were admitted because were the product of noncustodial and because there were totality no indicia of of the circum- involuntariness in the stances. Appeals
The reversed; Court of the district court is affirmed. concurring.
ROBERTS, J., majority I voted with the I in this case because requiring impact believe to be sensitive to the interrogation upon long is, run, defendant more protective rights aof defendant’s constitutional and more safeguards Arizona, consistent with the kind of Miranda v. 694 (1966) 16 L Ed 2d meant provide requiring police give than is officer to a defendant warnings required by point Miranda at the which officer has made a decision to arrest. opinion only deciding
Were our
here
this case
by
nothing more, I would have voted with the dissent
custody,
system
Minn at 31.
begins
or,
other
operate,
words,
he is
when the
required
point
give the
is reached where the
warning.”
adversary
Miranda, particularly
directly
express
language
contradicted
above,
phrase
Escobedo has been
quoted
suspect”
footnote
the “focal
“adversary system”
superceded by
“custody” requirement
of Miranda. phrase
language
origin
“investigatory/accusatory”
in the
Sixth Amendment
has its
Miranda,
context,
of Escobedo.
In
since
that notion is
the Fifth Amendment
concept
custody.
logical
incorporated
Lent notes this
inconsis-
in the
Justice
Miranda,
authority.
tency
upon
Kinn of Kinn with
relies
but nevertheless
only
that another court has
Arizona case relied
the dissent demonstrates
similarly erred.
*16
My
position of
dissent
Lent.
concern with the
Justice
making police
applied generally, however, is that
officer’s
trigger point
arrest
for issuance of Miranda
decision to
warnings points
way
possibility
police abuse,
of
susceptible
investigatory procedure
too
and leaves
point
manipulation. Only
knows at what
the officer
By requiring that
he
she makes a decision to arrest.
or
something
consid-
than the officer’s state of mind be
other
determining
a defendant
is
in
whether or not
ered
any
way,”
significant
“deprived
in
of his freedom of action
444, 477,
1612, 1629, 16 L
Miranda,
at
LENT, J., problem The in this case is to determine when questioning of a motorist halted uniformed officer’s interrogation. improper driving I became custodial for early as the time hold that it was from at least as would although decision, officer had arrived at a uncom- when the driving motorist, him for while municated to the to arrest intoxicants. under the influence of purports apply majority to follow and The pronounced Supreme precepts in the United States Court Ct 2d Arizona, 16 L Ed 86 S Miranda majority doing however, so, Rather than plain actually attempts go words behind the Miranda to retreat to a rule that decision and given only warnings the defendant is found to need be when equally his will at least as coercive to be some situation in help custody. I cannot but feel in station house as obtains majority of what it reaches that result on the basis that the said, what that court had rather than wished the Miranda say. court did say, acknowledged by major-
That court did
triggered
ity,
give
famous
that the need to
By
interrogation.
that,
said it meant
the court
custodial
custody
“or otherwise
of a
way.”
significant
384 US at
his freedom action
444,
majority
Ed
706.1
first
at
16 L
2d at
(not
potential)
significant
that “actual
concedes
deprival
triggers
safe-
the Miranda
freedom is what
Having
guards.”
made that
Or
That *17 That directed to defendant. Miranda decision is somehow say to defendant: is the case. The decision does not the not you you custody “As are not soon as are aware that your you rights under leave, to invoke otherwise free must keep your you the wish answers to constitution if to subsequent questioning of The defendant’s out evidence.” right depend remain silent and to counsel does not to any custody. rights at if he were He could invoke those time simply that at a certain aware of them. Miranda demands point rights if he be made aware of those the defendant’s questioner gained by desires to use information further says questioning. officer; it to Miranda is directed to the you as him: “As soon have the defendant or have otherwise him of his freedom of action in significant way, you must defen- discontinue you may give warnings. you so, fail to dant and not him If do ensuing against answers him.” use majority’s insistence that Miranda means that by that he there must be some realization the defendant is atmosphere go produce not a coercive free to so as to attempt inquiry simply retreat an as to whether to the the law defendant’s will has been overborne. That was Miranda, since. before problem solving legal our of
I would commence this language proceeding spirit source, the and Underlying the enunciation of Miranda rules Miranda. places L Ed 2d 1See, substantially in 694, 725, v. [726] Arizona, similar (1966). definitions 436, quoted by 478, majority 1602, 1629, two other 1630, [16]
78 prohibit was the Court’s awareness of the need to overbear- is, ing governmental personal privacy, intrusion into persons protect dignity integrity subject After sought reviewing Anglo- the laws be enforced. self-incrimination, history against American of the privilege the Miranda Court said: Rights Bill
“Those who framed our Constitution and the were ever aware of subtle encroachments on individual liberty. They ‘illegitimate knew that and unconstitutional practices approaches get footing. their first . silent procedure.’ Boyd slight legal deviations from modes of States, (1886). privilege United 116 U.S. always elevated to constitutional status and has been ‘as against guard.’ as mischief seeks to broad which it Hitchcock, (1892). Counselman v. U.S. We depart heritage. cannot from this noble may development “Thus we view historical scope privilege groped proper which for the one governmental power principle over the citizen. As ‘noble right origins,’ privilege often transcends its has come fully recognized part to be as an individual’s substantive may right, ‘right private to a enclave where he lead a private right democracy.’ life. That is the hallmark of our Grunewald, 556, 579, United States v. 233 F.2d 581-582 rev’d, (1957). (Frank, J., dissenting), We have 353 U.S. recently privilege against self-incrimination noted that — — mainstay adversary system the essential of our values, complex Murphy v. founded on a Waterfront Shott, Comm’n, 52, 55-57, (1964); n. Tehan v. 378 U.S. 414-415, policies point n. 12 All these 382 U.S. *18 overriding thought: one foundation to the constitutional — government privilege respect the underlying the is — dignity integrity must accord to the state or federal balance,’ its citizens. To maintain a ‘fair state-individual load,’ require government the ‘to shoulder the entire 8 to 1961), respect Wigmore, (McNaughton Evidence 317 rev. to accusatory inviolability personality, the human our the system justice government of criminal demands that produce seeking punish to an individual the evidence labors, by by independent than against him its own rather cruel, compelling simple expedient it from his own (1940). Florida, 227, v. U.S. 235-238 mouth. Chambers 309 sum, only person is privilege In is fulfilled when the right remain silent unless he chooses to guaranteed the ‘to Malloy will.’ v. speak in the unfettered exercise of his own (1964).” added) 1, (Emphasis Hogan, 378 U.S. 2d at 715. 1620, 16 L Ed 459-60, at 86 S Ct at
384 US government required respect of the enforce To promul- subject dealing laws, the Court its those in with subjected safeguards. gated of those Statements famous subject interrogation to exclusion were to be custodial safeguards Court, used. were evidence unless from opinion, places it meant what stated in its at three interrogation: custodial questioning initiated interrogation, we mean
“By custodial person has been taken after by law enforcement officers of action otherwise his freedom or custody into added) (Footnote omit- way.” (Emphasis any significant ted) 2d at 706. 1612, L Ed at 444, at
384 US protec- today deal with principles announced “The against self- privilege given to the must be tion which subjected to is first when the individual incrimination or custody station police interrogation while any signifi- of action in otherwise deprived of his freedom added) (Emphasis way.” cant 2d at 725. 1629, 16 L Ed Ct at
384 US at
safeguards
that the
court intended
see that the Miranda
we
not, apply
that would
in circumstances
custody.
ordinary parlance,
amount to
considered to
be
aspects
particular
proceeding
Before
dealing
grew
with
are
fact that we
out of the
issue which
driving
intoxicants, I
charge
influence of
under the
while
Supreme
States
the United
the decisions of
consider
shall
upon which
Miranda,
this court
and of
than
Court, other
They
States, 385 US
v. United
are
relies.
the state
Hoffa
(1966);
Taylor,
v.
State
L Ed 2d 374
293, 87 S Ct
(1968); Oregon Mathiason, 429
268,
The state
that the decision of the Court of
Appeals
custody
in the case at bar that defendant was in
the decision to arrest
the time when
officer made
holding
supra.
States,
offends the
v. United
Hoffa
state relies
a statement extracted from that decision:
duty
“Lawenforcementofficersare under no constitutional
investigation
they
to call a halt to a criminal
the moment
probable cause,
have the minimum evidenceto establish
may
quantum of evidence which
fall far short of the
necessary
support
amount
a criminal conviction.”
must cease when the is in or other- way. significant his in a wise That decision freedom action simply requires police that the must at that give prescribed time and in ings. those circumstances warn- give warnings may being The failure result suspect’s evidence, unable to use the further statements required investigation. are but the to discontinue suspect gives up right Indeed, if the remain silent police may investigation counsel, the continue the to have suspect. interrogation upon by here relied When it made the statement discussing state, the court was not even a claim of the violation of the defendant’s Hoffa rights under Fifth Amend- Constitution and Mir- ment to the United States anda; rather, the statement was made in the course of discussing right Amendment the defendant’s claim that his Sixth had been invaded the actions of
to counsel
pointed
government
out, defendant
informer. As the Court
cognizable
trying
a claim
in the circumstances
to assert
States,
201, 84 S Ct
in Massiah v. United
concerned
(1964),
and the circumstances of the
That the understandable, however, (cid:127) of the statements because Hoffa Taylor, supra. made We there in State v. of this court language Taylor In misuse of the the same Hoffa. went of a vehicle collision and heard the sound officer ques- investigate. The asked the defendant several officer *20 ownership designed of one information as to to elicit tions driving, had been vehicles, whether defendant drinking much, whether had and how and he been whether surroundings. as to This conver- was oriented his defendant gave opportunity to observe also the officer an sation defendant’s conversation,
appearance, speech. and After demeanor he was
the officer advised defendant that right being gave arrested and him of his to remain he and to counsel. The officer later testified that silent have officer not allowed defendant to leave until the would completed investigation. objected Defendant had his any upon rights relying conversation, his evidence interpreted in the Fifth and Sixth Amendments as under Illinois, and Escobedo v. Miranda L Ed 2d We that dealt noted those cases interrogation” espoused “custodial our view of
with
cases. We
observed
there was
“thrust”
those
then
that
nothing
prevent
investigation
in those cases to
on-the-scene
interviewing “any person
subject
not
purpose
determining
coercion in
form for the
to
a crime had been committed and who committed
whether
quite
at
it.”
Our decision in as it insofar relied quotation simply from Hoffa, missed mark for the Taylor proceeded reasons set forth Our above. decision in implicit assumption the fact that the defen- dant was not free to leave was immaterial and that since questions the officer asked no after he concluded that arrested, defendant should be defendant’s rights Miranda had not been violated. In that respect certainly last we were correct, explicitly but we failed to come grips with “custody” whether in either of the two Miranda senses prior occurred to formal Certainly, adoption arrest. our the words from uttered concerning a claim of in- Hoffa fringement right of the constitutional to counsel was not apropos determining when the had in any significant way. defendant of his freedom of action Taylor, Insofar as our decision in State v. could supra, be fixing placed understood as the time a under arrest2 as the earliest time at which he is entitled to warnings, that decision should be disavowed.
The state and the majority rely upon Oregon both Mathiason, supra. majority quotes from length *21 dictum of Mathiason. I find in nothing quotation that support proposition for which the state and the major- ity Having contend. iterated the Miranda holding quot- the same ing language pertaining interrogation to custodial decision, I quoted have above from that the Mathiason proceeded holding court of the case and found that the defendant there did not come scope within Miranda language: case, however, present
“In the there is no indication place that the in took a context where defen- depart any way. dant’s was restricted in He freedom voluntarily station, came he im- where mediately informed that he was not under arrest. At the respondent in close of a the interview did fact leave 1/2-hour station without hindrance. It is clear from these in facts that Mathiason was not ‘or otherwise ” any significant way.’ in of his freedom of action added) (Emphasis key
In Orozcodefendant had been involved in a shortly midnight. killing after fired, A shot was a man. Defendant left the later, scene. About four hours four boarding officers came to defendant’s bedroom in a house began question and to him.
uses some description custodial In part interrogation, of what amounts to a “seizure” for Fourth Amendment language II-A his similar but seven members of the court did not opinion to “of the used court,” the Miranda Mr. Justice Stewart does discuss a court join purposes, in that describing part. name, according to gave moment he the “From officers,
testimony
petitioner
free
was not
of one of
”
pleased
was ‘under arrest.’
go where he
but
1096,
L Ed 2d at 314. The
at
“* * * warnings have their If the intended effect, get no answers from and the are able them, guilty, arresting then suspects, without innocent decision, apparently place prior The incident took to the Miranda but date of that decision. trial held after effective
85
many
making
great
unneces-
a
sary trips
necessary
more innocent men will be
Ultimately may
it
be
to the station house.
bring
policestation,
man,
him
to arrest a
lawyer,
provide
just
discoverhis name.”
330-31,
1099,
If,
examination of the
of the state
v.
Orozco
(Tex
1967),
App
State,
5Later cases indicate continued confusion as to whether members of the
Justice
Marion,
situation
follows:
Orozco court believed
Douglas
Orozco
US
referred to the case in a
307,
v.
Orozco
Texas,
[92]
S Ct
394 US
had or had not been
455,
324,
460, Oregon On the (1977), proceed upon 94 S Ct Mathiason, other 2357, hand, statements 41 L understanding Ed 2d 494-95, opinions Michigan that Orozco had been indeed arrested. (1974) (White, J., 711, 713-14, v. Tucker, concurring), L 417 US Ed 2d and in 433, pointed majority I have not meet what does decision. opinions indicate that in Orozco to how the various out as arrest had not occurred. formal argues “[t]his that the circumstances
The state restraints of the coercive case” did not “involve safeguards procedural pressures psychological to which simply apply.” argument This were intended of Miranda ignores court did. mark; the Miranda it what misses Prior to Miranda *24 inquiry whether, fact, the relevant was made volun- or admission was confession the defendant’s tarily. every required an ad hoc determination This litigated. The had to be voluntariness instance in which upon attendant reviewed the circumstances Miranda court interrogation inherent in such and found that custodial pressure interrogation that of coercion were elements interrogated. person The will of the overcame the often per “bright i.e., a line,” to announce a decided to draw court interroga- subjected custodial Henceforth, rule. one se given by certain court, to be tion, warnings was as defined warnings rights. concerning were not his If person given thereto, made his statements entitled interrogation during used could not be the custodial him against custody, objection. as If he were him over absolutely all that no difference defined, it make would gentle, polite completely interrogation was, in fact, pressure, as the or insofar coercion of all actual devoid interrogation right government’s the results of to use inquiry, a therefore, is not whether was concerned. psycholog- presents given or “coercive restraints actual case pressures,” is in but whether ical “this case” matter whether It does not in Miranda. defined pre Miranda, have been which, would elements involves inquiry only relevant for voluntariness. used to test custody or otherwise “in this defendant whether way.” any significant If action in his freedom of point the Miranda administer had to the officer so, at that of further the fruits to use for the state order interrogation. “typical a this was also contends The state may may so, stop investigation.” not be That
traffic Consider, in cases depending at it. one looks how rule, the basic of violation is accused in which one operating road, of the violation improper rules of a vehicle with equipment, charges, or defective and like thé already personally officer has of the offense all observed of the elements signals stop
before the motorist to It vehicle. law which officer’s observation aof violation of the stop. He
occasions the has no further need to investigate except to obtain identification driver in charge order him correct name. respect
Such is not the case with to the offense of operating a vehicle under while the influence of intoxicants. probably True, the officer has observed some other traffic triggers signal violation-which to his decision to the motorist stop. good example A is found in case at bar where being operated the officer has a vehicle observed in a winter very high at a month rate of support signalled time of darkness in a rural area at a speed arguably and in a manner so erratic as to charge driving. of reckless time At the the officer stop, enough
defendant to he had more than support charge rule, evidence to and charge. of violation of the basic typical stop upon could this well have been a gather driving In order to evidence of while under intoxicants, however, the influence of the officer had to do something “typical stop.” after the traffic He had to obtain *25 evidence that the defendant was “under the influence.” way typical goes in which an officer about gathering prove that additional evidence would which the by way being element of under the influence is of exercise sight hearing smell, of the officer’s of senses and and way may through of interview. The officer determine his of sense smell that the driver has consumed alcoholic beverage. Through may sight he his sense of observe appearance flushed, the is whether driver’s face the of his eyes Through clothing. and the of his the orderliness same may ability the officer the to sense observe driver’s control body Through hearing his and limbs. the sense of the can whether the diction and officer determine driver’s apparently and enunciation are out of norm whether the express thoughts logical a driver is able to The gathering his in manner. interviewing process is an aid to the officer in evidence, that it is also utilized to kind of but by way gather to rule out claims evidence admissions and injury or a cause of the driver’s condition. illness as employed officer such methods of In this case the beverage investigation. on smelled the odor of alcoholic He face was breath and observed that defendant’s defendant’s eyes watery bloodshot. The his were and flushed and that swayed forth and heard defendant back and officer saw that cocky question to the extent of answer to as him make his education. totality
Apparently, the those it was improper things, together driv- the defendant’s taken with ing, to to conduct the led the officer the decision which opinion. sobriety majority in the “field tests” described testimony, According com- the had been to his when tests pleted arrest, the had decided to and defendant the officer leave, to even was, fact, on in not free from that time though officer’s decision. Defen- he was not aware of the in of action was, in of his freedom fact, dant inquiry.6 way, significant the end of the and that should be is, fact, deprived 6 I Miranda fixes the time when defendant of his believe interrogation time We freedom of action as a when becomes custodial. came Taylor, recognizing supra, close in State that it the fact there to was that was enough triggered obligation to evidence arrest that to warn. As we there said: questions “In the case at bar the asked more than the minimum officer cause, necessary probable to but as soon as he concluded that an establish stopped made he and advised arrest should be the defendant rights. questions his No were asked after the defendant arrested. Under circumstances, produce investigation we these hold that officer’s did not added) (Emphasis under the Miranda rule.” inadmissible evidence There, here, quite Or at it 437 P2d 855. is obvious leave; prior being been he was even defendant would not have free say anything told was under arrest. We didn’t there that would make Miranda’s applicability dependent upon the loss of his freedom. the defendant’s awareness of agree I would with Minnesota Arizona decisions: officers, necessary by police warning given “It is not that a Miranda be upon offense, investigation possible arrival the scene of an of a criminal investiga- everyone they from whom elicit information the course of their point investigation tive work. When an reaches a where a officer has grounds has reasonable to believe both a crime been committed culprit, duty the interviewee and it to take such into becomes or, custody, words, adversary point where the other when reached system required warning.” begins operate, give he is *26 Kinn, 31, 888, (1970). Campbell v. State v. Superior 288 Minn 178 NW2d 889 See also Court, 542, (1971), Ariz P2d 685 the court addressed the 479 where question, saying: same applicable opinion “It is the court Miranda is not this necessary longer than routine traffic where the driver is detained no is offense pursuant signed § to out have it to A.R.S. 28-1054. make the citation and point, At that the failure to warn him of his rights necessity determining Miranda obviated the question ensuing whether his answer to the was “volun- tary,” for in Miranda the Court decided that determination necessary longer replaced by was no be but was be per “bright nothing rule, a se so-called line.” There is in says Miranda that that the defendant must be aware that custody deprived he is in or otherwise of his freedom of way. significant action in a point at which the defendant is in any signifi-
otherwise cant of his freedom of action in way point process. marks a crucial in the At that point, ruled the court, Miranda the defendant should be that he shall not be guarantees advised of the constitutional ignorance “convicted out of his own in mouth” of those guarantees. pegged it
Since
its decision to the officer’s uncom-
Appeals
arrest,
municated decision to
the Court of
did not
However,
warnings
given
Miranda
must be
when the officer determines that
provisions
play
§
of A.R.S.
28-1053 come into
or an arrest
for
felony
being
misdemeanor or
is to be made. At this time the
‘deprived
significant way.’
of his freedom
in
of action
Miranda
State of
[a]
Arizona,
436, 477,
1602, 1629,
(1966);
384 U.S.
86 S. Ct.
“Your having in he’s now and because he’s foundation him, to made determination arrest him he’s a do tests and point. rights at this be advised of his he’s entitled to It seems to me that he “Judge: Objection overruled. certainly yet although he him he’s under arrest hasn’t told the decision.” made course,
Of the record discloses circumstances any man this case that would lead reasonable not to to realize that he was free position of the defendant signalled by to vehicle stop He had been his leave. obeyed if he had not that emergency light, officer’s crime of or guilty fleeing have been signal, he would a police He attempting performing to elude officer.7 was variety the behest of the officer. It defies of tests suggest to in those circumstances common sense than anything would believe other reasonable he not free to leave. was
I warnings need not decide whether Miranda were required prior to the time when the officer asked the question Immediately is with which this case concerned.8 asked, prior question to the time the was a reasonable person in the same circumstances would have believed he leave, was, fact, not free to and this defendant not provides: 487.555 ORS “(1) fleeing attempt- A driver of a motor vehicle commits the crime of or if, ing police given signal bring the elude a officer when visual or audible attempts police stop, pursuing knowingly flees or to elude a
vehicle officer. hand, voice, “(2) signal given by police may officer be emergency light siren. or “(3) section, sheriff, municipal ‘police used in this means a As officer’ uniform, prominently Oregon policeman or member of State Police operating appropriately displaying badge of or who a vehicle his office showing vehicle. marked it to be official “(4) Fleeing attempting A misde- to elude a officer a Class meanor.” given must be before Justice Linde would hold that questions put consumption concerning to the driver of intoxicants and are necessary go on It is that far to decide this case. effect thereof the driver. not prevent free to leave decision reason of officer’s leaving. question was, defendant’s I would hold that interrogation, therefore, custodial and the defendant’s objection should have been sustained.9 important
It is to realize that this does mean the officer could not have conducted such further investigation gather as was lawful to further evidence to charge. not, substantiate the convict the defendant however, He could seek to
by questioning him to obtain admis- sions or a confession unless he observed the Miranda safeguards. joins dissenting opinion.
Peterson, J., in this *28 dissenting. LINDE, J., great requiring police warnings virtue of a rule suspects questioning whom an is, officer detains for or be,
should the rule tells the officer what to do and when to do it. states, As Justice Lent’s dissent the federal police or “Miranda” rule1 is officer, addressed to the not to to person. opinion purports the detained The test of an clearly elucidate the rule is how it tells the under person question- what circumstances to warn such a before ing. Police officers deserve and efficient law enforcement requires investigatory rules that are clear at the time of the designed only retrospective judgment act; a formula for on a suppress motion to evidence confuses the rule with its consequence. regret opinion I that the Court’s in this case fails the test. 9 Washington A stopped court has held that where an officer has vehicle a driven,
being improperly
vehicle,
strong
smelled a
odor of
in the
alcohol
observed
signs
drinking,
other
that the driver had been
and the officer desires to confirm his
suspicions
by conducting
the driver is under the influence of intoxicants
field
sobriety tests,
the Miranda
given.
must be
trooper’s reasoning
request
tests,
brought
the
Miranda
“Once
him to
these
applied,
performed,
any
not
to the tests about
to be
but
statements
might
during
giving
of such tests. Once the defendant
make
warning
given,
making
defendant would
know
could refrain from
performing
statements while
the tests.”
State v.
Darnell,
8 Wash
App
508 P2d
613,
(1973).
Prom Miranda v.
Arizona,
384 US
clarity. give give not to A officer’s decision to suspect warnings” must be “Miranda before analysis. legal setting, “Cus in a factual made tody” legal characterization, not a fact. For other is a ‘custody’ purposes, Oregon as the statutes sometime define taking a arrest, and “arrest” as restraint that follows 162.135(3). 133.005(1), custody. person Con into ORS ORS “circularity,” Appeals has fronted with this Court present position in the held that when sobriety tests, after the defendant took off across he was not fields “custody” purposes guilty escape for from App Swanson, Or 578 P2d that crime. State (1978). Patently statutory such terms do not control requirements. By adding “otherwise reach of Miranda action,” a factual of his freedom of Miranda stated “custody;” legal ambiguity it also test divorced from the “custody” physical in the sense of made clear that required. imprisonment or similar confinement is not *29 perspective must an officer who Seen from person questioning, will a warn before decide whether to clearly two freedom of action under of his be let he would not who knows that An officer circumstances. person person knows that the leave at will also a detained has lost his person’s own action, whatever the freedom of apart may perception intent, Second, an officer from be. objective under circumstances whether the can determine person person reasona- in fact lead the a which he detains bly free to leave until he or she is not to believe that manageable, common of these are is satisfied. Both officer sense, mean to does not determinations. If officer factual questions deprive to leave at of freedom the addressee of his person easily will, tell the so. he can simple great a deal of difference between There is a police inquiry or street, in commercial a officer on public, doorstep, quarters open and car. or on a other stopped by pursuing police a motorist a a has be in doubt whether such motorist officer needs to No significant “deprived [a] of his freedom of action in been way,” given meaning. A is to be a common sense if that test stop obey police signal obliged to at to a officer’s driver is may punishment. He criminal ORS 487.555.2 the risk of away attempts guilty “fleeing” drive if he still be being stopped.3 permission At least he has after without his as much. If he has surrendered reason to assume operator’s likely officer, license to the he is to assume only by passenger abandoning car, unless a he can leave can drive it.4 In his typical stop
short, a for a vehicle investigation analogous citation or further is not pedestrian’s with an officer who seeks street encounter questions; legal a few and the factual answers to constraints on greater, both leaving stop the scene of the vehicle are appear so to a There is a that a or motorist. chance pedestrian perform “field will know that he need not sobriety questions go test” or answer in order to be free
2 ORS 487.555: “(1) fleeing attempt- A driver of a motor vehicle commits the crime of or if, ing police given signal bring to elude a officer when visual or audible stop, knowingly attempts pursuing police vehicle to a flees or to elude a officer. “(2) signal given by voice, police may by hand, officer be emergency light or siren. “(3) section, sheriff, ‘police municipal As used this officer’ means a policeman uniform, Oregon prominently or member of the State Police displaying badge operating appropriately of office or who a vehicle showing marked it to be an official vehicle. “(4) Fleeing attempting or to elude a officer is a Class A misde- meanor.” apply State v. flight Swanson, supra, on foot. 34 Or assumed without discussion that the section App n. 1. did ORS 482.040(2) (b): possession “The licensee shall have such license his immediate at all vehicle, driving display times when a motor and shall it the demand of a
justice peace, officer, peace deputy inspector or a field of the any charge division. It is a defense to under this subsection that the so charged produce operator’s in court an or chauffeur’s that had been license issued to him and was valid at the time his arrest.” *30 94 way. believes this seems that a motorist The chance
on his
given
slight
in a
course,
can show
if the state
indeed. Of
himself free to
did consider
the halted motorist
case that
him,
his answers to
so informed
leave or that the officer
may
questions
be admissible.5
officer’s
give
that an officer must
None of this means
every
stop
warnings”
traffic
and
time he makes a
“Miranda
operator’s license, or even before exam-
demands to see an
ining
signs
appearance
of intox-
a
and behavior for
driver’s
ques-
given only
Warnings
in advance of
must be
ication.
investigation
tioning
concerns
when the officer’s
the driver
They
required
suspected
in all
are not
a
criminal offense.
only
object
stops,
of the officer’s
when the
traffic
but
beyond
questions
infrac-
for a noncriminal
extends
citation
suspected
investigation
crime,
this
of a
whether
tion to the
burglary,
crime,
the automobile
a
or theft of
is a traffic
driving
the influence of intoxi-
Prosecution for
under
itself.
cants is as much
prosecution
a criminal
as if it were for
County
driving.
unrelated to
Brown v. Multnomah
crime
(1977).
CL,
95,
“Miranda
Dist.
ings”
280 Or
I would affirm the Court of