*1
May 31,
Argued
affirmed
March
OREGON, Respondent,
STATE OF
TRAVIS, Appellant.
E.
JAMES
John Deputy Attorney, District Dallas, and filed a brief the cause argued respondent. Perry, Chief Justice, Before and .McAllister, and Jus- Goodwin, Denecke O’Connell, Sloan, Lusk, tices. J.
GOODWIN,
a conviction of
appeals
The defendant
burglary
The indictment
164.230).
charged
breaking
(OES
and an assault
a female
a house
occupant.
is whether
The
issue
trial court
only
upon appeal
admissions made
incriminating
have excluded
should
to an
officer.
investigating
the defendant
n
reported
police
complaining
had
to the
witness
The
acquainted,
whom she
had
that the
defendant,
night
at
while her husband was
broken into her house
away
had awakened to find
defend-
she
and
the defend-
ant on
bed. A
officer called at
her
purpose
cheeking on the com-
for the
ant’s home
plaint.
home,
wife were both at
The defendant and his
and
invited the officer inside.
of-
the defendant
suggesting instead that
invitation,
ficer declined the
they
might
talked in the officer’s car.
better if
After the officer and
defendant were seated
police ear,
said,
the officer
“this is a criminal
in the
had
advised the defendant “that he
an
matter,”
attorney
making
right
an
before
a state
absolute
did
advise the de
not, however,
ment.” The officer
public expense
right to
fendant of his
counsel
if
remain silent
he wished
absolute
Accordingly, the advice fell short of the
to do so.
*3
required under our decisions in cases of
advice
cus
interrogation.
Edwards,
See State v.
244
todial
Or
(1966);
Keller,
v.
This argues that the Miranda case now and the defendant if Evans obsolete even cor Evans case has made the published. Oregon rectly the time it was law at stated exclusionary argues rulé The defendant suspect applied a focal is inter- whenever now must interrogated being of his without advised viewed or regard- rights. evidence have exclude the He would us custody being police degree control or less suspect the time of the inter- over the exercised presumably By suspect, defendant focal view. probable police cause to whom the one means meaning give to the term. we this is arrest; Though Miranda case involved facts of the reasoning interrogation, in that de police-station questioning outside the applies to custodial cision police may not avoid that the police is clear station. suspect' by questioning an arrested rules Miranda field. way or in the Séé station on the What Graham, And see at 448. Keller, Or State Anticipa Interrogation?”: “Custodial Is *4 California’s Arizona, v. 14 UCLA tory Application Miranda of always (1966). clear, however, is not 59, Rev 83 suspect questioning a becomes point of field at what
317
interrogation.
e.g.,
Taylor,
v.
249
See,
State
custodial
(1968).
Or
The a authority, subtly may itself, in and of have a ernmental any psycho But cannot that we believe coercive effect. authority emanating logical pressure an from officer’s likely person, an innocent is to cause who knows that go, to a crime did not he is free to confess he come question by likely pro a an officer Nor commit. is part involuntary self-incrimination duce on guilty person not under or if that is arrest form of restraint. other under exclusionary rule is the Fifth basis compulsion. guarantee The Mi Amendment custody “inherently police is coer randa case held custody, is no there no dan cive.” there is If, fact, ger will environment be created. There coercive assump indulge in a fictitious therefore, need, no preventing coercion when we tion we are exclude admissible evidence. otherwise post cases have held that field in -Miranda
Some
requires
suspects
terrogation
all the
warn
Miranda
probable
ings
cause to believe the
sus
if
e.g., People
pect
guilty.
Terrell,
v.
Misc2d
See,
(Sup
1967); Commonwealth
NYS2d
(1967).
Pa
In State v. held that incrimi- nating though statements could be even received, suspect rights. had not been advised of his In that making preliminary inquiry case, officer was a the scene of an automobile accident to determine whether or crime had been committed. If the suspect given appropriate had been advice before any questions difficulty were in asked, that case could avoided; have been but we held that there Avas receiving no in error the evidence.
In the case at the trial court bar, found that the suspect inwas fact free of restraint at all times and interrogation left the scene as a free man. He substantially was not until arrested later. There is reason, no to overturn therefore, the trial court’s find ing custody that the defendant was in in not, fact, Avhen being he was interAdewed.
.Affirmed. dissenting.
O’CONNELL, J., majority opinion upon assumption is based interrogating person that are restricted in suspected committing only question- a crime if the ing place takes a “coercive environment.” This rights statement of the accused’s constitutional is too majority I ibis restrictive. believe that the falls into reading narrowly. error as a result of Miranda too Miranda and Escobedo are bottomed rights are “basic enshrined in our Constitution— * * * compelled ‘No shall be himself’ and that case be a witness criminal * * * Assistance shall ‘the accused Counsel’.” ‹ describing true that these constitutional to one who “has been Miranda relates them custody deprived
taken or otherwise of his free- into way” (384 any significant dom US at of action 444) normally a “coer- create which —circumstances accept premise cive But if we environment.” *6 against privilege self- stated Miranda right are the to counsel constitu- incrimination and interrogation rights cases, tional involved necessary char- then not establish the coercive it is to interrogation setting acter these con- of the because recognized coercion, where actual stitutional are potential, or is en- is not relevant. Thus accused against privilege titled to the of counsel and the stage setting where the at the trial self-incrimination clearly term coercive in the sense majority opinion. used in the by majority’s which is shared other confusion,
The that the from the failure to see Fifth courts, stems privilege is more than a Amendment practices prophylaxis and rests coercive play relating of fair to notions de- a broader base preserve privacy signed of individuals and the to jus- system integrity of the administration of our of prosecutes its citizens. of This tice the state one when recognized by privilege scope has been broad including Su- members of United States others, Wade, v. preme States 388 United Thus, Court. ‹ 1602, Arizona, S 16 86 L 384 US Miranda Illinois, (1966); 705, Escobedo v. 694, ALR3d ed2d 1758, L ed2d S Ct US
US 218 87 S Ct ed2d 1149 1926, 18 at 1176-77 (1966), Mr. Justice Portas said: great privilege merely
“This is not a shield for prescription technique the accused. It designed is also guide investigation. History the State’s teaches us that self-accusation is an unreliable in- apt inculpate detection, strument of the innoeent- guilty escape. but-weak and to enable the But story. privilege this is not the end of the The his- torically goes to the roots of democratic and re- ligious principle. prevents the debasement of compelling the citizen which would result from him power to ‘accuse’ himself before the of the state. deeper roots are than rack They go and screw used to extort confessions. relationship the nature of a free man and to his the,state.” Similarly, Murphy v. Commission Waterfront New York, 378 84 S Ct 12 L ed2d (1964), G-oldberg privi- 678, 681 Mr. Justice sees the lege reflecting, among as other values: * * [0]ur play sense fair which dic ‘a fair requiring
tates state-individual balance government to leave the individual alone until *7 good disturbing cause is shown for him and re quiring government in its contest with the in Wigmóre, dividual to shoulder the entire load,’ (McNaughton 1961), respect Evidence rev, 317; our inviolability personalty for the of the human and private of each individual ‘to a énclave may private he lead a where life,’ United States v. (Frank, 233 F2d Gruewald, 581-582 J., diss enting), revd 1 L ed2d 931, 77 S Ct ' * * McNaughton, T. in John an article entitled The Privilege Against 8 Constitu- .Its elf-Incrimination: tional Raison Affectation, d’Etre and Miscellaneous published and Individual Implications, Power Police 1962), (Sowle ed illuminates at 235 Freedom, Murphy Commis- quoted in statement Waterfront following: supra, York, New sion of govern- comple- strong policy in favor of is a “There leaving people there is a and alone, ment’s any mentary strong policy which demands governed government be a and contest between n government should ‘fair’ not disturb the compulsory appearances It follows that one. by way peace individual of an compulsory disclos- and may suffi- his conviction unless lead to ures which probable cause. evidence exists to establish cient pre- Obviously, peace is to if the individual’s prima government its facie must obtain served, case Ac- from other than the individual. sources cording Wigmore, was moment Dean there to primordial early privilege, in its the state, 1600swhen the go this; no further than
was assumed suspect made not that a could be was doubted questions respond properly once he was accused; just compelled could not be it was provide evidence himself. first long principle “The was so limited, event. ostensibly flood, “In the which was aimed fishing expedition swept which and therefore
at the away High Star the Courts of Chamber Com- hated course the oath ex officio, mission compulsory ground all from under self- was washed it has been that, incrimination. Since 1680 assumed though probable cause has been even established may (and peace of the individual disturbed required trial), that he is to stand the extent government compel cannot self- nevertheless incriminatory disclosures. only the oath ex officio “That not but all au self-incriminatory compel disclosures, thority to extinguished final decades of the 17th cen *8 may túry be po attributable the- to revolution thought occurring litical winch was at the‘(cid:127)time. n sovereign king being supplanted by The sovereign was- philosophy,
individual. This dominant naturally centuries, now for three nurtures the con cept may conscripted that the individual not be adversary, government, doing assist his him ” › fight.’ in. It would not be a ‘fair Supreme emphasized The Court has at times importance preservation in the of our system justice. example, of criminal For in Tehan v. United ex rel. Shott, States 382 US 406, 415-416, (1966), S Ct ed2d 459, 453, 459 Mr. Justice explained purposes Stewart that “the basic lie privilege against behind the self-incrimination do not protecting relate to the innocent from but conviction, preserving integrity judicial system rather to of a guilty in which even the are not be convicted unless ” fi prosecution ‘shoulder the entire load.’ purposes” of the the proper self.” reason and quire › in the hard cores of instances where See inhumanity, “* prevailing zealous also at rules * * the individual [1] p. questioner. privilege: ethic battle between The first is to remove the conscripted by principal -where the individual not [2] McNaughton inhumanity being The government bothered second is to opponent compulsion might sees two sovereign less abusive tactics individual comply defeat him- “significant an than and that answer good lead re- fi States, also See Ullmann v. United 350 US 76 S 518-519, (1955), quoting L ed 53 ALR2d (1st States, 1954): Maffie v. United 209 F2d Cir from “ they provision forefathers, when ‘Our wrote this into Constitution, Fifth Amendment of the in mind a had lot of forgotten history largely today. which has been See VIII Wigmore (3d 1940) seq.; Morgan, Evidence on ed 2250 et § Privilege Against Self-Incrimination, 34 Minn L 1Rev expressed They judgment, and it made a in our fundamental go unpun- law, that for an occasional crime to were better *9 in of the privilege safeguard- role other cases the
In In emphasized. has been right individual’s the ing States, v. United Sinclair 49 S Ct 279 US privi- Butler saw the Mr. Justice (1928), L ed 692 the individual be left the that reflecting policy as lege He said: alone. * * “* the any of the of people if [F]ew of law are greater impor- fundamental by guarded tance than the safety to and happiness their arbitrary or from all unauthorized, to exempt in disclosures respect and unreasonable inquiries and affairs.” personal private their these recently observed has McKay Professor and the system for the of the integrity pro- concerns are He states: complementary. the individual tection of in the of reasons given “In from all welter sum, self-incrimina of the privilege against justification any two have only great to me that seems tion, are sides they perhaps opposite force, probative of moral same coin: official preservation of the (1) of individual privacy.” and (2) preservation ity, Privacy, the New McKay, Self-Incrimination 213-214. Rev 192, Sup that since coer- conclude, then, It is reasonable an is not practices or the of coercive probability cion self-in- ingredient privilege essential for one who claims the necessary it is not crimination, show that he was ques- a “coercive environment.” It is enough in tioned bim he was accused or of com- suspected to show for the purpose crime and was questioned a mitting This, crime. I take it, evidence obtaining in Escobedo meant “that holding the court what prosecution up be free to should build a than ished part, case, or in of en- whole assistance criminal forced disclosures ” * (cid:127) by accused. f process investigatory- when the shifts' from tó: accusa tory purpose its focus is on the accused and its —when adversary system begins elicit confession5—our uperate” person point and at that who' inquiry focus' of is entitled to the constitutional safe guards. (378 987). ed2d at 492, 12 investigation Miranda the “focus”
.In described equated point in Escobedo is with the at which law question enforcement officers who “has been custody deprived taken into or otherwise of his free way.” fl significant dom of action I submit' that treating deprivation so of one’s “freedom of point investigatory process action” crucial as *10 guarantees operative when constitutional become attempting court not describe “coercive en describing stage but rather'was vironment,” in a proceeding longer play” when it is criminal no “fair to call a man state to convict himself out rights. knowledge of his own mouth without full of his rights unquestionably The accused has these at’ the rights stage. trial He should also these at have pre-trial stage point questioned when he in the is as investigation. of a one who is the focus criminal recognized rights In the court Escobedo of the stage pre-trial interrogation, accused at the danger simply prac- there because is coercive stage tices, but because that the accused needs the safeguards protection in the same his constitutional given rights again he at trial. those which is Here as fl Miranda Arizona, S Ct 16 L ed2d (1966). In ALR3d 974 footnote 4 of Miranda the is we meant “This what Escobedo when we court states investigation spoke had on an of an which focused accused.” (cid:176) If placed Miranda, on I this construction cannot would suggest with Escobedo the latter case be reconciled manner I have described. constitutional frames the terms court doctrine preservation morality privacy: official and ' companion learned the “We also lesson of history system justice that no survive if effectiveness of criminal or can, depend it comes .to should, for its con- tinued through on the citizens’ abdication rights. unawareness of their constitutional system preserving No worth should have to fear permitted if an accused to consult with a lawyer, will he become aware and of, exercise, these rights. If the exercise of constitutional will system thwart the effectiveness of a ment, of law enforce- something very wrong
then there
with that
system.”
v. Illinois,
Escobedo
No is encountered in the line present investigation sharply in case. The had *11 “focused” At accused. the time defendant police interrogated had sufficient informa- concerning tion defendant’s connection with the crime probable justifying to constitute cause an arrest. my probable
It is view that when there is cause for questioning cease and if arrest must an arrest is made brought magistrate the accused should be before (as delay required by 133.550) without OES and with- 336 so. – There the police interrogation doing
out before would be informed of his constitutional accused danger setting police in a from of free coercion. frequently recurring Moreover, it eliminate the would question police to whether the in fact as advised the rights. his accused of judicial for
It me that the need seems to surveil- necessary prior police where lance action is as interrogate purposes proposal of obtain- is the.proposal ing of crime as is where evidence police evidence. In the latter case the to search for is subject scrutiny proposed judicial their action must exigency by seeking there some a warrant unless justifying search. a warrantless may parallel noted. When defendant
Another guilty plea we that he at trial insist of enters consequence his thoroughly action informed through judge of counsel or the advice either equally plea. it is to me that his seems who takes provide important kind accused with this “plea” guilty to the makes his before he pointed Escobedo, police. without these safe out As purposes, practical the conviction guards all “for examination.” † by pre-trial already assured suggested go far as I have so if we do even But certainly we should insist protecting accused, probable cause to arrest the that when his be informed should accused he counsel before inter- self-incrimination – Cf., (1962) Shipley, P2d Or 237 State v. Freeman, 267, 283, Or opinion). v. also State (dissenting See opinion). concurring (specially (1962) P2d † Escobedo 478, 487, 84 Illinois, ed2d S Groban, L1 (1964), quoting 352 US from In re 977, 984 dissenting): J., (Black, Ct 510 77 S ed2d *12 rogation, not he-is in a whether-or. “coercive environ- ment.” person suspected
Whether of the crime but who probable subject arrest want for cause can suspect deserving focal be said to be a same question is a we need not now decide.. Defendant was entitled be informed of his prior interrogation. I would Therefore, reverse remand new trial. joins opinion. J., this
Sloan,