State v. Alapai , 308 Or. App. 309 ( 2020 )

309
Submitted June 26, 2019, affirmed December 30, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
EDWARD KEIKIOKALANI ALAPAI,
Defendant-Appellant.
Polk County Circuit Court
16CR75229; A166241
480 P3d 968
Defendant appeals a judgment of conviction for driving under the influence of
intoxicants, ORS 813.010, and reckless driving, ORS 811.140. On appeal, defen-
dant contends that the trial court erred by partially denying his motion to sup-
press statements made to police officers and the results of two field sobriety tests
and a breath test. Defendant contends that, because the trial court determined
that the first officer on the scene violated defendant’s Miranda rights, defen-
dant’s statements to the second officer and the results of the subsequent field
sobriety and breath tests should also have been suppressed. The state argues
that the taint of any Miranda violation was sufficiently attenuated. Held: The
record is sufficient to support the trial court’s conclusion that defendant’s initial,
unwarned statement to the second officer was voluntary and its conclusion that
the belated Miranda warnings the second officer provided were sufficient under
the circumstances to effectively inform defendant of his constitutional rights.
Accordingly, the trial court did not err by denying defendant’s motion to suppress
as it pertained to defendant’s statements to the second officer and the results of
the field sobriety and breath tests.
Affirmed.
Norman R. Hill, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Mooney, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
310 State v. Alapai
KAMINS, J.
Defendant appeals a judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010, and reckless driving, ORS 811.140. Defendant exe-
cuted a conditional guilty plea after the trial court partially
denied his motion to suppress statements that he made to
police officers and results of two field sobriety tests and
a breath test. Defendant assigns error to the trial court’s
partial denial of his motion to suppress, contending that,
because the trial court determined that the first officer on
the scene violated defendant’s Miranda rights, defendant’s
statements to the second officer and the results of the field
sobriety and breath tests should also have been suppressed.
Because we conclude that the court did not err, we affirm the
judgment.
I. STANDARD OF REVIEW
We review a trial court’s denial of a motion to sup-
press for legal error. State v. Heise-Fay, 274 Or App 196, 201,
360 P3d 615 (2015). In conducting that review, “[w]e state
the facts consistently with the trial court’s factual findings
that are supported by sufficient evidence in the record and
its decision denying defendant’s motion to suppress.” Id. at
198.
II. BACKGROUND
Defendant was the driver in a motor vehicle acci-
dent in Independence, Oregon, and he fled from the scene. In
response to a notification from dispatch, Dallas Police Officer
Van Meter used defendant’s license plate number to find
defendant’s home address in Dallas, Oregon, and went to his
house to wait for him. When defendant arrived, Van Meter
noticed damage to the front end of defendant’s car consistent
with the reported crash and observed that defendant’s car
had the same license plate number as reported by dispatch.
Van Meter turned on his overhead lights and pulled onto the
street to stop defendant. Defendant parked in his driveway
and got out of his car, and Van Meter instructed him to stay
outside the vehicle and not reach back inside it. Van Meter
then conducted a full-body frisk for weapons and asked for
defendant’s identification. Van Meter asked defendant “if he
Cite as 308 Or App 309 (2020) 311
was involved in a little crash in Independence,” and defen-
dant admitted that he had been.
While talking with defendant, Van Meter noticed
that defendant’s “speech, the way he was talking, [and] his
general demeanor” indicated that he was likely intoxicated.
Van Meter then questioned defendant about his alcohol con-
sumption, including how much he had drunk that evening
and what time he began drinking. Defendant admitted that
he had consumed at least six beers and also agreed that
it was possible that he might have drunk more than that.
Van Meter asked defendant if he had been arrested for DUII
before, and defendant admitted that he had, “many times.”
At that point, Van Meter informed dispatch that he planned
to conduct field sobriety tests, but he was told to wait for
Independence Police Officer Rumsey, who would lead the
investigation. While they waited for Rumsey, Van Meter
made casual conversation with defendant about unrelated
topics, including music and his family. Another police officer
arrived at defendant’s house and stood watch but did not
engage with defendant. Van Meter did not give defendant
Miranda warnings at any point in their conversation.
Rumsey arrived on the scene about 10 minutes
after Van Meter stopped defendant. Van Meter remained on
the scene, acting as a cover officer, but he stopped speaking
directly with defendant. When Rumsey arrived, he saw that
defendant was “visibly intoxicated,” observing that defen-
dant was “swaying while standing[, and] he had bloodshot,
watery eyes [and] slurred speech.” Rumsey introduced him-
self to defendant and told defendant that he did not know
what defendant and Van Meter had discussed. Defendant
responded by telling Rumsey that he had run from the scene
of an accident. Rumsey, who was aware that Van Meter had
not given defendant Miranda warnings, then administered
Miranda warnings.
After defendant stated that he understood his rights,
Rumsey questioned him about his alcohol consumption and
then asked him to submit to field sobriety tests. Defendant
failed those tests, and Rumsey then arrested him. After the
arrest, defendant consented to a breath test, which showed
that his blood-alcohol content was 0.17 percent.
312 State v. Alapai
Before trial, defendant moved to suppress his state-
ments to both Van Meter and Rumsey, as well as the results
of the field sobriety tests and the breath test. The state
opposed the motion, arguing that there was no Miranda
violation because the circumstances of the police encounter
were not compelling and that, even if there were a viola-
tion involving Van Meter, it would not require suppression
of defendant’s statements to Rumsey or the test results. The
trial court granted defendant’s motion as to his statements to
Van Meter and denied it as to his statements to Rumsey and
as to the field sobriety and breath test results. In ruling on
defendant’s motion, the trial court found that Van Meter vio-
lated defendant’s rights by interrogating him under compel-
ling circumstances without giving him Miranda warnings.
The trial court came to that conclusion because, although
defendant was stopped outside his home, (1) Van Meter was
in uniform and carrying a weapon; (2) it was night time;
(3) Van Meter began the encounter by using his overhead
lights to pull defendant over; and (4) Van Meter ordered
defendant not to return to his car.
In contrast, the trial court found that defendant’s
statement to Rumsey that he ran away from the accident
“was entirely ‘volunteered’ because it was not in response to
any question posed by Rumsey” and “was volitional sufficient
to attenuate any taint.” Additionally, the trial court ruled
that defendant’s post-Miranda statements and the results
of the field sobriety and breath tests “were not the product
of the earlier violation” because (1) there was no continu-
ity between the questioning; (2) Rumsey was not present for
the discussion between Van Meter and defendant, and there
was no evidence that Rumsey knew anything about the
substance of their conversation; (3) Rumsey began his con-
versation with defendant by providing Miranda warnings;
(4) there was a break between the questioning sessions;
(5) the initial circumstances were “barely custodial”; and
(6) there was no evidence that Rumsey used Van Meter’s
questioning as part of his investigation.
On appeal, the parties renew the arguments they
made to the trial court. Defendant argues that the trial
court should have suppressed not only all unwarned state-
ments to Van Meter, but also all subsequent statements to
Cite as 308 Or App 309 (2020) 313
Rumsey and the results of the field sobriety and breath tests.
In response, the state argues that the taint of any Miranda
violation was sufficiently attenuated.
III. ANALYSIS
Article I, section 12, of the Oregon Constitution
provides that “[n]o person shall be * * * compelled in any
criminal prosecution to testify against himself.” To protect
a person’s right against compelled self-incrimination, police
officers “must provide Miranda warnings to a suspect before
interrogating that suspect if the suspect is either in ‘full
custody’ or in ‘compelling circumstances.’ ” State v. Courville
276 Or App 672, 677, 368 P3d 838 (2016) (quoting State v.
Roble-Baker, 340 Or 631, 638, 136 P3d 22 (2006)). For the
purposes of Article I, section 12, “interrogation refers to
statements or questions, other than questions normally
attendant to arrest and custody, that are reasonably likely to
elicit an incriminating response.” State v. Swan, 363 Or 121,
124, 420 P3d 9 (2018) (internal quotation marks omitted).
Because defendant was in compelling circumstances when
Van Meter questioned him,1 we must decide both whether
Rumsey violated defendant’s constitutional rights before
he provided defendant Miranda warnings and whether any
Miranda violation by either officer was sufficiently atten-
uated to allow the admission of defendant’s post-Miranda
statements to Rumsey and the results of the field sobriety
and breath tests.
A. Defendant’s Unwarned Statement to Officer Rumsey
Defendant contends that Rumsey violated his
constitutional rights by interrogating him before provid-
ing Miranda warnings when, upon arriving to the scene,
he introduced himself and said to defendant, “I don’t know
what you [and Van Meter] have talked about before I got
here.” Defendant contends that Rumsey’s statement was
an interrogation because “given the circumstances, it was
1
The state asserts that no Miranda violation occurred at all, presenting an
alternative basis to affirm the trial court’s denial of defendant’s motion to sup-
press evidence of his statements to the second officer and the results of the field
sobriety and breath tests. Because we ultimately reject defendant’s challenge to
the trial court’s partial denial of the suppression motion, we need not reach the
state’s alternative argument.
314 State v. Alapai
likely to elicit an incriminating response.” Consequently,
defendant argues that his response to Rumsey’s statement,
that he “ran away from a crash in Independence,” should
have been suppressed.
In response, the state points out that the trial
court made a factual finding that defendant’s unwarned
statement to Rumsey was “unprompted”; that is, the court
“viewed Officer Rumsey’s statement—that he did not know
what defendant had told Officer Van Meter—as not causing
defendant to say that he had been involved in a car accident.”
The record is sufficient to support the trial court’s
finding that defendant’s pre-Miranda statement to Rumsey
was unprompted as a factual matter, and, therefore, Rumsey
did not violate defendant’s constitutional rights by making
the statement that he did not know what defendant had dis-
cussed with Van Meter. See State v. Mast, 301 Or App 809,
810, 459 P3d 938 (2020) (We “are bound by the trial court’s
express factual findings if evidence in the record supports
them.”). The trial court was in the best position to evaluate
the tone of the encounter that Rumsey described in his tes-
timony as to his initial interaction with defendant. Further,
because the record supports the trial court’s finding that
defendant’s statement was not elicited by Rumsey, the record
also supports the trial court’s conclusion that defendant’s
statement was voluntary and therefore not barred by either
the state or federal constitutions. Indeed, “[t]he concept of a
volunteered statement has a unique place in Miranda juris-
prudence,” State v. Delong, 357 Or 365, 375, 350 P3d 433
(2015), and “[v]olunteered statements of any kind are not
barred by the Fifth Amendment,” Miranda v. Arizona, 384
US 436, 478, 86 S Ct 1602, 16 L Ed 2d 694 (1966).
B. Defendant’s Warned Statements to Officer Rumsey and
the Subsequent Field Sobriety and Breath Test Results
We next address whether the belated Miranda
warning that Rumsey gave defendant after his unprompted
statement was sufficient under the circumstances to allow
the admission of defendant’s subsequent statements and test
results despite the earlier Miranda violation involving Van
Meter. Generally, when there is a belated Miranda warning,
Cite as 308 Or App 309 (2020) 315
“a trial court must exclude defendant’s warned post-Miranda
statements unless the state establishes that, considering
the totality of the circumstances, when the police belatedly
administer[ed] Miranda warnings, they effectively and
accurately informed the defendant of his or her Article I,
section 12, rights.” State v. Vondehn, 348 Or 462, 467, 236
P3d 691 (2010). The belated warnings must accomplish that
informational purpose because “[t]he Oregon Constitution
requires Miranda warnings to ensure that a waiver of the
rights conferred by Article I, section 12, is knowing as well
as voluntary,” not to “deter illegal police conduct.” Id. at 480.
We evaluate whether the belated warnings were
effective—or, in contrast, whether the subsequent warned
statements were “the product of an earlier Miranda viola-
tion”—by considering “all relevant circumstances,” which
include (1) “the nature of the violation”; (2) “the amount
of time between the violation and any later statements”;
(3) “whether the suspect remained in custody before making
any later statements”; (4) “subsequent events that may have
dissipated the taint of the earlier violation”; and (5) “the use
that the state has made of the unwarned statements.” State
v. Jarnagin, 351 Or 703, 716, 277 P3d 535 (2012) (internal
quotation marks omitted). Moreover, the “test of the efficacy
of the belated warnings is an objective one,” and we do not
focus on either the subjective effect of the belated warnings
on the suspect or the subjective intent of the police. Vondehn,
348 Or at 482-83.
Applying that framework here, we conclude that
Rumsey’s belated Miranda warnings were effective. The
compelling nature of the circumstances was a close call in
this case—“barely custodial,” as the trial court noted—and
the constitutional violation was not egregious or flagrant.
See State v. Ward, 367 Or 188, 201 n 9, 475 P3d 420 (2020)
(describing the circumstances in which a Miranda violation
is “not especially flagrant” as those “violations that consist
of the officers fail[ing] to recognize that the circumstances
had become sufficiently compelling to require Miranda
warnings” (internal quotation marks omitted; alteration in
original); cf. State v. Beeson, 307 Or App 808, 824, 479 P3d
576 (2020) (concluding that a Miranda violation was not fla-
grant or egregious when officers administered field sobriety
316 State v. Alapai
tests to a defendant without providing Miranda warnings
after the defendant jumped out of his truck and attempted
to confront the victim of a hit-and-run). Indeed, after Van
Meter questioned defendant without giving him Miranda
warnings, Van Meter learned that he needed to wait for
Rumsey to conduct further investigation. Accordingly, while
they both waited for the investigation to resume, Van Meter
shifted to noninvestigative small talk subjects, including
defendant’s history of living in Hawai’i and interest in play-
ing guitar.
Although the time between the violation and the
later statements was brief, Rumsey’s arrival on the scene—
taking over the investigation from Van Meter, stopping
the casual conversation, and stating that he did not know
what defendant had discussed with Van Meter—broke any
continuity with Van Meter’s questioning. And, when defen-
dant responded by volunteering that he had been in a car
accident, Rumsey immediately informed defendant of his
Miranda rights, giving “an objective indication that the sit-
uation had changed and was governed by new rules.” See
Vondehn, 348 Or at 485-86 (describing the circumstances
required for a belated Miranda warning to be effective); see
also Beeson, 307 Or App at 826-27 (police officer “clearly
communicated to defendant that he had the right to remain
silent” when the officer “did not permit defendant to inter-
rupt and make any statements” while the officer was giv-
ing a belated Miranda warning). Moreover, Rumsey did not
use defendant’s unwarned statements against him—indeed,
Rumsey did not even know that defendant had made incrim-
inating statements to Van Meter. See Vondehn, 348 Or at
486 (describing the use of unwarned statements as a factor
weighing against the efficacy of belated Miranda warnings).
We acknowledge that there are some facts that
weigh against our conclusion that Rumsey’s Miranda warn-
ings were constitutionally adequate, such as the continued
presence of Van Meter on the scene; the breadth of subject
matter of Van Meter’s unwarned questioning, which cov-
ered defendant’s involvement in the crash, alcohol consump-
tion, and history of driving under the influence; the lack of
change in the physical circumstances of defendant being
detained by two uniformed police officers; and defendant’s
Cite as 308 Or App 309 (2020) 317
continued inability to terminate the encounter. However,
the totality of the circumstances, particularly the reset
that occurred when a new officer arrived, introduced him-
self, and informed defendant that he was not aware of any
statements, incriminating or otherwise, that defendant had
made to the first officer, dissipated the taint from the prior
Miranda violation such that defendant was able to make a
knowing waiver of his rights when he answered Rumsey’s
post-Miranda questioning. Accordingly, the trial court did
not err when it denied defendant’s motion to suppress his
post-Miranda statements to Rumsey.
We use the same framework and reach the same
conclusion with respect to the results of the field sobriety
and breath tests. When a “defendant consent[s] to perform
* * * field sobriety tests and * * * breath test[s], we look to the
Jarnagin factors to determine whether defendant’s decision
to perform those tests broke the causal chain between the
prior Article I, section 12, violation and the test results.”
Mast, 301 Or App at 820-21 (internal quotation marks omit-
ted); see Jarnagin, 351 Or at 713 (When an officer obtains
physical evidence in violation of Article I, section 12, the
court suppresses “not only statements that a suspect makes
in direct response to unwarned questioning but also evi-
dence that derives from or is a product of that constitutional
violation.”). As we have already observed, Rumsey’s arrival
and subsequent Mirandized questioning attenuated the
taint of Van Meter’s unwarned questions. Defendant con-
sented to the tests after receiving properly administered
Miranda warnings. Accordingly, the trial court did not err
when it denied defendant’s motion to suppress the results of
the field sobriety and breath tests.
In sum, the trial court did not err by denying defen-
dant’s motion to suppress as it pertained to his statements
to Rumsey and the results of the field sobriety and breath
tests.
Affirmed.