State v. Travis ( 1968 )

GOODWIN, J.

The defendant appeals a conviction of burglary (OES 164.230). The indictment charged the breaking of a house and an assault upon a female occupant. The only issue upon appeal is whether the trial court should have excluded incriminating admissions made by the defendant to an investigating officer.

■ The complaining witness had reported to the police that the defendant, with whom she was acquainted, had broken into her house at night while her husband was away and that she had awakened to find the defendant on her bed. A police officer called at the defendant’s home for the purpose of cheeking on the complaint. The defendant and his wife were both at home, and the defendant invited the officer inside. The officer declined the invitation, suggesting instead that it might be better if they talked in the officer’s car.

After the officer and the defendant were seated in the police ear, the officer said, “this is a criminal matter,” and advised the defendant “that he had an absolute right to an attorney before making a statement.” The officer did not, however, advise the defendant of his right to counsel at public expense and of his absolute right to remain silent if he wished to do so. Accordingly, the advice fell short of the advice required under our decisions in cases of custodial interrogation. See State v. Edwards, 244 Or 317, 417 P2d 766 (1966); State v. Keller, 240 Or 442, 402 P2d 521 (1965).

When the officer told the defendant about the woman’s complaint, the defendant promptly admitted his presence in her home. The officer then told the defendant that the police would “contact him later” if a warrant should be issued for his arrest. The officer took his leave and the defendant returned to his house. The next day, the defendant was arrested and charged with burglary.

•On the foregoing facts, the trial court found that the defendant had not been under arrest or “otherwise deprived of his freedom of action in any significant way,” within the meaning of Miranda v. Arizona, 384 US 436, 444, 86 S C.t 1602, 16 L Ed 2d 694, 10 ALR3d 974 (1966). Defendant’s statements to the officer were received in evidence. • '■

Prior to the Miranda decision, this court had permitted the police to testify to conversations with focal suspects who had been questioned while not under arrest even though the officers had not first advised them of their rights. See State v. Evans, 241 Or 567, 573, 407 P2d 621 (1965). Since the trial court deemed State v. Evans controlling, this appeal seeks to have that decision overruled.

This court was not unanimous in the Evans case, and the defendant now argues that the Miranda case has made the Evans case obsolete even if Evans correctly stated Oregon law at the time it was published.

The defendant argues that the exclusionary rulé now must be applied whenever a focal suspect is interviewed or interrogated without being advised of his rights. He would have us exclude the evidence regardless of the degree of police control or custody being exercised over the suspect at the time of the interview. By focal suspect, the defendant presumably means one whom the police have probable cause to arrest; this is the meaning we give to the term.

Though the facts of the Miranda case involved police-station interrogation, the reasoning in that decision applies to custodial questioning outside the police station. It is clear that the police may not avoid the Miranda rules by questioning an arrested suspect' on the way to the police station or in the field. Séé State v. Keller, 240 Or at 448. And see Graham, What Is “Custodial Interrogation?”: California’s Anticipatory Application of Miranda v. Arizona, 14 UCLA L Rev 59, 83 (1966). It is not always clear, however, at what point field questioning of a suspect becomes custodial interrogation. See, e.g., State v. Taylor, 249 Or 268, 437 P2d 853 (1968).

The badge of a police officer representing governmental authority, in and of itself, may have a subtly coercive effect. But we cannot believe that any psychological pressure emanating from an officer’s authority is likely to cause an innocent person, who knows that he is free to come and go, to confess a crime he did not commit. Nor is a question by an officer likely to produce involuntary self-incrimination on the part of a guilty person if that person is not under arrest or under any other form of restraint.

The basis of the exclusionary rule is the Fifth Amendment guarantee against compulsion. The Miranda case held that police custody is “inherently coercive.” If, in fact, there is no custody, there is no danger that a coercive environment will be created. There is no need, therefore, to indulge in a fictitious assumption that we are preventing coercion when we exclude otherwise admissible evidence.

Some post -Miranda cases have held that field interrogation of suspects requires all the Miranda warnings if police have probable cause to believe the suspect is guilty. See, e.g., People v. Terrell, 53 Misc2d 32, 277 NYS2d 926, 939 (Sup Ct 1967); Commonwealth v. Jefferson, 423 Pa 541, 226 A2d 765 (1967). On the other hand, the New York Court- of Appeals has held that answers produced by field interrogation of a focal ■suspect without' the Miranda warnings could be received in evidence where the suspect was not yet under arrest and the coercive elements described in Miranda were not present. People v. P., 21 NY2d 1, 233 NE2d 255, 286 NYS2d 225 (1968). See, to like effect, Evans v. United States, 377 F2d 535 (5th Cir 1967); United States v. Agy, 374 F2d 94 (6th-Cir 1967); United States v. Schlinsky, 261 F Supp 265 (D Mass 1966); United States v. Davis, 259 F Supp 496 (D Mass 1966); State v. Noriega, 6 Ariz App 428, 433 P2d 281 (1967); People v. Allen, 28 App Div2d 724, 281 NYS2d 602 (1967).

In State v. Taylor, supra, it was held that incriminating statements could be received, even though the suspect had not been advised of his rights. In that case, the officer was making a preliminary inquiry at the scene of an automobile accident to determine whether or not a crime had been committed. If the suspect had been given the appropriate advice before any questions were asked, the difficulty in that case could have been avoided; but we held that there Avas no error in receiving the evidence.

In the case at bar, the trial court found that the suspect was in fact free of restraint at all times and left the scene of the interrogation as a free man. He was not arrested until substantially later. There is no reason, therefore, to overturn the trial court’s finding that the defendant was not, in fact, in custody Avhen he was being interAdewed.

.Affirmed.