State v. Wandle , 75 Or. App. 746 ( 1985 )

BUTTLER, P. J.,

dissenting.

Because defendant has asserted only his rights under the Fifth Amendment to the United States Constitution, we need not reconsider our statement in State v. Smith, 70 Or App 675, 691 P2d 484 (1984), rev allowed 298 Or 704 (1985), that Article I, section 12, of the Oregon Constitution requires no more than is required by Miranda as most recently interpreted in Berkemer v. McCarty, 468 US_, 104 S Ct 3138, 82 L Ed 2d 317 (1984).

Although Berkemer, by its express language, applies only to “ordinary traffic stops,” this court in State v. Smith, supra, and State v. Hackworth, 69 Or App 358, 685 P2d 480 (1984), extended the Berkemer analysis to cases where the police were investigating automobile accidents. The rationale of Berkemer is that one who is the subject of an ordinary traffic stop must reasonably expect to spend a short time answering questions, at the conclusion of which he may receive a citation and go on his way. In addition, the court pointed out that the “typical” traffic stop does not make the motorist feel that he is at the mercy of the police, because it occurs in public, which reduces the ability of an unscrupulous policeman to use illegitimate means to elicit incriminating statements and diminishes the motorist’s fear that, if he does not cooperate, he will be subject to abuse. Further, the court pointed out that the detained motorist typically is confronted by only one or at most two policemen, thereby muting his sense of vulnerability.

For those reasons, the court in Berkemer held that there was little danger that a person subjected to an ordinary traffic stop would be induced to speak when he would not otherwise do so freely, which was the concern addressed in Miranda. Under Berkemer, one subjected to an ordinary traffic stop is not entitled to be advised of his Miranda rights unless a reasonable person in his situation would have understood himself to be in custody or under restraints comparable to those associated with a formal arrest. State v. Hackworth, supra.

It is questionable whether Berkemer has any application to this case, not only because it does not involve a traffic stop, much less an ordinary one, but also because the investigation was not a brief one at the scene of a non-serious accident (which distinguishes it from Smith and Hackworth). Rather, the investigation here concerned an accident in which two persons were killed at 2 a.m., in an isolated area 47 miles east of Bend. The first officer (Hodson) arrived on the scene at about 2:45 a.m. and asked defendant what had happened and engaged in general conversation about the accident. The trial court ruled that statements made by defendant during that period were not made in a custodial setting, and they were not suppressed.

Hodson waited for Sgt. Searcey to arrive at the scene. When he arrived, he talked to Hodson and examined the scene. He then called in an accident reconstruction expert, because he had found discrepancies between what Hodson told him that defendant had said and the physical facts that he had observed. He also seized defendant’s truck and his log book containing his driving papers. He then questioned defendant about the accident and the discrepancies Searcey perceived to exist. Defendant was not advised of his rights.

The trial court found that defendant, after Searcey seized his truck and papers, had been deprived of his liberty in a significant way, as a result of which the later interrogation by Searcey was custodial. Accordingly, it suppressed all statements made by defendant after that time. It also suppressed physical evidence seized from the trailer, which ruling is not contested by the state.

The trial judge applied the test for custodial interrogation enunciated in Miranda, rather than that articulated in Berkemer, which had not then been decided. I think that he applied the correct test and that he was right under either test. The majority assumes, I think wrongly, that Berkemer is applicable, and reaches the astonishing conclusion that a reasonable person in defendant’s circumstances would not understand himself to be in custody or under restraints comparable to those associated with a formal arrest. The majority states:

“* * * He was the sole survivor of a fatal collision, his truck was disabled, stranding him in the middle of the desert, and he was the focus of police questioning on and off for close to 13 hours. Nevertheless, when evaluated in total, we do not believe that an individual in the same or similar circumstances as defendant would have felt subjected to restraints equivalent to formal arrest.” 75 Or App at 752.

If defendant was free to leave, it was not until the officers decided to return to Bend at least two hours after the initial contact. At that time, his truck and driving papers had been seized, and the only way he could have gone his own way was on foot, in the dark, headed into the desert alone without supplies. His truck was not disabled, as the majority says, although the trailer was. If the truck and the papers had not been seized, he could have driven away from the scene without having to rely on the officers to take him to Bend.

Applying the Miranda test, we have held that depriving a motorist of his driver’s license deprived him of his liberty in a significant way. State v. Bozgoz, 67 Or App 761, 679 P2d 1377, rev den 298 Or 427 (1984). How can it be that the seizure of both defendant’s driving papers (the functional equivalent of his driver’s license) and his truck amounts to a less significant deprivation of liberty than we found in Bozgoz?

The trial court made complete findings, analyzed the questions thoroughly and, in my opinion, properly applied the Miranda test. I would affirm and therefore dissent.