State v. Greason

BUTTLER, P. J.,

concurring in part; dissenting in part.

Although I agree with majority’s disposition of the trial court’s suppression of the results of the breath test, I do not agree that the trial court erred in suppressing the statement that defendant made after he had been told to board the patrol boat.

The trial court suppressed defendant’s statement that he “could not do that even when he was sober,” which he made after he boarded the patrol boat and had been asked to do a thumb to finger count. The court found that he was not free to leave at that time. That finding is supported by the evidence: Defendant could not have left without swimming. We are bound by it. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). The question is whether that finding is sufficient to support the conclusion that defendant was “in custody” or whether the circumstances created a “setting which judges would and officers should recognize to be ‘compelling.’ ” State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990), (quoting State v. Magee, 304 Or 261, 265, 744 P2d 250 (1987)). If so, defendant was entitled to Miranda-type warnings under Article I, section 12, of the Oregon Constitution.

It is not necessary that a person be told that he is not free to leave before he is considered to be in custody, State v. Smith, supra, but, if he is told that, he is considered to be in custody “adequate to require a warning before questioning.” State v. Magee, 304 Or at 266. On the other hand, if the person is told that he is not under arrest or that he is free to leave in circumstances where he may actually do so, the circumstances might not be a “setting which judges would and officers should recognize to be ‘compelling.’ ” State v. Smith, supra, quoting State v. Magee, supra. Although defendant was not told that he could not leave, the circumstances were such that there was no need to tell him that. It was obvious that there was no reasonable way that he could leave. Neither was he told that he was not under arrest or that he was free to leave. The circumstances were such that the officer should have recognized that they created a setting that was “compelling,” and he should have advised defendant of his rights. The trial court did not err in suppressing that statement.

I would affirm the suppression of the statement made by defendant on the patrol boat.

Joseph, C. J., and Newman, J., concur in this opinion.