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In Taylor, despite that constructive acknowledgment by the officer that defendant was not free to leave, we did not hold that defendant was entitled to advice of his rights at the time of the stop.
Summary of this case from State v. McConnvilleOpinion
No. M79-1040, CA 19398
On appellant's supplemental reconsideration filed July 13, reconsideration allowed.
Former opinion filed May 26 ( 57 Or. App. 553, 645 P.2d 547) withdrawn; reversed and remanded for a new trial September 15, reconsideration denied October 27, 1982, petition for review denied July 19, 1983 ( 295 Or. 446)
Appeal from District Court, Douglas County.
Thomas C. Bernier, Roseburg, for petition.
Dave Frohnmayer, Attorney General, William F. Gary, Solicitor General, and Virginia L. Linder, Assistant Attorney General, Salem, contra.
YOUNG, J.
Petition for reconsideration allowed; former opinion withdrawn; reversed and remanded for a new trial.
Defendant filed a petition and supplemental petition for reconsideration of our former opinion, State v. Taylor, 57 Or. App. 553, 645 P.2d 547 (1982), which affirmed the judgment of conviction for driving while under the influence of intoxicants. We have granted the supplemental petition in which defendant contends that, on the basis of State v. Roberti, 293 Or. 59, 644 P.2d 1104, 293 Or. 236, 646 P.2d 1341 (1982), his motion to suppress should have been granted. The motion was to suppress
We adhere to our former holding that the motion for speedy trial was properly denied.
"any evidence concerning the existence of or the contents of any audio tape taken at the scene of the stop of defendant, the audio tape itself and any evidence as to the questions asked of defendant and any answers given during or prior to the audio tape."
Our former opinion is withdrawn, and we reverse.
We held that the motion to suppress was properly denied on the basis of the first opinion in State v. Roberti, 293 Or. 59, supra, in that "[d]efendant's admissions before he was arrested were made in an investigatory and not a custodial setting." 57 Or App at 559. After our opinion, the Supreme Court reconsidered its holding in Roberti and reversed. 293 Or. 236, 646 P.2d 1341 (1982). ( Roberti II) Under Roberti II, we have held that "once an officer has decided to arrest a person, it is necessary to warn the person of his right to remain silent." See State v. Wells, 58 Or. App. 617, 650 P.2d 117 (1982).
The state filed a response to the supplemental petition in which it contends that, even under Roberti II, the motion to suppress was properly denied.
At a pretrial hearing on May 20, 1980, on defendant's motion to suppress, the arresting officer testified that, when he stopped and first encountered defendant, he was not under arrest. However, had defendant chosen to drive away, the officer would have stopped him again for attempting to elude a police officer. The officer testified that his initial observations of defendant's physical appearance indicated to him that he was "possibly" under the influence. The officer testified that he observed an odor of alcohol, a flushed face, bloodshot eyes, contracted pupils, a "swaying" balance and slurred speech. The officer testified that, after he made these observations, defendant was not free to leave the scene of the stop. Following the officer's subjective determination that defendant was not free to leave, defendant performed a series of "field sobriety tests," following which defendant was arrested. Soon after the arrest, defendant was read his Miranda rights. At the moment the officer decided the defendant was not free to leave the scene of the stop, he was significantly deprived of his freedom of action and was "in custody." State v. Roberti, supra, 293 Or at 88-89.
Miranda v. Arizona, 384 U.S. 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974 (1966).
Our review of the officer's testimony satisfies us that his observation of defendant's physical appearance and condition were moments after the stop and before beginning the audio recording of defendant's statements. Accordingly, statements by defendant after he was in custody, and before the advice of his Miranda rights, were not admissible. Defendant's motion to suppress should have been granted. State v. Roberti, supra.
This determination has not been free from difficulty. In addition to the poor quality of the recordings, earlier portions of the field investigation recording were apparently inadvertently erased at some point prior to trial.
The state argues that the admission of defendant's statements, if error, was harmless. We do not agree. The officer's description of defendant's driving, his physical appearance, his lack of coordination and the breathalyzer result was powerful evidence of guilt. On the other hand, the tape recording included defendant's admission that he had attended a party and consumed beer. That admission could rise, in the mind of the jury, to the level of a confession. We cannot say, beyond a reasonable doubt, that defendant's statements could not have affected the result. See Chapman v. California, 386 U.S. 18, 87 S Ct 824, 17 L Ed 2d 705 (1967); State v. Naylor, 291 Or. 191, 629 P.2d 1308 (1981).
Reversed and remanded for a new trial.