State v. Fish

*83GRABER, J.,

concurring in part and dissenting in part.

I concur in the majority’s holding that the warning given by the officer sufficiently informed defendant of his right to refuse to take field sobriety tests and of the consequences of refusal. The requirements of ORS 813.135 and 813.136 and their implementing rules, relating to what a detained driver must be told, were met.

For the reasons discussed below, however, I dissent from the majority’s holding that defendant’s right against self-incrimination under Article I, section 12, of the Oregon Constitution, was violated. The majority departs from established Article I, section 12, analysis, by failing to focus on the setting in which the police interrogation occurs.

ARTICLE I, SECTION 12

Article I, section 12, provides in part: “No person shall * * * be compelled in any criminal prosecution to testify against himself.” The majority recognizes that, to receive protection under the self-incrimination clause of Article I, section 12, a person’s statements or acts must be both “testimonial” and “compelled.” 321 Or at 53. The constitutional prohibition is not against all self-incrimination, but only against “compelled” self-incrimination. The constitution does not require suppression of responses made to a police officer, including refusals to give information, during a lawful, noncompelling encounter. I would hold that the evidence challenged here — defendant’s refusal to take field sobriety tests — was not “compelled.”1

Under Article I, section 12, this court has considered the concept of compulsion in determining whether a defendant is entitled to Miranda-like warnings.

“In determining whether Miranda-like warnings [are] required by the Oregon Constitution, we must assess the extent to which defendant was ‘in custody.’ In Oregon, a defendant who is in ‘full custody’ must be given Miranda-*84like warnings prior to questioning. State v. Magee, 304 Or 261, 265, 744 P2d 250 (1987). In addition, such warnings may be required in circumstances that, although they do not rise to the level of full custody, create a ‘setting which judges would and officers should recognize to be “compelling” ’Id.” State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990) (footnote omitted).

In that case, the court held that the defendant was not in custody and that his surroundings did not create a setting of compulsion. Id. at 8. Accordingly, his statements to the police were admissible in evidence at his trial, despite the absence of warnings. Ibid.

Smith addressed the question of when Miranda-like warnings are required under Article I, section 12, and held that they must be given in any setting involving compelled police interrogation. The compulsion analysis in Smith was not limited to the issue of when Miranda-like warnings are necessary, however; Smith covered all forms of compulsion arising in the context of police interrogation. The requirement of warnings is simply one result of determining that compulsion is involved. Smith represents a closed set. If self-incriminating testimony was elicited during police interrogation under circumstances that rendered the testimony “compelled” within the meaning of Article I, section 12, then Miranda-like warnings were required; such warnings are required whenever self-incrimination is compelled during police interrogation; and a defendant cannot successfully assert a violation of the right to be free from compelled self-incrimination under Article I, section 12, during police interrogation unless the defendant was in a setting that demanded the prior administration of such warnings, because only such settings are compelling for Article I, section 12, purposes. Thus, State v. Smith sets the relevant standard under Article I, section 12, for the present case.

In Smith, this court held that Miranda-like warnings are required both when a person is in “full custody” and when a person is in any other “setting that judges would* * * recognize to be compelling.” 310 Or at 7 (citation omitted) (internal quotation marks omitted). In Smith terms, the issue in the present case becomes whether, during a valid stop (i.e., a stop that is neither custodial nor coercive), the request *85to administer field sobriety tests constitutes “full custody” or “ create [s] a setting which judges would and officers should recognize to be compelling,” ibid, (internal quotation marks omitted), within the meaning of Article I, section 12. This opinion next applies that two-part analysis.

First, a driver who is asked to take the challenged field sobriety tests, without more, is not in “full custody." See Smith, 310 Or at 7 (stating that standard); see also ORS 133.005(1) (defining to “arrest” in part as “to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense” (emphasis added)). A driver who has merely been stopped is not under arrest when the request is made to take the tests or when responding, affirmatively or negatively, to that request. See State v. Vu, 307 Or 419, 425, 770 P2d 577 (1989) (a driver stopped for traffic infractions and then questioned was not entitled to Miranda-like warnings under Article I, section 12, because he was not in custody or under compulsion in the constitutional sense).

I next consider whether, in the circumstance that defendant faced, ORS 813.135 and 813.136 and their implementing rules “create a setting which judges would and officers should recognize to be compelling.” See Smith, 310 Or at 7 (stating that standard) (internal quotation marks omitted). After a police officer has asked a driver to submit to field sobriety tests, the driver may refuse to do so, albeit with possible evidentiary consequences. No direct punitive consequences flow from a refusal to take the challenged field sobriety tests. The officer’s request during a valid stop does not, in my view, create a setting that is “compelling.”

Most of the majority’s opinion is devoted to demonstrating that some aspects of the field sobriety tests and the failure to submit to them are “testimonial” within the meaning of Article I, section 12. 321 Or at 53-57, 58-60. Assuming that a refusal to take the field sobriety tests is “testimonial,” the majority advances no principled explanation for concluding that such a refusal is “compelled” in the constitutional sense. Instead, what little the majority says on the subject boils down to this construct:

1. All choices that the driver faces are testimonial.
*862. All choices that the driver faces are incriminating.
3. Therefore, the requirement to choose is compulsion. 321 Or at 57-58, 60-63.

Under existing case law, that construct is faulty. An example will illustrate the point. Suppose that a police officer lawfully stops someone for speeding; it is afternoon, the officer is alone, and the location is a well-traveled commercial street. The officer asks the driver, “What do you know about the robbery at the grocery store that happened 10 minutes ago, a few blocks from here?” The driver has three choices: (1) she can confess to the robbery, either by words or by flight; (2) she can deny any knowledge of the robbery (which, if she is the robber, is a lie); or (3) she can refuse to cooperate, either by words or by silence. All three choices are testimonial; assuming that the driver is the robber, all are incriminating. Are the driver’s responses nonetheless admissible in evidence at her trial for robbery of the grocery store? Under present law, they are, because the setting in which the evidence was obtained, at the time it was obtained, was not compelling in a constitutional sense.

In other words, this court’s prior cases on compulsion under Article I, section 12, have stated or assumed that the questioned person’s choices all were testimonial and incriminating; but that has been only the starting point, not the ending point, of the analysis of compulsion. That analysis has focused on the nature of the defendant’s encounter with the police. Here, the majority fails to focus on the nature of defendant’s encounter with the police. Were it to do so, its result would not withstand scrutiny.

As discussed above, under Smith and Vu the valid stop itself is not compelling; defendant’s acts and statements, whether testimonial or not, cannot be deemed “compelled” under Article I, section 12, because they do not occur in a setting that is compelling. That examination of the setting in which evidence was obtained — at the time it was obtained — is the test heretofore applied by this court.

Does the existence of a statute mandating that the police inform the driver of the consequence of refusal make the encounter “compelling” within the meaning of Article I, section 12? I believe that the answer is “no.”

*87ORS 813.136 represents a particularized codification of the usual principle that responses to police questioning are admissible in evidence unless given under compulsion. One of the functions of the statutes under consideration is to tell drivers about that usual principle of admissibility. See ORS 813.135 (“Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests.”). Accordingly, ORS 813.135 and 813.136 give drivers more information about the result of their failure to take field sobriety tests than they would receive in the absence of a statute. If the statutes give drivers more information than they need receive under Article I, section 12, the statute does not have the effect of denying a constitutional protection. The informational aspect of the statutes does not make a noncompelling setting compelling for Article I, section 12, purposes.

Does the fact that the driver must make a choice between testimonial, incriminating courses of action — without more — make the encounter “compelling” within the meaning of Article I, section 12? Again, I believe that the answer is “no.” To require the making of a choice between two courses of action is not the same as to compel either of the two courses of action. See South Dakota v. Neville, 459 US 553, 564, 103 S Ct 916, 74 L Ed 2d 748 (1983) (citing Crampton v. Ohio, decided with McGautha v. California, 402 US 183, 213-17, 91 S Ct 1454, 28 L Ed 2d 711 (1971), Court held: where a state statute gave the defendant the choice of submitting to a blood-alcohol test or refusing to do so, the defendant’s “refusal to take a blood-alcohol test, after a police officer [had] lawfully requested it, [was] not an act coerced by the officer, and thus [was] not protected by the privilege against self-incrimination”).

Does the existence of a statute mandating introduction of evidence obtained during the encounter make an otherwise noncompelling setting into a compelling setting? Once again, I believe that the answer is “no.”

A “yes” answer would make the result of a compulsion analysis (admissibility of evidence versus inadmissibility) into the analysis itself. Exclusion of evidence is not a separate right. Rather, it is a consequence of compulsion or of some other violation of a defendant’s constitutional rights. *88See State v. Davis, 313 Or 246, 253-54, 834 P2d 1008 (1992) (exclusionary rule is a means to vindicate the right of an individual defendant when evidence has been “obtained in a •manner contrary to Oregon’s constitutional rules”). ORS 813.136 is limited to stating a result — admissibility. The logical consequence of the majority’s reasoning is this: If the legislature enacts a statute providing that “evidence gained from a suspect by an investigating police officer in a noncompelling setting shall be admissible in evidence, ’ ’ such evidence would be inadmissible because of the statute, even though such evidence now is admissible on the ground that it has not been obtained in a manner contrary to Oregon’s constitutional rules.

Such an analysis makes no sense. The existence of a statute describing the result of what evidence is admissible, in a later court proceeding, does not transform the nature of the setting in which the challenged evidence was obtained in the first place. Stated another way, the fact that a statute says that acts and statements occurring in a noncompelling setting may be used against a defendant does not make the original setting compelling, retroactively.2

The majority’s assertion that the statutes compelled defendant’s refusal to take the tests also fails for another reason. The majority ignores the unidirectional nature of the *89pressure inherent in the statutes. “The main purpose of the second sentence of ORS 813.135 was * * * to bring further pressure on suspected intoxicated drivers to take the field sobriety tests.” State v. Trenary, 316 Or 172, 177, 850 P2d 356 (1993) (emphasis added).3 That “further pressure” exists to discourage suspected intoxicated drivers from refusing to take the tests; if “compulsion” can be found in the statutes, that compulsion exists only to push drivers to take the tests, not to refuse. The “compulsion” that the majority finds as to refusal simply does not exist.

In State v. Green, 68 Or App 518, 523-24, 684 P2d 575, rev den 297 Or 601 (1984), then Judge (now Justice) Gillette emphasized the foregoing kind of distinction.

“The dispositive issue is not whether evidence of the refusal is communicative but whether the communication is the result of governmental compulsion of the sort which Article I, section 12, forbids. The right not to testify against oneself does not prevent the state from using defendant’s out-of-court statements or other communicative activity as evidence. Rather, it prevents the state from requiring a defendant to provide such statements or activity. Thus, inculpatory statements to friends, relatives, accomplices and others are generally admissible if there is no improper governmental activity in procuring them. Statements to police or other authorities are also admissible if voluntarily made, either before custodial interrogation begins or, if made during custodial interrogation, after a knowing and voluntary waiver of Miranda rights.
“These principles apply equally to non-verbal activity with communicative effects. Thus, evidence of flight is admissible to show a defendant’s consciousness of guilt. If the jury finds that a defendant’s flight shows a consciousness of guilt, it has found that the defendant has, in effect, said, T know that I am guilty, so I don’t want to be caught and tried.’ The conduct is communicative, and it is the communicative effect that the state places in evidence. It is permitted to do so, however, not just because of the nature of the evidence but also because the communication is not compelled; if the state seeks to compel anything, it is that defendant not flee *90and thus that he not communicate.” (Footnotes omitted; citations omitted; emphasis in original.)

The Court of Appeals in Green also recognized that the key issue is whether the evidence of refusal is compelled, not whether it is testimonial.

In State v. Carlson, 311 Or 201, 808 P2d 1002 (1991), this court likewise recognized the importance of the link between what makes the evidence “testimonial” and what makes the evidence “compelled.” In Carlson, the defendant challenged his conviction for possession of a controlled substance. 311 Or at 203. The Oregon constitutional issue was whether the defendant was in a setting that entitled him to receive Miranda-like warnings before being questioned by a police officer. Id. at 204-05. The defendant argued that admission of statements that he made to a police officer about needle marks on his arms violated his Article I, section 12, right against self-incrimination. Ibid. The court stated that

‘ ‘the fact that police question a person as a suspect in a crime ‘does not inherently create a “compelling” setting for Oregon constitutional purposes.’ State v. Smith, supra, 310 Or at 11. The circumstances of this case do not rise to the level of custody or compulsion that require Miranda-\ihe warnings. Accordingly, the admission of defendant’s statements did not violate defendant’s rights under Article I, section 12, of the Oregon Constitution.” 311 Or at 205.

After addressing, and rejecting, the defendant’s constitutional argument that the setting was compelling for Article I, section 12, purposes, the court held that the defendant’s statements were admissible at trial. Id. at 205. The foregoing passage demonstrates that this court looks to the setting in which one suspected of illegal activity makes a statement, to determine whether that setting is compelling. If the setting is compelling, the evidence is not admissible. If the setting is not compelling, the evidence is admissible.

Once the setting in which the statements were made is deemed “compelled” or “non-compelled,” all forms of testimonial evidence — silence, acts, and statements — receive the same treatment from the perspective of Article I, section 12. The analysis undertaken by the court in Carlson, after the court resolved the Article I, section 12, compulsion issue, makes this apparent and counters the suggestion made *91by defendant in this case that silence in the face of police questioning is entitled to greater protection than speech, even in a setting devoid of compulsion.

After the court in Carlson determined that the defendant was in a noncompelling setting, the court addressed whether a police officer’s testimony about the defendant’s nonverbal response (head-shaking) to an accusatory statement made by the defendant’s wife during the defendant’s interaction with the police was admissible at trial as an adoptive admission by the defendant. The court held that the defendant’s silence was not admissible, because his nonverbal conduct was “so ambiguous that it cannot reasonably be deemed sufficient to establish that any particular interpretation” was intended. Id. at 214. As the opinion in Carlson makes clear, however, had the defendant’s nonverbal conduct been unambiguous, evidence of it would have been admitted at trial. That is because the defendant’s conduct was not compelled. The defendant’s silence, like his statement, arose out of a noncompelled setting. The only question that the court needed to address, after resolving the compulsion issue, was whether the evidence complied with applicable Oregon Rules of Evidence.

Carlson offers the proper mode of analysis for challenges under the self-incrimination clause of Article I, section 12. The focus for determining whether a response to police questioning was compelled (whether that response be an act or a statement or silence) is to look at the setting at the time of the response. A conclusion about compulsion for Article I, section 12, purposes flows from the nature of one’s encounter with the police. It is that setting that determines whether the self-incrimination provisions of Article I, section 12, take effect, not that setting and what happens later at trial. The court made that clear in Carlson-, the majority offers no justification for deviating from that analysis today.

In summary, a driver’s refusal to take field sobriety tests in the circumstances presented is not “compelled” within the meaning of Article I, section 12. Accordingly, the challenged statutes and their implementing rules do not violate Article I, section 12, in the manner argued by defendant.

*92FIFTH AMENDMENT

Because I would hold that the challenged statutes and their implementing rules do not violate defendant’s Article I, section 12, rights, I would reach defendant’s federal constitutional claim as well. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (court reaches federal constitutional argument after rejecting state constitutional argument). Defendant’s argument fails under the Fifth Amendment to the Constitution of the United States, which provides in part: “No person * * * shall be compelled in any criminal case to be a witness against himself.”

Under the federal constitution, suppression of evidence concerning a defendant’s testimony is not required unless that testimony was elicited during “custodial interrogation.” Pennsylvania v. Muniz, 496 US 582, 600-02, 110 S Ct 2638, 110 L Ed 2d 528 (1990). As in the state constitutional analysis, above, it is unnecessary to decide whether the challenged field sobriety tests are designed to elicit “testimonial” evidence within the meaning of the Fifth Amendment or whether a refusal to perform such tests is itself testimonial. Even if testimonial evidence is involved, the Supreme Court’s cases demonstrate that a person in defendant’s circumstance has not been subjected to “custodial interrogation” within the meaning of the Fifth Amendment.

As noted above, the Supreme Court of the United States has held that a driver’s refusal to take a blood-alcohol test, after a police officer lawfully requested it, was admissible at his trial for driving while intoxicated. His refusal was not coerced and therefore was not protected by the privilege against self-incrimination. Neville, 459 US at 564. The Court stated that, “[i]n the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. * * * Respondent’s choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection.” Id. at 564 n 15. Citing Crampton, the Court recognized “that the choice to submit or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to make. But the criminal process often requires suspects and defendants to make difficult choices.” Neville, 459 US at 564. The Court concluded that “no impermissible *93coercion is involved when the suspect refuses to submit to take the test, regardless of the form of refusal.” Id. at 562.

In Pennsylvania v. Bruder, 488 US 9, 11, 109 S Ct 205, 102 L Ed 2d 172 (1988), the Supreme Court considered whether a driver who was stopped by “ ‘a single police officer,’ ” was asked “ ‘a modest number of questions,’ ” and was asked to “ ‘perform a simple balancing test at a location visible to passing motorists,’ ” was entitled to receive Miranda warnings. Among the “questions” that the officer “asked” the suspect was a request to recite the alphabet. Id. at 9-10. The Court did not discuss separately the import of that recitation. Instead, the Court held that the driver was not entitled to receive Miranda warnings during the stop, because he was not in custody during that time. Id. at 11. See also Berkemer v. McCarty, 468 US 420, 436-40, 104 S Ct 3138, 82 L Ed 2d 317 (1984) (Supreme Court reviewed purposes of Miranda rule and concluded that, although a traffic stop “significantly curtails the ‘freedom of action’ of the driver,” police questioning of a driver incident to a traffic stop is “quite different from stationhouse interrogation,” in that the driver normally does not feel “completely at the mercy of the police” and “the typical traffic stop is public”; “persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda.”).

The Supreme Court cases cited above answer defendant’s Fifth Amendment argument. The field sobriety tests are not requested during custodial interrogation. Therefore, the challenged statutes and their implementing rules do not violate the Fifth Amendment in the manner argued by defendant.

CONCLUSION

In summary, I am not persuaded by defendant’s arguments. I would hold that the trial court erred in granting defendant’s motion to suppress evidence of his refusal to take field sobriety tests. I respectfully dissent from the majority’s contrary holding.

Van Hoomissen, J., joins in this opinion.

Because defendant’s refusal to take the tests was not compelled, we need not decide whether the challenged tests, or refusal to submit to those tests, elicits “testimonial” evidence within the meaning of Article I, section 12. With respect to that point, however, I agree generally with the views expressed by Justice Gillette in his opinion in this case.

The majority sets up and knocks down a sympathetic straw person when it asserts:

“[I]n response to a police officer’s request to submit to field sobriety tests, if defendant were to say, T am exercising my right to remain silent under Article I, section 12, of the Oregon Constitution,’ that response would be treated as a refusal to perform the tests, and the refusal would be admissible as substantive evidence of guilt under ORS 813.135 and ORS 813.136. It is fundamental that the assertion of the right against self-incrimination cannot be considered as evidence of guilt.” 321 Or at 61.

That passage is misleading. The operative fact under ORS 813.136 is that the ‘ 'person refuses or fails to submit to field sobriety tests as required byORS813.135”; in that event, “evidence of the person’s refusal or failure to submit is admissible.”

This case provides a good illustration of how such evidence sounds:

‘ ‘ [DEPUTY]: * * * I asked him to step out of the truck to perform a series of field sobriety tests.
“[PROSECUTOR]: And did he, in fact, take those field tests?
“[DEPUTY]: No, he did not.”

Irrelevant or unduly prejudicial embellishments presumably would be excluded, upon proper objection.

In Trenary, the issue of statutory construction presented was whether the failure of a police officer to inform a driver of the consequences of refusing to take field sobriety tests required suppression of the test results when the driver in question took the tests anyway. This court said “no.” 316 Or at 178.