“[A] consent to search is not an incriminating statement subject to suppression for a Miranda violation.”
How later courts described this case
- “[A] consent to search is not an incriminating statement subject to suppression for a Miranda violation.”
Written by the judges who cited it.
The opinion
RIGGS, J.,
specially concurring.
I write separately because I agree with the dissent that State v. Magee, 304 Or 261 , 744 P2d 250 (1987), requires our inquiry into whether the circumstances of a defendant’s contact with the police prior to and during questioning involved “compelling” conditions that require Miranda warnings. That standard goes beyond the simpler analysis of whether a defendant is “detained,” is in “custody,” or is in “full custody,” whatever those terms really mean. Agreeing with the dissent’s author on that point and applying the standard of Magee , as I read it, I nevertheless disagree with the dissent’s argument that this case must be reversed.
The majority opinion focuses on whether defendant was in “custody” or in some type of temporary and reasonable detention for purposes of police investigation. It concludes that the facts support the conclusion that the “questioning was not so prolonged, pressured, or police-dominated as to become tantamount to an arrest.” I believe that the majority analysis focuses too heavily on the concept of custody. Under Magee , the truly relevant test is whether there are sufficient compelling circumstances, whether or not there was custody, to support a conclusion that warnings must have been given in order for the subsequent admissions and search and seizure to be untainted. In some situations, custody itself will create compelling circumstances. In other situations it could be possible for compelling circumstances to exist even if full custody was absent or not prolonged. It may be that the test of “compelling circumstances” is as slippery a concept and as difficult to define in a given case as any of the other tests that have been proffered from time to time in opinions under either Article I, section 12, or under the federal constitution. Nevertheless, it seems clearly to be a broader, more inclusive and a more correct standard under Magee than the custody test that the majority uses.
Notwithstanding my belief that the majority inappropriately focused on too narrow a test of “custody” rather *216 than on “compelling circumstances,” I nevertheless agree with the majority that the facts in this record, discussed in the majority opinion, are sufficient to find both a lack of custody and a lack of compelling circumstances that would have required Miranda warnings. Therefore, defendant’s subsequent admissions and the search and seizure were valid and the trial court is properly affirmed.