# State v. Brown

> Court of Appeals of Oregon · January 17, 1990 · 100 Or. App. 204

URL: https://www.frixlaw.com/law-library/cases/9536451

## Case

- **Full name:** STATE OF OREGON, Respondent, v. WARREN COVEY BROWN, Appellant
- **Court:** Court of Appeals of Oregon
- **Decided:** January 17, 1990
- **Citations:** 100 Or. App. 204; 785 P.2d 790; 1990 Ore. App. LEXIS 26
- **Precedential status:** Published
- **Opinion:** Dissent by Newman
- **Judges:** Buttler, Deits, Graber, Joseph, Newman, Richardson, Riggs, Rossman
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9536451

## Opinion text

NEWMAN, J.,
dissenting.
Although I agree with the majority that the initial stop was lawful, I disagree with its assertion that the police, did not violate Article I, section 12, when they failed to give defendant Miranda warnings before they questioned him.
The majority correctly states that Article I, section 12, independently of the federal constitution, requires Miranda warnings and that State v. Magee, 304 Or 261 , 744 P2d 250 (1987), is “a rejection of the views of the plurality in [State v. Smith, 301 Or 681 , 725 P2d 894 (1986)].” 100 Or App at 210. The majority, however, misreads Magee when it asserts that Article I, section 12, does not require warnings here. .
Magee requires warnings when the police question a suspect in circumstances that are “compelling.” In Magee , the court stated:
“We asked the parties to discuss the term ‘full custody’ as a concept that might be applicable to this case, and they helpfully did so. It is not a term of statutory or constitutional law, and we find it unnecessary to define it here. The concept obviously includes extended official detention in a cell or another enclosure, with or without booking or deprivation of personal belongings. But an enclosure is not essential; one would hardly dispute that a person handcuffed on the street or in his own home is in ‘full custody.’ The concept of ‘full custody’ is important and useful in the sense that it informs officers of a point at which no further question about the need to warn a detained person arises; the term describes a sufficient but not a necessary condition. Its usefulness ends when it shifts attention away from the effect of questioning in another form or setting that judges would and officers should recognize to be ‘compelling’ to a debate whether the setting meets a judicial concept of ‘full custody.’ ” 304 Or at 265 . (Emphasis supplied.)
Even if the suspect is not “in custody,” the court must still *217 determine whether the effect of questioning is “compelling.” As Magee states, “full custody” is a term that “describes a sufficient but not a necessary condition” to the requirement of warnings.
In Magee , the defendant went to the police station voluntarily to ascertain the status of his brother, who had been arrested after a fight with another person. The police told the defendant he was not free to leave, because he had been involved in the fight. They took him into a separate room and questioned him about the fight. They did not warn him, and he made incriminating statements. The court stated:
“When this defendant was told by an officer investigating assault charges that he could not leave the police station because he was involved in the fight, this constituted ‘custody’ adequate to require a warning before questioning.” Magee, supra, 304 Or at 266 .
Although the court did not hold that the defendant was in “full custody,” it held that he was subject to a degree of restraint that was “compelling” enough so that it “constituted ‘custody’ adequate to require a warning before questioning.” 304 Or at 266 . The majority should not dismiss the discussion in Magee of “compelling” circumstances as mere dicta. Otherwise, the court’s statement that “full custody” is “a sufficient but not a necessary condition” would be meaningless.
Here, the trial court decided defendant’s motion to suppress before the Supreme Court decided Magee . The trial court concluded that the police did not need to warn defendant, because he was not in “custody.” It did not determine whether the circumstances in which the police interrogated him were “compelling.”
The record discloses that the police had observed marijuana patches in a remote forest area and had stationed officers at a point on a dead end gravel road near the patches. They saw defendant park his car on the road and go into the forest in the direction of the patches, return to his pickup and then go again into the forest in the same direction with an implement hanging from his belt. Later, they saw defendant leave and followed him. They stopped him just as he left the gravel road and drove onto a connecting rural paved road.
The police then detained and interrogated defendant *218 for at least half an hour. Throughout, he was alone with the police. Only one other non-police car appeared — that of a county employee — during that time. Officer Jenkins asked defendant to sit in the police car. During at least a part of the interrogation, defendant sat in that car. Defendant first denied any involvement with the marijuana but then made incriminating admissions. Jenkins retained defendant’s driver’s license during at least a part of the interrogation, although he had already checked and cleared it. See State v. Jackson, 91 Or App 425 , 755 P2d 732 (1988); State v. Painter, 296 Or 422, 425 , 676 P2d 309 (1984). As long as Jenkins retained his license, defendant could not drive away and was not free to leave. Although the police told defendant that he was not under arrest, they did not tell him that he was free to leave. The effect of Jenkins’ questioning in the police car, under the circumstances, was compelling if he did not return defendant’s license to him before the questioning began.
The court did not find, and the record does not disclose, whether Jenkins continued to hold defendant’s license and to detain and question him in the police car, when he made incriminating statements. The record shows enough, however, that the burden was on the state to show that, when defendant made the incriminating statements, Jenkins was not detaining him in the police car while keeping his license from him. It failed to make that showing. Accordingly, in the light of Article I, section 12, the court erred when it denied defendant’s motion to suppress.
The state also had the burden to show that its failure to warn defendant did not taint his subsequent consent to search the car. State v. Kennedy, 290 Or 493, 501 , 624 P2d 99 (1981); State v. Anfield, 95 Or App 567 , 770 P2d 919 (1989); State v. Ledbetter, 95 Or App 187 , 768 P2d 431 (1989). I would hold that the state did not carry that burden and that the fruit of that search — two machetes — was evidence that should also have been suppressed.
Joseph, C. J., and Buttler, J., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9536451. Public record. Not legal advice.