State v. Roberti

LENT, J.,

dissenting.

The problem in this case is to determine when a uniformed police officer’s questioning of a motorist halted for improper driving became custodial interrogation. I would hold that it was from at least as early as the time when the officer had arrived at a decision, although uncom-municated to the motorist, to arrest him for driving while under the influence of intoxicants.

The majority purports to follow and apply the precepts of the United States Supreme Court pronounced in Miranda v. Arizona, 384 US 436 , 86 S Ct 1602 , 16 L Ed 2d 694 (1966). Rather than doing so, however, the majority actually attempts to go behind the plain words of the Miranda decision and to retreat to a rule that the Miranda warnings need be given only when the defendant is found to be in some situation at least equally as coercive to his will as obtains in station house custody. I cannot help but feel that the majority reaches that result on the basis of what it wished the Miranda court had said, rather than what that court did say.

That court did say, as acknowledged by the majority, that the need to give the famous warnings is triggered by custodial interrogation. By that, the court said it meant questioning of a person in custody “or otherwise deprived of *77 his freedom of action in any significant way.” 384 US at 444 , 86 S Ct at 1612 , 16 L Ed 2d at 706 . 1 The majority first concedes that “actual (not potential) custody or significant deprival of freedom is what triggers the Miranda safeguards.” 293 Or at 70, 644 P2d at 1111. Having made that concession, the majority then blithely ignores the fact that this defendant was not free to go because the officer would not have let him go. The majority opinion, in effect, holds that more than actual deprivation of freedom of action is required; in addition, the defendant must realize that he is not free to go.

That holding proceeds on the theory that the Miranda decision is somehow directed to a defendant. That is not the case. The decision does not say to the defendant: “As soon as you are aware that you are in custody or not otherwise free to leave, you must invoke your rights under the constitution if you wish to keep your answers to subsequent questioning out of evidence.” The defendant’s right to remain silent and to counsel does not depend upon custody. He could invoke those rights at any time if he were aware of them. Miranda simply demands that at a certain point he be made aware of those rights if the defendant’s questioner desires to use information gained by further questioning. Miranda is directed to the officer; it says to him: “As soon as you have the defendant in custody or have otherwise deprived him of his freedom of action in any significant way, you must discontinue questioning defendant and give him warnings. If you fail to do so, you may not use his ensuing answers against him.”

The majority’s insistence that Miranda means that there must be some realization by the defendant that he is not free to go so as to produce a coercive atmosphere is simply an attempt to retreat to an inquiry as to whether the defendant’s will has been overborne. That was the law before Miranda , not since.

I would commence our solving of this legal problem by proceeding to the source, the spirit and language of Miranda . Underlying the enunciation of the Miranda rules *78 was the Court’s awareness of the need to prohibit overbearing governmental intrusion into personal privacy, that is, to protect the dignity and integrity of the persons subject to the laws sought to be enforced. After reviewing Anglo-American history of the privilege against self-incrimination, the Miranda Court said:

“Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that ‘illegitimate and unconstitutional practices get their first footing. . by silent approaches and slight deviations from legal modes of procedure.’ Boyd v. United States, 116 U.S. 616, 635 (1886). The privilege was elevated to constitutional status and has always been ‘as broad as the mischief against which it seeks to guard.’ Counselman v. Hitchcock, 142 U.S. 547, 562 (1892). We cannot depart from this noble heritage.

“Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a ‘noble principle often transcends its origins,’ the privilege has come rightfully to be recognized in part as an individual’s substantive right, a ‘right to a private enclave where he may lead a private life. That right is the hallmark of our democracy.’ United States v. Grunewald, 233 F.2d 556, 579, 581-582 (Frank, J., dissenting), rev’d, 353 U.S. 391 (1957). We have recently noted that the privilege against self-incrimination — the essential mainstay of our adversary system — is founded on a complex of values, Murphy v. Waterfront Comm’n, 378 U.S. 52, 55-57, n. 5 (1964); Tehan v. Shott, 382 U.S. 406, 414-415, n. 12 (1966). All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government — state or federal — must accord to the dignity and integrity of its citizens. To maintain a ‘fair state-individual balance,’ to require the government ‘to shoulder the entire load,’ 8 Wigmore, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. Florida, 309 U.S. 227, 235-238 (1940). In sum, the privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ Malloy v. Hogan, 378 U.S. 1, 8 (1964).” (Emphasis added)

*79 384 US at 459-60 , 86 S Ct at 1620 , 16 L Ed 2d at 715 .

To enforce that respect required of the government in dealing with those subject to its laws, the Court promulgated the famous safeguards. Statements of those subjected to custodial interrogation were to be subject to exclusion from evidence unless the safeguards were used. The Court, at three places in its opinion, stated what it meant by custodial interrogation:

“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Emphasis added) (Footnote omitted)

384 US at 444 , 86 S Ct at 1612 , 16 L Ed 2d at 706 .

“The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.” (Emphasis added)

384 US at 477 , 86 S Ct at 1629 , 16 L Ed 2d at 725 .

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.” (Emphasis added)

384 US at 478 , 86 S Ct at 1630 , 16 L Ed 2d at 726 . Thus, we see that the Miranda court intended that the safeguards apply to questioning in circumstances that would not, in ordinary parlance, be considered to amount to custody.

Before proceeding to the particular aspects of the issue which grew out of the fact that we are dealing with a charge of driving while under the influence of intoxicants, I shall consider the decisions of the United States Supreme Court, other than Miranda , and of this court upon which the state relies. They are Hoffa v. United States, 385 US 293 , 87 S Ct 408 , 17 L Ed 2d 374 (1966); State v. Taylor, 249 Or 268 , 437 P2d 853 (1968); Oregon v. Mathiason, 429 US 492 , 97 S Ct 711 , 50 L Ed 2d 714 (1977); and United States v. Mendenhall, 446 US 544 , 100 S Ct 1870 , 64 L Ed 2d 497 (1980).

*80 The state argues that the decision of the Court of Appeals in the case at bar that defendant was in custody at the time when the officer made the decision to arrest offends the holding of Hoffa v. United States, supra. The state relies upon a statement extracted from that decision:

“Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.”

385 US at 310 , 87 S Ct at 417 , 17 L Ed 2d at 386 . That statement is not applicable to when Miranda warnings are to be given. The Miranda court was not concerned with the question as to when an arrestáis to be made in the evidence gathering continuum or when a criminal investigation must cease. Nothing in Miranda states that the criminal investigation must cease when the suspect is in custody or otherwise deprived of his freedom of action in a significant way. That decision simply requires that the police must at that time and in those circumstances give the prescribed warnings. The failure to give the warnings may result in being unable to use the suspect’s further statements in evidence, but the police are not required to discontinue investigation. Indeed, if the suspect gives up his right to remain silent and to have counsel, the police may continue the investigation by interrogation of the suspect.

When it made the statement here relied upon by the state, the Hoffa court was not even discussing a claim of violation of the defendant’s rights under the Fifth Amendment to the United States Constitution and Miranda ; rather, the statement was made in the course of discussing the defendant’s claim that his Sixth Amendment right to counsel had been invaded by the actions of a government informer. As the Court pointed out, defendant was trying to assert a claim cognizable in the circumstances concerned in Massiah v. United States, 377 US 201 , 84 S Ct 1199 , 12 L Ed 2d 246 (1964), and the circumstances of the informer’s evidence gathering in Hoffa simply did not fit the Massiah mold.

That the state did rely upon the quotation from • Hoffa is understandable, however, because of the statements of this court in State v. Taylor, supra. We there made *81 the same misuse of the language of Hoffa . In Taylor a police officer heard the sound of a vehicle collision and went to investigate. The officer asked the defendant several questions designed to elicit information as to ownership of one of the vehicles, whether defendant had been driving, whether he had been drinking and how much, and whether defendant was oriented as to his surroundings. This conversation also gave the officer an opportunity to observe defendant’s appearance, demeanor and speech. After the conversation, the officer advised defendant that he was being arrested and gave him warnings of his right to remain silent and to counsel. The officer later testified that he would not have allowed defendant to leave until the officer had completed his investigation. Defendant objected to the evidence of any of the conversation, relying upon his rights under the Fifth and Sixth Amendments as interpreted in Miranda and Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L Ed 2d 977 (1964). We noted that those cases dealt with “custodial interrogation” and espoused our view of the “thrust” of those cases. We then observed that there was nothing in those cases to prevent on-the-scene investigation by interviewing “any person not in custody and not subject to coercion in any form for the purpose of determining whether a crime had been committed and who committed it.” 249 Or at 271 , 437 P2d at 855 . We were quite correct in that observation if we used the word “custody” in the Miranda sense. We went on to state that the officer was performing his duty to investigate the collision and its cause and, in doing so, to determine whether the cause was due to a violation of the law and, if so, to cite defendant for violation. We further stated that such information was necessary in order to justify placing a person under arrest and then quoted the language from Hoffa set forth above. We noted that the officer had asked more questions than the minimum “necessary to establish probable cause” but that “as soon as he concluded that an arrest should be made he stopped the questioning.” We concluded, therefore, that the officer’s investigation did not produce inadmissible evidence under the Miranda rule.

Our decision in Taylor , insofar as it relied upon the quotation from Hoffa , simply missed the mark for the reasons set forth above. Our decision in Taylor proceeded *82 upon an implicit assumption that the fact that the defendant was not free to leave was immaterial and that since the officer asked no questions after he concluded that defendant should be arrested, defendant’s Miranda rights had not been violated. In that last respect we were certainly correct, but we failed explicitly to come to grips with whether “custody” in either of the two Miranda senses occurred prior to formal arrest. Certainly, our adoption of the words from Hoffa uttered concerning a claim of infringement of the constitutional right to counsel was not apropos to determining when the police had deprived the defendant of his freedom of action in any significant way. Insofar as our decision in State v. Taylor, supra, could be understood as fixing the time a person is placed under arrest 2 as the earliest time at which he is entitled to Miranda warnings, that decision should be disavowed.

The state and the majority both rely upon Oregon v. Mathiason, supra. The majority quotes at length from dictum of Mathiason . I find nothing in that quotation to support that proposition for which the state and the majority contend. Having iterated the Miranda holding by quoting the same language pertaining to custodial interrogation I have above quoted from that decision, the Mathiason court proceeded to the holding of the case and found that the defendant there did not come within the scope of the Miranda language:

“In the present case, however, there is no indication that the questioning took place in a context where defendant’s freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a 1/2-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody ‘or otherwise deprived of his freedom of action in any significant way.’ ” (Emphasis added)

429 US at 495 , 97 S Ct at 714 , 50 L Ed 2d at 719 . The key to the decision in Mathiason was that defendant was *83 invited to go to the station house, that he went there voluntarily, that he was told that he was not under arrest and that he was allowed to depart after the half-hour interview. The difference between those circumstances and those presented in the case at bar are readily apparent. This defendant was not advised he was free to leave; he was, in fact, not free to leave; he did not, in fact, leave.

The state relies upon United States v. Mendenhall, supra, for the contention that, absent communication to the defendant of the officer’s decision to arrest, “it cannot be said that the officer’s subjective intention operated to create a compelling or coercive environment.” We have not been directed to any particular part of the Mendenhall opinion for support of that contention. My review of that opinion reveals that the entire concern of both the concurring and dissenting judges was with Fourth Amendment issues and that nothing in the various opinions in that case touches upon the Fifth Amendment or the cases concerned with custodial interrogation. 3 Accordingly, I shall forego any further consideration of that authority.

Having concluded my review of the decisions of the United States Supreme Court and of this court upon which the state relies, I now turn my attention to a decision which I believe casts some light on how the United States Supreme Court might view the question of custodial interrogation as it applies to a person questioned away from the station house and in circumstances where the officers would not have let him depart and, in fact, considered that he was under arrest, although this had not been communicated to the interviewee. That case is Orozco v. Texas, 394 US 324 , 89 S Ct 1095 , 22 L Ed 2d 311 (1969).

In Orozco defendant had been involved in a quarrel shortly after midnight. A shot was fired, killing a man. Defendant left the scene. About four hours later, four police officers came to defendant’s bedroom in a boarding house and began to question him.

*84 “From the moment he gave his name, according to the testimony of one of the officers, petitioner was not free to go where he pleased but was ‘under arrest.’ ”

394 US at 325 , 89 S Ct at 1096 , 22 L Ed 2d at 314 . The officers did not give defendant any warning that he had a right to remain silent 4 but continued to question him and elicited highly incriminating evidence. Defendant timely objected to the evidence thus obtained on Fifth/Fourteenth Amendment grounds, but the evidence was received and defendant was convicted. The conviction was reversed, the Orozco majority finding that the questioning occurred while defendant was in custody within the meaning of Miranda .

I suppose that Orozco has not been cited to us because of confusion as to whether defendant had been placed under “arrest” prior to the pertinent questioning. The Orozco majority opinion refers to arrest as I have above quoted, and I think that a fair appraisal of that manner of presenting the scene was meant to convey the fact that the officer considered that defendant was under arrest although defendant had not been so informed. On the other hand, the Orozco majority opinion later states:

“According to the officer’s testimony, petitioner was under arrest and not free to leave when he was questioned in his bedroom in the early hours of the morning.”

394 US at 327 , 89 S Ct at 1097 , 22 L Ed 2d at 315 . That this last quotation erroneously indicates that defendant had been placed under arrest is borne out by the way in which the Orozco dissent treats the case. The dissenters acknowledged that “[o]nce arrest occurs, the application of Miranda is automatic.” 394 US at 329 , 89 S Ct at 1098 , 22 L Ed 2d at 316 . Further on in the dissent it is stated:

“Surely had he refused to give his name or answer any other, questions, they would have arrested him anyway * * * 99

“* * * If the Miranda warnings have their intended effect, and the police are able to get no answers from suspects, innocent or guilty, without arresting them, then *85 a great many more innocent men will be making unnecessary trips to the station house. Ultimately it may be necessary to arrest a man, bring him to the police station, and provide a lawyer, just to discover his name.”

394 US at 330-31 , 89 S Ct at 1099 , 22 L Ed 2d at 317 . If, as the majority in the case at bar believes, Orozco was believed by the United States Supreme Court to have been placed under arrest as soon as he identified himself to the officers, the dissenters in that court were certainly obtuse in failing to recognize that fact.

My reading of Orozco causes me to conclude that the United States Supreme Court believed that from the time defendant gave his name to the officers he was not free to leave and that the officers considered him to be under arrest although they had not advised the defendant that he was under arrest. 5 In the case at bar, as in Orozco , the defendant had not been “arrested,” although the officer had decided to arrest him and would not have let him depart.

The majority in the case at bar asserts that an examination of the opinion of the state court, Orozco v. State, 428 SW2d 666 (Tex Cr App 1967), demonstrates that Orozco was under formal arrest. I submit the language which the majority quotes from the Texas court’s opinion does not show that the magic concept of “arrest” had been communicated to Orozco. Moreover, it is not, important what the actual situation was; it is what the United States Supreme Court perceived it to be that must be considered in determining the effect to be given to that court’s *86 decision. The majority does not meet what I have pointed out as to how the various opinions in Orozco indicate that formal arrest had not occurred.

The state argues that the circumstances of “[t]his case” did not “involve any of the coercive restraints or psychological pressures to which the procedural safeguards of Miranda were intended to apply.” This argument simply misses the mark; it ignores what the Miranda court did. Prior to Miranda the relevant inquiry was whether, in fact, the defendant’s confession or admission was made voluntarily. This required an ad hoc determination in every instance in which voluntariness had to be litigated. The Miranda court reviewed the circumstances attendant upon custodial interrogation and found that inherent in such interrogation were elements of coercion and pressure that often overcame the will of the person interrogated. The court decided to draw a “bright line,” i.e., to announce a per se rule. Henceforth, one subjected to custodial interrogation, as defined by the court, was to be given certain warnings concerning his rights. If the warnings were not given to the person entitled thereto, his statements made by him during the custodial interrogation could not be used against him over his objection. If he were in custody, as defined, it would make absolutely no difference at all that the interrogation was, in fact, completely polite and gentle, devoid of all actual coercion or pressure, insofar as the government’s right to use the results of the interrogation was concerned. The inquiry, therefore, is not whether a given case presents actual “coercive restraints or psychological pressures,” but whether the person is in custody as defined in Miranda . It does not matter whether “this case” involves elements which, pre Miranda , would have been used to test for voluntariness. The only relevant inquiry is whether this defendant was “in custody or otherwise deprived of his freedom of action in any significant way.” If so, at that point the officer had to administer the Miranda warnings in order for the state to use the fruits of further interrogation.

The state also contends that this was a “typical traffic stop investigation.” That may or may not be so, depending upon how one looks at it. Consider, that in cases in which one is accused of violation of the basic rule, *87 violation of the rules of the road, operating a vehicle with improper or defective equipment, and like charges, thé officer has already personally observed all of the elements of the offense before he signals the motorist to stop the vehicle. It is the officer’s observation of a violation of the law which occasions the stop. He has no further need to investigate except to obtain identification of the driver in order to charge him by correct name.

Such is not the case with respect to the offense of operating a vehicle while under the influence of intoxicants. True, the officer has probably observed some other traffic violation- which triggers his decision to signal the motorist to stop. A good example is found in the case at bar where the officer has observed a vehicle being operated in a winter month at a time of darkness in a rural area at a very high rate of speed and in a manner so erratic as to arguably support a charge of reckless driving. At the time the officer signalled defendant to a stop, he had more than enough evidence to support a charge of violation of the basic rule, and this could well have been a typical stop upon that charge. In order to gather evidence of driving while under the influence of intoxicants, however, the officer had to do something after the “typical traffic stop.” He had to obtain evidence that the defendant was “under the influence.”

The typical way in which an officer goes about gathering that additional evidence which would prove the element of being under the influence is by way of exercise of the officer’s senses of smell, sight and hearing and by way of interview. The officer may determine through his sense of smell that the driver has consumed an alcoholic beverage. Through his sense of sight he may observe whether the driver’s face is flushed, the appearance of his eyes and the orderliness of his clothing. Through the same sense the officer may observe the driver’s ability to control his body and limbs. Through the sense of hearing the officer can determine whether the driver’s diction and enunciation are apparently out of norm and whether the driver is able to express his thoughts in a logical manner. The process of interviewing is an aid to the officer in gathering that kind of evidence, but it is also utilized to gather evidence by way of admissions and to rule out claims of injury or illness as a cause of the driver’s condition.

*88 In this case the officer employed such methods of investigation. He smelled the odor of alcoholic beverage on defendant’s breath and observed that defendant’s face was flushed and that his eyes were watery and bloodshot. The officer saw that defendant swayed back and forth and heard him make a cocky answer to a question as to the extent of his education. Apparently, it was the totality of those things, taken together with the defendant’s improper driving, which led the officer to the decision to conduct the “field sobriety tests” described in the majority opinion. According to his testimony, when the tests had been completed the officer had decided to arrest, and the defendant from that time on was, in fact, not free to leave, even though he was not aware of the officer’s decision. Defendant was, in fact, deprived of his freedom of action in a significant way, and that should be the end of the inquiry. 6

*89 At that point, the failure to warn him of his Miranda rights obviated the necessity of determining whether his answer to the ensuing question was “voluntary,” for in Miranda the Court decided that determination was no longer to be necessary but was to be replaced by a per se rule, a so-called “bright line.” There is nothing in Miranda that says that the defendant must be aware that he is in custody or otherwise deprived of his freedom of action in a significant way.

The point at which the defendant is in custody or otherwise deprived of his freedom of action in any significant way marks a crucial point in the process. At that point, ruled the Miranda court, the defendant should be advised of the constitutional guarantees that he shall not be “convicted out of his own mouth” in ignorance of those guarantees.

Since it pegged its decision to the officer’s uncom-municated decision to arrest, the Court of Appeals did not *90 need to reach the full text of defendant’s objection in the trial court:

“Your Honor, I’m going to object based on improper foundation because he’s in custody now and he’s having him do tests and he’s made a determination to arrest him, he’s entitled to be advised of his rights at this point.

“Judge: Objection overruled. It seems to me that he hasn’t told him he’s under arrest yet although he certainly made the decision.”

Of course, the record discloses circumstances in this case that would lead any reasonable man in the position of the defendant to realize that he was not free to leave. He had been signalled to stop his vehicle by the officer’s emergency light, and if he had not obeyed that signal, he would have been guilty of the crime of fleeing or attempting to elude a police officer. 7 He was performing a variety of tests at the behest of the officer. It defies common sense to suggest that in those circumstances a reasonable person would believe anything other than that he was not free to leave.

I need not decide whether Miranda warnings were required prior to the time when the officer asked the question with which this case is concerned. 8 Immediately prior to the time the question was asked, a reasonable person in the same circumstances would have believed he was not free to leave, and this defendant was, in fact, not *91 free to leave by reason of the officer’s decision to prevent defendant’s leaving. I would hold that the question was, therefore, custodial interrogation, and the defendant’s objection should have been sustained. 9

It is important to realize that this does not mean that the officer could not have conducted such further investigation as was lawful to gather further evidence to substantiate the charge. He could not, however, seek to convict the defendant by questioning him to obtain admissions or a confession unless he observed the Miranda safeguards.

Peterson, J., joins in this dissenting opinion.

See, substantially similar definitions quoted by the majority at two other places in Miranda v. Arizona, 384 US 436, 477, 478 , 86 S Ct 1602, 1629, 1630 , 16 L Ed 2d 694, 725, 726 (1966).

Inherent in using “arrest” as the trigger point for the necessity of Miranda warnings is that the federal constitutional right would be made dependent on various state definitions of “arrest,” a word not used in the Fifth Amendment or, for that matter, in the Fourth and Sixth Amendments.

In part II-A of his opinion “of the court,” Mr. Justice Stewart does discuss a description of what amounts to a “seizure” for Fourth Amendment purposes, and uses some language similar to that used by the Miranda court in describing custodial interrogation, but seven members of the court did not join in that part.

The incident apparently took place prior to the Miranda decision, but the trial was held after the effective date of that decision.

Later cases indicate continued confusion as to whether members of the Orozco court believed Orozco had or had not been “arrested.” Only two years later, Justice Douglas referred to the case in a concurring opinion in United States v. Marion, 404 US 307 , 92 S Ct 455 , 30 L Ed 2d 468 (1971), describing the fact situation in Orozco v. Texas, 394 US 324 , 89 S Ct 1095 , 22 L Ed 2d 311 (1969), as follows:

“We applied the Miranda rule even though there was no ‘arrest,’ but only an examination of the suspect while he was in his bed at his boarding house, the presence of the officers making him ‘in custody.’ ”

404 US at 333 , 92 S Ct at 470 , 30 L Ed 2d at 486 .

On the other hand, statements in opinions in Michigan v. Tucker, 417 US 433, 460 , 94 S Ct 2357, 2372 , 41 L Ed 2d 182, 202 (1974) (White, J., concurring), and in Oregon v. Mathiason, 429 US 492, 494-95 , 97 S Ct 711, 713-14 , 50 L Ed 2d 714, 719 (1977), proceed upon an understanding that Orozco had been indeed arrested.

I believe Miranda fixes the time when defendant is, in fact, deprived of his freedom of action as a time when the interrogation becomes custodial. We came close to recognizing in State v. Taylor, supra, that it was the fact that there was enough evidence to arrest that triggered the obligation to warn. As we there said:

“In the case at bar the officer asked more questions than the minimum necessary to establish probable cause, but as soon as he concluded that an arrest should be made he stopped the questioning and advised the defendant of his rights. No questions were asked after the defendant was arrested. Under these circumstances, we hold that the officer’s investigation did not produce inadmissible evidence under the Miranda rule.” (Emphasis added)

249 Or at 272 , 437 P2d at 855 . There, as here, it is quite obvious that the defendant would not have been free to leave; he was in custody even prior to being told he was under arrest. We didn’t there say anything that would make Miranda’s applicability dependent upon the defendant’s awareness of the loss of his freedom.

I would agree with the Minnesota and Arizona decisions:

“It is not necessary that a Miranda warning be given by police officers, upon arrival upon the scene of an investigation of a possible criminal offense, to everyone from whom they elicit information in the course of their investigative work. When an investigation reaches a point where a police officer has reasonable grounds to believe both that a crime has been committed and that the interviewee is the culprit, and it becomes his duty to take such person into custody, or, in other words, when the point is reached where the adversary system begins to operate, he is required to give the Miranda warning.”

State v. Kinn, 288 Minn 31, 178 NW2d 888, 889 (1970). See also Campbell v. Superior Court, 106 Ariz 542, 479 P2d 685 (1971), where the court addressed the same question, saying:

“It is the opinion of this court that Miranda is not applicable to the routine traffic offense where the driver is detained no longer than is necessary to make out the citation and have it signed pursuant to A.R.S. § 28-1054. *89 However, Miranda warnings must be given when the officer determines that the provisions of A.R.S. § 28-1053 come into play or an arrest for a misdemeanor or felony is to be made. At this time the person is being ‘deprived of his freedom of action in [a] significant way.’ Miranda v. State of Arizona, 384 U.S. 436, 477 , 86 S. Ct. 1602, 1629 , 16 L.Ed.2d 694 (1966); Orozco v. Texas, 394 U.S. 324, 327 , 89 S. Ct. 1095, 1097 , 22 L.Ed.2d 311 (1969). The reporter’s transcript reflects the appropriate Miranda warnings were given by the officer prior to any questioning regarding the state of intoxication of the defendant.”

106 Ariz at 552, 479 P2d at 695 (footnote omitted).

Of course, for most purposes Miranda has superseded the decision in Escobedo v. Illinois, 378 US 478 , 84 S Ct 1758 , 12 L Ed 2d 977 (1964), but it is interesting to note the language of the Escobedo court:

“We hold only that when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” (Emphasis added)

378 US at 492, 84 S Ct at 1766, 12 L Ed 2d at 987. It is true that the decision in Escobedo was written in terms of Sixth/Fourteenth Amendment analysis, but in Miranda the court stated flatly that its definition of custodial interrogation, quoted in the majority opinion at 293 Or 66 , 644 P2d 1109 , is “what we meant in Escobedo when we spoke of an investigation which had focused on an accused.” Fn. 4, 384 US at 444 , 86 S Ct at 1612 , 16 L Ed 2d at 706 . In the case at bar, at least as early as the time the officer decided to arrest the defendant, the focus of the process was on the defendant, and the officer’s purpose was to elicit an admission. The majority treats the famous footnote 4 of Miranda as superseding Escobedo . Actually, footnote 4 says the two concepts mean the same thing.

ORS 487.555 provides:

“(1) A driver of a motor vehicle commits the crime of fleeing or attempting to elude a police officer if, when given visual or audible signal to bring the vehicle to a stop, he knowingly flees or attempts to elude a pursuing police officer.

“(2) The signal given by the police officer may be by hand, voice, emergency light or siren.

“(3) As used in this section, ‘police officer’ means a sheriff, municipal policeman or member of the Oregon State Police in uniform, prominently displaying his badge of office or who is operating a vehicle appropriately marked showing it to be an official police vehicle.

“(4) Fleeing or attempting to elude a police officer is a Class A misdemeanor.”

Justice Linde would hold that Miranda warnings must be given before any questions are put to the driver concerning his consumption of intoxicants and the effect thereof on the driver. It is not necessary to go that far to decide this case.

A Washington court has held that where an officer has stopped a vehicle being improperly driven, smelled a strong odor of alcohol in the vehicle, observed other signs that the driver had been drinking, and the officer desires to confirm his suspicions that the driver is under the influence of intoxicants by conducting field sobriety tests, the Miranda warnings must be given.

“Once the trooper’s reasoning brought him to request these tests, Miranda applied, not to the tests about to be performed, but to any statements defendant might make during the giving of such tests. Once the Miranda warning was given, defendant would know he could refrain from making any statements while performing the tests.”

State v. Darnell, 8 Wash App 627, 508 P2d 613, 615 (1973).