# State v. Roberti > Oregon Supreme Court · May 4, 1982 · 293 Or. 59 URL: https://www.frixlaw.com/law-library/cases/9845479 ## Case - **Full name:** STATE OF OREGON, Petitioner on Review, v. GARY PATRICK ROBERTI, Respondent on Review - **Court:** Oregon Supreme Court - **Decided:** May 4, 1982 - **Citations:** 293 Or. 59; 644 P.2d 1104; 1982 Ore. LEXIS 863 - **Precedential status:** Published - **Opinion:** Dissent by Linde - **Judges:** Tanzer, Roberts, Lent, Peterson, Linde - **Cited by:** 61 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/9845479 ## Opinion text LINDE, J., dissenting. The great virtue of a rule requiring police warnings to suspects whom an officer detains for questioning is, or should be, that the rule tells the officer what to do and when to do it. As Justice Lent’s dissent states, the federal or “Miranda” rule 1 is addressed to the police officer, not to the detained person. The test of an opinion that purports to elucidate the rule is how clearly it tells the police under what circumstances to warn such a person before questioning. Police officers deserve and efficient law enforcement requires rules that are clear at the time of the investigatory act; a formula designed only for retrospective judgment on a motion to suppress evidence confuses the rule with its consequence. I regret that the Court’s opinion in this case fails the test. *92 “Miranda warnings” must precede questioning not only when a person detained by the police is “arrested” or “in custody” but whenever the person is “otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, supra, 384 US at 444. As these important words stand in the way of the majority’s conclusion, the bulk of its opinion is devoted to forcing them back under the cover of “custody.” Exactly therein lies its failure to serve the essential need for clarity. A police officer’s decision to give or not to give “Miranda warnings” before questioning a suspect must be made in a factual setting, not upon a legal analysis. “Custody” is a legal characterization, not a fact. For other purposes, Oregon statutes sometime define ‘custody’ as the restraint that follows an arrest, and “arrest” as taking a person into custody. ORS 133.005(1), ORS 162.135(3). Confronted with this “circularity,” the Court of Appeals has held that when a person in the position of the present defendant took off across the fields after the sobriety tests, he was not guilty of escape from “custody” for purposes of that crime. State v. Swanson, 34 Or App 59 , 578 P2d 411 (1978). Patently such statutory terms do not control the reach of Miranda requirements. By adding “otherwise deprived of his freedom of action,” Miranda stated a factual test divorced from the legal ambiguity of “custody;” it also made clear that physical “custody” in the sense of imprisonment or similar confinement is not required. Seen from the perspective of an officer who must decide whether to warn before questioning, a person will clearly be deprived of his freedom of action under two circumstances. An officer who knows that he would not let a detained person leave at will also knows that the person has lost his freedom of action, whatever the person’s own perception may be. Second, apart from intent, an officer can determine whether the objective circumstances under which he detains a person in fact lead the person reasonably to believe that he or she is not free to leave until the officer is satisfied. Both of these are manageable, common sense, factual determinations. If an officer does not mean to deprive the addressee of his questions of freedom to leave at will, he can easily tell the person so. *93 There is a great deal of difference between a simple inquiry by a police officer on the street, in commercial or other quarters open to the public, or on a doorstep, and questioning of a motorist stopped by a pursuing police car. No officer needs to be in doubt whether such a motorist has been “deprived of his freedom of action in [a] significant way,” if that test is to be given a common sense meaning. A driver is obliged to obey a police officer’s signal to stop at the risk of criminal punishment. ORS 487.555. 2 He may still be guilty of “fleeing” if he attempts to drive away without permission after being stopped. 3 At least he has reason to assume as much. If he has surrendered his operator’s license to the officer, he is likely to assume that he can leave only by abandoning his car, unless a passenger can drive it. 4 In short, the typical stop of a vehicle for a citation or further investigation is not analogous to a pedestrian’s street encounter with an officer who seeks answers to a few questions; both the legal and the factual constraints on leaving the scene of the vehicle stop are greater, or appear so to a motorist. There is a chance that a pedestrian will know that he need not perform a “field sobriety test” or answer questions in order to be free to go *94 on his way. The chance that a motorist believes this seems slight indeed. Of course, if the state can show in a given case that the halted motorist did consider himself free to leave or that the officer so informed him, his answers to the officer’s questions may be admissible. 5 None of this means that an officer must give “Miranda warnings” every time he makes a traffic stop and demands to see an operator’s license, or even before examining a driver’s appearance and behavior for signs of intoxication. Warnings must be given only in advance of questioning the driver when the officer’s investigation concerns a suspected criminal offense. They are not required in all traffic stops, but only when the object of the officer’s questions extends beyond citation for a noncriminal infraction to the investigation of a suspected crime, whether this is a traffic crime, a burglary, or theft of the automobile itself. Prosecution for driving under the influence of intoxicants is as much a criminal prosecution as if it were for any crime unrelated to driving. Brown v. Multnomah County Dist. CL, 280 Or 95 , 570 P2d 52 (1977). “Miranda warnings” are part of the procedural costs of using the criminal process to deal with the drinking driver just as were the jury trials and statutory rights to counsel involved in that case. After much study and debate, the Legislative Assembly recently rejected a recommendation to try a different approach and decided to retain and to reenforce the punishments and attendant procedures of the criminal law. Or Laws 1981 ch 803. 6 There can be no question that “Miranda warnings” apply in investigations of suspected crime on wheels as well as on foot, horseback, or water. *95 The majority opinion, however, fails in the crucial task of explaining when Miranda warnings must be given to a suspect who .is questioned by officers after being stopped in his car. The mere paraphrase “actual custody or significant deprival of liberty,” 293 Or at 74, does nothing to advance clarity. Nor does the phrase “greater than that involved in on-the-scene investigation” if it implies, erroneously, that “significant deprival of liberty” depends on the distance between the place of questioning and the “scene” of the suspected offense. Given the uses of precedent, this case likely will be cited for the proposition that a person has not been significantly deprived of freedom of action for Miranda purposes as long as he is in his own car, even if it is surrounded by several patrol cars and officers with drawn weapons, although of course the opinion does not so hold. Alternatively, it may be thought to stand for the proposition that the crime of driving under the influence of intoxicants somehow is sui generis as far as Miranda warnings before questioning are concerned. The principle at issue here deserves a clearer and more usable statement from this court. I would affirm the Court of Appeals. Prom Miranda v. Arizona, 384 US 436 , 86 S Ct 1602 , 16 L Ed 2d 694 (1966). At least the Court’s opinion is limited to its interpretation of federal constitutional law, the defense characteristically having made no effort at an independent analysis under Oregon law. ORS 487.555: “(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.” State v. Swanson, supra, assumed without discussion that the section did not apply to flight on foot. 34 Or App at 60, n. 1 . ORS 482.040(2) (b): “The licensee shall have such license in his immediate possession at all times when driving a motor vehicle, and shall display it upon the demand of a justice of the peace, a peace officer, or a field deputy or inspector of the division. It is a defense to any charge under this subsection that the person so charged produce in court an operator’s or chauffeur’s license that had been issued to him and was valid at the time of his arrest.” The state has the burden to show that a defendant’s admissions to a police officer are admissible as evidence against him. State v. Brewton, 238 Or 590, 603 , 395 P2d 874 (1964), cf. State v. Robinson, 3 Or App 200, 204-205 , 473 P2d 152 (1970), Dorsciak v. Gladden, 246 Or 233 , 425 P2d 177 (1967), State v. Cohn, 43 Or App 913, 915 , 607 P2d 729 (1979), State v. Thomas, 13 Or App 164, 168 , 509 P2d 446 (1973), State v. Johnson, 11 Or App 12, 17 , 500 P2d 478 (1972). The recommendation to move the emphasis to license suspension and strict enforcement of the licensing laws came from the Oregon Commission on the Judicial Branch. See 1980 Report of the Oregon Commission on the Judicial Branch 52-62. See also, HB 2697, 61st Or Leg Assemb, Reg Sess (1981). The recommendation to retain the criminal process and punishments came from the Special Courts Committee of the Judicial Conference. See HB 2010, 61st Or Leg Assemb, Reg Sess (1981). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9845479. Public record. Not legal advice.