State v. Savage
State v. Savage
Opinion of the Court
Defendant appeals a judgment of conviction for delivery of a controlled substance to a minor, former ORS 475.995 (2003), renumbered as ORS 475.906 (2005), contending that the trial court erred by denying his motion to suppress incriminating statements that he made to officers before they advised him of his Miranda rights. He also assigns several errors to the sentence imposed by the court. We conclude that defendant’s motion to suppress was properly denied by the trial court and therefore affirm the conviction, but we remand for resentencing in accordance with State v. Ramirez, 205 Or App 113, 133 P3d 343, adh’d to on recons, 207 Or App 1, 139 P3d 981 (2006).
The relevant facts are not in dispute. On January 27, 2004, Hedrick, a code enforcement officer with the City of Salem, was patrolling the downtown Salem area on his bicycle when he came upon defendant, a 43-year-old male, and H, a 14-year-old female, under the Marion Street Bridge. As Hedrick approached defendant and H, he smelled marijuana and observed defendant and H passing a pipe between them. When defendant saw Hedrick, he immediately dropped the pipe. Recognizing that enforcement of drug laws was outside the scope of his duty, Hedrick called for support from the Salem Police Department before approaching defendant andH.
As the three were awaiting the arrival of a Salem police officer — an interval of approximately 10 minutes— Hedrick instructed both defendant and H to take a seat on the curb. Hedrick did not use handcuffs, weapons, or any other forcible technique to prevent either defendant or H from leaving the site of the incident. In He drick’s view, however, neither suspect was free to leave during that period, but he did not tell them that. Hedrick asked whether defendant or H had been smoking marijuana, and they did not respond. At no time did Hedrick advise defendant of his Miranda rights.
When Renz, a Salem police officer, arrived on the scene, he spoke with defendant to determine “if we had a
Defendant was indicted for delivery of a controlled substance to a minor. Former ORS 475.995. Before trial, defendant moved to suppress evidence of the statements that he had made to Hedrick and Renz, arguing that he had been effectively placed in custody or was in a comparably compelling situation during the interview process and, as a result, that he should have been advised of his Miranda rights before any police questioning. After a hearing, the court denied defendant’s motion. A jury trial ensued, and defendant was found guilty of the charge alleged.
At defendant’s sentencing hearing, the trial court found that two aggravating factors justified imposition of an upward departure sentence — namely, that H was a particularly vulnerable victim and that defendant was persistently involved in the commission of crimes. Consequently, defendant was sentenced to a term of 60 months in prison as opposed to the 41- to 45-month presumptive sentence under the sentencing guidelines. In addition, the court denied defendant access to leave, release, and various treatment programs, noting that defendant was “beyond treatment.”
On appeal, defendant first assigns error to the trial court’s denial of his motion to suppress the statements that he made to Hedrick and Renz during the course of their interviews. Defendant argues that, by detaining and questioning him, the officers placed him in a compelling circumstance and significantly deprived him of his freedom, thereby obligating them to inform him of his constitutional right to remain
We first consider defendant’s rights under Article I, section 12, of the Oregon Constitution. Under that provision, “The question is whether the officer questioned defendant under conditions that would lead defendant to feel ‘compelled’ to ‘testify against himself,’ * * * unless the officer first told defendant of the rights that safeguard him against such compulsion.” State v. Magee, 304 Or 261, 263, 744 P2d 250 (1987). The inquiry is highly fact-specific, requiring us to “consider the totality of circumstances in which the questioning took place and ask whether a reasonable person in the suspect’s position would have felt compelled to answer a police officer’s questions.” State v. Bush, 203 Or App 605, 610, 126 P3d 705 (2006) (citation omitted). Accordingly, “that defendant reasonably may not have believed he could leave does not necessarily mean that he was in full custody or that the circumstances were so compelling as to trigger the Miranda requirement.” State v. Nevel, 126 Or App 270, 276, 868 P2d 1338 (1994). For example, a routine stop by a police officer, followed by a reasonable inquiry, need not be preceded by Miranda-like warnings. Bush, 203 Or App at 609; see also Nevel, 126 Or App at 276.
We take guidance in the present case from our recent opinion in Bush, which is, as the state posits, factually and analytically analogous. In Bush, three officers responded
“There were three officers on the scene, but the statements at issue were made during a one-on-one exchange between defendant and [an officer]. The patrol cars arrived and were parked without their sirens sounding or emergency lights flashing. There is no evidence that defendant was physically restrained, frisked, or even touched before or during the period in which he was questioned; he was not confined to a patrol car or put into handcuffs; the officers never drew their weapons. In short, the record is wholly bereft of any evidence that the atmosphere in which defendant was questioned, or the demeanor of the officer who questioned him, was oppressive or coercive. * * * Considering the totality of the circumstances, a reasonable person in defendant’s situation would not have felt compelled to answer the police officer’s questions.”
The same analysis applies in the present case. During the interviews conducted by both Hedrick and Renz, defendant was not formally placed under arrest or in any way restrained by the officers. See State v. Werowinski, 179 Or App 522, 528-29, 40 P3d 545 (2002) (where the defendant was placed in back of patrol car but was not handcuffed, and no evidence suggested that the level of restraint exceeded the scope of the stop, defendant was not under full custodial
We reach the same conclusion under the Fifth Amendment to the United States Constitution. As we noted in Bush, in order for us to hold that a defendant’s Miranda rights have been violated under the federal constitution, we must determine that the defendant was “ ‘subjected to restraints comparable to those associated with a formal arrest’ ” in the absence of a recitation of rights. 203 Or App at 613 (quoting Berkemer v. McCarty, 468 US 420, 441, 104 S Ct 3138, 82 L Ed 2d 317 (1984)). We have already explained that no such restraints were present in this case. Accordingly, we hold that, under the present facts, Miranda warnings were not required for compliance with either state or federal constitutions, and the statements that defendant made during the police interviews were, therefore, admissible. The trial court properly denied defendant’s motion to suppress.
Defendant’s constitutional challenge under Blakely warrants remand of the case for resentencing. Defendant did not waive his jury trial right, and the facts on which the court based the upward departure sentence were neither admitted by him nor found by a jury. Although defendant did not preserve that claim of error, it is plain on the face of the record, and we exercise our discretion to review it. State v. Ramirez, 205 Or App 113, 133 P3d 343, adh’d. to on recons, 207 Or App 1, 139 P3d 981 (2006). Because defendant must be resentenced due to that error, see ORS 138.222(5)(a) (if trial court commits error that requires resentencing, entire case must be remanded), and the other asserted errors might not recur on remand, we do not address them.
Sentence vacated; remanded for resentencing; otherwise affirmed.
That provision provides, in part:
“No person shall be * * * compelled in any criminal prosecution to testify against himself.”
The Fifth Amendment to the United States Constitution provides, in part:
“No person * * * shall be compelled in any criminal case to be a witness against himself[.]”
We also note that, although Hedrick and Renz both testified that they would not have permitted defendant to leave the scene, neither of them informed him of that fact. This case therefore does not present the question whether or to what extent a suspect who has, in fact, been told he or she may not leave, is for that reason in compelling circumstances.
Reference
- Full Case Name
- STATE OF OREGON v. DARYL GLEN SAVAGE
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