State v. Fink

395 P.3d 934, 285 Or. App. 302, 2017 WL 1735036, 2017 Ore. App. LEXIS 559
CourtCourt of Appeals of Oregon
DecidedMay 3, 2017
DocketD124537T; A157266
StatusPublished
Cited by5 cases

This text of 395 P.3d 934 (State v. Fink) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fink, 395 P.3d 934, 285 Or. App. 302, 2017 WL 1735036, 2017 Ore. App. LEXIS 559 (Or. Ct. App. 2017).

Opinion

GARRETT, J.

Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010, after police found her asleep behind the wheel of a parked vehicle with its engine still running. On appeal, defendant assigns error to the trial court’s denial of her motion to suppress evidence of incriminating statements that she made to the arresting officer, arguing that the evidence was obtained in violation of her rights to counsel and against compelled self-incrimination. Reviewing for legal error, State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993), we conclude that the trial court did not err because the Miranda warnings provided to defendant were not rendered constitutionally inadequate by subsequent statements made by the arresting officer, and defendant knowingly and voluntarily waived those rights by initiating a conversation with the officer that evinced a willingness to enter into a generalized discussion about the investigation. Accordingly, we affirm the judgment of the trial court.

We take the following facts from the record at the suppression hearing, which includes an audio and video recording of defendant’s interaction with the police.1 Officer Spitler was investigating a noise complaint when he encountered defendant “slumped over” in the driver’s seat of a vehicle that was parked with the engine running. When Spitler woke defendant, he observed signs of intoxication and began an investigation for DUII. Throughout the interaction, defendant repeatedly told Spitler that he was “not very nice” and asked him not to talk to her. Spitler eventually arrested defendant for DUII. Spitler then placed defendant in the back of his patrol car and read her the following Miranda warnings:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer, and have him or her present with you while you’re being questioned. If you cannot afford to [304]*304hire a lawyer, one will be appointed to represent you before any questioning if you wish.”

As Spitler read the warnings, defendant began reciting the rights along with him. When asked whether she understood those rights, defendant indicated that she did.

Defendant then asked to speak to Sergeant Sitton, one of the other officers at the scene. Spitler left defendant in the car while she spoke with Sitton. Defendant asked Sitton for clarification as to why she was being arrested. When Spitler returned, the following interaction took place (because of its significance to the issues on appeal, we quote it at length):

“[OFFICER SPITLER:] Did you get all of your questions answered?
“[DEFENDANT:] Please don’t talk to me.
“ [DEFENDANT:] If you were a nice officer like my father, I would respect you. [Approximately two minutes of silence.]
“ [OFFICER SPITLER:] Are your eyes brown?
“ [DEFENDANT:] Says it on my license.
“[OFFICER SPITLER:] Says your, it doesn’t give hair and eye color.
“[DEFENDANT:] It does.
“[OFFICER SPITLER:] What’s that?
“[DEFENDANT:] It does, on my license, does it not?
“[OFFICER SPITLER:] No. It just gives height and weight. In Oregon—some states it will give you like eye color and hair color.
“[DEFENDANT:] Didn’t you look, you saw them the whole time I was doing your test?
“[OFFICER SPITLER:] What apartment do you live in? Which one? [Defendant], what’s your apartment number? What apartment do you live in?
“[DEFENDANT:] I refuse to answer.
“[OFFICER SPITLER:] You’re not gonna give me any, you don’t, what’s your phone number?
[305]*305“[DEFENDANT:] I’d like to have an attorney.
[OFFICER SPITLER:] Well these aren’t the questions that you can really avoid by using, you would like an attorney.
“[DEFENDANT:] That’s ok. I still would like one. [Because] you’re not very nice. If you were nicer I would answer you. If the other gentleman asked me I would answer him.
“[OFFICER SPITLER:] Ok.
“ [DEFENDANT:] How old are you?
“ [OFFICER SPITLER:] Why do you ask?
“[DEFENDANT:] [Because] you just started the force. And you’re not very nice. My dad worked for 40 years for the Portland Police and wasn’t as rude as you were.
“[OFFICER SPITLER:] I’m sorry you feel that way.
“[DEFENDANT:] That’s ok, it doesn’t matter really, does it? [Approximately one minute of silence.]
“[OFFICER SPITLER:] Do you want me to buckle you in or are you going to be ok?
“[DEFENDANT:] No, I’m ok.
«⅝ ⅜‡‡⅜
“[DEFENDANT:] Where are you going?
“ [OFFICER SPITLER:] We’re going to the jail.
“ [DEFENDANT:] Where’s the jail?
“ [OFFICER SPITLER:] It’s in Hillsboro.
“ [DEFENDANT:] Are you kidding me?
“[OFFICER SPITLER:] No.
“[DEFENDANT:] You’re not going to Tigard?
“[OFFICER SPITLER:] No, I usually go there but we had somebody in one of our jail cells break a sprinkler head.
“[DEFENDANT:] Yeah?
“[OFFICER SPITLER:] And it flooded all our holding cells.
“[DEFENDANT:] Yeah?
[306]*306“[OFFICER SPITLER:] So we can’t go there because they’re renovating all of it.
“[DEFENDANT:] No shit! Really?
“[OFFICER SPITLER:] So, yeah, I have to go out to Washington County for all of this.
“ [DEFENDANT:] Oh my god.
“[OFFICER SPITLER:] Okay?
“[DEFENDANT:] Yeah, ok.
“[OFFICER SPITLER:] Really warm in here. Do you want your window down or anything?
“ [DEFENDANT:] I’m ok, I’m alright.
“ [OFFICER SPITLER:] Let me know if you need the window down, ok, if you need fresh air. This car, all the police cars can get pretty warm.
“[DEFENDANT:] You know what the sad thing is?
“ [OFFICER SPITLER:] What do you mean ?
“[DEFENDANT:] You know what the sad thing is? Idro—, I drank at my own apartment complex tonight.
“[OFFICER SPITLER:] Okay.

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Cite This Page — Counsel Stack

Bluebook (online)
395 P.3d 934, 285 Or. App. 302, 2017 WL 1735036, 2017 Ore. App. LEXIS 559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fink-orctapp-2017.