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State v. Fink

Court of Appeals of Oregon

May 3, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ELAINE RENEE FINK, Defendant-Appellant.

          Argued and submitted January 8, 2016.

         Washington County Circuit Court D124537T Suzanne Upton, Judge.

          Jesse Merrithew argued the cause for appellant. With him on the brief was Levi Merrithew Horst LLP.

          Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and James Aaron, Assistant Attorney General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary:

         Defendant was convicted of driving under the infuence 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. Defendant argues that, although she initially received constitutionally adequate Miranda warnings, those warnings were undermined and thus rendered inadequate by a later statement made by the arresting officer. Defendant also argues that the trial court erred when it concluded that she effected a valid, post-invocation waiver of her rights by initiating conversation with the police. Held: The trial court did not err. 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.

          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 P.2d 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 hire 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?
"[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 ...

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