McAvoy v. State

McAULIFFE, Judge. Joseph Hooper MeAvoy raises two related but analytically separate questions concerning the necessity of giving Miranda advice of rights to one detained on suspicion of driving while intoxicated or under the influence. The first question is whether Miranda advice must be given before the suspect is asked to perform field sobriety tests. The second is whether such advice must be given to a suspect under arrest before that person is asked to submit to a chemical sobriety test.

We shall answer each question in the negative in this case. I. At 8:00 p.m. on 28 February 1984, Trooper M. A. DiPietro of the Maryland State Police, accompanied by his wife and child, was driving a marked police cruiser south on Route 32 in the city of Westminster. As he approached the intersection of East Green Street, which was controlled by an automatic signal, he observed MeAvoy making a right turn from East Green Street in order to proceed north on Route 32. The traffic light was green for Trooper DiPietro and ⁵¹¹ red for McAvoy.

In making his right turn, McAvoy crossed the center line of Route 32, forcing the trooper off the traveled portion of Route 32. The trooper then made a U-turn and followed McAvoy approximately three-fourths of a mile, at which point he activated his emergency lights. 1 McAvoy stopped in a parking lot, and Trooper DiPietro asked him if he was aware that he had disobeyed an official sign that prohibited right turns on a red light at that intersection. McAvoy admitted making a right turn while facing a red light, but insisted there was no sign at the intersection prohibiting that movement. Trooper DiPietro had formerly been a Westminster city police officer, and knew that such a sign had been posted at that intersection.

However, he had not patrolled that area in the last eight months, and recognized the possibility that the sign might have been removed in the interim. In view of McAvoy’s insistence that there was no sign, and his own uncertainty, Trooper DiPietro suggested they return to the intersection. They returned in their respective vehicles, and parked in a lighted parking lot near the intersection. Trooper DiPietro walked McAvoy to a point on the lot where they could both see the sign that was posted at the intersection.

There, for the first time, the trooper noticed McAvoy had watery and bloodshot eyes, a flushed face, and the odor of alcohol on his breath. He then asked McAvoy to recite the alphabet, and to accomplish a finger-to-nose test. McAvoy did not fare well on either test, 2 and Trooper DiPietro placed him under arrest for driving while intoxicated. ⁵¹² At 8:45 p.m., shortly after the arrest, Trooper DiPietro read McAvoy a standard form DR-15, 3 which explained ⁵¹³ McAvoy’s rights and obligations under Maryland’s “implied consent” law, Maryland Code (1977, 1984 Repl.Vol.) § 16-205.1 of the Transportation Article. McAvoy elected to take a chemical sobriety test, and at 9:09 p.m. he signed the DR-15 and submitted to a breathalyzer test.

He was not advised of his Miranda rights until 9:35 p.m. Prior to trial in the Circuit Court for Carroll County, 4 McAvoy moved to suppress evidence of the results of the field sobriety tests and the chemical sobriety test. Following a full hearing before Judge Robert H. Heller, Jr., the motion was denied. At trial, the parties proceeded on an agreed statement of facts, and the defendant persisted in his objection to the introduction of evidence of the tests.

The trial judge overruled the objection. The breathalyzer test results showed that McAvoy had .20 percent by weight of alcohol in his blood, a reading high enough to constitute prima facie evidence that McAvoy was intoxicated. 5 McAvoy was convicted of driving while under the influence of alcohol, and sentenced. He appealed to the Court of Special Appeals, and that court affirmed the judgment. McAvoy v. State, 70 Md.App. 661 , 523 A.2d 618 (1987).

We granted certiorari, and we now affirm.

II

Miranda and Field Sobriety Tests In Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the Supreme Court held that in order to ⁵¹⁴ combat the “inherently compelling pressures” of custodial interrogation and to permit a full opportunity to make an intelligent decision concerning the exercise of the privilege against self-incrimination, it was necessary to mandate the exclusion from evidence of statements obtained by custodial interrogation unless the record demonstrated that the defendant had been advised of certain rights, understood them, and voluntarily waived them. McAvoy contends that Trooper DiPietro placed him in custody prior to conducting the field sobriety tests, and that the conduct of such tests amounted to interrogation. Thus, he argues, the dictates of Miranda applied to his situation, and the “statements” made by him in the form of physical responses to the field tests must be excluded because they were not preceded by any advice or waiver of rights. We do not agree.

We accept the finding of the trial judge that McAvoy was not “in custody” within the meaning of Miranda at the time the field sobriety tests were conducted. This question was raised at the suppression hearing, and Judge Heller heard conflicting testimony bearing on the issue. McAvoy claimed the trooper had ordered him to return to the intersection. Trooper DiPietro testified he “invited” McAvoy to return.

McAvoy elicited testimony''from the trooper that he had made up his mind to detain McAvoy when he saw his bloodshot eyes and flushed face and detected the odor of alcohol, and that McAvoy would not have been free to leave from that point on. The State countered that the subjective decision of the trooper was not announced until after the field tests were completed, and that the question of custody must be decided only from a consideration of the circumstances as they would have appeared to an ordinary person in the position of the defendant. Judge Heller resolved the contested issue of fact in favor of the State, finding that “the defendant voluntarily followed the officer to the site of the alleged incident,” and concluded that the defendant was not in custody within the meaning of Miranda at that time. The credibility of a witness is primarily for the trier of fact to decide, and we ⁵¹⁵ will accept the finding of fact of a trial judge unless it is clearly erroneous.

Maryland Rule 8-131(c). This determination of fact was not clearly erroneous. Armed with the facts properly found by the trial judge, we must, however, make an independent constitutional appraisal of the record to determine the correctness of the trial judge’s decision concerning custody. In Re Anthony F., 293 Md. 146, 152 , 442 A.2d 975 (1982).

Under the facts of the case before us, we agree that McAvoy was not in custody in the Miranda sense at the time the field sobriety tests were performed. In Miranda , custodial interrogation was defined as “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.” Miranda, supra, 384 U.S. at 444 , 86 S.Ct. at 1612 . The issues of whether Miranda applied to traffic misdemeanors, and the precise meaning of “custody” in the context of traffic stops, were addressed in Berkemer v. McCarty, 468 U.S. 420 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984). There, the Court held that Miranda does apply to custodial interrogations involving traffic offenses, but that persons temporarily detained pursuant to ordinary traffic stops will generally not be considered “in custody” for the purposes of Miranda.

Berkemer, supra, 468 U.S. at 434, 440 , 104 S.Ct. at 3147, 3150 . In Berkemer , a State trooper stopped McCarty after observing his car weaving in and out of a lane on an interstate highway. The trooper asked McCarty to step out of the car and, upon seeing that McCarty was having difficulty standing, the trooper decided that he would be placed in custody and would be charged with a traffic offense. The trooper did not, however, immediately tell McCarty of this decision.

Instead, he asked McCarty to perform a field sobriety test and also inquired concerning his recent use of intoxicants. McCarty was unable to perform the balancing test without falling, and admitted to having consumed two beers and having smoked some marijuana a short time before. McCarty was then formally placed under arrest. ⁵¹⁶ In concluding that McCarty had not been taken into custody for the purposes of Miranda until he was formally arrested, the Court noted that the initial traffic stop did not constitute custody; that the time of detention from the stop to the arrest was brief; that the detention took place in a public place; and, that McCarty was never told his detention would not be temporary. With respect to the trooper’s determination to take McCarty into custody, the Court said: A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.

In language directly relevant to the case before us, the Berkemer Court concluded: [A] single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest. Id. McAvoy contends that his case should be distinguished from Berkemer because Trooper DiPietro exercised dominion over him in ordering him to return to the intersection, and because the period of detention was longer than in Berkemer .

As we have already noted, Judge Heller found that the trooper did not order McAvoy to return to the intersection, but that McAvoy did so voluntarily. Although the elapsed time between the initial stop and the arrest was no doubt longer here than in Berkemer , the circumstances were not of a kind likely to exert pressure upon McAvoy sufficient to impair his free exercise of his privilege against self-incrimination. See Pennsylvania v. Bruder, 488 U.S. -, 109 S.Ct. 205 , 102 L.Ed.2d 172 (1988). The initial encounter was brief and non-threatening.

McAvoy was permitted to drive his own car back to the intersection — a distance of only three-quarters of a mile. There, in a lighted parking lot in a public place, McAvoy was asked to ⁵¹⁷ perform the field tests. We agree with Judge Heller that McAvoy was not in custody within the meaning of Miranda at that time. Our determination that McAvoy was not in custody when the field tests were performed renders it unnecessary for us to determine whether a request to perform field tests under such circumstances would constitute compulsion within the meaning of the Fifth Amendment, South Dakota v. Neville, 459 U.S. 558 , 103 S.Ct. 916 , 74 L.Ed.2d 748 (1983); nor do we consider whether the Fifth Amendment may be inapplicable on a theory that the product of the field test was real and physical in nature, rather than testimonial.

See United States v. Mara, 410 U.S. 19 , 93 S.Ct. 774 , 35 L.Ed.2d 99 (1973); United States v. Dionisio, 410 U.S. 1 , 93 S.Ct. 764 , 35 L.Ed.2d 67 (1973); Gilbert v. California, 388 U.S. 263 , 87 S.Ct.