 

3511 the misguurt Qtuurt at QppeaIa
(Eastern EBiatritt

DIVISION THREE
STATE OF MISSOURI, ) ED100723
)
Respondent, ) Appeal from the Circuit Court
) of Lewis County
v. ) 12AR—CR00636-02
)
JAMES E. STEELE, JR., ) Honorable Karl A. DeMarce
)
Appellant. ) Filed: February 10, 2015

Introduction
James E. Steele, Jr. (Defendant) appeals the judgment entered upon his conviction
after a jury found him guilty of driving while intoxicated (DWI). Defendant argues that
the trial court erred in admitting statements he made during his initial traffic stop as
evidence. Defendant contends that the ofﬁcer obtained his statements in violation of his
constitutional rights because the ofﬁcer had not yet advised Defendant of his rights under
Miranda v. Arizona, 384 US. 436 (1966). We afﬁrm.

Background

The evidence, in the light most favorable to the denial of the motion to suppress

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and the verdict, showed the following. On September 1, 2012, Sergeant Thomas Rohn

‘ State v. Loggins, 445 S.W.3d 105, :09 (Mo. App. ED. 2014) (in review of denial of motion to suppress,
appeliate court views evidence in light most favorable to trial court’s ruling).

(Sergeant Rohn) with the Missouri State Highway Patroi was traveling behind a vehicle
on Missouri Highway 11, and he saw that vehicle cross the center line of the highway
four times. Sergeant Rohn activated his emergency lights. The vehicle slowed, turned
left onto a county road, and came to a stop.

Sergeant Rohn approached the driver, later identiﬁed as Defendant. Sergeant
Rohn detected a very strong odor of an alcoholic beverage on Defendant’s person, and he
asked for Defendant’s identiﬁcation. Sergeant Rohn noticed that Defendant was
fumbling through his wallet and had a hard time pulling out his identiﬁcation. Sergeant
Rohn asked Defendant to exit his vehicle. Defendant picked up a soda cup that was in his
vehicle’s console and began drinking very hard from the straw. Sergeant Rohn asked
Defendant to stop, and Defendant initially did not comply. That was signiﬁcant to
Sergeant Rohn because he had aiready detected the odor of an alcoholic beverage, and he
believed Defendant might be trying to mask the odor on his breath by drinking soda.

Defendant eventnaily exited his vehicle and complied with Sergeant Rohn’s
request to come and sit in the police vehicie. Sergeant Rohn testified that for his own
safety and the safety of the driver, he regularly asks drivers to come sit in his vehicle
during a trafﬁc stop. As Defendant was walking to the police vehicle, Sergeant Rohn
observed him to be swaying back and forth and unsteady on his feet. Sergeant Rohn
asked Defendant to sit in the passenger seat of the police vehicle. Defendant did so, but
he left his right foot outside the vehicle and left the door open. Sergeant Rohn sat in the
driver’s seat of the poiice vehicle.

Less than ﬁve minutes after Defendant got into the police vehicle, Sergeant Rohn

asked Defendant whether Defendant had had anything to drink. Defendant responded

arrested Defendant and advised Defendant of his Miranda rights. Until that point, no

Miranda warnings were required, and the trial court did not err in admitting Defendant’s

statements made during that time period. We afﬁrm.

Gargé. Giertner, '., Judge 

 

Kurt S. Odenwald, P. J ., concurs.
Robert G. Dowd, J11, J ., concurs.

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that he had drunk seven or eight beers. Defendant’s speech was slurred and he was
difficult to understand. Sergeant Rohn asked Defendant if he wouid submit to a ﬁeld
sobriety test. Defendant’s eyes were “glossy” and he just stared at Sergeant Rohn.
Sergeant Rohn asked again, and Defendant refused. Sergeant Rohn also asked whether
Defendant would submit to a preliminary breath test, and Defendant refused. Sergeant
Rohn asked Defendant to ciose the passenger door, and Defendant complied. Defendant
then said, “I guess I’m going to jail.” At that point, Sergeant Rohn had Defendant exit
the vehicle, and he placed Defendant under arrest for DWI. Sergeant Rohn estimated that
this entire encounter with Defendant lasted eight minutes.

The State charged Defendant as a chronic—DWI offender and a prior and persistent
offender with DWI (Count I), driving while his license was suspended or revoked (Count
II), and failing to drive on the right side of the road (Count III). Before triai, Defendant
pled guilty to Count II, and the State dismissed Count III. Defendant’s subsequent jury
trial 011 Count I, DWI, ended in a mistrial because the jury could not arrive at a
unanimous verdict.

Before Defendant’s second jury trial on the charge of DWI, Defendant flied a
motion to suppress his statement to Sergeant Rohn that he had consumed seven or eight
beers.2 Defendant argued his statement was inadmissible because Sergeant Rohn did not
advise Defendant of his MW rights prior to asking Defendant whether he had had
anything to drink that night. After a hearing on the motion to suppress, the trial court

denied it. The jury found Defendant guilty of DWI, and the trial court sentenced

2 Prior to Defendant‘s ﬁrst trial, the State and Defendant stipulated that no evidence of this statement would
be presented. During argument on the motion to suppress in Defendant’s second triai, the triai court found

that the prior stipulation had no bearing on the present motion.

3

Defendant as a chronic~DWI offender and as a prior and persistent felony offender to
twelve years’ imprisonment. This appeal follows.
Discussion

Defendant asserts two points on appeal, both of which raise the issue of at what
point a traffic stop becomes a custodial interrogation, requiring an officer to protect the
driver’s constitutional rights by giving the driver Miranda warnings before obtaining any
testimoniai statements. First, Defendant argues that the trial court erred in denying his
motion to suppress because Sergeant Rohn obtained Defendant’s statement that he had
consumed seven or eight beers before advising Defendant of his Miranda rights.
Similarly, Defendant argues in Point ii that the trial court plainly erred in allowing the
State to present evidence that Defendant refused to submit to ﬁeld sobriety tests because
Sergeant Rohn had not yet advised Defendant of his Miranda rights.

Standard of Review

Regarding Point 1, our review of a trial court’s ruling on a motion to suppress is
iimited to a determination of “whether the decision is supported by substantial evidence,
and it wiil be reversed only if cieariy erroneous.” State v. Otiver, 293 S.W.3d 437, 442
(Mo. banc 2009). We defer to the trial court’s credibility determinations and view the
evidence in the light most favorabie to the trial court’s ruling, but questions of law we
review dc nova. LC}, We consider evidence from the evidentiary hearing on the motion to
suppress as well as any additional evidence presented at trial. 1d,

Regarding Point II, Defendant concedes it is unpreserved and requests that we
review this claim for plain error under Rule 30.20.3 Our determination of whether to
grant such review consists of two steps. First, we ascertain whether an evident, obvious,

3 All rule references are to M0. R. Crim. P. (2014) unless otherwise indicated.

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and ciear error affecting substantial rights of the defendant appears from the record. State
v. Washington, 260 S.W.3d 875, 879 (Mo. App. ED. 2008). If we ﬁnd such an error, we
determine whether it resuited in manifest injustice or a miscarriage of justice. Q

Point I

 

Defendant argues that the trial court cieariy erred in denying his motion to
suppress because Sergeant Rohn was required to advise Defendant of his Miranda rights
before soliciting his statement that he had consumed seven or eight beers. We disagree.

in Miranda v. Arizona, the United States Supreme Court determined that certain
procedural safeguards are required in the context of custodial interrogation in order to
protect a suspect’s Fifth Amendment privilege against compelled self-incrimination. 384
U.S. 436 (1966). The Court stated these safeguards apply whenever “a person has been
taken into custody or otherwise deprived of his freedom of action in any signiﬁcant way.”
I_d. at 444. if the police fail to advise a suspect who is in custody of his or her rights
under Miranda, any incriminating statements made during interrogation wili not be
admissible as evidence against the suspect. Berkemer v. McCarty, 468 US 420, 429
(1984).

The United States Supreme Court has since further deﬁned contexts that
constitute custodial interrogation and trigger the requirements of Miranda. in Berkemer
v. McCarty, the Court specifically considered “the roadside questioning of a motorist
detained pursuant to a routine traffic stop.” 468 US. at 435. The Court declined to adopt
a bright-line rule, but concluded that in most instances, despite the fact that the motorist’s

freedom of action is restricted, Miranda warnings are not required. 19L. at 437

(“declin[ing] to accord talismanic power” to phrase “deprived of his freedom of action”
from Miranda opinion).

The Supreme Court reasoned that there are two features of an ordinary trafﬁc stop
that mitigate the dangers present in custodiai interrogations at a police station. 191, at 437.
First, unlike interrogations at a poiice station, which are prolonged, a traffic stop is
“presumptively temporary and brief,” and a motorist has an expectation that at the end of
the stop he or she wiil “most likely be allowed to continue on his [or her] way.” I_d.
Second, “circumstances associated with the typical trafﬁc stop are not such that the
motorist feels completely at the mercy of the police.” Lat. at 438. These circumstances
noted by the Court are that the stop occurs in public, and only one or two policemen
confront the motorist, which “further mutes [the motorist’s} sense of vulnerability.” I_d_.
Aii of this led the Court to consider routine trafﬁc stops more akin to “Terry stops” than
formal arrests, the former of which do not trigger Miranda requirements.4 1d, at 439.

The Missouri Supreme Court has since applied Berkemer in the context of a

trafﬁc stop invoiving an officer’s suspicion that a driver has committed DWI. & State

 

v. Schroeder, 330 S.W.3d 468 (Mo. banc 2011). The court reafﬁrmed that Mimi:
warnings are not necessary during a routine traffic stop, while cautioning that “{r}oadside
detention may oniy last for the time necessary to conduct a reasonable investigation.”
Schroeder, 330 S.W.3d at 473. “A reasonable investigation may inciude asking for the

driver’s license, requesting the driver to sit in the patroi car, and asking the driver about

4 Terry v. Ohio, 392. U.S. l, 27 (1968), and its progeny have estabiished the rule that an ofﬁcer who lacks
probable cause but has a reasonable suspicion that a person is involved in a crime may brieﬂy detain that
person in order to investigate the circumstances giving rise to the ofﬁcer’s suspicion. Berkenier v.
McCarty, 468 U.S. 420, 439 (1984) (quoting United States v. Brignoni—Ponce, 422 U.S. 873, 88} (1975)).

That brief detention is known as a “Terry stop.” During such a stop, the detainee is not obliged to respond
to questions, and if the ofﬁcer fails to develop probable cause to arrest, the detainee must be released. i_d. at

439—440.

his destination and purpose.” I_d, at 473-74 (quoting State v. Barks, 128 S.W.3d 513, 517
(Mo. banc 2004)) (internal quotation omitted). If the driver’s responses do not give rise
to probable cause, the ofﬁcer must release the driver. Schroeder, 330 S.W.3d at 474
(citing Berkemer, 468 U.S. at 429).

In Schroeder, the Missouri Supreme Court determined that an ofﬁcer formed a
reasonable suspicion that a driver was intoxicated after an initial encounter during which
the driver had slurred speech, glassy and bloodshot eyes, and could not maintain his
balance. 330 S.W.3d at 474. After observing these things, the ofﬁcer asked to see the
driver’s identiﬁcation and had asked the driver to sit in the ofﬁcer’s police car. The
ofﬁcer also asked the driver whether he had been drinking, and the driver said he had
drunk six beers. i_d_. at 471. The court concluded that because the ofﬁcer asked limited
questions to conﬁrm his reasonable suspicion of DWI, no MM warnings were
required. I_d. at 474', seejlsg State v. Keeth, 203 SW3d 718, 726 (Mo. App. SD. 2006)
(ofﬁcer did not violate Miranda when ofﬁcer, after observing odor of alcoholic beverage,
red eyes, slurred speech, and stumbling, asked driver whether he had anything to drink),
cited with approval in Schroeder, 330 S.W.3d at 474.

Here, the trafﬁc stop took place on a pubiic road and lasted eight minutes.
Defendant was confronted by only one ofﬁcer. As in Schroeder, Defendant here
exhibited several signs of being intoxicated, giving rise to Sergeant Rohn’s reasonable
suspicion. Sergeant Rohn asked Defendant for his identiﬁcation, and he asked Defendant
to sit in his poiice car to ensure the safety of both of them. Sergeant Rohn asked limited

questions in order to conﬁrm his suspicion that Defendant was intoxicated, and

Defendant was free not to answer. No Miranda warnings were required at the point
Sergeant Rohn asked whether Defendant had had anything to drink.

Defendant seeks to distinguish Schroeder by arguing that rather than merely
asking questions to conﬁrm his suspicion of DWI, Sergeant Rohn had aiready determined
to arrest Defendant, and therefore he should have advised Defendant of his rights per
Miranda. The Berkemer Court rejected the same argument, saying that where the ofﬁcer
has not communicated any intention to arrest the driver, such “unarticuiated plan has no
bearing on the question whether [the driver is] ‘in custody.” 468 US. at 442. “[T]he
only relevant inquiry is how a reasonabie man in the [driver]’s position would have
understood his situation.” I_d, Here, though Defendant’s freedom of action was hindered,
Sergeant Rohn detained Defendant for a short period of time and did not indicate the stop
was anything other than temporary.5 At the point Sergeant Rohn’s suspicions were
conﬁrmed, he formally arrested Defendant.

We note Defendant’s argument that Sergeant Rohn should have given Defendant
Miranda warnings because he knew his question about what Defendant had had to drink
was likely to elicit an incriminating statement. See Rhode Island v. Innis, 446 US. 291,
300-01 (i980). Though the likelihood of eliciting an incriminating response is a factor in
determining whether a suspect is in custody for purposes of Miranda, “[c]ustody is
determined by an examination of the totality of the circumstances.” State v. Werner, 9

SW3d 590, 595 (Mo. banc 2000). Given all the circumstances present here,

5 Defendant adds that his statement “I guess I’m going to jail” conﬁrms his perception that he was “in
custody" when he admitted to drinking seven or eight beers. However, he made this statement after he had
told Sergeant Rohn how much alcohol he had consumed and aﬁer he refused to submit to field sobriety
tests and a preliminary breath test, just before Sergeant Rohn did formally arrest him. Regardless, the
determination of custody depends on objective circumstances, not the subjective views of either the ofﬁcer

or the detainee. Stansbury v. California, 51 1 US. 318, 323 (1994).
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Defendant’s detention at the time he told Sergeant Rohn he had consumed seven or eight
beers “cannot fairly be characterized as the functionai equivalent of a formal arrest.”
Berkemer, 468 US. at 442; w Schroeder, 330 S.W.3d at 474; State v. Keeth, 203
S.W.3d 718, 726 (Mo. App. SD. 2006). Point denied.

Point II

 

Defendant argues the trial court plainly erred in aliowing the State to present
evidence that Defendant refused to perform field sobriety tests because Defendant did so
prior to being advised of his Miranda rights. We disagree.

As we discussed in Point I, the requirements of Miranda are triggered any time a
suspect is questioned “in custody.” We concluded that while Defendant was seated in
Sergeant Rohn’s police vehicie, when Sergeant Rohn asked Defendant whether he had
drunk anything that. night, Defendant was not in custody for purposes of Miranda. We
ﬁnd the same is true at the time of Sergeant Rohn’s subsequent request that Defendant
perform ﬁeld sobriety tests.

In South Dakota v. Neviile, the United States Supreme Court found that evidence
of a defendant’s refusal to submit to a biood-aicohol test, in a state where the defendant is
permitted to refuse, does not violate the Fifth Amendment. 459 US. 553, 560-62 (1983).
The Court rested its decision on the grounds that “no impermissibie coercion [wais
involved when the suspect refuses to submit to take the test.” Id at 562. We find the
circumstance of an ofﬁcer’s request during a traffic stop that a driver submit to a field
sobriety test similarly free of impermissible coercion.

Here, the same circumstances were present when Sergeant Rolm asked Defendant

whether he had had anything to drink and when Sergeant Rohn asked whether Defendant

would perform ﬁeid sobriety tests. Defendant was seated in the passenger seat of
Sergeant Rohn’s police vehicle, with the door Open and his right foot outside the vehicle.
Less than ﬁve minutes after Defendant sat down, Sergeant Rohn asked how much he had
had to drink. Defendant answered, and Sergeant Rohn next asked Defendant if he would
perform ﬁeld sobriety tests. We fail to detect any circumstances in between these two
questions that converted this encounter into a custodial interrogation.6

This is also consistent with Schroeder, in which the Missouri Supreme Court
stated “Miranda warnings are not required before administering ﬁeid dexterity tests.”
330 S.W.3d at 474 11.5. The court considered administering the tests to be part of the
officer’s process of conﬁrming his suspicions about whether the driver was intoxicated,
and the court concluded the ofﬁcer did not vioiate Miranda. id. at 474.

Because Sergeant Rohn was still in the process of asking reasonable questions to
conﬁrm his suspicion that Defendant committed DWI, for the same reasons present in
Point I, we conclude no Miranda warnings were required when Sergeant Rohn asked
Defendant to perform ﬁeld sobriety tests. We ﬁnd no evident, obvious, or clear error in
the trial court’s admission of Defendant’s refusal. Point denied.

Minoan
Sergeant Rohn lawfully conducted a trafﬁc stop and brieﬂy detained Defendant

regarding his reasonable suspicion that Defendant had committed DWI. He asked limited

questions related to that suspicion, and once his suspicion was conﬁrmed, he formally

6 While Defendant argues that modern ﬁeld sobriety tests subject suspects to a prolonged detention that
should be considered custodiai under Miranda, this is irrelevant here, where Defendant refused. In any
event. the defendant in Schroeder submitted to two of the three ﬁeld sobriety tests mentioned by Defendant,
and the defendant in Keeth submitted to three unspecified tests. Schroeder, 330 S.W.3d at 47E; Keeth, 200
S.W.3d at 722. Both courts found no error in admitting the results of these tests, and in both cases the
ofﬁcers did not give Miranda warnings prior to administering the tests. Schroeder, 330 S.W.3d at 474;
m, 200 S.W.3d at 726.

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