State v. Roberti

¶1concurring.

¶2I voted with the majority in this case because I believe requiring the police to be sensitive to the impact of an interrogation upon a defendant is, in the long run, more protective of a defendant’s constitutional rights and more consistent with the kind of safeguards Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966) meant to provide than is requiring a police officer to give a defendant the warnings required by Miranda at the point at which the officer has made a decision to arrest.

¶3Were our opinion here only deciding this case and nothing more, I would have voted with the dissent by *76Justice Lent. My concern with the position of that dissent applied generally, however, is that making a police officer’s decision to arrest the trigger point for issuance of Mirandawarnings points the way to the possibility of police abuse, and leaves the investigatory procedure too susceptible to police manipulation. Only the officer knows at what point he or she makes a decision to arrest. By requiring that something other than the officer’s state of mind be considered in determining whether or not a defendant is “deprived of his freedom of action in any significant way,” Miranda, 384 US at 444, 477, 86 S Ct at 1612, 1629, 16 L Ed 2d at 706, 725, the officer has to make a determination of whether or not that individual would feel a significant, coercive deprivation of his or her freedom of action. It is my belief that this inquiry ultimately provides the standard of protection enunciated in Mirandaand with which we struggle here.

¶4dissenting.

¶5The problem in this case is to determine when a uniformed police officer’s questioning of a motorist halted for improper driving became custodial interrogation. I would hold that it was from at least as early as the time when the officer had arrived at a decision, although uncom-municated to the motorist, to arrest him for driving while under the influence of intoxicants.

¶6The majority purports to follow and apply the precepts of the United States Supreme Court pronounced in Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). Rather than doing so, however, the majority actually attempts to go behind the plain words of the Mirandadecision and to retreat to a rule that the Mirandawarnings need be given only when the defendant is found to be in some situation at least equally as coercive to his will as obtains in station house custody. I cannot help but feel that the majority reaches that result on the basis of what it wished the Mirandacourt had said, rather than what that court did say.

¶7That court did say, as acknowledged by the majority, that the need to give the famous warnings is triggered by custodial interrogation. By that, the court said it meant questioning of a person in custody “or otherwise deprived of *77his freedom of action in any significant way.” 384 US at 444, 86 S Ct at 1612, 16 L Ed 2d at 706.1 The majority first concedes that “actual (not potential) custody or significant deprival of freedom is what triggers the Mirandasafeguards.” 293 Or at 70, 644 P2d at 1111. Having made that concession, the majority then blithely ignores the fact that this defendant was not free to go because the officer would not have let him go. The majority opinion, in effect, holds that more than actual deprivation of freedom of action is required; in addition, the defendant must realize that he is not free to go.

¶8That holding proceeds on the theory that the Mirandadecision is somehow directed to a defendant. That is not the case. The decision does not say to the defendant: “As soon as you are aware that you are in custody or not otherwise free to leave, you must invoke your rights under the constitution if you wish to keep your answers to subsequent questioning out of evidence.” The defendant’s right to remain silent and to counsel does not depend upon custody. He could invoke those rights at any time if he were aware of them. Mirandasimply demands that at a certain point he be made aware of those rights if the defendant’s questioner desires to use information gained by further questioning. Mirandais directed to the officer; it says to him: “As soon as you have the defendant in custody or have otherwise deprived him of his freedom of action in any significant way, you must discontinue questioning defendant and give him warnings. If you fail to do so, you may not use his ensuing answers against him.”

¶9The majority’s insistence that Mirandameans that there must be some realization by the defendant that he is not free to go so as to produce a coercive atmosphere is simply an attempt to retreat to an inquiry as to whether the defendant’s will has been overborne. That was the law before Miranda, not since.

¶10I would commence our solving of this legal problem by proceeding to the source, the spirit and language of Miranda. Underlying the enunciation of the Mirandarules *78was the Court’s awareness of the need to prohibit overbearing governmental intrusion into personal privacy, that is, to protect the dignity and integrity of the persons subject to the laws sought to be enforced. After reviewing Anglo-American history of the privilege against self-incrimination, the MirandaCourt said:

“Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that ‘illegitimate and unconstitutional practices get their first footing. . by silent approaches and slight deviations from legal modes of procedure.’ Boyd v. United States, 116 U.S. 616, 635 (1886). The privilege was elevated to constitutional status and has always been ‘as broad as the mischief against which it seeks to guard.’ Counselman v. Hitchcock, 142 U.S. 547, 562 (1892). We cannot depart from this noble heritage.

“Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a ‘noble principle often transcends its origins,’ the privilege has come rightfully to be recognized in part as an individual’s substantive right, a ‘right to a private enclave where he may lead a private life. That right is the hallmark of our democracy.’ United States v. Grunewald, 233 F.2d 556, 579, 581-582 (Frank, J., dissenting), rev’d, 353 U.S. 391 (1957). We have recently noted that the privilege against self-incrimination — the essential mainstay of our adversary system — is founded on a complex of values, Murphy v. Waterfront Comm’n, 378 U.S. 52, 55-57, n. 5 (1964); Tehan v. Shott, 382 U.S. 406, 414-415, n. 12 (1966). All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government — state or federal — must accord to the dignity and integrity of its citizens. To maintain a ‘fair state-individual balance,’ to require the government ‘to shoulder the entire load,’ 8 Wigmore, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. Florida, 309 U.S. 227, 235-238 (1940). In sum, the privilege is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ Malloy v. Hogan, 378 U.S. 1, 8 (1964).” (Emphasis added)

¶11*79384 US at 459-60, 86 S Ct at 1620, 16 L Ed 2d at 715.

¶12To enforce that respect required of the government in dealing with those subject to its laws, the Court promulgated the famous safeguards. Statements of those subjected to custodial interrogation were to be subject to exclusion from evidence unless the safeguards were used. The Court, at three places in its opinion, stated what it meant by custodial interrogation:

“By custodial interrogation, we mean 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.” (Emphasis added) (Footnote omitted)

¶13384 US at 444, 86 S Ct at 1612, 16 L Ed 2d at 706.

“The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.” (Emphasis added)

¶14384 US at 477, 86 S Ct at 1629, 16 L Ed 2d at 725.

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized.” (Emphasis added)

¶15384 US at 478, 86 S Ct at 1630, 16 L Ed 2d at 726. Thus, we see that the Mirandacourt intended that the safeguards apply to questioning in circumstances that would not, in ordinary parlance, be considered to amount to custody.

¶16Before proceeding to the particular aspects of the issue which grew out of the fact that we are dealing with a charge of driving while under the influence of intoxicants, I shall consider the decisions of the United States Supreme Court, other than Miranda, and of this court upon which the state relies. They are Hoffa v. United States, 385 US 293, 87 S Ct 408, 17 L Ed 2d 374 (1966); State v. Taylor, 249 Or 268, 437 P2d 853 (1968); Oregon v. Mathiason, 429 US 492, 97 S Ct 711, 50 L Ed 2d 714 (1977); and United States v. Mendenhall, 446 US 544, 100 S Ct 1870, 64 L Ed 2d 497 (1980).

¶17*80The state argues that the decision of the Court of Appeals in the case at bar that defendant was in custody at the time when the officer made the decision to arrest offends the holding of Hoffa v. United States, supra. The state relies upon a statement extracted from that decision:

“Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.”

¶18385 US at 310, 87 S Ct at 417, 17 L Ed 2d at 386. That statement is not applicable to when Mirandawarnings are to be given. The Mirandacourt was not concerned with the question as to when an arrestáis to be made in the evidence gathering continuum or when a criminal investigation must cease. Nothing in Mirandastates that the criminal investigation must cease when the suspect is in custody or otherwise deprived of his freedom of action in a significant way. That decision simply requires that the police must at that time and in those circumstances give the prescribed warnings. The failure to give the warnings may result in being unable to use the suspect’s further statements in evidence, but the police are not required to discontinue investigation. Indeed, if the suspect gives up his right to remain silent and to have counsel, the police may continue the investigation by interrogation of the suspect.

¶19When it made the statement here relied upon by the state, the Hoffacourt was not even discussing a claim of violation of the defendant’s rights under the Fifth Amendment to the United States Constitution and Miranda; rather, the statement was made in the course of discussing the defendant’s claim that his Sixth Amendment right to counsel had been invaded by the actions of a government informer. As the Court pointed out, defendant was trying to assert a claim cognizable in the circumstances concerned in Massiah v. United States, 377 US 201, 84 S Ct 1199, 12 L Ed 2d 246 (1964), and the circumstances of the informer’s evidence gathering in Hoffasimply did not fit the Massiahmold.

¶20That the state did rely upon the quotation from • Hoffais understandable, however, because of the statements of this court in State v. Taylor, supra.We there made *81the same misuse of the language of Hoffa. In Taylora police officer heard the sound of a vehicle collision and went to investigate. The officer asked the defendant several questions designed to elicit information as to ownership of one of the vehicles, whether defendant had been driving, whether he had been drinking and how much, and whether defendant was oriented as to his surroundings. This conversation also gave the officer an opportunity to observe defendant’s appearance, demeanor and speech. After the conversation, the officer advised defendant that he was being arrested and gave him warnings of his right to remain silent and to counsel. The officer later testified that he would not have allowed defendant to leave until the officer had completed his investigation. Defendant objected to the evidence of any of the conversation, relying upon his rights under the Fifth and Sixth Amendments as interpreted in Mirandaand Escobedo v. Illinois, 378 US 478, 84 S Ct 1758, 12 L Ed 2d 977 (1964). We noted that those cases dealt with “custodial interrogation” and espoused our view of the “thrust” of those cases. We then observed that there was nothing in those cases to prevent on-the-scene investigation by interviewing “any person not in custody and not subject to coercion in any form for the purpose of determining whether a crime had been committed and who committed it.” 249 Or at 271, 437 P2d at 855. We were quite correct in that observation if we used the word “custody” in the Mirandasense. We went on to state that the officer was performing his duty to investigate the collision and its cause and, in doing so, to determine whether the cause was due to a violation of the law and, if so, to cite defendant for violation. We further stated that such information was necessary in order to justify placing a person under arrest and then quoted the language from Hoffaset forth above. We noted that the officer had asked more questions than the minimum “necessary to establish probable cause” but that “as soon as he concluded that an arrest should be made he stopped the questioning.” We concluded, therefore, that the officer’s investigation did not produce inadmissible evidence under the Mirandarule.

¶21Our decision in Taylor, insofar as it relied upon the quotation from Hoffa, simply missed the mark for the reasons set forth above. Our decision in Taylorproceeded *82upon an implicit assumption that the fact that the defendant was not free to leave was immaterial and that since the officer asked no questions after he concluded that defendant should be arrested, defendant’s Mirandarights had not been violated. In that last respect we were certainly correct, but we failed explicitly to come to grips with whether “custody” in either of the two Mirandasenses occurred prior to formal arrest. Certainly, our adoption of the words from Hoffauttered concerning a claim of infringement of the constitutional right to counsel was not apropos to determining when the police had deprived the defendant of his freedom of action in any significant way. Insofar as our decision in State v. Taylor, supra,could be understood as fixing the time a person is placed under arrest2 as the earliest time at which he is entitled to Mirandawarnings, that decision should be disavowed.

¶22The state and the majority both rely upon Oregon v. Mathiason, supra.The majority quotes at length from dictum of Mathiason. I find nothing in that quotation to support that proposition for which the state and the majority contend. Having iterated the Mirandaholding by quoting the same language pertaining to custodial interrogation I have above quoted from that decision, the Mathiasoncourt proceeded to the holding of the case and found that the defendant there did not come within the scope of the Mirandalanguage:

“In the present case, however, there is no indication that the questioning took place in a context where defendant’s freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a 1/2-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody ‘or otherwise deprived of his freedom of action in any significant way.’ ” (Emphasis added)

¶23429 US at 495, 97 S Ct at 714, 50 L Ed 2d at 719. The key to the decision in Mathiasonwas that defendant was *83invited to go to the station house, that he went there voluntarily, that he was told that he was not under arrest and that he was allowed to depart after the half-hour interview. The difference between those circumstances and those presented in the case at bar are readily apparent. This defendant was not advised he was free to leave; he was, in fact, not free to leave; he did not, in fact, leave.

¶24The state relies upon United States v. Mendenhall, supra,for the contention that, absent communication to the defendant of the officer’s decision to arrest, “it cannot be said that the officer’s subjective intention operated to create a compelling or coercive environment.” We have not been directed to any particular part of the Mendenhallopinion for support of that contention. My review of that opinion reveals that the entire concern of both the concurring and dissenting judges was with Fourth Amendment issues and that nothing in the various opinions in that case touches upon the Fifth Amendment or the cases concerned with custodial interrogation.3 Accordingly, I shall forego any further consideration of that authority.

¶25Having concluded my review of the decisions of the United States Supreme Court and of this court upon which the state relies, I now turn my attention to a decision which I believe casts some light on how the United States Supreme Court might view the question of custodial interrogation as it applies to a person questioned away from the station house and in circumstances where the officers would not have let him depart and, in fact, considered that he was under arrest, although this had not been communicated to the interviewee. That case is Orozco v. Texas, 394 US 324, 89 S Ct 1095, 22 L Ed 2d 311 (1969).

¶26In Orozcodefendant had been involved in a quarrel shortly after midnight. A shot was fired, killing a man. Defendant left the scene. About four hours later, four police officers came to defendant’s bedroom in a boarding house and began to question him.

*84“From the moment he gave his name, according to the testimony of one of the officers, petitioner was not free to go where he pleased but was ‘under arrest.’ ”

¶27394 US at 325, 89 S Ct at 1096, 22 L Ed 2d at 314. The officers did not give defendant any warning that he had a right to remain silent4 but continued to question him and elicited highly incriminating evidence. Defendant timely objected to the evidence thus obtained on Fifth/Fourteenth Amendment grounds, but the evidence was received and defendant was convicted. The conviction was reversed, the Orozcomajority finding that the questioning occurred while defendant was in custody within the meaning of Miranda.

¶28I suppose that Orozcohas not been cited to us because of confusion as to whether defendant had been placed under “arrest” prior to the pertinent questioning. The Orozcomajority opinion refers to arrest as I have above quoted, and I think that a fair appraisal of that manner of presenting the scene was meant to convey the fact that the officer considered that defendant was under arrest although defendant had not been so informed. On the other hand, the Orozcomajority opinion later states:

“According to the officer’s testimony, petitioner was under arrest and not free to leave when he was questioned in his bedroom in the early hours of the morning.”

¶29394 US at 327, 89 S Ct at 1097, 22 L Ed 2d at 315. That this last quotation erroneously indicates that defendant had been placed under arrest is borne out by the way in which the Orozcodissent treats the case. The dissenters acknowledged that “[o]nce arrest occurs, the application of Mirandais automatic.” 394 US at 329, 89 S Ct at 1098, 22 L Ed 2d at 316. Further on in the dissent it is stated:

“Surely had he refused to give his name or answer any other, questions, they would have arrested him anyway … 99

“… If the Mirandawarnings have their intended effect, and the police are able to get no answers from suspects, innocent or guilty, without arresting them, then *85a great many more innocent men will be making unnecessary trips to the station house. Ultimately it may be necessary to arrest a man, bring him to the police station, and provide a lawyer, just to discover his name.”

¶30394 US at 330-31, 89 S Ct at 1099, 22 L Ed 2d at 317. If, as the majority in the case at bar believes, Orozco was believed by the United States Supreme Court to have been placed under arrest as soon as he identified himself to the officers, the dissenters in that court were certainly obtuse in failing to recognize that fact.

¶31My reading of Orozcocauses me to conclude that the United States Supreme Court believed that from the time defendant gave his name to the officers he was not free to leave and that the officers considered him to be under arrest although they had not advised the defendant that he was under arrest.5 In the case at bar, as in Orozco, the defendant had not been “arrested,” although the officer had decided to arrest him and would not have let him depart.

¶32The majority in the case at bar asserts that an examination of the opinion of the state court, Orozco v. State, 428 SW2d 666 (Tex Cr App 1967), demonstrates that Orozco was under formal arrest. I submit the language which the majority quotes from the Texas court’s opinion does not show that the magic concept of “arrest” had been communicated to Orozco. Moreover, it is not, important what the actual situation was; it is what the United States Supreme Court perceived it to be that must be considered in determining the effect to be given to that court’s *86decision. The majority does not meet what I have pointed out as to how the various opinions in Orozco indicate that formal arrest had not occurred.

¶33The state argues that the circumstances of “[t]his case” did not “involve any of the coercive restraints or psychological pressures to which the procedural safeguards of Mirandawere intended to apply.” This argument simply misses the mark; it ignores what the Mirandacourt did. Prior to Mirandathe relevant inquiry was whether, in fact, the defendant’s confession or admission was made voluntarily. This required an ad hoc determination in every instance in which voluntariness had to be litigated. The Mirandacourt reviewed the circumstances attendant upon custodial interrogation and found that inherent in such interrogation were elements of coercion and pressure that often overcame the will of the person interrogated. The court decided to draw a “bright line,” i.e., to announce a per se rule. Henceforth, one subjected to custodial interrogation, as defined by the court, was to be given certain warnings concerning his rights. If the warnings were not given to the person entitled thereto, his statements made by him during the custodial interrogation could not be used against him over his objection. If he were in custody, as defined, it would make absolutely no difference at all that the interrogation was, in fact, completely polite and gentle, devoid of all actual coercion or pressure, insofar as the government’s right to use the results of the interrogation was concerned. The inquiry, therefore, is not whether a given case presents actual “coercive restraints or psychological pressures,” but whether the person is in custody as defined in Miranda. It does not matter whether “this case” involves elements which, pre Miranda, would have been used to test for voluntariness. The only relevant inquiry is whether this defendant was “in custody or otherwise deprived of his freedom of action in any significant way.” If so, at that point the officer had to administer the Mirandawarnings in order for the state to use the fruits of further interrogation.

¶34The state also contends that this was a “typical traffic stop investigation.” That may or may not be so, depending upon how one looks at it. Consider, that in cases in which one is accused of violation of the basic rule, *87violation of the rules of the road, operating a vehicle with improper or defective equipment, and like charges, thé officer has already personally observed all of the elements of the offense before he signals the motorist to stop the vehicle. It is the officer’s observation of a violation of the law which occasions the stop. He has no further need to investigate except to obtain identification of the driver in order to charge him by correct name.

¶35Such is not the case with respect to the offense of operating a vehicle while under the influence of intoxicants. True, the officer has probably observed some other traffic violation- which triggers his decision to signal the motorist to stop. A good example is found in the case at bar where the officer has observed a vehicle being operated in a winter month at a time of darkness in a rural area at a very high rate of speed and in a manner so erratic as to arguably support a charge of reckless driving. At the time the officer signalled defendant to a stop, he had more than enough evidence to support a charge of violation of the basic rule, and this could well have been a typical stop upon that charge. In order to gather evidence of driving while under the influence of intoxicants, however, the officer had to do something after the “typical traffic stop.” He had to obtain evidence that the defendant was “under the influence.”

¶36The typical way in which an officer goes about gathering that additional evidence which would prove the element of being under the influence is by way of exercise of the officer’s senses of smell, sight and hearing and by way of interview. The officer may determine through his sense of smell that the driver has consumed an alcoholic beverage. Through his sense of sight he may observe whether the driver’s face is flushed, the appearance of his eyes and the orderliness of his clothing. Through the same sense the officer may observe the driver’s ability to control his body and limbs. Through the sense of hearing the officer can determine whether the driver’s diction and enunciation are apparently out of norm and whether the driver is able to express his thoughts in a logical manner. The process of interviewing is an aid to the officer in gathering that kind of evidence, but it is also utilized to gather evidence by way of admissions and to rule out claims of injury or illness as a cause of the driver’s condition.

¶37*88In this case the officer employed such methods of investigation. He smelled the odor of alcoholic beverage on defendant’s breath and observed that defendant’s face was flushed and that his eyes were watery and bloodshot. The officer saw that defendant swayed back and forth and heard him make a cocky answer to a question as to the extent of his education. Apparently, it was the totality of those things, taken together with the defendant’s improper driving, which led the officer to the decision to conduct the “field sobriety tests” described in the majority opinion. According to his testimony, when the tests had been completed the officer had decided to arrest, and the defendant from that time on was, in fact, not free to leave, even though he was not aware of the officer’s decision. Defendant was, in fact, deprived of his freedom of action in a significant way, and that should be the end of the inquiry.6

¶38*89At that point, the failure to warn him of his Mirandarights obviated the necessity of determining whether his answer to the ensuing question was “voluntary,” for in Mirandathe Court decided that determination was no longer to be necessary but was to be replaced by a per se rule, a so-called “bright line.” There is nothing in Mirandathat says that the defendant must be aware that he is in custody or otherwise deprived of his freedom of action in a significant way.

¶39The point at which the defendant is in custody or otherwise deprived of his freedom of action in any significant way marks a crucial point in the process. At that point, ruled the Mirandacourt, the defendant should be advised of the constitutional guarantees that he shall not be “convicted out of his own mouth” in ignorance of those guarantees.

¶40Since it pegged its decision to the officer’s uncom-municated decision to arrest, the Court of Appeals did not *90need to reach the full text of defendant’s objection in the trial court:

“Your Honor, I’m going to object based on improper foundation because he’s in custody now and he’s having him do tests and he’s made a determination to arrest him, he’s entitled to be advised of his rights at this point.

“Judge: Objection overruled. It seems to me that he hasn’t told him he’s under arrest yet although he certainly made the decision.”

¶41Of course, the record discloses circumstances in this case that would lead any reasonable man in the position of the defendant to realize that he was not free to leave. He had been signalled to stop his vehicle by the officer’s emergency light, and if he had not obeyed that signal, he would have been guilty of the crime of fleeing or attempting to elude a police officer.7 He was performing a variety of tests at the behest of the officer. It defies common sense to suggest that in those circumstances a reasonable person would believe anything other than that he was not free to leave.

¶42I need not decide whether Mirandawarnings were required prior to the time when the officer asked the question with which this case is concerned.8 Immediately prior to the time the question was asked, a reasonable person in the same circumstances would have believed he was not free to leave, and this defendant was, in fact, not *91free to leave by reason of the officer’s decision to prevent defendant’s leaving. I would hold that the question was, therefore, custodial interrogation, and the defendant’s objection should have been sustained.9

¶43It is important to realize that this does not mean that the officer could not have conducted such further investigation as was lawful to gather further evidence to substantiate the charge. He could not, however, seek to convict the defendant by questioning him to obtain admissions or a confession unless he observed the Mirandasafeguards.

¶62dissenting.

¶63The great virtue of a rule requiring police warnings to suspects whom an officer detains for questioning is, or should be, that the rule tells the officer what to do and when to do it. As Justice Lent’s dissent states, the federal or “Miranda” rule1 is addressed to the police officer, not to the detained person. The test of an opinion that purports to elucidate the rule is how clearly it tells the police under what circumstances to warn such a person before questioning. Police officers deserve and efficient law enforcement requires rules that are clear at the time of the investigatory act; a formula designed only for retrospective judgment on a motion to suppress evidence confuses the rule with its consequence. I regret that the Court’s opinion in this case fails the test.

¶64*92“Miranda warnings” must precede questioning not only when a person detained by the police is “arrested” or “in custody” but whenever the person is “otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, supra, 384 US at 444. As these important words stand in the way of the majority’s conclusion, the bulk of its opinion is devoted to forcing them back under the cover of “custody.” Exactly therein lies its failure to serve the essential need for clarity.

¶65A police officer’s decision to give or not to give “Miranda warnings” before questioning a suspect must be made in a factual setting, not upon a legal analysis. “Custody” is a legal characterization, not a fact. For other purposes, Oregon statutes sometime define ‘custody’ as the restraint that follows an arrest, and “arrest” as taking a person into custody. ORS 133.005(1), ORS 162.135(3). Confronted with this “circularity,” the Court of Appeals has held that when a person in the position of the present defendant took off across the fields after the sobriety tests, he was not guilty of escape from “custody” for purposes of that crime. State v. Swanson, 34 Or App 59, 578 P2d 411 (1978). Patently such statutory terms do not control the reach of Miranda requirements. By adding “otherwise deprived of his freedom of action,” Miranda stated a factual test divorced from the legal ambiguity of “custody;” it also made clear that physical “custody” in the sense of imprisonment or similar confinement is not required.

¶66Seen from the perspective of an officer who must decide whether to warn before questioning, a person will clearly be deprived of his freedom of action under two circumstances. An officer who knows that he would not let a detained person leave at will also knows that the person has lost his freedom of action, whatever the person’s own perception may be. Second, apart from intent, an officer can determine whether the objective circumstances under which he detains a person in fact lead the person reasonably to believe that he or she is not free to leave until the officer is satisfied. Both of these are manageable, common sense, factual determinations. If an officer does not mean to deprive the addressee of his questions of freedom to leave at will, he can easily tell the person so.

¶67*93There is a great deal of difference between a simple inquiry by a police officer on the street, in commercial or other quarters open to the public, or on a doorstep, and questioning of a motorist stopped by a pursuing police car. No officer needs to be in doubt whether such a motorist has been “deprived of his freedom of action in [a] significant way,” if that test is to be given a common sense meaning. A driver is obliged to obey a police officer’s signal to stop at the risk of criminal punishment. ORS 487.555.2 He may still be guilty of “fleeing” if he attempts to drive away without permission after being stopped.3 At least he has reason to assume as much. If he has surrendered his operator’s license to the officer, he is likely to assume that he can leave only by abandoning his car, unless a passenger can drive it.4 In short, the typical stop of a vehicle for a citation or further investigation is not analogous to a pedestrian’s street encounter with an officer who seeks answers to a few questions; both the legal and the factual constraints on leaving the scene of the vehicle stop are greater, or appear so to a motorist. There is a chance that a pedestrian will know that he need not perform a “field sobriety test” or answer questions in order to be free to go *94on his way. The chance that a motorist believes this seems slight indeed. Of course, if the state can show in a given case that the halted motorist did consider himself free to leave or that the officer so informed him, his answers to the officer’s questions may be admissible.5

¶68None of this means that an officer must give “Miranda warnings” every time he makes a traffic stop and demands to see an operator’s license, or even before examining a driver’s appearance and behavior for signs of intoxication. Warnings must be given only in advance of questioning the driver when the officer’s investigation concerns a suspected criminal offense. They are not required in all traffic stops, but only when the object of the officer’s questions extends beyond citation for a noncriminal infraction to the investigation of a suspected crime, whether this is a traffic crime, a burglary, or theft of the automobile itself. Prosecution for driving under the influence of intoxicants is as much a criminal prosecution as if it were for any crime unrelated to driving. Brown v. Multnomah County Dist. CL, 280 Or 95, 570 P2d 52 (1977). “Miranda warnings” are part of the procedural costs of using the criminal process to deal with the drinking driver just as were the jury trials and statutory rights to counsel involved in that case. After much study and debate, the Legislative Assembly recently rejected a recommendation to try a different approach and decided to retain and to reenforce the punishments and attendant procedures of the criminal law. Or Laws 1981 ch 803.6 There can be no question that “Miranda warnings” apply in investigations of suspected crime on wheels as well as on foot, horseback, or water.

¶69*95The majority opinion, however, fails in the crucial task of explaining when Miranda warnings must be given to a suspect who .is questioned by officers after being stopped in his car. The mere paraphrase “actual custody or significant deprival of liberty,” 293 Or at 74, does nothing to advance clarity. Nor does the phrase “greater than that involved in on-the-scene investigation” if it implies, erroneously, that “significant deprival of liberty” depends on the distance between the place of questioning and the “scene” of the suspected offense. Given the uses of precedent, this case likely will be cited for the proposition that a person has not been significantly deprived of freedom of action for Miranda purposes as long as he is in his own car, even if it is surrounded by several patrol cars and officers with drawn weapons, although of course the opinion does not so hold. Alternatively, it may be thought to stand for the proposition that the crime of driving under the influence of intoxicants somehow is sui generis as far as Miranda warnings before questioning are concerned. The principle at issue here deserves a clearer and more usable statement from this court.

¶70I would affirm the Court of Appeals.