concurrence">*415LINDE, J.,

concurring.

The United States Supreme Court has remanded this case to us for reconsideration in the light of Berkemer v. McCarty, 468 US_, 104 S Ct 3138, 82 L Ed 2d 317 (1984). In this court, the majority and the dissenters disagree whether, on this remand, we should decide only the disposition of Roberti’s case or attempt to elucidate when Oregon law enforcement officers who stop a vehicle for investigation of a suspected offense should give Miranda warnings before questioning the occupants. The majority chooses to stop with a bare disposition of this case; the dissenters think we should provide further guidance.

On that question, I agree with the dissent, but on the disposition of Roberti’s case, I agree with the majority; hence this concurring opinion.

When this case was previously before us, I wrote:

“The 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. * * * 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 require 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.”

State v. Roberti, 293 Or 59, 91, 644 P2d 1104, 1123 (1982). Because Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966), and now Berkemer v. McCarty, supra,lay down federal requirements, this court’s role in elucidating those requirements is limited, and the majority’s hesitancy to do more than tell trial judges to read Berkemeris understandable. Berkemeritself asserts that the virtue of the Mirandarule is its “clarity” in “informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation,” supra 468 US at 104 S Ct at 3145, 82 L Ed 2d at 328, quoting Fare v. Michael C., 442 US 707, 99 S Ct 2560, 61 L Ed 2d 197 (1979). But Justice Lent’s dissent shows that Berkemerfalls short of clearly telling police officers and other state officials when Mirandawarnings are required after an officer stops a vehicle for investigation of a possible offense.

*416As Justice Lent points out, part of the problem lies in the assumption that placing a person under “formal arrest” has some identifiable and uniform meaning throughout the states. If this event triggers the warning requirement, presumably it does not depend on the officers’ using the phrase “you are under arrest”; Berkemerdenies the “talismanic power” of words. 468 US at_, 104 S Ct at 3149, 82 L Ed 2d at 333. And the Supreme Court also refers to “restraints comparable to those associated with a formal arrest,” which implies that actual “formal arrest” is not essential. Id.at_, 104 S Ct at 3151, 82 L Ed 2d at 336 (emphasis added).

A broader problem arises from the Court’s references to a “routine traffic stop,” id at_, 104 S Ct at 3145, 82 L Ed 2d at 331, an “ordinary traffic stop,” id at_, 104 S Ct at 3149, 892 L Ed 2d at 333, and a “typical traffic stop,” id. It is a problem that arises whenever a court undertakes to base a general rule on the Court’s assumptions about human behavior and social phenomena. The Mirandarule, of course, is that kind of rule, designed as a prophylactic requirement to forestall potentially involuntary self-incrimination in a wider class of situations than would in fact be found involuntary upon case-by-case examination. And the factual setting about which the Court generalizes in Berkemeris that of persons temporarily detained in their automobiles on public roads rather than being placed “in custody” in police stations, in police vehicles, or perhaps in other locations. The Court holds that in this setting a brief detention is so unlikely to “compel” answers to an officer’s question that it can be excluded from the prophylactic rule of Miranda v. Arizona.

It is not for us to question whether the Court’s assumption about the psychology of drivers’ roadside confrontations with police officers is true or false. The accuracy of the assumption is not essential to the Court’s drawing a prophylactic line as distinct from determining whether an incriminatory statement was compelled in a concrete case. Two questions, however, are important for courts and officials seeking to follow Berkemer.

One question is what kind of “traffic stops” the Supreme Court means by “ordinary,” “typical,” and “routine,” so as not to give rise to Mirandarequirements. Apparently they are to be distinguished from extraordinary or *417untypical traffic stops that are not “routine.” The term “traffic stop” may refer to any occasion when an officer for whatever reason signals a driver to halt a vehicle being driven on a public road, or it may refer to stopping such a vehicle for a reason arising from the administration of the traffic laws. The first reading would include occasions when an officer stops a driver in order to investigate á possible offense unrelated to traffic, for instance because a car or an occupant was seen near the scene of a crime or because the car fits the description of one reported to have been stolen. Although the setting of the stop may be no more intrinsically coercive, it seems that the Court’s qualifying words “ordinary,” “typical,” and “routine” exclude such stops and limit the Berkemerholding to the enforcement of what may be called “traffic laws.”1 If the officer’s purpose in stopping a driver goes beyond traffic law enforcement, it would appear unwise to rely on Berkemerto omit Mirandawarnings before questioning the occupants of the detained vehicle.

Even when a violation of a traffic law is the reason for the stop, the second question that Berkemerleaves to be determined is when the officer’s conduct of a particular roadside stop goes beyond the “ordinary,” “typical,” or “routine” so as to negate the Supreme Court’s psychological assumptions about the pressures that such stops exert upon a detained person. 468 US at_, 104 S Ct at 3149-50, 82 L Ed 2d at 333-334. When is a “temporary” detention no longer so “brief,” 468 U.S. at_, 104 S Ct at 3149, 82 L Ed 2d at 333, that it exceeds the “ordinary”? When a motorist is kept waiting for half an hour without explanation while a license or registration is checked, or only after one hour? Does it matter whether the detention is on an isolated road or at night rather than in “public view”? 468 US at_, 104 S Ct at 3150, 82 L Ed 2d at 334.

For both these reasons the better practice may be routinely to give Mirandawarnings in stops for suspected offenses as serious as driving under the influence of intoxicants, when this is likely to involve detaining the driver for a *418period of time “untypical” of “ordinary” traffic stops and first preventing a departure unless the driver convinces the officer that he or she is sober, rather than to rely on hewing as close as possible to the uncertain line drawn in Berkemerand invite needless judicial hearings on the issue whether that line was crossed. But that is for others to say in the first instance; we cannot independently instruct the police in an appeal based on the Fourteenth Amendment. What this case illustrates once again, however, is the folly of a system in which the details of day-to-day police investigatory practices are derived directly from United States Supreme Court opinions under the Fourteenth Amendment , the highest and most abstract level in the nation’s hierarchy of law, without any intermediate enactment of directives by state or local policymakers that can then be tested against constitutional standards. Cf. State v. Atkinson, 298 Or 1, 688 P2d 832 (1984). The present approach, as I wrote in another context, “is little better than sending the police out with the latest United States Supreme Court advance sheets in their pockets.” State v. Greene, 285 Or 337, 356, 591 P2d 1362, 1371 (1979) (Linde, J., specially concurring).

I know of no law that obliges a driver to answer an officer’s questions or perform “field tests” directed at determining whether the driver has committed the crime of driving under the influence of intoxicants. Reluctance to inform the detained driver that such cooperation is voluntary can only demonstrate the state’s willingness to take advantage of those of its citizens who are ignorant of their rights though it must respect the rights of those who know them.2 In the present case, however, defendant acceded to the officer’s requests, and I read Berkemer v. McCarty to imply that the Supreme Court would not hold that defendant’s conviction rested on a violation of the Fourteenth Amendment. I therefore concur in the result.

This is by no means a self-evident'category. Compare, for instance, a stop for a possible vehicle code felony of failing to perform the duties of a driver involved in an accident, ORS 483.602(4) (a), with a stop for a possible negligent homicide arising from the same accident and defined in the criminal code, ORS 163.145.

I do not imply that the state could not constitutionally require such cooperation, including answers to questions, if only licensing as a driver rather than potential criminal penalties were involved. Cf. my original opinion in this case, 293 Or at 94, 644 P2d 1125, and State v. Schroeder, 296 Or 648, 678 P2d 1227 (1984) (Linde, J., dissenting).

Citation profile

How this case has been treated — in progress