Opinion
No. C 78-08-13360, CA A20702
Argued and submitted December 14, 1981
Affirmed March 8, 1982
Appeal from Circuit Court, Multnomah County.
Phillip J. Roth, Judge.
Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Stephen F. Peifer, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and William F. Gary, Solicitor General, Salem.
Before Richardson, Presiding Judge, and Thornton and Van Hoomissen, Judges.
THORNTON, J.
Affirmed.
Defendant seeks reversal of an order revoking his probation and imposing sentence on a conviction for arson in the second degree. Defendant was found to be in violation of the conditions of his probation because of statements he made to police officers implicating him in a homicide. He argues those statements were obtained in violation of his Miranda rights and should have been excluded from the revocation hearing. We affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966).
On October 17, 1978, defendant pleaded guilty to arson in the second degree. Imposition of sentence was suspended, and defendant was placed on probation for five years, one of the conditions of probation being that he not violate any laws. In March, 1980, he was charged with murder for the February 19, 1980, killing of one of his housemates. After an extensive suppression hearing on the murder charge, the trial court suppressed all statements made by defendant to police between February 19, 1980, and March 3, 1980, on the ground that he was not adequately advised of his Miranda rights and did not make a knowing waiver of those rights. That ruling was affirmed in State v. Mason, 53 Or. App. 811, 633 P.2d 820 (1981).
For the historical facts surrounding the incriminating statements see text State v. Mason, 53 Or. App. 811, 633 P.2d 820 (1981).
On December 22, 1980, a probation revocation hearing was held, and on March 20, 1981, defendant's probation was revoked on the basis of his alleged involvement in the February 19, 1980, homicide. At the hearing, defendant moved to exclude all statements which had earlier been suppressed. It is the denial of this motion that he appeals.
Defendant does not argue that the statements made were untrustworthy because coerced or otherwise the product of an overborne will. See Malloy v. Hogan, 378 U.S. 1, 84 S Ct 1489, 12 L Ed 2d 653 (1964). Rather, defendant contends that because the statements were obtained in violation of Miranda, his Fifth and Fourteenth Amendment rights were violated by use of those statements in a probation revocation hearing. He argues that extension of the Miranda exclusionary rule in the present case will deter illegal police conduct, because here the police knew defendant was a probationer when they questioned him.
Defendant also does not argue that he did not understand or comprehend the questions asked him or that his responses in sign language (defendant being deaf) and in writing were not properly interpreted. Instead, he frames this appeal as "solely a question of law."
In State v. Fields, 49 Or. App. 1033, 621 P.2d 651 (1980), rev'd on other grounds, 291 Or. 872, 635 P.2d 376 (1981), we held that statements obtained in violation of Miranda are nonetheless admissible in a probation revocation hearing under State v. Nettles, 287 Or. 131, 597 P.2d 1243 (1979). The court in Nettles held that the rule excluding evidence obtained through illegal searches does not apply in probation revocation proceedings, at least where the officer who performed the search did not do so for the purpose of obtaining a probation revocation. The underlying logic of Nettles is that excluding evidence in revocation proceedings as well as in a criminal case which arises from the same episode adds little to the deterrence of improper police conduct and detracts a great deal from the probationary system. 49 Or App at 1037.
The Oregon Supreme Court held in State v. Fields, 291 Or. 872, 635 P.2d 376 (1981), that the defendant was not in custody, so the absence of Miranda warnings did not make his confession inadmissible in his trial for unauthorized use of a motor vehicle. The court, therefore, did not decide whether the confession was admissible in the probation revocation hearing.
In the present case, as the trial court found, the primary purpose of the questioning of defendant between February 19, 1980, and March 3, 1980, was defendant's involvement in the homicide. Although the police officers became aware of his probationary status, it appears from their testimony that that knowledge did not affect the manner in which they investigated the homicide. They did not question defendant for the purpose of discovering a probation violation nor did they employ the condition of defendant's probation to gain evidence. We do not believe that the interest of justice would be served by the exclusion of evidence under the circumstances of this case. We hold the evidence admissible.
We do not agree with defendant's assertion that knowledge by police of probationary status per se requires exclusion of evidence in order to deter police misconduct. The exclusion of the evidence of defendant's involvement in the homicide at trial for the underlying charge of murder provided sufficient deterrence to police misconduct. Any additional restriction on the use of the evidence would add little, if any, deterrence. State v. Nettles, supra, 287 Or at 139, State v. Fields, supra.
Affirmed.