The state has the burden of showing that defendant's consent was voluntary under the totality of the facts and circumstances. State v. Greason, 106 Or. App. 529, 535, 809 P.2d 695, rev den 311 Or. 643 (1991). Voluntariness is a legal conclusion and not a finding of fact, State v. Anfield, 95 Or. App. 568, 571, 770 P.2d 919 (1989), and on appeal the court must assess anew whether the facts suffice to meet constitutional standards.
State v. Schaffer, 114 Or. App. 328, 332-33, 835 P.2d 134 (1992); State v. Gainer, 70 Or. App. 199, 203, 689 P.2d 323 (1984). However, there is no bright line rule as to when circumstances are "compelling" for Miranda purposes under the Oregon Constitution. Rather, whether an individual is subject to the equivalent of "full custody" generally depends on the facts and circumstances of each case. Smith, 310 Or at 7-8; State v. Magee, 304 Or. 261, 265-66, 744 P.2d 250 (1987); State v. Tobias, 131 Or. App. 591, 594, 887 P.2d 366 (1994); State v. Widerstrom, 109 Or. App. 18, 21-23, 818 P.2d 934, rev den 312 Or. 526 (1991); State v. Greason, 106 Or. App. 529,533, 809 P.2d 695, rev den 311 Or. 643 (1991); State v. Walker, 104 Or. App. 410, 416-17, 801 P.2d 877 (1990), rev den 311 Or. 187 (1991). It is an open question whether that determination is affected by the Supreme Court's characterization of field sobriety tests as a "search."
An officer's threat to obtain a warrant, however, is but one factor in determining whether a person voluntarily consented. State v. Greason, 106 Or. App. 529, 535, 809 P.2d 695, rev den 311 Or. 643 (1991). Voluntariness of consent under Douglas does not turn on the officer's actual ability to obtain a warrant, but rather is determined under the totality of circumstances.
The fact that an individual who is subject to a stop is not free to go does not transform a stop into an arrest, see ORS 131.605(6) (defining a stop as a "temporary restraint of a person's liberty"), nor does it mean that the detained person is in custody for purposes of the Miranda rule. Indeed, we have said repeatedly that an officer's inquiry during a routine stop ordinarily does not need to be preceded by Miranda warnings. State v. Nevel, 126 Or App 270, 276, 868 P2d 1338 (1994); Widerstrom, 109 Or App at 22; State v. Greason, 106 Or App 529, 533, 809 P2d 695, rev den, 311 Or 643 (1991). In this case, the police officers' conduct was fully consistent with a routine and lawful stop. Wilson temporarily detained defendant and conducted his inquiry in the immediate vicinity of the home where the officers found defendant when they responded to the call.
Second, although defendant was not able to end the conversation with Sorenson by leaving the room, that fact alone is not dispositive. See, e.g., State v. Soen, 132 Or. App. 377, 385, 888 P.2d 583, rev den 321 Or. 47 (1995); State v. Nevel, 126 Or. App. 270, 276, 868 P.2d 1338 (1994); State v. Greason, 106 Or. App. 529, 533, 809 P.2d 695, rev den 311 Or. 643 (1991). In particular, here, defendant's inability to leave was not the product of police conduct; rather, he had been immobilized by medical personnel for medical reasons.
Nonetheless, a valid stop may be followed by an officer's reasonable inquiry, ORS 131.615(1), and generally that inquiry need not be preceded by warnings." Id. (citing State v. Greason, 106 Or. App. 529, 533, 809 P.2d 695, rev den 311 Or. 643 (1991) (internal quotation marks and emphasis omitted). In addition, the stop occurred in a public location, Swanson was the only officer to question defendant, no weapons were drawn, and the conversation was polite.
"In making this determination, courts are required to draw inferences regarding the person's mental state at the time consent was given. State v. Johnson, 120 Or. App. 151, 158-159, 851 P.2d 1160, 1165 (1993). Courts also look to factors like whether or not a threat to apply for a lawful search warrant was made, the time and place of the encounter, the number of officers present, the degree of hostility, and whether consent was offered or requested. State v. Greason, 106 Or. App. 529, 535, 809 P.2d 695, 699 (1991). Additional factors include whether or not the officer's statements invited a response or mere acquiescence, whether physical force was used or threatened, whether weapons were displayed, whether consent was obtained in public, whether the person giving consent was the subject of an investigation, and whether the atmosphere was antagonistic or oppressive.
However, that defendant reasonably may not have believed he could leave does not necessarily mean that he was in full custody or that the circumstances were so compelling as to trigger the Miranda requirement. As we said in State v. Greason, 106 Or. App. 529, 533, 809 P.2d 695, rev den 311 Or. 643 (1991): Larson, his partner and one other officer were present during the entire encounter. It is unclear from the record exactly when the other three officers arrived.
We disagree. Although defendant may not have felt free to leave, that does not necessarily mean that he was in custody or compelling circumstances. In discussing whether a defendant was in custody in State v. Greason, 106 Or. App. 529, 809 P.2d 695, rev den 311 Or. 643 (1991), we said: Article I, section 12, provides, in part: