KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Phillip, 13 FSM Intrm. 449 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 449]

STATE OF KOSRAE,

Plaintiff,

vs.

WICKLON PHILLIP,

Defendant.

CRIMINAL CASE NO. 123-04

ORDER DENYING MOTION FOR SUPPRESSION OF EVIDENCE

Yosiwo P. George

Chief Justice

Hearing:  August 18, 2005

Decided:  September 22, 2005

APPEARANCES:

For the Plaintiff:   Paliknoa Welly, trial counselor

                                 State Prosecutor

                                 Office of the Kosrae Attorney General

                                 P.O. Box 870

                                 Lelu, Kosrae   FM   96944

For the Defendant:   Harry A. Seymour, Esq.

                                       Office of the Public Defender

                                       P.O. Box 245

                                       Lelu, Kosrae   FM  96944

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HEADNOTES

Criminal Law and Procedure ) Arrest and Custody

     A defendant was not "in custody" prior to the administration of the field sobriety tests when he was instructed to perform the tests by the police officer, and was told by the police officer that if he failed two out of three tests, he may be arrested and taken to jail since he was not told that he would be taken to jail regardless of his performance of the tests. Kosrae v. Phillip, 13 FSM Intrm. 449, 452 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Arrest and Custody; Criminal Law and Procedure ) Right to Silence

     A person is "in custody" when a personís freedom is substantially restricted by a police officer. For example, where a personís freedom is substantially restricted by a police officer by being placed into a police car, based upon a police officerís suspicion that the person was involved in the crimes committed earlier that evening, that person is considered arrested for the purpose of the right to be advised of his constitutional rights to remain silent and to have legal counsel. Kosrae v. Phillip, 13 FSM

[13 FSM Intrm. 450]

Intrm. 449, 452 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Arrest and Custody; Criminal Law and Procedure ) Right to Silence

     A person who is stopped for a routine traffic offense is not in custody, for the purpose of requiring Miranda warnings, and persons who are stopped at a roadblock, where a personís freedom of movement is not substantially restricted or controlled, are not considered to be in custody and not considered to be arrested. Kosrae v. Phillip, 13 FSM Intrm. 449, 452 (Kos. S. Ct. Tr. 2005).

Constitutional Law ) Interpretation

     When there are no reported decisions by FSM courts which discuss whether a person, who has been stopped for suspected driving under the influence, must be provided his or her Miranda rights prior to the administration of field sobriety tests, the court may look to United States law for guidance. Kosrae v. Phillip, 13 FSM Intrm. 449, 452 (Kos. S. Ct. Tr. 2005).

Criminal Law and Procedure ) Arrest and Custody; Criminal Law and Procedure ) Right to Silence

     When a defendant was followed by the Kosrae State Police, stopped at a traffic stop, questioned briefly and asked to perform field sobriety tests; when the traffic stop was conducted on a public road, where passersby could witness the interaction of the police officers and the defendant and was conducted by only two police officers, which created a non-threatening situation; when the officers did not tell the defendant that he would be going to jail; and when there was no needless delay in the administration of the field sobriety tests, the defendant, when he was asked to perform the field sobriety tests, was not considered arrested and was not in custody for the purposes of Miranda rights, and the state was not required to provide the defendant his Miranda rights prior to administration of the tests. Kosrae v. Phillip, 13 FSM Intrm. 449, 453 (Kos. S. Ct. Tr. 2005).

Evidence

     Ultimately, the determination as to whether or not to admit evidence is left to the trial courtís discretion. The weight to be accorded admissible evidence is for the trier of fact to determine. Kosrae v. Phillip, 13 FSM Intrm. 449, 455 (Kos. S. Ct. Tr. 2005).

Evidence

     The test for the admissibility of field sobriety test results is that the court must consider evidence of the police officersí knowledge of the tests, his training and his ability to interpret his observations. Any testimony concerning the defendantís performance would be subjected to cross-examination and defense counsel could question any inadequacy regarding the administration of the tests. The test resultsí admissibility must be determined at trial, following such testimony. The test resultsí admissibility for each accused will necessarily depend upon the facts of his or her case, and must therefore depend upon the evidence presented for each individual accused in each case. The results may be admissible in one case, but not admissible in another. Kosrae v. Phillip, 13 FSM Intrm. 449, 455 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     Defendant filed a Motion for Suppression of Evidence on July 11, 2005. On July 22, 2005, Plaintiff filed its Opposition to the Motion. A hearing on Defendantís Motion was held on August 18, 2005. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender.

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     Defendant seeks suppression of evidence obtained against the Defendant by the Kosrae State police on September 25, 2004, at about 6:10 pm at Pukensukar, Malem Municipality. In particular, Defendant seeks the suppression of the results of the Field Sobriety Tests performed by the Defendant. Defendant seeks suppression of the evidence upon two grounds:

1.  The results of the Field Sobriety Tests were obtained illegally as the Field Sobriety Tests were administered without first giving the Defendant his "Miranda" rights.

2.  The results of the Field Sobriety Tests are unreliable, as the Tests were not administered in strict compliance with established methods and procedures.

      The State opposes the Defendantís Motion on the grounds that "Miranda" rights were not required to be provided by the State to the Defendant prior to administration of the Field Sobriety Tests. The State also opposes the Motion on the grounds that there are several Field Sobriety Tests, beyond those three specified by Defendant, which may be used to evaluate the Defendant and the Defendantís potential impairment.

      After hearing from the parties, I took the Defendantís Motion for Suppression of Evidence under advisement. Following consideration of the arguments made by the parties, the record in this matter and applicable law, I now deny the Defendantís Motion for Suppression of Evidence, for the reasons stated below.

1.  The results of the Field Sobriety Tests were obtained illegally as the Field Sobriety Tests were administered without first giving the Defendant his "Miranda" rights.

      Defendant seeks to have the results of the Field Sobriety Tests (FSTs) administered to the Defendant on the evening of September 25, 2004, at Pukensukar, Malem suppressed. Defendant argues that the administration of the FSTs was illegal because the Defendant was not provided his Miranda rights prior to administration of the FSTs. It is undisputed that the Defendant was not provided his Miranda rights prior to the administration of the FSTs.

      Defendant relies upon the case of Price v. State, 489 S.E.2d 262 (Ga. 1998), in support of his proposition that failure of the State to provide the Defendant his Miranda rights prior to administration of the FSTs was illegal and a violation of the Defendantís constitutional rights against unreasonable search and seizure, and against self-incrimination. This Court has carefully reviewed the case of Price v. State, and concludes that there are significant factual differences in the Price case and this matter. Due to those factual differences, the reasoning applied in Price is inapplicable in this matter and therefore the Defendantís reliance upon Price is misplaced.

      In the Price v. State case, the accused also challenged the admissibility of the results of the FSTs, because she was not first provided her Miranda rights. The Price court, in considering the accusedís challenge, focused upon whether the accused was "in custody," which would then trigger the requirement of providing the Miranda rights. The Price court defined the test of "in custody" as whether a "reasonable person in the suspectís position would have thought the detention would not be temporary."

      In Price, prior to the administration of the FSTs, the police officer informed the accused that he would "take her to jail for DUI regardless of whether she performed the field evaluations." Based upon this statement made by the police officer, the Price court concluded that the accused, having been informed by the police officer that she was "going to jail," that a reasonable person would believe that her detention was not temporary. Therefore, the Price court concluded that the accused was "in

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custody" following the statement by the police officer and should have been provided her Miranda rights prior to administration of the FSTs.

       In this matter, the facts do not support a finding that the Defendant was "in custody" prior to the administration of the FSTs. When the Defendant was instructed to perform the FSTs by the police officer, Defendant was told by the police officer that "if he failed 2 out of 3 tests, he may be arrested and taken to jail." Defendantís Motion at 3-4. The Defendant in this case, unlike the accused in Price, was not told that he would be taken to jail regardless of his performance of the FSTs. The police officer did not inform the Defendant in this matter, prior to the administration of the FSTs, that Defendant would be "going to jail." In Price, the accused was informed that she was going to jail, regardless of whether she performed the FSTs. Significantly, in this matter, the Defendant was informed that if he failed 2 of the 3 tests, he may be arrested and taken to jail. (emphasis added). This factual difference is consequential for the determination of whether the Defendant was "in custody" at the time he was administered the FSTs. Under Price, the facts present in this case, namely the police officerís statements to the Defendant prior to the administration of the FSTs, did not put the Defendant "in custody" prior the administration of the FSTs. The facts supporting the courtís decision in Price v. State are not present in this matter, and therefore its reasoning is inapplicable here.

      The State argues that the Defendant was not "in custody" at the time he performed the FSTs and therefore Miranda rights were not required to be given. The determination of whether a person is "in custody" for the requirement of Miranda warnings has been addressed by this Court. This Court has held that a person is "in custody" when a personís freedom is substantially restricted by a police officer. For example, where a personís freedom is substantially restricted by a police officer by being placed into a police car, based upon a police officerís suspicion that the person was involved in the crimes committed earlier that evening, that person is considered arrested for the purpose of the right to be advised of his constitutional rights to remain silent and to have legal counsel. Kosrae v. Erwin, 11 FSM Intrm. 192, 193-94 (Kos. S. Ct. Tr. 2002).

      This Court has also addressed the issue of whether a person who is stopped for a routine traffic offense is in custody for purposes of Miranda warnings. In the case of Kosrae v. Sigrah, 11 FSM Intrm. 249, 255 (Kos. S. Ct. Tr. 2002), this Court held that a person who is stopped for a routine traffic offense is not in custody, for the purpose of requiring Miranda warnings. Likewise, persons who are stopped at a roadblock, where a personís freedom of movement is not substantially restricted or controlled, the person is not considered to be in custody and not considered to be arrested. Id. at 253, affíd, 12 FSM Intrm. 320, 328 (App. 2004).

      There are no reported decisions by FSM courts which discuss whether a person who has been stopped for suspected Driving Under the Influence, must be provided his or her Miranda rights prior to the administration of FSTs. Accordingly, this Court may look to the law of the United States for guidance. See Kosrae v. Tosie, 12 FSM Intrm. 296, 299 (Kos. S. Ct. Tr. 2004).

      Numerous United States Courts, including the United States Supreme Court, have held repeatedly that a person detained pursuant to a traffic stop and suspected of drunk driving, is not considered "in custody" and is therefore not entitled to the Miranda warnings. The court in State v. Swanson, 475 N.W.2d 148 (Wis. 1991) specifically considered whether a person, after being stopped for suspicion of drunk driving, would be considered "in custody" and entitled to receive Miranda warnings prior to being asked to perform the FSTs. The Swanson Court adopted the reasoning of Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), which stated that "the safeguards of Miranda become applicable as soon as a suspectís freedom of action is curtailed to a degree associated with formal arrest." The Swanson Court noted that if police were forced to warn all detained motorists of constitutional Miranda warnings, as they would be considered in custody, and this would produce

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the "absurd result that motorists, such as Swanson, could refuse to perform a field sobriety test. The Swanson court further held that a reasonable person would not believe that he was under arrest after merely being asked to perform the FSTs during a routine traffic stop." Swanson, 475 N.W.2d at 179. The FSTs are of limited scope and duration. There is no needless delay in the administration of the FSTs. Consequently, a reasonable person would not believe he was under arrest simply by being asked to perform FSTs. State v. Hipwood, 1996 WL 339836 (Wis. Ct. App. June 21, 1996).

      In Berkemer v. McCarty, supra, the United States Supreme Court considered whether roadside questioning of a motorist detained for a traffic stop constituted custodial interrogation which would require Miranda warnings. The United States Supreme Court considered a motoristís expectations when he sees the police lights flashing behind him, that he will spend a short time answering questions and waiting while the police check his documents, that he may be given a citation, but that in the end he will most likely be allowed to continue on his way. The Berkemer Court considered that questioning in a traffic stop is quite different that police station house interrogation. Furthermore, the court considered that a traffic stop is conducted on a public road, where passersby may witness the interaction of the officer and the motorist, thus preventing potential abuse. Most traffic stops are conducted by one or two police officers, this further creating a non-threatening character of detention. The Berkemer Court further considered that only a short period of time elapsed between the stop and the arrest, and at no time was the suspect informed that this stop would not be temporary. Compare Price, supra (The accused was informed that "she was going to jail.")

      After consideration of all these factors, the Berkemer Court concluded that persons temporarily detained pursuant to a traffic stop are not "in custody" for the purposes of Miranda warnings. The reasoning stated in Berkemer was affirmed in Pennsylvania v. Bruder, 488 U.S. 9, 109 S. Ct. 205, 102 L. Ed. 2d 172 (1988), in which the Bruder court concluded that a police officer asking the accused a modest number of questions and requesting him to perform a FST at a location visible to passing motorists was non-coercive and did not require Miranda warnings. The reasoning of Berkemer was also applied in the case of Pennsylvania v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990). In Muniz, the court concluded that the accused was not in custody for purposes of Miranda rights until after roadside tests were completed and the accused was arrested. The reasoning of the United States Supreme Court decisions in Berkemer, Bruder, and Muniz are consistent in holding that persons stopped at a traffic stop, questioned and requested to perform FSTs are not in custody for the purposes of Miranda rights.

      In this matter the Defendant was followed by the Kosrae State Police, stopped at a traffic stop, questioned briefly and asked to perform FSTs. The Defendant was not given his Miranda warning prior to administration of the FSTs. The traffic stop was conducted on a public road, where passersby could witness the interaction of the police officers and the Defendant. The traffic stop was conducted by only two police officers, which created a non-threatening situation. The police officers did not tell the Defendant that he would be going to jail. There was no needless delay in the administration of the FSTs. Based upon the facts present in this matter, I find the reasoning presented in Berkemer, Bruder, and Muniz decisions to be persuasive. Therefore, I conclude that the Defendant, at the time he was requested to perform the FSTs, was not considered arrested and was not in custody for the purposes of Miranda rights. Accordingly, the State was not required to provide the Defendant his Miranda rights prior to administration of the FSTs. Defendantís Motion for Suppression, based upon the first ground, that the results of the Field Sobriety Tests were obtained illegally as the Field Sobriety Tests were administered without first giving the Defendant his "Miranda" rights, is therefore denied.

[13 FSM Intrm. 454]

2.  The results of the Field Sobriety Tests are unreliable as the Tests were not administered in strict compliance with established methods and procedures.

      Defendant argues that the results of the Field Sobriety Tests must be suppressed because the Kosrae State Police Officers failed to administer the tests in strict compliance with established methods and procedures. Defendant relies upon the "standardized field sobriety test" (SFST) developed by the United States National Highway Traffic Safety Administration (USNHTSA) as the "established methods and procedures." The SFST consists of three tests which have been evaluated by the USNHTSA to serve as indicators of impairment. Plaintiff argues that there are several Field Sobriety Tests which may be utilized to assess impairment of drivers suspected of driving under the influence, and that the three tests evaluated by USNHTSA are only three of the FSTs which may be administered

     At the outset, this Court notes that the United States National Highway Traffic Safety Administration is a United States governmental agency, and not an agency of the FSM national government, nor an agency of the Kosrae State Government. The USNHTSA findings, reports, standards, methods, and statements do not constitute law of the FSM, nor of Kosrae State and consequently are not binding upon this Court.

     Defendant has submitted the USNHTSA documentation of findings and reports for consideration by this Court in reviewing the issues presented in this Motion. The Defendant relies upon the USNHTSA documentation entitled "Development of a Standardized Field Sobriety Test" in support of his argument that the FSTs administered by the Kosrae State Police were not done is strict compliance with established methods and procedures. Defendant argues that the only three valid FSTs are those specified as the SFSTs in the USNHTSA report. The State argues that there are several FSTs which may be administered to assess the impairment of a driver, and that there are FSTs other than those three listed in the USNHTSA report. The USNHTSA report categorizes the following three FSTs as "Standardized Field Sobriety Tests" (SFSTs): horizontal gaze nystagmus, walk-and-turn, one-leg stand. There were two FSTs administered by the State to the Defendant in this matter: one-leg stand and finger-to-nose.

     The Defendant has not presented any law, rule or court decision which requires the administration of only the three SFSTs specified in the USNHTSA report. A review of the entire USNHTSA report indicates that a variety of customary roadside tests may be performed to evaluate the performance of a suspected impaired driver, including finger-to-nose, maze tracing, and backward counting tests. The USNHTSA report further recognizes that regional and local preferences for other performance tests still exist in the United States. The USNHTSA report also states that, if deviations occur from the established methods and procedures, any deviation from established procedures relates to the weight of the evidence, not its admissibility.

      Defendant relies upon the case of Ohio v. Homan, 732 N.E.2d 952 (Ohio 2000), for the proposition that FSTs that are conducted in a manner that departs from the methods established by USNHTSA "are inherently unreliable" and thus inadmissible at trial. The police officer in the Homan case admitted that he did not comply with the standardized testing procedure for two of the three FSTs that were administered. The Homan court suppressed the results of the FSTs in establishing probable cause. In concluding that FSTs must be administered in strict compliance with standardized procedures, the Homan Court also held that probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspectís poor performance on one or more of the FSTs. The Homan Court discussed that the totality of the facts and circumstances can support a finding of probable cause to arrest even where no FSTs were administered or where the FST results must be excluded.

      The courtís decision in Homan was applied to facts different than this case. Here, the

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Defendantís Motion is directed at suppression of evidence for trial. Here, there has been no admission by the police officers that the FSTs were administered in noncompliance of any standards. There has been no evidence presented to this Court regarding any FST standards or the police officersí compliance or non-compliance with those standards. The Homan decision was limited to the establishing probable cause for DUI, and did not apply to evidence presented at trial. Therefore, the reasoning presented in the Homan decision would inapplicable to this proceeding.

      Importantly, this Court further notes that the Homan rule requiring "strict compliance with FST standardized procedures" was overruled subsequently by legislation. In 2002, legislation was passed to require "substantial compliance with testing standards." See State v. Nicholson, 2004 Ohio 6666, 2004 WL 2849229 (Ohio Ct. App. Dec. 13, 2004), notes [43]-[49]. Thus the "strict compliance" standard for administration of FSTs urged by the Defendant in this matter, has even been rejected by the Ohio Legislature and supplanted by subsequent legislation. Defendantís proposed adoption of the standard enunciated in Homan is rejected.

      This Court has reviewed other decisions addressing the admissibility of FST results. In the case of State v. Bresson, 554 N.E.2d 1330, 1336 (Ohio 1990), the court discussed the key considerations in determining the admissibility of the results of the Field Sobriety Tests: the police officersí knowledge of the tests, his training and his ability to interpret his observations.

      The Bresson court and other United Statesí courts have acknowledged that FSTs, other than the SFSTs, have been utilized in the assessment of drivers suspected to be impaired. Although the only test at issue in Bresson was the horizontal gaze nystagmus, the court suggested that the same prerequisites to admissibility would also apply to the other field sobriety tests, including the walk-and-turn and one-leg-stand tests. Id. at 1336. For example, a police officerís testimony as to a driverís performance on other field sobriety tests like finger-to-nose or walking the line, is admissible at trial as evidence that the driver was under the influence of alcohol. West Virginia v. Dilliner, 569 S.E.2d 211 (W. Va. 2002). There are several field sobriety tests that may be utilized to assist a police officer in determining whether probable cause exists to arrest a driver based upon a suspicion of intoxication, and those test results, like other FST results, are admissible as circumstantial evidence of intoxication. State v. Rose, 86 S.W.3d 90 (Mo. Ct. App. 2002). Courts throughout the United States have recognized several FSTs beyond those three identified as SFSTs by the USNHTSA. Courts throughout the United States have also permitted their admission into evidence in court proceedings to provide evidence of intoxication or impairment. Even where the results of an FST were deemed not admissible at trial due to improper administration, courts have permitted the administering police officer, as a lay witness, to testify regarding the accusedís performance of the FSTs, but not the pass/fail results. State v. Weirtz, 2002 Ohio 5294, 2002 WL 31187837 (Ohio Ct. App. Sept. 30, 2002).

      Ultimately, the determination as to whether or not to admit evidence is left to the discretion of the trial court. State v. Sage, 510 N.E.2d 343 (Ohio 1987). The weight to be accorded admissible evidence is for the trier of fact to determine. Tulensru v. Wakuk, 10 FSM Intrm. 128 (App. 2001). The test for the admissibility of FST results, as stated in Bresson is persuasive: that the court must consider evidence of the police officersí knowledge of the tests, his training and his ability to interpret his observations. Any testimony concerning the defendantís performance would be subjected to cross-examination and defense counsel could question any inadequacy regarding the administration of the tests. State v. Weirtz, 2002 Ohio 5294, 2002 WL 31187837 (Ohio Ct. App. Sept. 30, 2002). The admissibility of the FST results must be determined at trial of the matter, following such testimony.

      Therefore, I conclude that the admissibility of the results of the Field Sobriety Tests must be determined at trial, following presentation of evidence of the FST methods and procedures, the police officersí knowledge of the tests, his training and his ability to interpret his observations. The parties

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shall have opportunity to present direct and cross-examination of FST methods and procedures, the police officerís knowledge of the tests, his training and his ability to interpret his observations of the Defendantís performance. The admissibility of the results of the FSTs for each accused will necessarily depend upon the facts of his or her case, and must therefore depend upon the evidence presented for each individual accused in each case. Based upon the evidence presented to the Court at trial, the FST results may be admissible in one case, but not admissible in another.

      Defendantís Motion for Suppression, based upon the second ground, that the results of the Field Sobriety Tests are unreliable as the tests were not administered in strict compliance with established methods and procedures, is therefore denied. Admissibility of FST results shall be determined at trial, as set forth above.

3.  Order to Set Trial.

      Defendantís Motion for Suppression of Evidence is denied. The Chief Clerk shall set this matter for trial on the next available calendar.

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