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Bovee v. Municipality of Anchorage11/8/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4306 - November 8, 2000]
Appeal from the District Court, Third Judicial District, Anchorage, Natalie K. Finn, Judge.
Phyllis Bovee appeals her conviction for driving while intoxicated. In both of her points on appeal, Bovee attacks the manner in which the police gathered the evidence against her.
Bovee first asserts that, when the police pulled her over to investigate her possible intoxication, the officers were obliged to give her Miranda warnings before asking her any questions. Bovee notes that in Hunter v. State , the Alaska Supreme Court stated that a suspect should be deemed "in custody" for Miranda purposes if a reasonable person in the suspect's position would not have believed themselves free to go or free to break off questioning. Relying on Hunter's formulation of the test for custody, Bovee argues that she was undoubtedly in custody because the police were not going to let her leave the scene of the traffic stop.
But as we noted McNeill v. State , the Hunter test is "somewhat inexact":
Generally, in determining whether a person is in custody for Miranda purposes, a court must ask whether, "under the circumstances of the police interaction with the suspect, ... a reasonable person [would] have felt free to break off the interrogation and, depending on the location, either leave or ask the police to leave". ... But this formulation of the Miranda custody test is somewhat inexact. This wording suggests that Miranda warnings will be required whenever a person is "seized" for Fourth Amendment purposes, but that is not the law. The cases applying Miranda recognize that there are some Fourth Amendment seizures of temporary duration - most notably, routine traffic stops and other investigative stops - in which Miranda warnings are not required, even though the person is temporarily in custody and the police can properly ignore a request that the officers depart and leave the person alone. McNeill, 984 P.2d at 6-7 (footnotes omitted).
For instance, in Berkemer v. McCarty , the United States Supreme Court held that Miranda does not apply when a motorist is subjected to roadside questioning during a routine traffic stop. The Court further indicated that Miranda would not apply to questioning during any investigative (Terry) stop. And in Blake v. State , this court held that police officers are not required to give Miranda warnings during an investigative stop unless and until the initial stop ripens into arrest or equivalent "custody". As we noted in McCollum v. State ,
raffic stops are presumptively temporary and brief and thus do not impose the same coercive pressures on a detained subject's right to speak as an interrogation at a police station would impose. [Additionally], traffic stops take place in a public rather than a police[-]dominated atmosphere, thus reducing the ability of an unscrupulous police officer to use illegitimate means to elicit incriminating statements. McCollum, 808 P.2d at 269 (internal quotations omitted).
It is true that McCollum speaks of "traffic stops", but the McCollum opinion does not limit this term to investigative stops made for purposes of enforcing traffic regulations. Instead, McCollum uses this term as a shorthand for a broad range of investigative stops:
The pertinent issue ... is not the focus of the stop per se, but whether the circumstances surrounding the stop, in their totality, were substantially more coercive than those of a typical traffic stop. We have previously applied Berkemer [v. McCarty] to traffic stops made for purposes of investigating potential offenses other than traffic vi
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