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City of Mandan v. Leno10/26/2000
ar and locked the doors of the patrol car. Id. The officer then continued questioning Fasching. Id. The trial court found that upon being locked in a patrol car, after hearing the officer order her attorney to get back into her car, Fasching would have understood she was in custody and deprived of her freedom in a significant way. Id. In contrast, Leno remained outside in public view consistent with an ordinary traffic stop. As we stated in Fasching, "a person temporarily detained for an `ordinary traffic stop' is not `in custody' for the purposes of Miranda." Fasching, 453 N.W.2d at 763.
[ ] The issue in Fasching was whether custodial interrogation without a Miranda warning requires suppression of all evidence, testimonial and non-testimonial. Fasching, 453 N.W.2d at 761. We held only testimonial evidence must be suppressed, and therefore did not suppress the blood test results. Id. We did not reach Fasching's argument she was denied her statutory and constitutional rights to counsel. Id. at 765. Despite the fact that both Fasching and this case present the uncommon situation of a driver being stopped for a traffic violation in the physical presence of the driver's attorney, the dispositive issue in Fasching is unrelated to this case. Leno's brief detention was not custodial interrogation, but rather was only a traffic stop which was temporary and conducted in public view. The United States Supreme Court has stated the "non-coercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not `in custody' for the purposes of Miranda." Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988)(quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)). Leno's undisputed request to consult an attorney was prior to arrest or custodial interrogation.
[ ] Although it was not necessary for the officer to restrict Leno's access to his attorney, we hold doing so did not violate Leno's right to counsel because the statutory right to counsel does not attach until after arrest. We reverse the order suppressing the evidence for the reasons stated by the trial court, but we remand for a factual finding of whether or not Leno invoked his right to counsel after he was arrested and prior to consenting to the ultimate evidentiary chemical test.
[ ]Gerald W. VandeWalle, C.J.
Carol Ronning Kapsner
Mary Muehlen Maring
William A. Neumann
Dale V. Sandstrom
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