State v. Lancto

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as well as formal revision before publication in the Vermont Reports.
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                                No. 89-142


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Todd E. Lancto                               Unit No. 2, Chittenden Circuit

                                             March Term, 1990


George T. Costes, J.

Pamela Hall Johnson and Gary S. Kessler, Department of State's Attorneys,
   Montpelier, and William Sorrell, Chittenden County State's Attorney,
   Burlington, for plaintiff-appellee

Hoff, Agel, Curtis, Pacht & Cassidy, P.C., Burlington, for defendant-
   appellant


PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.



              PECK, J.   Defendant, charged with driving under the influence of
intoxicating liquor, appeals from the district court's denial of his motion
to suppress.  At issue is whether the trial court erred in finding that
defendant was not in custody during a state police officer's questioning of
him in a police cruiser, and that Miranda warnings were therefore not
required.  Defendant entered a conditional plea of nolo contendere, and this
appeal followed.  We affirm.
     On April 22, 1988, a state trooper was dispatched to investigate an
accident on Interstate 89 in Colchester.  When he arrived at the scene, he
found skid marks and damage to the guardrails on both sides of the road, but
no vehicle.  Marks on the road indicated that the vehicle had continued
northbound, so the trooper drove north to see if he could locate it.  About
         a mile and a half north of the accident scene, the trooper came upon an
unoccupied car with a flat tire and body damage corresponding to the damage
to the guardrails.  His investigation of the automobile indicated that
someone in the car had sustained a head injury.  He radioed in the
vehicle's license plate number and learned that it was registered to Todd
Lancto, the defendant.  After examining the car, the trooper drove to the
closest exit, thinking that the operator might have gone to telephone for
assistance.
     At the exit, the trooper saw two men walking from a phone booth to a
nearby gas station.  The trooper, who was in uniform, approached the two men
and asked one of them, defendant, who had a fresh injury to his eye, to
identify himself.  He stated that his name was Todd Lancto.  When the
officer asked him whether he had been in an accident, defendant replied
that he had been in a fight.  The trooper told defendant that he knew
defendant had not been in a fight, and to have a seat in the police cruiser.
     After joining defendant in the cruiser, the trooper began to fill out
an accident report.  As he was doing so, he noticed an odor of alcoholic
beverages, and that defendant's eyes were bloodshot.  The officer suspected
that defendant had been driving under the influence of alcohol, and ques-
tioned defendant about his time of operation, how much he had had to drink,
and the time of his first drink.  After following the implied consent pro-
cedure, the trooper advised defendant of his Miranda rights, and defendant
refused to answer any questions.  Defendant was processed for driving while
under the influence of intoxicating liquor.
     At a hearing on defendant's motion to suppress statements made before
the administration of Miranda warnings, the court ruled that the discussion
inside the cruiser did not constitute custodial interrogation, and
accordingly denied defendant's motion.  The specific statements at issue
concerned whether defendant had been drinking and the time of his last
drink.
     At the outset we note that the procedural safeguards of Miranda v.
Arizona, 384 U.S. 436 (1966), apply only if a defendant is "in custody" and
subjected to custodial interrogation.  The inquiry here is whether defend-
ant's questioning within the confines of the police cruiser constituted
custodial interrogation.  Questioning conducted in a police cruiser does
not, in itself, establish custody.  We have recently held that such
questioning is not necessarily coercive, absent some evidence that the
police officer's actions were "'calculated to break the suspect's will.'"
State v. Olson, __Vt.__, __, 571 A.2d 619, 622 (1989) (quoting Oregon v.
Elstad, 470 U.S. 298, 312 (1985)).  At oral argument, counsel for defendant
conceded that it was proper for a police officer to ask a defendant to get
into the cruiser for the purpose of asking questions about the accident.
     Normally the custody inquiry is whether, under the totality of the
circumstances, a reasonable person would believe he was at liberty to leave
or to decline to answer the officer's questions.  State v. Willis, 145 Vt.
459, 475, 494 A.2d 108, 117 (1985).  On appeal, we are bound to uphold trial
court rulings that are not clearly erroneous and that have credible evident-
iary support, even though inconsistencies or substantial evidence to the
contrary exists.  State v. Harvey, 145 Vt. 654, 657, 497 A.2d 356, 357
(1985); see also State v. Gulley, No. 89-227, slip op. at 9 (Vt. August 10,
1990).  Here, the trial court's determination that a reasonable person would
have believed that he or she was free to leave or to refuse to answer
questions was not clearly erroneous.
     Furthermore, in Berkemer v. McCarty, 468 U.S. 420 (1984), the United
States Supreme Court acknowledged that while most motorists would not feel
free to leave the scene of a traffic stop without the investigating
officer's permission, "persons temporarily detained pursuant to such stops
are not `in custody' for the purposes of Miranda" absent some showing that
they were "subjected to restraints comparable to those associated with a
formal arrest."  Id. at 440-41.  Moreover, we have held that "[a] brief
detention or Terry stop . . . does not require Miranda warnings."  Willis,
145 Vt. at 475, 494 A.2d  at 117.
     On these facts, we hold that the defendant was not entitled to Miranda
warnings before the police officer questioned him.  Defendant's questioning
in a police cruiser was not custodial.  The trooper's statement that he knew
defendant had not been in a fight is insufficient to show that he was making
a formal arrest, as defendant maintains.  As in State v. Boardman, "the stop
was routine and the detention was brief.  Only one officer was involved, and
the interrogation was conducted on a public highway where the atmosphere was
substantially less `police dominated' than the types of interrogation
addressed in Miranda and subsequent cases where Miranda has been applied."
148 Vt. 229, 231, 531 A.2d 599, 601 (1987).  Since defendant was not
subjected to custodial interrogation, his privilege against self-
incrimination was not violated, and Miranda warnings were not required.
     Affirmed.



                                        FOR THE COURT:



                                        ______________________________
                                        Associate Justice