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Polite questioning about drinking and evening plans don’t amount to custody or require Miranda warning

Marquette County v. Christopher Patrick Bray, 2018AP665, 2/28/19, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs).

Bray was convicted of OWI. He argued that the circuit court should have suppressed statements he made to a sergeant during a traffic stop because he wasn’t Mirandized. The court of appeals held that Bray wasn’t in custody so no Miranda warning was necessary.

A sergeant stopped Bray for speeding and told Bray that could smell alcohol on his breath. Bray admitted to drinking a couple of beers that night. The sergeant kept questioning Bray, and Bray kept answering.  The sergeant asked Bray to get out of the car, patted him down and performed FSTs–all while continuing to ask Bray about his drinking and where he was going. He then asked Bray to blow into a PBT device. Bray complied, and it showed a .135 blood alcohol level. The sergeant arrested Bray for OWI.

Bray argued that the sergeant’s questioning of him during the stop and the tests violated his Miranda rights. But the court of appeals held that Bray was not in custody until he was cuffed and placed into the squad car.  Prior to that point, Bray and the sergeant were “unfailingly polite to one another.” The sergeant frisked Bray only for safety reasons. The sergeant never drew his gun, and he always asked Bray’s permission at every stage of the stop, and Bray never objected. Opinion. ¶18. 

Bray argued that the nature of the sergeant’s questions showed that he was in custody. The court of appeals pointed out that he had cited no case to that effect. Bray also argued that no person who fails field sobriety testing is going to believe that he is free to leave. The court of appeals held that the video of the stops showed that the sergeant never told Bray that he had failed the FSTs. Opinion, ¶¶20-21. Bray also argued that the sergeant deliberately circumvented Miranda. The court of appeals held that the record contained no evidence to that effect. Opinion, ¶22.

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