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September 30, 1994


Appeal from Madison Circuit Court. CC-93-1680. William Page, TRIAL JUDGE.

Rule 39(k) Motion Denied November 10, 1994. Rehearing Denied November 10, 1994. Certiorari Denied March 17, 1995. Released for Publication June 27, 1995.


The opinion of the court was delivered by: Bowen


Walter Coyle Stone, the appellant, was convicted of driving under the influence of alcohol, was fined $500, and was sentenced to 30 days in jail. He raises two issues on this direct appeal from that conviction.


The appellant argues that the roadside field sobriety tests that he was required to perform violated his state and federal constitutional rights against self-incrimination and that the trial court erred in refusing to suppress evidence regarding those tests.

"In reviewing a trial court's ruling on a motion to suppress, this Court may consider the evidence adduced both at the suppression hearing and at the trial. Henry v. State, 468 So.2d 896, 899 (Ala.Cr.App. 1984), cert. denied, 468 So.2d 902 (Ala. 1985)." Wilsher v. State, 611 So.2d 1175, 1178 (Ala.Cr.App. 1992). The arresting officer, Tim Willis, was the only witness at the pre-trial suppression hearing and the only prosecution witness at trial. He stated that he was a member of the Huntsville Police Department's "DUI Task Force," and that the Task Force's "sole job was to ride around . . . and look for drunk drivers." R. 19-20. Officer Willis testified that around 12:50 a.m. on May 2, 1993, he was "patrolling the streets of Huntsville looking for people that [he] suspected of drinking and driving." R. 12. Willis stated that he observed an automobile "run off the curb" as it pulled out of a restaurant parking lot onto Bob Wallace Avenue. R. 21. Willis began to follow the automobile and observed that the vehicle "was weaving pretty heavily from left to right crossing the lines to the left and right side." R. 21. Willis stated that after the vehicle turned left onto Penn Street he turned on his blue lights and stopped the vehicle. The appellant was driving the automobile.

Officer Willis said that as he was radioing the stop to police headquarters, the appellant got out of his car "real slow." R. 23. According to Willis, the appellant "used his door to help himself out," held onto the door to stand up, then walked toward Willis' patrol car. Id. Willis testified that the appellant "was very slow and was having problems with his balance as he walked to the back of his car." Id. Although the appellant "didn't lean on the car, he . . . looked like he was having problems walking." Id.

Willis said that he met the appellant at the back of the appellant's car and observed that "it looked like he [had] urinated in his pants." R. 24. Willis stated that he "asked [the appellant] for a driver's license and told [the appellant] why" he had been stopped. R. 13. When defense counsel asked what specifically he said to the appellant concerning why he had been stopped, Willis stated that he informed the appellant that "the reason I pulled him over was because he ran over the curb and [was] weaving from left to right." R. 46. Willis testified that he "could smell a really strong odor of an unknown alcoholic beverage" on the appellant's person. R. 24. Willis also observed that the appellant's eyes were bloodshot and that his speech was slow and slurred. Id.

Officer Willis testified that he told the appellant that he wanted him to perform some field sobriety tests. Willis then had the appellant "stand with his feet together, facing his vehicle [and] away from [Willis]." R. 13. Willis stated, "At that time is when he told me he wanted to tell his mother what was going on." Id. Willis testified that he "told [the appellant] 'no.'" R. 13. He acknowledged, however, that he and the appellant "were close" to 2402 Penn Street, the address where the appellant resided with his parents. R. 40. When asked by defense counsel whether "at that moment, then, it would [have been] reasonable for [the appellant] to assume that he could not leave the scene of what was going on," Willis responded, "Yes, sir." R. 13.

Willis testified that he then had the appellant perform four field sobriety tests: the finger-count test; the one- leg-stand test; the finger-to-nose test; and the backwards count test. According to Willis, the appellant was unable to perform any of the four tests satisfactorily. At the completion of the tests, Willis "told [the appellant] to place his hands behind his back, he was under arrest for DUI." R. 28. Willis then transported the appellant to the city jail. When asked if he would have arrested the appellant if the appellant had refused to perform the field sobriety tests, Willis replied, "Judging from the way he would stand and talk[], and other physical signs, yes, I would have." R. 16.


The appellant entreats this Court to hold that Article I, § 6, of the Alabama Constitution of 1901, which provides, in pertinent part, that a person prosecuted for a criminal offense "shall not be compelled to give evidence against himself," is broader in scope and provides greater protection than the Fifth Amendment to the United States Constitution, which provides, in pertinent part, that no person "shall be compelled in any criminal case to be a witness against himself." (Emphasis added.) Even assuming that we were inclined to adopt the appellant's position, which we are not, we would not be at liberty to do so. The Alabama Supreme Court has made it clear that "despite the difference in language, the Alabama privilege against self-incrimination offers the same guarantee as that contained in the Federal Constitution." Ex parte Hill, 366 So.2d 318, 322 (Ala. 1979). This Court is bound by the decisions of the Alabama Supreme Court, see Ala. Code 1975, § 12-3-16, and may not abrogate those decisions, McLemore v. State, 562 So.2d 639, 649 (Ala.Cr.App. 1989).


It is undisputed that Officer Willis did not give the appellant the warnings set forth in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), at any time during the roadside encounter. The appellant insists that this omission renders evidence of the roadside sobriety tests, or at least the verbal aspects of those tests, *fn1 inadmissible. However, the prosecution is required to show that Miranda warnings were given only when it seeks to introduce "verbal statements that are both testimonial in nature and elicited during custodial interrogation." See Pennsylvania v. Muniz, 496 U.S. 582, 590, 110 S.Ct. 2638, 2644, 110 L.Ed.2d 528 (1990) (emphasis added). Therefore, our first inquiry must be whether the appellant was subjected to custodial interrogation.

"Custodial interrogation" was originally defined in Miranda as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The Supreme Court later elaborated on the "custody" aspect of this definition, stating that, in determining "whether a suspect is 'in custody' for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of ...

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