OPINIONS

OF THE

DISTRICT COURT
OF AMERICAN SAMOA

(2012)

AMERICAN SAMOA GOVERNMENT, Plaintiff,

v.

BRIAN MISCOI, Defendant.
___________________________________

The District Court of American Samoa

UTC Nos. 286246 & 286247

March 4, 2012

[1] The District Court takes judicial notice of the history and development of the Standardized Field Sobriety Tests. These uniform, field-testing procedures were developed by the National Highway Traffic Safety Administration (“NHTSA”) in response to high rates of vehicle crash fatalities related to impaired driving during the 1960s and 1970s. NHTSA had previously provided local police forces nation-wide with detection guides listing 20-24 examples of bad driving by a motorist predictive of driving under the influence. The follow-up S.F.S.T.s were researched and developed by NHTSA as police tools to use after a traffic stop was made to better assess whether probable cause existed to arrest a motorist for D.U.I. These tests performed by officers developing a reasonable suspicion that a stopped motorist is under the influence of alcohol or other drugs generally include the Horizontal Gaze Nystagmous Test (HGN), the 9-step Walk and Turn Test (WAT), and the One Leg Stand Test, (OLS). (The WAT and OLS tests are basically self-explanatory. The HGN test, on the other hand, relies upon studies of the effects of depressants, such as alcohol, upon a person’s central nervous system which naturally produce involuntary jerking of the eye’s iris when the effected person gazes to the side). 

[2] From a constitutional law standpoint, the Standardized Field Sobriety Tests (“S.F.T.S.s”) also further the protections afforded by the 4th Amendment. A motorist stopped for a traffic violation who exhibits some level of intoxication during his initial contact with the police, would, within the few minutes necessary to undergo testing and evaluation at the scene of the traffic stop, reasonably expect to continue on his trip, (with or without a ticket for the violation prompting the initial stop), if he successfully performs the S.F.T.S.s.

[3] A traffic stop, however brief, is a seizure under the Fourth Amendment, but generally not an unreasonable seizure absent prohibited police conduct. 

[4] The 5th Amendment protects the accused’s right to not be compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature. An accused may be compelled, however, by the state to produce real or physical evidence. To be testimonial, the communication must, explicitly or implicitly, relate a factual assertion or disclose information. 

[5] Sobriety tests are carefully scripted and not designed to, nor would likely be perceived as, requiring any response from a criminal defendant. A criminal defendant’s statements during such tests are therefore voluntary, non-testimonial, and admissible. 

[6] The same protections against unconstitutional custodial interrogations of persons arrested for felonies applies to misdemeanor arrests as well. 

[7] The roadside questioning and administration of Standardized Field Sobriety Tests at a routine traffic stop do not constitute “custodial interrogation” requiring Miranda warnings to be given. Although a stopped motorist’s “freedom of action” is curtailed and some pressure may be felt by the motorist to answer the officer’s questions, in most stops the motorist believes he will soon be back on his way. Moreover, a traffic stop is normally brief and conducted in public, rather than in a “police dominated” station-house custodial interrogation setting requiring Miranda warnings.

[8] If a motorist stopped by police officers is subjected to treatment that renders the motorist “in custody” for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 9 (Dist. Ct. Mar. 4, 2012).

[9] The reasonableness of a traffic stop detention’s duration requires a “totality of circumstances” evaluation of the facts. 

[10] Reviewed solely under the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution, and considering the totality of circumstances, the stop, detention and brief, voluntary transport to a safe location to conduct the Standardized Field Sobriety Tests would not violate a person’s U.S. Constitutional rights. 

[11] The District Court is bound by the U.S. Supreme Court’s pronouncements concerning the parameters of protection afforded individuals under the Fourth Amendment. 

[12] The Revised Constitution of American Samoa, in Article I, Sec. 5, basically restates the language of the Fourth Amendment to the U.S. Constitution and then adds a closing sentence, “Evidence obtained in violation of this section shall not be admitted in any court.” The language is both broad and unconditional. It prohibits a court from admitting (ostensibly from any party), any evidence obtained from an unreasonable search or seizure. 

[13] A traffic stop of a person, followed by a brief voluntary transport of that person in their vehicle to a safe public location to conduct the Standardized Field Sobriety Tests (“S.F.S.T.s”), under a totality of the circumstances, does not amount to an unreasonable seizure. If conducted in a reasonable time under the circumstances for the police officer to promptly determine whether that person should be released with a speeding citation or whether the results of the S.F.S.T.s indicated, with all other circumstances, that there was probable cause to arrest him for a Driving Under the Influence violation, a brief transport would not normally trigger exclusion of the S.F.S.T.s or subsequent Blood Alcohol Concentration results.

[14] The reasonableness of seizures effectuated by a brief voluntary transport of a detained suspect in their vehicle to a safe public location to conduct Standardized Field Sobriety Tests , however, decreases in direct proportion to the proximity of the police station and the decreased reasonable expectation of the detained suspect of promptly resuming his trip. A progression of loss of access to his vehicle, keys, and drivers’ license, by a suspect, coupled with his removal from a public place into the bowels of a police station, all in the absence of probable cause for his arrest, triggers concerns under the Revised Constitution of American Samoa’s Article I, Sec. 5. 

[15] The term “evidence” is not qualified or limited in Article I, § 5, of the Revised Constitution of American Samoa. Under this broad constitutional language, any evidence obtained from an unreasonable seizure may not be admitted in court. This language admits to no distinction between non-testimonial and testimonial evidence, nor even to voluntarily produced evidence, such as breathalyzer B.A.C. tests, if the earlier seizure of the suspect which caused this evidence to be generated was unreasonable. Notwithstanding the U.S. Supreme Court’s holdings as to types or categories of evidence which are or are not admissible at trial under the judicially created Exclusionary Rule, Article I, § 5, of the Revised Constitution of American Samoa establishes a broad constitutional guarantee that evidence, (ostensibly, all evidence), obtained from an unreasonable search or seizure is not admissible in the courts of this Territory.

[16] Where there is no testimony or evidence exhibiting a driver suspected of a Driving Under the Influence violation (“D.U.I.”) beyond the standard litany of “red eyes, slurred speech and odor of alcohol,” is unreasonable and will divest an officer of the probable cause necessary to arrest a person for a D.U.I. violation. 

[17] Under the Territory’s “Implied Consent” statutes, (A.S.C.A. § 22.0601-.0612), motorists operating on the highway in this Territory are deemed to have consented to a chemical test of breath, blood, urine, or saliva if arrested for D.U.I. Prior to the standard breathalyzer test used for these purposes by the Department of Public Safety, the arrested driver is advised of the test, the possible administrative suspension of driving privileges in the Territory for refusing the test, and the availability of additional (blood) testing for the driver if the B.A.C. is performed. (The driver, having been previously placed under arrest would have, according to standard police practices, also been read Miranda warnings).

[18] The practice of routinely transporting D.U.I. suspects to police stations for in-custody “field” sobriety testing, in the absence of probable cause for arrest or other compelling, reasonable circumstances, neither significantly increases officer or suspect safety levels, nor preserves an individual’s constitutional rights against unreasonable seizure by the government. 

[19] The statutes and case-law of this Territory (as well as other jurisdictions), contemplate that a driver stopped by police during a traffic stop will generally be briefly detained, issued a traffic citation or given a warning, and be allowed to resume the route to the driver’s destination. Any further detention of the driver must be, under a totality of the circumstances, reasonable, and that detention of no longer duration than necessary to promptly complete the officer’s investigation. Unlike other police-citizen encounters in non-traffic situations (where an individual might voluntarily consent to appear for police questioning at a station-house, be advised of his freedom to leave and Miranda rights, and then voluntarily waive those rights and make incriminating statements that would be admissible in court), separate and distinct considerations arise in traffic stop, detention, and D.U.I. arrest situations.

[20] A suspected drunk-driver’s voluntary transport to conduct field sobriety tests at a safer location resulted in being directly transported to the Central Police Station, escorted inside, placed in a room and requested to perform physical acts, Standardized Field Sobriety Tests (S.F.S.T.s), the results of which would be used as evidence against him in any subsequent prosecution for D.U.I. At or reasonably near the traffic stop scene, a suspected drunk-driver’s public performance of S.F.S.T.s would not have required prior Miranda warnings. Even incriminating statements made by a suspected drunk-driver during the performance of such tests at the scene prior to arrest would have been generally admissible in court under case-law. Further, S.F.S.T.s could also have been conducted or re-conducted at a police station if the suspect had been validly arrested for D.U.I. at or reasonably near the traffic stop. Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 18 (Dist. Ct. Mar. 4, 2012).

[21] Conceivably, upon a suspected drunk-driver’s police-escorted entry into the Central Police Station, but certainly upon entering a secure room therein, the suspected drunk-driver is in custody for all practical purposes. If there is no probable cause to support such a seizure (being in custody), Article I, § 5, of the Revised Constitution of American Samoa will operate to exclude any evidence after such a seizure, including Standardized Field Sobriety Tests that indeed indicated the suspected drunk-driver had driven under the influence. Rev. Const. of Am. Samoa art. I, § 5; Am. Samoa Gov’t v. Miscoi, UTC Nos. 286246 & 286247, slip op. at 19-20 (Dist. Ct. Mar. 4, 2012).

Before: WARD, District Court Judge.

Counsel:	For Plaintiff, Robert B. Hanley, Assistant Attorney General
		For Defendant, David P. Vargas, Esq.

OPINION AND ORDER

This motion to suppress the results of Defendant John Miscoi’s, (“Miscoi”), ‘B.A.C.’, (breathalyzer), and Standardized Field Sobriety Test results conducted on 4 September 2011 in the Territory, came on regularly before the Court on 12 January 2012. Testimony was presented by Public Safety Officer Solaita, (“Solaita”), a veteran Police Officer, and Miscoi.

From that testimony the court finds the following facts. At approximately 1:00 A.M. on 4 September 2011 Solaita and other officers were stationary in a police unit just off the main highway leading to Pago Pago. Solaita observed an approaching vehicle and estimated its speed at between 29-30 miles per hour in a 20 miles per hour zone. The unit’s radar equipment was activated and the speed of the vehicle read 30 miles per hour. The unit’s lights were activated as the vehicle passed and the vehicle, operated by Miscoi, was pulled over at the old location [**2**] of the Tool Shop Building Supply Store (which had been completely destroyed several months ago by the Tsunami). Solaita explained to Miscoi why he was stopped and Miscoi requested he be allowed to go home which he said was only a short distance away. Solaita, while speaking with Miscoi, noted he smelled of alcohol, had reddish eyes and his speech was slurred. Solaita decided to conduct the Standardized Field Sobriety Tests, (“S.F.S.T.”), and explained to Miscoi that he intended to do so. Solaita, based upon his evaluation that the area of the stop was dark and otherwise not safe, (due, in part to its close proximity to a local nightclub), asked Miscoi if he would go to the main police station in Fagatogo to have the S.F.S.T. conducted. Solaita testified Miscoi agreed, so Solaita drove Miscoi in Miscoi’s car to the police station approximately 1 mile away from the scene of the traffic stop. During this ride of less than 5 minutes, Miscoi was in the front passenger’s seat and was not restrained by handcuffs or other security devices. 

Miscoi testified that he did not verbally agree to this transport, but had responded “whatever” to Solaita’s request and went with him to the station. Miscoi also stated it was dark at the traffic stop area.

Upon cross-examination Solaita stated that areas closer to the traffic stop scene where the S.F.S.T.s might have been [**3**] conducted were either dark, or otherwise not suitable for safely conducting these tests.

When Miscoi and Solaita arrived at the main station in Fagatogo, Miscoi was escorted inside where the S.F.S.T.s were conducted. Miscoi failed these tests, and was then arrested for Driving Under The Influence, (“DUI”), and read his Miranda rights. Miscoi then opted to take the breathalyzer test.

DISCUSSION

Miscoi withdrew, at the hearing, his objections to the use of the radar device by the police which prompted his vehicle stop. The stop, therefore, appears valid. Solaita observed Miscoi’s vehicle speeding, that speed was confirmed by the radar device and Miscoi’s vehicle duly stopped.

This routine traffic stop for speeding soon evolved into a detention period embracing an on-site investigation for a possible D.U.I. and a transport of Miscoi to the Central Police Station to conduct the S.F.S.T.s. Miscoi broadly argues that the detention period, including his transport by police to the station, exceeded the brief period afforded police in such circumstances to verify or dispel the suspicion of a D.U.I. offense. Defendant therefore seeks to suppress the results of the S.F.S.T.s, the breathalyzer results and any statements he made during or after his transport to the police station. [**4**]

[1] This court takes judicial notice of the history and development of the S.F.S.T.s. These uniform, field-testing procedures were developed by the National Highway Traffic Safety Administration (“NHTSA”) in response to high rates of vehicle crash fatalities related to impaired driving during the 1960s and 1970s. NHTSA had previously provided local police forces nation-wide with detection guides listing 20-24 examples of bad driving by a motorist predictive of driving under the influence. The follow-up S.F.S.T.s were researched and developed by NHTSA as police tools to use after a traffic stop was made to better assess whether probable cause existed to arrest a motorist for D.U.I. These tests performed by officers developing a reasonable suspicion that a stopped motorist is under the influence of alcohol or other drugs generally include the Horizontal Gaze Nystagmous Test (HGN), the 9-step Walk and Turn Test (WAT), and the One Leg Stand Test, (OLS). (The WAT and OLS tests are basically self-explanatory. The HGN test, on the other hand, relies upon studies of the effects of depressants, such as alcohol, upon a person’s central nervous system which naturally produce involuntary jerking of the eye’s iris when the effected person gazes to the side).

In the early 1980s, NHTSA trained local police officers to learn and follow these standardized tests. During the training, officers learned how to administer standardized tests, observe a [**5**] subject’s performance, and score the performance in a standardized evaluation.

[2] From a constitutional law standpoint, the S.F.S.T.s also further the protections afforded by the 4th Amendment. A motorist stopped for a traffic violation who exhibits some level of intoxication during his initial contact with the police, would, within the few minutes necessary to undergo testing and evaluation at the scene of the traffic stop, reasonably expect to continue on his trip, (with or without a ticket for the violation prompting the initial stop), if he successfully performs the S.F.T.S.s.

[3] As argued by Miscoi, the 4th Amendment of the U.S. Constitution protects him against unreasonable seizure. This court has held that a traffic stop, however brief, is a seizure under the 4th Amendment, but generally not an unreasonable seizure absent prohibited police conduct. Miscoi cites Dunnaway v. New York, 422 U.S. 200 (1979), for his opinion that his transport and testing were in violation not only of his 4th, but also his 5th, Amendment protections against self-incrimination. In the Dunnaway case, a prisoner interviewed by police mentioned Dunnaway as a possible criminal suspect. Lacking probable cause to either arrest Dunnaway or obtain a search warrant, the police nonetheless picked up Dunnaway, took him to the police station, informed him of his Miranda rights, [**6**] and questioned him concerning the suspected criminal activity when he was in the police interrogation room. Dunnaway waived his rights, including his 6th Amendment right to counsel, and made incriminating statements and drawings. The U.S. Supreme Court originally remanded this case for further hearings below based upon their then recent decision in Brown v. Illinois, 422 U.S. 590 (1975), holding that there was no per se rule to Miranda; simply reading a suspect his Miranda rights during a custodial interrogation by police does not cure the taint of an arrest on less than probable case. On remand the lower court, using a balancing test, concluded Dunnaway’s 4th, 5th, and 6th Amendment Rights were adequately protected during his custodial interrogation. The U.S. Supreme Court later reversed this, finding that the connection between the unconstitutional conduct by the police’s illegal arrest of Dunnaway and his subsequent incriminating statements and drawings was not sufficiently attenuated to permit the use at trial of that evidence.

[4] The difficulty in applying Dunnaway to the instant matter is the lack of any incriminating statements made by Miscoi during this transport or station-house sobriety testing. As made clear in Pennsylvania v. Muniz, 496 U.S. 582 (1990), what is protected by the 5th Amendment is the accused’s right not to be compelled to testify against himself, ‴or otherwise provide the state with evidence of a testimonial or communicative [**7**] nature.‴ Id. At 589 (quoting Schmerber v. California, 384 U.S. 757, 761 (1966)). An accused may be compelled, however, by the state to produce “real or physical evidence”. To be testimonial, the communication must, explicitly or implicitly, relate a factual assertion or disclose information.” Id. (quoting Doe v. U.S., 487 U.S. 201, 210 (1988)).

In the Muniz case, Muniz was arrested in the field for a D.U.I. and transported to a Booking Center. Without having been advised of his Miranda rights, during booking Muniz was required to answer booking questions and to perform standard sobriety tests, all of which were video-taped. The video, (and audio portion), was introduced at trial showing that Muniz slurred his speech, failed his sobriety tests, and made unsolicited incriminating statements during his sobriety tests.

[5] Upon review, the U.S. Supreme Court held that all of this evidence, save the booking question and response by Muniz as to the date of his sixth birthday, could not be found to be testimonial and was therefore admissible against him at trial. Specifically, the Court held that the sobriety tests were carefully scripted and not designed to, nor would likely to be perceived as, requiring any response from Muniz. His statements during such tests were therefore voluntary.

In yet another traffic D.U.I. case, the U.S. Supreme Court in Berkemer v. McCarty, 468 U.S. 420, (1984) addressed the [**8**] distinctions between a brief traffic stop detention and custodial interrogation. In Berkemer, the suspect driver was pulled over by police for weaving outside his traffic lane. He had difficulty standing when exiting his vehicle and was unable to perform the S.F.S.T.s without falling. Responding to the officer’s question the suspect admitted to drinking two beers and smoking marijuana a short time before the stop. He was arrested and driven to a local jail, where blood tests revealed no alcohol level. Although no Miranda rights had been given, police resumed questioning and the accused made incriminating statements. Under Ohio law, the D.U.I. violation was punishable as a misdemeanor.

[6, 7] Upon review, the U.S. Supreme Court held that the same protections against unconstitutional custodial interrogations of persons arrested for felonies applies to misdemeanor arrests as well. The Court also held that the roadside questioning and administration of S.F.S.T.s at a routine traffic stop do not constitute “custodial interrogation” requiring Miranda warnings to be given. Although a stopped motorist’s “freedom of action” is curtailed and some pressure may be felt by the motorist to answer the officer’s questions, in most stops the motorist believes he will soon be back on his way. Moreover, a traffic stop is normally brief and conducted in public, rather than in a [**9**] “police dominated” station-house custodial interrogation setting requiring Miranda warnings.

[8] The Court did note, however, that if a stopped motorist is subjected to treatment that renders him “in custody” for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda.

[9] Also of relevance to the instant matter is the U.S. Supreme Court’s holding in U.S. v. Cortez, 449 U.S. 411, (1981), which addresses the reasonableness of a traffic stop detention duration and requires a “totality of circumstances” evaluation of the facts. We next apply these cases to the facts of Miscoi’s case.

Miscoi’s traffic stop was made pursuant to an articulable suspicion by the police officer of a speeding violation. After observing Miscoi’s reddish eyes and slurred speech and smelling an odor of alcohol from his breath, (and, prior to transport, an admission by Miscoi of drinking an alcoholic beverage), Solaita advised Miscoi of the S.F.S.T.s and obtained Miscoi’s agreement to perform them. Based upon Solaita’s assessment of the scene of the stop, he announced he would drive Miscoi to the Central Police Station to conduct the tests. Miscoi acquiesced, and rode, unrestrained, in the passenger seat of his vehicle while Solaita drove Miscoi’s car approximately one mile from the scene of the stop to the Central Station where Miscoi was escorted [**10**] inside and performed the S.F.S.T.s, which he failed. Miscoi was then formally arrested for D.U.I., advised of his Miranda rights and of his right to refuse taking the breathalyzer test, and then performed the test. 

[10-12] Reviewed solely under the 4th, 5th, and 6th Amendments to the U.S. Constitution, and considering the totality of circumstances, the stop, detention and brief, voluntary transport to a safe location to conduct the S.F.S.T.s would not violate any of Miscoi’s U.S. Constitutional rights. Even if this court were to hold Miscoi had, for all practical purposes, been placed “in custody” during his transport, the Muniz case indicates that the non-testimonial evidence of sobriety tests performed in custody could still be introduced at his trial. This court is bound by the U.S. Supreme Court’s pronouncements concerning the parameters of protection afforded individuals under the 4th Amendment. (See, generally, Penn. v. Labron, 518 U.S. 918 (1996); Arkansas v. Sullivan, 532 U.S. 769, (2001)). The Revised Constitution of American Samoa (“R.C.A.S.”), in Article I, Sec. 5, however, basically restates the language of the 4th Amendment to the U.S. Constitution and then adds a closing sentence, “Evidence obtained in violation of this section shall not be admitted in any court.” This constitutional protection must also be applied to the facts of this case, separate, and in addition to the U.S. Supreme Court’s [**11**] holding concerning the 4th Amendment. The language is both broad and unconditional. It prohibits a court from admitting (ostensibly from any party), any evidence obtained from an unreasonable search or seizure.

[13] Applying Sec. 5. to the above analysis, this court still holds that Miscoi’s traffic stop, and brief voluntary transport in his vehicle to a safe public location to conduct the S.F.S.T.s, under a totality of the circumstances test, was not an unreasonable seizure. If conducted in a reasonable time under the circumstances for the police officer to promptly determine whether Miscoi should be released with a speeding citation or whether the results of the S.F.S.T.s indicated, with all other circumstances, that there was probable cause to arrest him for a D.U.I. violation, this brief transport would not normally trigger exclusion of the S.F.S.T.s or subsequent B.A.C. results.

[14] The reasonableness of such seizures, however, decreases in direct proportion to the proximity of the police station and the decreased reasonable expectation of the detained suspect of promptly resuming his trip. A progression of loss of access to his vehicle, keys, and drivers’ license, by a suspect, coupled with his removal from a public place into the bowels of a police station, all in the absence of probable cause for his arrest, triggers Article I, Sec. 5 R.C.A.S. concerns. E.g., [**12**] Florida v. Roger, 460 U.S. 491, (1983) (for a similar progression in a case involving airlines travel).

[15] The term “evidence” is not qualified or limited in Article I, Sec 5. R.C.A.S. Under this broad constitutional language, any evidence obtained from an unreasonable seizure may not be admitted in court. This language admits to no distinction between non-testimonial and testimonial evidence, nor even to voluntarily produced evidence, such as breathalyzer B.A.C. tests, if the earlier seizure of the suspect which caused this evidence to be generated was unreasonable. Notwithstanding the U.S. Supreme Court’s holdings as to types or categories of evidence which are or are not admissible at trial under the judicially created Exclusionary Rule, Article I, Sec 5 R.C.A.S. establishes a broad constitutional guarantee that evidence, (ostensibly, all evidence), obtained from an unreasonable search or seizure is not admissible in the courts of this Territory.

[16, 17] In the instant case, Miscoi’s initial stop was for a routine speeding violation, (30 mph in a 20 mph zone). Solaita noticed an odor of alcohol from Miscoi’s breath, reddish eyes, and slurred speech during his initial encounter with Miscoi, and at some point prior to transport, Miscoi admitted consuming an alcoholic beverage prior to the stop. Both Miscoi and Solaita testified that the scene of the stop was dark. These facts present a barely sufficient basis, objectively viewed, for the [**13**] Officer to conduct S.F.S.T.s. There was no testimony as to Miscoi exhibiting any driving behavior, even during the pursuit and traffic stop, indicating impaired driving. Although the standard litany of red eyes, slurred speech and odor of alcohol was recited by the Officer, no details, degrees or examples, such as “strong odor” “bright red” or “bloodshot”, or “barely understandable”, were used. No testimony was presented as to impaired motor skill functions of Miscoi such as swaying, staggering, or fumbling with his documents during the initial stop, prior to the transport.  By any standard of reasonableness applied, Solaita did not, at the time of Miscoi’s voluntary transport, have probable cause to arrest him for a D.U.I. violation.  The court recognizes that any traffic stop [**14**] involves increased risks to the personal safety of the police officer and may present increased risks to the driver and vehicle occupants as well. Even on main highways some vehicle stops may occur in places unsafe for either or both; moreover, village roadways are narrow and without road shoulders, sidewalks, or even lighting adequate to conduct nighttime S.F.S.T.s. Given the historically large numbers of D.U.I. citations issued in the Territory, it seems reasonable that the Department of Public Safety could have developed standard procedures, including surveying, identifying, and designating public locations reasonably near known “unsafe” roadway areas, to which police could briefly transport a D.U.I. suspect for S.F.S.T. purposes.  [**15**]

[18] The court also appreciates that the field sobriety testing procedures and even the roadside breathalyzer testing devices developed to allow officers to ascertain and test probable cause for a D.U.I. arrest were intended for use, as their names imply, at or near the scene of the traffic stop. As clearly set forth in Berkemer, the reasonableness of a brief seizure of a motorist on a public highway and investigatory detention is based upon its short duration and being conducted publicly. 468 U.S. at 437-40. These aspects preserve an acceptable balance between the police power of the government and the motorist’s constitutional rights. If those circumstances are altered to the extent that for all practical purposes, the motorist is in police custody with no reasonable expectation of ready release, the government must be able to demonstrate the Officer had [**16**] probable cause for any such seizure.  Although motivated by legitimate concerns for officer and suspect safety, briefly exercised with a minimum of individual restraint upon Miscoi and with his consent and cooperation, the rapid transition from a public roadside vehicle stop to a police dominated room at the Central Station, for all practical purposes, put Miscoi in police custody. The officer lacked, at that time, probable cause to do so. Miscoi’s seizure at that point became unreasonable and any evidence, voluntary, involuntary, before a Miranda reading, or after, cannot be admitted before this Court under Article I, Sec 5. of the R.C.A.S. The present practice of routinely transporting D.U.I. suspects to police stations for in-custody “field” sobriety testing, in the absence of probable cause for arrest or other compelling, reasonable circumstances, neither significantly increases officer or suspect safety levels, nor preserves an individual’s constitutional rights against unreasonable seizure by the government. Other reasonable, alternative approaches are routinely employed by police departments throughout the United States, including portable hand-held devices to develop evidence supporting [**17**] probable cause, as the officers fulfill their public duty to keep public roadways safe from alcohol or other drug-impaired motorists. Given the strict sanctions provided by Article I, Sec. 5 of the R.C.A.S., these compelling public safety issues require the immediate and active consideration of such alternative approaches by the government.

CONCLUSION

[19] This opinion deals with the narrow issue of traffic stops and subsequent brief detention of motorists by police officers suspecting alcohol or other drug impairment of the detained driver. The statutes and caselaw of this Territory (as well as other jurisdictions), contemplate that a driver stopped by police will generally be briefly detained, issued a traffic citation or given a warning, and be allowed to resume the route to the driver’s destination. Any further detention of the driver must be, under a totality of the circumstances, reasonable, and that detention of no longer duration than necessary to promptly complete the officer’s investigation. Unlike other police-citizen encounters in non-traffic situations (where an individual might voluntarily consent to appear for police questioning at a station-house, be advised of his freedom to leave and Miranda rights, and then voluntarily waive those rights and make incriminating statements that would be [**18**] admissible in court), separate and distinct considerations arise in traffic stop, detention, and D.U.I. arrest situations.

[20, 21] This opinion is limited not only to traffic stops, detention, and traffic-related arrest situations, it is also limited to the facts of this case. Miscoi was stopped in his vehicle in the early morning hours driving home alone. His brief voluntary transport to conduct field sobriety tests at a safer location resulted in being directly transported to the Central Police Station, escorted inside, placed in a room and requested to perform physical acts, (S.F.S.T.s), the results of which would be used as evidence against him in any subsequent prosecution for D.U.I. At or reasonably near the traffic stop scene, Miscoi’s public performance of S.F.S.T.s would not have required prior Miranda warnings. Even incriminating statements made by Miscoi during the performance of such tests at the scene prior to arrest would have been generally admissible in court under caselaw previously cited herein. Further, S.F.S.T.s could also have been conducted or re-conducted at a police station if Miscoi had been validly arrested for D.U.I. at or reasonably near the traffic stop. The police lacked probable cause to arrest Miscoi at the traffic stop and selected a police secured and dominated non-public room to continue to gather evidence supporting probable cause for Miscoi’s arrest for D.U.I. Miscoi was not Mirandized before conducting the S.F.S.T.s. Although [**19**] his S.F.S.T. results, being non-testimonial, could arguably be admitted against him, as well as the subsequent breathalyzer test results based upon his “voluntary” performance of same, under caselaw cited above interpreting the 4th, 5th, and 6th Amendments to the U.S. Constitution, those test results become inadmissible in court under Article I, Sec. 5 of the R.C.A.S. Conceivably, upon his police-escorted entry into the Central Police Station, but certainly upon entering a secure room therein, Miscoi was in custody for all practical purposes, without probable cause to support this seizure. These S.F.S.T.s are therefore inadmissible in court. And, because those results provided, in the officer’s belief, probable cause then existed to arrest Miscoi for D.U.I., and Miscoi was then read his Miranda rights, and advised of and consented to a breathalyzer test, that B.A.C. test result evidence is also inadmissible in court. The taint of the illegal police custody of Miscoi prior to the S.F.S.T.s being conducted cannot be attenuated under the facts of this case by his being Mirandized and then performing “voluntarily”, the breathalyzer test. To hold otherwise in this matter would grant approval to the very excesses of the government’s police powers that Article I, Sec. 5 of the R.C.A.S. sought to curb by prohibiting the admission of such evidence. Any and all evidence the government collected after Miscoi was escorted into the Central Police Station in the early [**20**] morning hours of 4 September 2011 is held to be inadmissible, by either A.S.G. or Miscoi, in court pursuant to Article I, Sec. 5 of the R.C.A.S.. The government has 15 days in which to advise the court as to whether any additional charges will be filed concerning this matter, and whether or how it wishes to proceed in U.T.C. 286246, and the accompanying speeding charge of U.T.C. 286246. A status hearing will be conducted March 29, 2012 at 8:30 A.M. by this court.

So Ordered.