State v. Roberti , 298 Or. 412 ( 1984 )

PER CURIAM

This case is before us on remand from the Supreme Court of the United States, Oregon v. Roberti, 468 US_, 104 S Ct 3574, 82 L Ed 2d 873 (1984), for reconsideration in light of that court’s recent decision in Berkemer v. McCarty, 468 US _, 104 S Ct 3138, 82 L Ed 2d 317 (1984). The question arises under the Fifth and Fourteenth Amendments of the federal constitution.¹ The issue is whether defendant’s inculpatory statements, made to a police officer during a traffic stop after the officer had decided to arrest defendant but prior to formal arrest, were the product of “custodial interrogation” and therefore should have been suppressed because defendant had not been advised of his rights. Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966).

The trial court overruled defendant’s motion to suppress. The Court of Appeals held this to be reversible error. State v. Roberti, 51 Or App 783, 627 P2d 28 (1981). In a plurality opinion, we reversed the Court of Appeals. State v. Roberti, 293 Or 59, 644 P2d 1104 (1982). Three justices dissented. 293 Or at 76, 91, 644 P2d at 1114, 1123. On rehearing, Justice Roberts withdrew her earlier concurrence and joined Justice Lent’s dissent, transforming that dissent into the majority opinion. State v. Roberti, 293 Or 59, 644 P2d 1104, reh all 293 Or 236, 646 P2d 1341 (1982).

The Supreme Court of the United States granted the state’s petition for a writ of certiorari, vacated our second Roberti decision and “remanded * * * for further consideration in light of Berkemer v. McCarty, 468 US-(1984). Oregon v. Roberti, supra. Having further considered this case, and being of the opinion that the holding in Berkemer is dispositive, we withdraw our previous opinions.

The decision of the Court of Appeals is reversed. The judgment of the trial court is reinstated.

1 In this case defendant raised only federal constitutional issues. As noted in our first Roberti opinion:

“Defendant has not contended that any right guaranteed to him by either the constitution or the statutes of this state has been violated. His sole claim is that his rights under the Fifth and Fourteenth Amendments to the United States Constitution have been invaded.” 293 Or at 64, 644 P2d at 1107.