AFFIRMED.
HOLMAN, J.
The defendant was convicted pursuant to a jury trial of the crime of first degree burglary. The Court of Appeals reversed and remanded for a new trial because the trial court allowed information obtained by the police in violation of Miranda v. Arizona to be used to impeach defendant's testimony. This court granted review for the sole purpose of determining whether information secured in violation of Miranda rules can be used for impeachment purposes under the circumstances which existed in this case.
13 Or. App. 368, 510 P.2d 852 (1973).
384 U.S. 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR 3d 974 (1966).
Two bicycles were stolen from houses in the Moyina Heights district of Klamath Falls. One was taken from the Lehman residence and one was taken from the Jackson residence. Defendant was indicted for the burglary of the Lehman residence.
In an in camera hearing the arresting officer testified that after he gave the Miranda warnings, he questioned defendant about the Lehman theft and the defendant responded that two bicycles had been stolen and he did not know which theft the officer was talking about. The officer then requested defendant to accompany him on a further investigation to clear up the matter and defendant agreed. However, on the way to the site of the thefts defendant had some misgivings and indicated he wanted to talk to a lawyer. The arresting officer responded that he could see a lawyer when they got back and proceeded with the investigation, during which defendant pointed out the two houses from which the bicycles had been taken. Pursuant to the disclosures made at the in camera hearing, the trial judge ruled that all references to defendant's activities after his request for a lawyer were barred from introduction in evidence.
Thereafter, defendant took the stand and testified that he had participated in concealing the bicycles when he knew they had been stolen, but he denied having known that they were going to be stolen and the houses from which they were taken. On rebuttal, over objection, the arresting officer was permitted to testify for impeachment purposes that defendant had directed him to both the Lehman and Jackson houses and had identified them as being the ones from which bicycles had been taken.
The question of the use, for impeachment purposes, of information secured in violation of rules similar to those of Miranda was presented to this court in the case of State v. Brewton. In that decision, in which the court was divided four to three, we held that information secured in violation of the rules set forth in Escobedo v. Illinois, Miranda's precursor, could not be used for impeachment purposes. Since this court's decision in Brewton, the Supreme Court of the United States, in Harris v. New York, has faced a similar problem in relation to Miranda rules and has reached a decision contrary to Brewton based upon reasoning similar to the dissenting opinions in Brewton. The rationale of the Harris opinion was that while information secured in violation of the Miranda rules may not be used to incriminate a defendant, neither should such violation be used as a shield for or an invitation to perjury; and, assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.
247 Or. 241, 422 P.2d 581, cert. denied, 387 U.S. 943, 87 S Ct 2074, 18 L Ed 2d 1328 (1967).
378 U.S. 478, 84 S Ct 1758, 12 L Ed 2d 977 (1964).
401 U.S. 222, 91 S Ct 643, 28 L Ed 2d 1 (1971).
Id. at 225-26.
It was for the purpose of deciding whether we wished to overrule Brewton that we took review of this case. However, we now find that it is not necessary to make that determination in deciding this case because whether the reasoning of Brewton or of Harris is used, the opinion of the Court of Appeals must be affirmed and the defendant's conviction reversed.
In Brewton and Harris either insufficient or no warnings were given. In those situations, before questioning begins, the police do not know whether or not they will get incriminating information from the defendant if they give the required warnings. Experience has taught there is a good possibility they will. Therefore, the argument can be made that in such situations it appears likely that police will not take the chance of losing incriminating evidence for their ease in chief by not giving adequate warnings. The chance of being able, without sufficient warnings, to use what information they get for impeachment affords insufficient advantage to induce the police to endanger their chance of making a case at all. Therefore, in such circumstances the prophylactic measure of total exclusion may not be necessary because police will not be induced by the more limited use to fail to give the proper warnings.
E. Driver, Confessions and the Social Psychology of Coercion, 82 Harv L Rev 42 (1968).
However, such is not this case. The defendant here was given proper warnings and took them at their word and asked for a lawyer. The police then knew they would most likely get nothing further from defendant if he consulted a lawyer. Therefore, they had nothing to lose and something to gain by violating Miranda if the State is permitted to use such information as was secured by continued interrogation for impeachment purposes. In such a situation, there is no pressure whatsoever to obtain compliance and the prophylactic exclusion of the evidence as dictated by Miranda, Escobedo, and Neely is still required.
The opinion in Harris makes no mention of any request by Harris for a lawyer, and the opinion is interpreted as if there was none. However, see comment, 80 Yale L J 1198, 1200 (1971), which indicates that he may have asked to see a lawyer but he would be satisfied to see one "tomorrow."
State v. Neely, 239 Or. 487, 395 P.2d 557, 398 P.2d 482 (1965).
See United States ex rel Wright v. LaVallee, 471 F.2d 123 (2d Cir 1972), for a contrary result though the rationale applied by us in the present opinion was not discussed.
The opinion of the Court of Appeals is affirmed.