UNITED STATES SUPREME COURT

OREGON v. HASS

420 U.S. 714 (1975)

Opinion of the Court

Mr. Justice Blackmun delivered the opinion of the Court.

This case presents a variation of the fact situation encountered by the Court in Harris v. New York, 401 US 222, 28 L Ed 1, 91 S Ct 643 (1971): When a suspect, who is in the custody of a state police officer, has been given full Miranda warnings and accepts them, and then later states that he would like to telephone a lawyer but is told that this cannot be done until the officer and the suspect reach the station, and the suspect then provides inculpatory information, is that information admissible in evidence solely for impeachment purposes after the suspect has taken the stand and testified contrarily to the inculpatory information, or is it inadmissible under the Fifth and Fourteenth Amendments?

The facts are not in dispute. In August 1972, bicycles were taken from two residential garages in the Moyina Heights area of Klamath Falls, Oregon. Respondent Hass, in due course, was indicted for burglary in the first degree, in violation of Ore Rev Stat Section 164.225, with respect to the bicycle taken from the garage attached to one of the residences, a house occupied by a family named Lehman. He was not charged with the other burglary.

On the day of the thefts, Officer Osterholme of the Oregon State Police traced an automobile license number to the place where Hass lived. The officer met Hass there and placed him under arrest. At Hass’ trial Osterholme testified in camera that, after giving Hass the warnings prescribed by Miranda v. Arizona, he asked Hass about theft of the bicycle taken from the Lehman residence. Hass admitted that he had taken two bicycles but stated that he was not sure, at first, which one Osterholme was talking about. He further said that he had returned one of them and that the other was where he had left it. Osterholme and Hass then departed in a patrol car for the site. On the way Hass opined that he “was in a lot of trouble,” and would like to telephone his attorney. Osterholme replied that he could telephone the lawyer “as soon as we got to the office.” Thereafter, respondent pointed out a place in the brush where the bicycle was found.

The court ruled that statements made by Hass after he said he wanted to see an attorney, and his identification of the bicycle’s location were not admissible. The prosecution then elicited from Osterholme, in its case in chief before the jury, that Hass had admitted to the witness that he had taken two bicycles that day because he needed money, that he had given one back, and that the other had been recovered.

Later in the trial Hass took the stand. He testified that he and two friends, Walker and Lee, were “just riding around” in his Volkswagen truck; that the other two got out and respondent drove slowly down the street; that Lee suddenly reappeared, tossed a bicycle into the truck, and “ducked down” on the floor of the vehicle; that respondent did not know that Lee “stole it at first”; that it was his own intention to get rid of the bike; that they were overtaken by a jeep occupied by Mr. Lehman and his son; that the son pointed Lee out as “that’s the guy”; that Lee then returned the bike to the Lehmans, that respondent drove on and came upon Walker “sitting down there and he had this other bicycle by him” and threw it into the truck; that he, respondent, went “out by Washburn Way and I threw it as far as I could”; that later he told police he had stolen two bicycles; that he had no idea what Lee and Walker were going to do; and that he did not see any of the bikes being taken and did not know “where those residences were located.”

The prosecution then recalled Officer Osterholme in rebuttal. He testified that Hass had pointed out the two houses from which the bicycles were taken. On cross-examination, the officer testified that, prior to so doing, Hass had told Osterholme “that he knew where the bicycles came from, however, he didn’t know the exact street address.” Osterholme also stated that Lee was along at the time but that Lee “had some difficulty” in identifying the residences “until Mr. Hass actually pointed them” and then “he recognized it”.

The trial court, at the request of the defense, then advised the jury that the portion of Officer Osterholme’s testimony describing the statement made by Hass to him “may not be used by you as proof of the Defendant’s guilt…but you may consider that testimony only as it bears on the [credibility] of the Defendant as a witness when he testified on the witness stand”.

Respondent again took the stand and said that Osterholme’s testimony that he took him out to the residences and that respondent pointed out the houses was “wrong”.

The jury returned a verdict of guilty. Hass received a sentence of two years’ probation and a $250 fine. The Oregon Court of Appeals, feeling itself bound by the earlier Oregon decision in State v. Brewton, 247 Ore 241, 422 P2d 581, cert denied, 387 US 943, 18 L Ed 2d 1328, 87 S Ct 2074 (1967), a pre-Harris case, reversed on the ground that Hass’ statements were improperly used to impeach his testimony. 13 Ore App 368, 374, 510 P2d 852, 855 (1973). On petition for review, the Supreme Court of Oregon, by a 4-to-3 vote, affirmed. 267 Ore 489, 517 P2d 671 (1973). The court reasoned that in a situation of proper Miranda warnings, as here, the police have nothing to lose, and perhaps could gain something, for impeachment purposes, by continuing their interrogation after the warning; thus, there is no deterrence. In contrast, the court said, where warnings are yet to be given, there is an element of deterrence, for the police “will not take the chance of losing incriminating evidence for their case in chief by not giving adequate warnings.” 267 Ore, at 492, 517 P2d, at 673. The three dissenters perceived no difference between the two situations. 267 Ore at 493-495, 517 P2d, at 674. Because the result was in conflict with that reached by the North Carolina court in State v. Bryant, 280 NC 551, 554-556, 187 SE2d 111, 113-114 (1972), and because it bore upon the reach of our decision in Harris v. New York, 401 US 222, 24 L Ed 2d 1, 91 S Ct 643, we granted certiorari. 419 US 823, 42 L Ed 2d 46, 95 S Ct 38 (1974). We reverse.

The respondent raises some preliminary arguments. We mention them in passing:

Hass suggests that “when state law is more restrictive against the prosecution than federal law,’ this Court has no power “to compel a state to conform to federal law.” Brief for Respondent 1. This, apparently, is proffered as a reference to our expression that a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards. [Citation Omitted]. But, of course, a State may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them. See Smayda v. United States, 352 F2d 251, 253 (CA9 1965), cert denied, 382 US 981, 15 L Ed 2d 471, 86 S Ct 555 (1966); Aftanase v. Economy Baler Co. 343 F2d 187, 193 (CA8 1965).

Although Oregon has a constitutional provision against compulsory self-incrimination in any criminal prosecution, Ore Const, Art 1, Section 12, the present case was decided by the Oregon courts on Fifth and Fourteenth Amendment grounds. The decision did not rest on the Oregon Constitution or state law; neither was cited. The fact that the Oregon courts found it necessary to attempt to distinguish Harris v. New York, supra, reveals the federal basis.

* * * * *

This takes us to the real issue, namely, that of the bearing of Harris v. New York upon this case.

In Harris, the defendant was charged by the State in a two-count indictment with twice selling heroin to an undercover police officer. The prosecution introduced evidence of the two sales. Harris took the stand in his own defense. He denied the first sale and described the second as one of baking powder utilized as part of a scheme to defraud the purchaser. On cross-examination, Harris was asked whether he had made specified statements to the police immediately following his arrest; the statements partially contradicted Harris’ testimony. In response, Harris testified that he could not remember the questions or answers recited by the prosecutor. The trial court instructed the jury that the statements attributed to Harris could be used only in passing on his credibility and not as evidence of guilt. The jury returned a verdict of guilty on the second count of the indictment.

The prosecution had not sought to use the statements in its case in chief, for it conceded that they were inadmissible under Miranda because Harris had not been advised of his rights to appointed counsel. The Chief Justice, speaking for the Court, observed, 401 US, at 224, 28 L Ed 2d 1: “It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” Relying on Walder v. United States, 347 US 62, 98 L Ed 503, 74 S Ct 354 (1954), a Fourth Amendment case, we ruled that there was no “difference in principle” between Walder and Harris; that the “impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility”; that the “benefits of this process should not be lost”; that , “[a]ssuming 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,” 401 US, at 225, 28 L Ed 2d 1, and that the “shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Id., at 226, 28 L Ed 2d 1. It was held, accordingly, that Harris’ credibility was appropriately impeached by the use of his earlier conflicting statements.

We see no valid distinction to be made in the application of the principles of Harris to that case and to Hass’ case. Hass’ statements were made after the defendant knew Osterholme’s opposing testimony had been ruled inadmissible for the prosecution’s case in chief.

* * * * *

We therefore hold that the Oregon appellate courts were in error when they ruled that Officer Osterholme’s testimony on rebuttal was inadmissible on Fifth and Fourteenth Amendment grounds for purposes of Hass’ impeachment. The judgment of the Supreme Court of Oregon is reversed.

It is so ordered. (edited by author for space; footnotes and citations deleted)

(Concurring and Dissenting Opinions Omitted)