I am under a strict time limit, so if anyone could point me in tbe right direction, I would appreciate it.

Officer is called to the scene of an accident. Def has rearended another car. He asks who was involved & Def raises his hand. Officer takes driver's licenses & starts helping the other party get the vehicle off the freeway. As he is doing this, another party tells him that defendant just got into another cab & left.

Officer notifies another officer who is driving up to follow that cab & bring back defendant. The other officer stops the cab & gets def out & brings him back. He notices that def smells like alcohol. Now, the first officer questions the def & smells it too. Def says he has not been drinking, but fails the sobriety tests. He asks for a lawyer & no more questions are asked.

Def atty is arguing that the statements & sfsts should be suppressed because when the officer stopped the cab & brought him back, that was custody. My argument is that the officer was just bringing him back to continue the investigation of the accident. The second officer did not show for the hearing, but the judge continued it so I can round him up.

El Paso judges tend to be a bit defense oriented, and the judge has not ruled yet. I am looking for some case law that said that the officers had the right to bring the defendant back and question him without reading him his rights first.

Please let me know if you can come up with any cases.

Didn't have time for extensive research, but you might look at Stevenson, 993 SW2d 857, Hutto, 977 SW2d 855, and Glass 402 SW2d 173 for help. After a quick search those three cases should give you a starting point.

Off the top of my head, the SFST's come in even if he was in custody. They are non-testimonial and the 5th doesn't apply, nor does Miranda. That's why you can do SFST's at the jail after an arrest if you want to.

Also I think that custodial statements that you proactively volunteer are not necessarily protected the same as those statements that are in response to an officer's interrogation.

If an officer can physically hold, move, handcuff, and seat a suspect inside his patrol car all during an investigative detention - which he can, given the right circumstances - how is this situation all that different? I wouldn't concede "custody" in the first place. The guy was told to "wait here" for the officer & he left. Another officer stopped him and brought him back. So what? He's still just being detained pursuant to an ongoing investigation. This happens day in and day out when a suspect walks away from a scene and officers go get him and make him return with them.

Of course there are questions about how the officers acted and how this was articulated, but... Unless full custody was somehow triggered, there's no Miranda issue at all.

I would also check out Kelm v. State, NO. 03-07-00047-CR, 2007 Tex. App. LEXIS 8851(Austin Nov. 2007, pet. ref'd). It was a single car roll-over. Passerby picked up driver and passenger and drove them to driver's house. Father of driver returns to accident scene and meets PO who orders him to get the daughter and bring her back to the scene. She gets arrested for DWI. The court found that she was improperly detained because she was ordered to return and the PO had no reasonable suspicion that she had committed any crime. Not quite the same as your case where there was another party involved.

Janette