STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Edwin George Schroeder,
Filed March 18, 1997
Short, Judge, Concurring Specially
Olmsted County District Court
File No. K5951929
Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)
Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 Fourth St. S.E., Rochester, MN 55904 (for Respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Davies, Presiding Judge, Randall, Judge, and Short, Judge.
S Y L L A B U S
Inoperative recording equipment does not, by itself, excuse failure to record brief interrogation in a police vehicle; but that recording equipment is inoperative is a relevant factor in applying the substantial violation test of Scales.
O P I N I O N
Appellant Edwin George Schroeder challenges his conviction on the ground that his incriminating statements should have been suppressed because the arresting officers violated the Scales requirement that custodial interrogation be recorded. We affirm.
Appellant was arrested for assisting in a burglary. Immediately after his arrest, he was placed in a police squad car and read his Miranda rights. Appellant did not assert those rights and, in response to statements made by the arresting officer, made several incriminating statements. Neither appellant's nor the officer's statements in the squad car were recorded. The officer estimates that the Miranda reading, the interrogation, and the incriminating statements sought to be suppressed took from three to four and a half minutes. Both officers at the scene had tape recorders, but they testified that one recorder was not working and the other could not be found.
Appellant moved to suppress the unrecorded statements on the ground that they were not recorded as required by State v. Scales, 518 N.W.2d 587 (Minn. 1994). The district court denied the motion, finding that, because of inoperative equipment, it was not feasible for the officers to record appellant's statements. The trial court found appellant guilty as charged.
Was the officers' failure to record appellant's incriminating statements a substantial violation of the Scales recording requirement?
A reviewing court is not bound by and need not give deference to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).
In State v. Scales, the Minnesota Supreme Court held that
all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.
State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) (emphasis added). Appellant argues that the statements he made to the officer in the squad car should have been suppressed because such unrecorded statements violate the Scales mandate. 
Appellant argues that "feasible" should be interpreted under Scales to mean "capable of being done" and that, with today's advanced electronic technology, it is possible for police to have working tape recorders available in all squad cars. To so interpret Scales would extend the absolute requirement to record to all instances of custodial interrogation, not just to places of detention. We decline to so extend Scales.
We choose, however, not to base our decision, as did the trial court, on the bare fact that the recording equipment was inoperative. To do so would remove a desirable incentive for police officers to keep recording equipment in working order. We choose, instead, to address the circumstances by applying the second Scales test: whether failing to record the interrogation is a substantial violation of the recording requirement.
Any unrecorded statement made by a suspect in response to interrogation may be suppressed at trial, and it must be suppressed if the violation is deemed substantial. Scales, 518 N.W.2d at 592. Whether a violation is substantial is to be decided "considering all relevant circumstances bearing on substantiality." Id.
The recording requirement is intended "to avoid factual disputes underlying an accused's claims that the police violated his constitutional rights." State v. Williams, 535 N.W.2d 277, 289 (Minn. 1995). Any failure to record interrogation, therefore, would be a substantial violation if there is a credible suggestion of police overreaching.
There is no such suggestion here, for appellant makes no claim that law enforcement officers violated his constitutional rights. Appellant agrees that the officers properly informed him of his Miranda rights and that he made the unrecorded statements after being read those rights. He also does not dispute that the statements were voluntary. We therefore hold that the police officers' failure in this case to record the first few minutes of questioning, when disabled from doing so by inoperative equipment, was not a substantial violation of the Scales recording rule.
In the future it would, of course, be prudent for a police officer who, for whatever reason, has conducted a brief unrecorded custodial interrogation to promptly document during a subsequent recorded interrogation the following information about the unrecorded interrogation: that the Miranda warning was given, that Miranda rights were not asserted, what unrecorded questions were asked, what responses were given by the suspect, that the suspect admitted voluntariness, and what reason existed for not having recorded the interrogation.
D E C I S I O N
The district court did not err in finding admissible appellant's unrecorded incriminating statements.
SHORT, Judge (concurring specially)
I concur in the judgment only insofar as it concludes Schroeder's statement was properly admitted into evidence.
 Respondent and appellant agree that appellant's unrecorded statements were made as part of a custodial interrogation. See Umphlett v. Commissioner of Pub. Safety, 533 N.W.2d 636, 640 (Minn. App. 1995) (custodial interrogation is threshold for determining whether Scales applies), review denied (Minn. Aug. 30, 1995).