State v. Hensley, 281 Or. App. 523

Background

Defendant was charged with felon in possession based on Plaid Pantry surveillance showing him with a gun; counsel was appointed for that charge.
Police (including the US Bank lead investigator) arrested and Mirandized defendant but did not notify or contact his appointed counsel before questioning.
During the interrogation, officers confronted defendant about a US Bank robbery (uncharged at the time) and the Plaid Pantry incident; defendant then confessed to the Plaid Pantry offense, the US Bank robbery, and four other armed robberies.
Defendant moved to suppress all statements as obtained in violation of his Article I, §11 right to counsel and as fruits of that violation; trial court denied suppression.
State concedes police violated the right to counsel as to the US Bank questioning and agrees those counts must be reversed, but contends the other convictions should stand under inevitable-discovery/independent-source/attenuation theories.
The court reversed: it accepted the state’s concession about the US Bank questioning, held the state failed to prove inevitability or attenuation for the other confessions, and remanded (including vacating jury convictions) so defendant may withdraw his conditional plea and for further proceedings.

Issues

Issue	State's Argument	Defendant's Argument	Held
Whether questioning about the US Bank robbery violated Article I, §11 (right to counsel) for the charged felon-in-possession case	Noted issue was separate; did not meaningfully contest in appeal (later conceded)	Questions about US Bank were reasonably foreseeable to elicit incriminating info about the charged possession because same gun, same jurisdiction, close in time	Court accepted state concession: violation occurred and statements re US Bank must be suppressed
Whether all statements (including confessions to other robberies) must be suppressed as fruits of that violation	Argued police did not exploit illegality; alternatively that discovery of other confessions was inevitable or independent	Argued the other confessions were obtained by exploiting the right-to-counsel violation and thus must be suppressed	Court held state failed to meet its burden; the other confessions were not shown inevitably or independently discovered, so suppression required
Whether the inevitable-discovery doctrine applies to the subsequent confessions	Asserted predictable investigatory procedures would have led to interrogation about Lone Oak and that defendant inevitably would have confessed to all robberies	Contended confessions resulted from unlawful confrontation and inducements; not inevitable	Court: state’s proof was speculative and insufficient to show the exact predictable procedures and that defendant would have inevitably made the same statements
Whether admission of the statements was harmless as to jury convictions (Counts 5–8)	Argued convictions should stand because any error was not prejudicial	Argued admission was material to convictions and not harmless	Court found it could not conclude little likelihood the error affected verdicts and reversed/remanded those counts for further proceedings

Key Cases Cited

State v. Prieto-Rubio, 359 Or 16 (clarifies test: questioning about uncharged offenses is barred when it is reasonably foreseeable it will elicit incriminating info about the charged offense)
State v. Beltran-Solas, 277 Or App 665 (evidence discovered from right-to-counsel violation must be suppressed unless state disproves exploitation)
State v. Unger, 356 Or 59 (three ways state may disprove exploitation: inevitable discovery, independent source, or tenuous relation/attenuation)
State v. Miller, 300 Or 203 (inevitable-discovery burden: show predictable procedures and that those procedures inevitably would have produced the evidence)
Wong Sun v. United States, 371 U.S. 471 (fruits doctrine: evidence must be obtained by means sufficiently distinguishable from the illegality)
Oatney v. Premo, 275 Or App 185 (state failed to prove inevitability where subsequent statements followed exposure to unlawfully obtained evidence)
State v. Paz, 31 Or App 851 (rejected inevitable-discovery where later incriminating statement would not have occurred but for earlier unlawful confession)
State v. Garrison, 21 Or App 155 (upheld admission where speaker testified he would have confessed regardless of exposure to unlawfully obtained info)
State v. Tannehill, 341 Or 205 (conditional guilty-plea withdrawal: reversal as to encompassed counts permits withdrawal of the entire plea)