441 P.3d 557
Or.2019Background
- Defendant was awaiting trial on charges from a shootout and high-speed chase and was represented by counsel for those pending charges.
- While jailed, another inmate told police that defendant solicited assaults on the prosecutor and murders of two prosecution witnesses; police arranged for that inmate to secretly record conversations with defendant without notifying defense counsel.
- The recorded conversations included discussion of both the new alleged conspiracy to harm witnesses/prosecutor and the originally charged offenses; the state later added charges for the new conduct and tried all charges together.
- Defendant moved to suppress statements obtained from the recordings as violative of his Article I, § 11 right to counsel; the trial court suppressed statements related to the original charges but admitted statements about the new conspiracy.
- Court of Appeals, relying on State v. Prieto-Rubio, reversed some convictions; the Oregon Supreme Court granted review to decide whether Article I, § 11 bars police questioning (via informant) about new, post‑charging criminal activity without notifying counsel.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Savinskiy) | Held |
|---|---|---|---|
| Whether Article I, § 11 required notice to defense counsel before police used an informant to question a represented defendant about new, uncharged conspiratorial crimes committed after charging | Police may investigate new, distinct crimes without counsel notice; Prieto‑Rubio shouldn't extend to post‑charging, ongoing conspiracies aimed at undermining the prosecution | Article I, § 11 (as clarified in Prieto‑Rubio) bars questioning that is objectively reasonably foreseeable to elicit incriminating evidence about the charged offenses, so counsel notice was required | Court held Article I, § 11 does not require counsel notice before questioning about new, ongoing post‑charging conspiracy to harm witnesses/prosecutor; police may question about such new crimes without notifying counsel |
| Whether statements obtained without counsel about the new crimes could be used against defendant on the original pending charges | Statements about new crimes do not necessarily render them admissible for original charges; but state argued no Article I, § 11 violation for new‑crime questioning | Statements elicited in violation of Article I, § 11 for the pending charges are inadmissible against those pending charges | Court held the state may not use incriminating statements obtained without counsel in prosecution of the original pending charges; trial court erred in admitting them |
| Proper scope of Prieto‑Rubio rule (foreseeability test) — does it reach post‑charging, ongoing conspiracies intended to obstruct prosecution? | Prieto‑Rubio’s objective foreseeability test should not be applied to shield ongoing post‑charging crimes that are distinct and aimed at undermining the prosecution | Prieto‑Rubio supports exclusion whenever questioning could reasonably be expected to yield incriminating evidence about charged offenses regardless of timing or motive | Court limited Prieto‑Rubio: its foreseeability test applies to related, preexisting uncharged offenses but does not extend to new, ongoing conspiracies begun after charging |
| Remedy and effect on convictions | State sought reversal only as to convictions premised on exclusion error | Defendant sought suppression of recordings for both new and original charges and reversal | Court reversed convictions for conspiracy to commit murder (new charges) (as Court of Appeals had reversed those) but otherwise affirmed in part; remanded for retrial on original charges because statements regarding original crimes were improperly used |
Key Cases Cited
- State v. Prieto‑Rubio, 359 Or. 16, 376 P.3d 255 (Or. 2016) (articulates objective foreseeability test for when Article I, § 11 bars questioning about uncharged offenses)
- State v. Sparklin, 296 Or. 85, 672 P.2d 1182 (Or. 1983) (Article I, § 11 is offense‑specific; police may not question represented defendant about related uncharged crimes without counsel)
- Texas v. Cobb, 532 U.S. 162 (U.S. 2001) (Sixth Amendment scope limited to the charged offense and offenses that are the "same" for double jeopardy purposes)
- Maine v. Moulton, 474 U.S. 159 (U.S. 1985) (distinguishes obtaining statements about pending charges from statements about new crimes not yet charged)
- Brewer v. Williams, 430 U.S. 387 (U.S. 1977) (discusses the protective scope of the right to counsel in pretrial questioning)
- State v. Davis, 350 Or. 440, 256 P.3d 1075 (Or. 2011) (framework for interpreting Article I provisions and contextual analysis)