*1 Argued March affirmed November OREGON, STATE OF Respondent, FLORES, ARMANDO ZAMORA Petitioner. (C 6124) Cr, 75-11-3586 SC CA
W. Michael Gillette, General, Salem, Solicitor argued cause for With him on respondent. the brief were Lee Johnson,** General, and John W. Attorney Burgess, General, Assistant Attorney Salem.
BRYSON, J.
Linde, J., dissenting, joined Denecke, Chief Justice, Lent, Justice.
**Attorney General at the time the brief was filed.
BRYSON, J. on 6, 1975, was arrested defendant
On November took defendant The charge. police an assault his rights him of and informed station police follows: silent, that right to remain
"I him he had the advised him a court against he said would be used anything him law; lawyer he had a to have could being questioned, he was present while one, appoint one hire the Court would not afford to expense him at no to himself.” his rights defendant informed his English, Defendant some English. speaks However, an when language Spanish. primary whether he under- officer asked defendant in Spanish he did and answered that rights, stood defendant the form. signed exercise his Miranda
Defendant chose not to At was four interrogated hours. approximately time during some defendant became questioning *3 case, subject a murder which suspect present appeal.
Defendant had two in his when keys possession and defend- was arrested. The asked about them police ant said were lockers at the they Greyhound for keys (in for Spanish) Bus An officer defendant Depot. asked did not inform to search the lockers. He permission defendant that he consent. Defendant con- need not and discovered sented. The lockers police searched murder victim’s home. missing property defendant. When continued to police attorney, police stopped defendant asked for an asked, However, then him. defendant questioning him in Spanish "What now?” An officer told happens and outlined that he would be with murder charged conversation, him. against During evidence again After defendant admitted the victim. killing of his defendant confessed being rights, advised the victim in killing self-defense.
[275 ] At the pretrial hearing, trial court made the following findings:
«:{c sf; ‡%
"3. The fully Defendant was and properly advised of all his Constitutional English both Spanish.
"4. The Defendant fully understood his rights. advised, "5. After fully being did Defendant make freely statements and did voluntarily consent to a search the bus lockers under his control.
"6. All statements made the Defendant were freely voluntarily product made and were not the threats, any promises any or coercion of nature whatsoever. statements,
"7. After making numerous the Defend- ant request did attorney, an which the question- time ing was terminated.
"8. After termination of questioning, Defendant did enter into conversation an officer and did assert voluntarily that he had committed the homicide question.
"9. The regarding admission the homicide was not the result of interrogation but was a decision of the Defendant.”
The court therefore refused to
suppress
confes-
or the items
sion
taken from the lockers. After trial on
plea
defendant’s
of not guilty,
returned a
jury
verdict
of murder and
guilty
robbery. Judgment was
entered on the verdict. The Court of
affirmed
Appeals
without
opinion,
Or
[276] Fifth Amendment the the case decision was based on Supreme the U. S. the Federal Constitution when of Court had not ruled on question It us. the now before Oregon 9, of not on Article Sec. was based supra, majority Douglas, of In v. Constitution. that case "the facts of this court held that under the police duty affirmatively officers were under no right to refuse his inform defendant of constitutional asking if he a search his suitcase before consent to of To of its contents. consent to an examination would emphasize view, form would, in our hold otherwise 'game’ making permit out of substance and over rights by defendants Fourth Amendment use of (260 rights.” knowledge such who have admitted 73-74). prior Again, opinion U. S. that was ruling not and was on the Oregon on Article Constitution. based Sec. granted stating We review and in letter questions for review noted that United States v. Wat- (1976), son, L 46 Ed 2d 598 custody need be not held a defendant search, also told of his to refuse consent custody, not aware fact a defendant given consent, control- to refuse is not ques- ling significance. sponte the sua We also raised Oregon ought this in look to the tion whether court reviewing apparent conflict Constitution supra, Williams, and United States between State v. supra. we Watson, so, If asked whether we further Williams, in State v. should adhere to decision our interpret Oregon supra, or should whether we agree the result United so as Constitution supra. Watson, States given interpretation
We first observe that Constitution States Amendment to the United Fourth supra, and in Schneckloth in United States v. 2041, 36 L Ed 2d Bustamonte, S Ct 412 US defendant’s hold that constrains us to in this not violated were federal constitutional Schneckloth held: case.
"* * * [T]he question whether a consent to a search
was in fact 'voluntary’ or was the product of duress or
coercion, express or implied,
is a
of fact to be
determined from the totality of all the circumstances.
While knowledge of
to refuse consent is one
factor to be
account,
taken into
government
need not
establish such knowledge as the sine qua non of an
* * *”
effective consent.
Despite this apparent coercion, absence of defend- ant claims that his consent was not his own "essential- ly free and unconstrained choice” because his will had been "overborne and his capacity for self-deter- mination critically Schneckloth impaired,” v. Bus- tamonte, supra at because of the fac- following (1) (2) tors: he had been arrested; there was no proof (3) that he knew he could consent; withhold his he had been taken to the police However, station. United Watson, States v. supra, holds that the first two factors are not dispositive. The difference between this case and Watson is that the defendant in that case had not been taken to the station. The police question, then, based on the U. S. Supreme Court’s analysis is whether that court would hold that suspect’s taken being to the station was "to be police (423 424) given controlling significance” US at so as to require proof his that he withhold knowledge could consent. We are of the opinion would not. 1Indeed, warning, the Miranda informing defendant of his silent, remain would have served to some extent to inform defendant that police need not answer request and, fact, to search the lockers would have indicated to him respond that he need not to the initial questions keys about what the were for. arrested, in- properly had been had been Defendant formed of rights, not been had his Miranda circumstances, any subjected these Under coercion. being is station in the we believe merely in determin- controlling factor another ing voluntariness. arguments parties both the Federal
After
on
opinion
Oregon
Constitutions,
are now
we
Oregon
Constitution
we
that
order
should consider
although
ruling
issue,
to make a final
on
Sec.
Article
defendant failed
invoke
*6
appeal
Oregon
court,
to the
on
in the trial
Constitution
petition
Appeals,
for review.
in his
of
and
appellate
Although
general
precluding
review
rule
applies
questions
to
court
of
not raised
the trial
Corp.
questions,
Alpha
Mult
The
v.
constitutional
see
(1948), we
Co.,
671, 680,
Although
the United States
we are bound
Supreme
interpretation
Con
Federal
Court’s
liberty
adopt a
test
stitution, we
to
stricter
are
Oregon Hass,
under our own constitution.
714, 719,
Ed 2d 570
43 L
(1971). How
Evans,
ever,
437, 442,
258 Or
483 P2d
persuasive
reason to do so.
we see no
Principled Interpre
New Federalism: Toward
Constitution,
L
tation
the State
29 Stan Rev
(1977), suggests
that state courts
318-19
four criteria
independent
engaging
in
in an
should consider
They
terpretation
are:
of their
state constitutions.
own
(1)
provisions;
similarity
and federal
of the state
(3)
(2)
unique
precedents;
local condi
relevant state
(4)
position
tions;
the United States
and
taken
would add
To
we
Court.
these considerations
standard in the area
fifth—the need for a uniform
Florance,
law under discussion. State v.
270 Or
183,
Oregon constitutional similar. I, 9, provides: Sec. Article "No law shall violate of the be people houses, effects, persons, secure in their papers, and against search, seizure; and unreasonable or no warrant cause, oath, shall upon issue but probable supported by affirmation, or and particularly describing place searched, be thing and the to be person or seized.” The Fourth Amendment provides: people persons, "The secure their be houses, effects, papers, against unreasonable seizures, violated, searches and be no shall not issue, cause, probable sup- Warrants upon shall affirmation, ported by particularly or Oath describ- searched, ing place persons be things and the or be seized.”
These
differ
in that
provisions
Oregon
Constitution
uses
active voice
refers to search
searches and seizures. There
or seizure
than
rather
no indication
of our
drafters
constitution
I,
intended Article
Sec.
different
Amendment. See generally,
History
Fourth
A
Carey,
addition,
Oregon
although
In
Constitution
early Oregon cases construed Article
Sec. without
*7
Constitution,3
reference
we
more
to the Federal
is
recently
provisions
stated that
both
scope of
above,
From the
there is no
similar.4
we conclude
reason,
of
based
either
the text or the history
on
2
Elkins,
279, 286,
State v.
245 Or
Finally, adopt merits, on the that to we note a rule requiring proof suspect that a criminal was aware of to refuse consent would tantamount requiring warning. police warning to the Miranda similar agree
As result, to such a we dissenting opinion Holman in Justice supra: Williams, promul- were and Miranda
*8 "The rules of Escobedo prophylac- Court as States gated the United preventing purpose tic measures for the upon pressures exercising psychological physical and confessions. custody to obtain admissions persons seen sufficient had theretofore While court such to merit this state abuses in evidence such [281] rules, by this court was bound prophylactic necessar- ily application Supreme uniform interpre- Court’s Amendment Fifth tation of the to the United States Constitution.
"The majority of this court
apply
now
Escobedo and
Miranda rules to searches and seizures. The application
of such rules to searches and
only
seizures can
justified on the basis that there is the same necessity for
prophylaxis because
of similar abuses
obtaining consents to searches and seizures. The United
States Supreme Court
yet
has not
determined that there
are such
on
abuses
a national
and I
scale
know of no
evidence which presently justifies such a determination
in Oregon.”
For this and because "one rule” interpret of Florance I, Evans, we decline to Article Oregon strictly 9, Sec. Constitution more than Supreme interpreted the United States Fourth Amendment in Court sup-
United States ra.5
Affirmed. dissenting. LINDE, J., majority recognizes, must, it court The this responsibility guarantees of individual has for the Rights, liberty provided Oregon’s I of Bill of article Oregon recognition means Constitution. That much, outcome of the even if court divides on the elementary present It is that determination case. Oregon any claim under the law is antecedent amendment, a state does not fourteenth since federal 5Although great the decisions of state relevance other courts are interpreting constitution, may in following our be noted that on issue the interpret states have refused to their constitutions more restric tively interprets than the United Fourth States Knaubert, 1095, 1099(1976); 53, 550 App Amendment. State v. 27 Ariz P2d Reed, 867, People Berry, 393 Mich 224 NW2d 876-77 (Mo Rocheleau, App 1975); 526 SW2d and State v. 131 Vt contrary State v. A2d case we have found to the Johnson, court, 346 A2d without NJ where different, stating why analysis under its constitution should be requires Jersey proof that the New Constitution announced suspect know of to refuse consent. violate that amendment its own constitution laws, courts, as enforced its in fact protect *9 right. Valdez, 621, claimed State v. 277 Or 561 P2d (1977). 1006 guaran constitutional Oregon’s court enforced
This
searches
or unreasonable
tee
warrantless
against
this
I,
9, many years
sec
before
seizures, Or Const art
See,
Laundy,
e.g.,
became a federal
issue.
McDaniel,
P
P 290
State v.
443,
958, 206
(1925).
965,
In this case
231 P
Second. arrest, of a defendant’s an neither incident search person immediate surround- nor of his automobile or warrant without a Rather involves search ings. arrest, a warrant when of a location remote from the readily been and rationalized might sought, custody while in defendant’s "consent” supposed Arizona, Miranda v. 384 US 16 L Ed 2d ALR 3d 974
the police station. The fact that the search was of a locker is immaterial on the constitutional issue. See — Chadwick, —, United States v. 97 Ct S L Ed 2d 538 It must be understood that view, majority’s dispensing a search warrant under these circumstances, will apply exactly same if any woman, man or custody ignorant law, constitutional to letting "consents” use taken keys from a pocket search his or go her home at rule, leisure. Under such search would not on a depend find- magistrate’s independent ing "probable cause” nor on "the describing place be searched and the seized,” or to be person thing essential safeguards of the constitutional guarantee. assent, See also ORS 133.525-133.615. Any whether given law, misconception misplaced bravado, or coercion, fear short of opens the door.
Third. The rule
the
in
by
majority
way
chosen
is
no
compelled by any
decision,
law or
federal
federal
as
the majority acknowledges.
It must stand on its own
merits
aas matter of Oregon
Oregon Hass,
law.
v.
95 S
Ct
43 L Ed 2d
Florance, 270
That have a to hold houses, papers, and and possessions free from search seizure, and therefore without oaths or affir warrants made, mations first them, a sufficient foundation for affording any may be whereby messenger officer or suspected required places, commanded or to search or any person their not persons, property, seize or his or described, that contrary right, particularly granted. not ought spirit is far from the by majority rule adopted of these declarations. early rather, is, prin- safeguards what
The question
to the
9, extends
in article
section
ciple embodied
by
is not answered
That
Oregon.
people
Bustamonte, 412 US
in
Schneckloth
decisions
(1973)
States
United
We the merits of the view which majority takes from Schneckloth and view that a be based on may warrantless search custody. in uninformed assent a suspect a post- rejected That was criticized and view who prepared report by experts Schneckloth for the Pre-Arraignment model Code of Procedure Institute, approv- Law A.L.I. American position code. The ing adopted institute consent, an the basis of undertaking before a search on is inform whose consent officer must the individual anything that he need not consent and sought evidence, and if the individual found be used as may to consult him of his custody, further inform *11 (1776). 2Pennsylvania Rights, X See also of section Declaration (1776), Rights, Maryland of of Declaration Delaware Declaration section Rights, Rights, (1776), Virginia of section section XXIII Declaration Williams, 248 Or 3The court fact had to do as much in State v. adopted be seized P2d 679 when the view evidence could suspect had could refuse "consent” been informed court, case, skipped article consent. The fact that defendant in that litigation rely to on the amendment reflects section fourteenth habits the 1960’s. of [285] counsel or friends before deciding; short, the insti- tute would treat waiver of the protection of a search warrant the same as waiver of the right to remain silent. A.L.I. Code of Pre-Arraignment Procedure sec. SS 240.2 The accompanying commentary stres- ses these points:
If there is one thing that comes through clearly from almost all issue, of the cases on this way they whichever come out on the warning requirement, it is the extreme difficulty of determining from the record the extent to which the person whose sought consent was acted on the assumption that the police right had a to make the search. unlikely
It seems any greater knowledge that there is right one’s to refuse a search than silence. warrant, The law relating availability of a admissibility search without a warrant and the evidence seized layman is at least as to the confusing relating the law to oral admissions.
Furthermore, in at respects argument least two requiring warning in the case of a consent search seems clearly stronger requiring warning than that for prior First, to interrogation. by the consent search the officer seeking is to short-circuit another means avail- able to him—the use of a warrant—to obtain evidence. No such alternative exists with respect information sought by interrogation. It justifiable seems far less omit the protection when, of the warning very act of seeking consent, the officer is depriving person from whom it sought protective screening is judicial involvement the issuance of the war- rant. . . .4 commentary reports: Id. at 534. The also practice It has been the of the FBI for decades to obtain from a person sought whose consent to a search is a written from of itself, Agent authorization. As reflected in the form warn the is to
person entirely sought rights. whose consent is of his It is not clear practice warning Agents respect what the FBI’s is when actually search, apparently warning invited to an oral given suspect sign even when a refuses to the form. Dangerous Drugs The Bureau of Narcotics and uses a consent form regulations require agents similar to that of the FBI and the *12 as the far case so go not in this need But we protection constitutional The Law Institute. American the by certainly be waived may of a warrant search determined to be it the protects; whom person waived. knowingly it has been case is whether each was explicit the person the that On fact question, that the certainly consent is before ly giving informed evidence. the evidence, it is not strongest means other prove by it may possible Sometimes given was consent warning, without even .5This is be refused it could knowledge with full by taken searches of warrantless "consent” view Schneckloth, after Jersey New of custody: was not suspect even where Art. our State par. conclude that of We under search, even in validity Constitution of a consent to a situation, in terms of must be measured non-custodial waiver; i.e., where a search on justify the State seeks showing the basis of consent it the burden of has of which is voluntary, consent was an essential element knowledge right of to refuse consent. most, request
Many persons, perhaps would view the force of having to a officer to a search as make it person law. Unless is the State that shown right knew that refuse to accede to involved he had is request, assenting such a to the search One waived a meaningful. cannot be held Johnson, 68 he unaware of State v. NJ its existence. A2d specific findings remanded court the case fact trial on the individual’s bearing court her to the search. to refuse consent knowledge would We do not know the New court Jersey whether is in when the go require warnings suspect further signed making before a consent search. The Bureau’s manual is also explicit that person given even after a has been arrested and been warning, again Mimnda obtaining must be warned as a condition consent to search. Id. at 535-536. Bustamonte, supra, See Justice Marshall’s dissent in Schneckloth v. US at 93 S Ct at Ed 2d at 36 L 897. In custody. event, any it is distressing to think that the Oregon citizens should not be safeguarded much in the stress of police custody as those of New Jersey’s are on the street.
A requirement of knowing consent, rather than merely uncoerced consent,6 would require reversal on the record Indeed, of this case. in its concentration on *13 overruling Williams, v. supra, and in line falling with Schneckloth and has majority given insufficient attention to the whether, on its facts, this case passes the test of those decisions. This is doubtful at In best. Watson, decided last year, the United States Supreme Court took the trouble to point out that Watson’s consent to the search "was given while street, on a public not in the confines of the police station,” that, and after being given Miranda he warnings, "was further cautioned that the results of the search of his car could be used against him.” 423 424-425, US at 828, 96 S L Ct 46 Ed 2d at 609. Neither factor is present Instead, this case. following occurred in the police station. The questions and answers were translated and into from Spanish, which is omitted here. Defendant was asked:
Q. Did you give us the
and
it
keys
say was all right
to go up and look in
[Translated
those lockers?
into
* * *
Spanish]
6Adoption
whether a
of "voluntariness” or "coercion” as the test
unknowingly
the courts and
constitutional
has been
sacrificed takes
(such
police
case-by-case
back to the morass of
evaluation of factors
age,
background, education,
interrogat
prior experience,
ethnic
number of
etc.)
officers,
ing
suspect
bearing
susceptibility
on the
and
atmosphere
occupied
in the 1940’s and
station that
the courts
Clark,
Haynes
dissenting,
v.
1950’s. See the
listed
cases
Justice
513,
503, 520,
1336, 1347,
Washington, 373
Ct
10 L Ed 2d
83 S
(1963),
528,
917,
Illinois,
e.g., Lynumn
L Ed 2d
372 US
83 S Ct
(1963); Gallegos
Colorado,
1209,
370 US
82 S Ct
8 L Ed 2d
Pate,
ALR2d 614
Reck v.
367 US
81 S Ct
A. asked you Spanish] [Translated you. them to * * * keys, those givin’ into us you Did force q we ingo go up there it all you did tell us was there? Yes, right.
A. all Q. right? was all You said that Yes, A. all right. Murillo:) (To him if tinder-
Q. ask officer You it him, said was that he we didn’t force stands that those lockers. look in go up us to there and all—OK for into Spanish] [Translated course, then, I OK, you A. the officers are you for officer asks you. If an cooperate have to I say I it No don’t give you. I have to something it to forced, give you. I have to anyway have been but from Spanish] [Translated to give didn’t have
Q. you you Did understand that into Spanish] [Translated ’em us? OK, you the give A. I want it’s not that don’t officers, my it telling you, I am
keys, you but as any or identification obligation you show deliver—or if I go cooperate, I’ll free thing—so other [Translated after all. go wasn’t wasn’t free to possible—I *14 from Spanish]7 not make here does
It well be that the record may search of "voluntary to a warrantless out consent” But if and Watson. Schneckloth premises remote under that a such do person Schneckloth Watson mean of a protection has abandoned circumstances not be warrant, adopted should those decisions search Bill of Oregon’s Rights. in applying dissenting C.J., Lent, J., Denecke, join opinion. 44, taped State’s Exhibit defendant It statement of station. findings, quoted by majority, should be noted that the trial court’s
appear warnings; to relate to the mentioned in the Miranda the state does not claim that the advised with record shows defendant have been respect to the search.