*1
10, 2009,
Appeals
part
affirmed in
Argued
decision of Court of
and submitted June
reversed,
judgment
part;
circuit court
and case remanded
and reversed
proceedings July
court for further
circuit
OREGON,
OF
STATE
Review,
Petitioner on
VONDEHN,
HYATT ROBIN
Review.
on
Respondent
S056371)
(CC
A128800;
C040956CR; CA
SC
463-b Erin C. Assistant Lagesen, General, Attorney Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were John R. Kroger, Attorney General, and Erika L. Hadlock, Solicitor Acting General. *4 Celuch, Portland,
David J. argued the cause and filed the brief for respondent on review.
463-c
WALTERS, J. concurring opinion in which Balmer
Linder, J., filed joined. Kistler, JJ.,
463-d *5 WALTERS, J. questions case raises two of first
This criminal right against compelled impression regarding self- Oregon Consti- in Article incrimination consequences of the failure to tution1 and warnings custody subjected person to cus- to a who is interrogation. todial
The uncontested facts establish placed warrant, him, handcuffed arrested defendant on patrol A then him in the seat of a car. officer asked back questions backpack that the officer defendant two about a passen- had in the car in which defendant had been a found *6 ger. response, admitted that he In defendant owned back- pack marijuana. sup- and that it contained The trial court police pressed those answers because the had failed to required warnings. administer the The trial court ruling suppress marijuana, not, however, did that defen- question the next that the officer asked— dant’s answer to they backpack voluntary. whether Relying could search the —was consent, on defendant’s the officersearched the back- pack, marijuana, gave required discovered warnings, questioned and defendant further. The officer got marijuana, asked defendant where he how much marijuana paid was, it, there much defendant had how responded he whether was middleman. Defendant questions, but, each of those after he admitted that he was a provide middleman, defendant declined to further informa- attorney. tion and asked for an The trial court ruled that responses post-Miranda questions defendant’s to the also voluntary they were and that would be admitted. stipulated trial,
In a facts the court found defendant guilty delivery possession of the crimes of a of controlled appealed substance.2 Defendant and claimed as error the pretrial marijuana suppress denial of his motions to post his -Miranda statements. * * * I, 12, provides, part, person compelled Article section that “no shall any testify prosecution against criminal himself.” (2003), Defendant was convicted under ORS 475.992 renumbered as former (2005). ORS 475.840 Appeals
The Court of observed that Miranda warn ings part rights granted by are an essential Article exploitation analysis and that the articulated (2005), pro this court in Hall, State v. 7, 115 339 Or P3d 908 appropriate analyze vided the framework to the conse quences failing warnings. those Vondehn, State v. (2008). App applying 492, 501-07, 184P3d 567 analysis, police Hall the court concluded that, because the marijuana post had obtained both the and the -Miranda by exploiting pr statements defendant’s e-Miranda state suppressed. ments, must be Id. at 507-10. specifically,
More the court reasoned that the backpack belonged had learned that to defendant only through pr questioning their e-Miranda and that “[defendant's [the officer’s]questions gave [the answers to officer] the information that he needed to ask defendant for consent to search it.” Id. at 508. Therefore, the Court of Appeals relationship identified a “but-for between the uncon- questioning stitutional and defendant’s consent to the search.” Id. The court then decided that the state had not demonstrated pre- that the evidence did not derive from the ceding illegality. argued The state had not to the trial court police inevitably would have discovered the evidence in absence of the Miranda violation, and the had independently not obtained the evidence of the Miranda vio- provided lation. The violation the basis for the consent to search, and the consent led to the evidence. Moreover, there intervening were no circumstances that broke the causal chain between the Miranda violation and defendant’s con- *7 Appeals sent. Because police the Court of concluded that the marijuana by exploiting had obtained the the Miranda vio- lation, it denying held that the trial court had in erred defen- suppress. dant’s motion to Id. post
As to the -Miranda statements, the Court of Appeals illegal questioning reasoned that, “but for” the backpack, search of the the officer would not have had the post questions. information on which he based his -Miranda Id. at police 509-10. The record did not demonstrate that the inevitably would have obtained the statements, later nor did police the record demonstrate that the had obtained them Id. at 510. independently violations. from the earlier had erred Appeals the trial court concluded Court post marijuana -Miranda state- admitting the the both Id. at 509-10. convictions. defendant’s and reversed ments acknowledges court that this review, the state On custody, police person the must is in that, held when has inform ing subject- person before her Miranda the ofhis or interrogation, person to and the failure to custodial the warnings required of all give the exclusion necessitates response person to the inter- makes in that the statements warning requirement Applying rogation. and exclusion- acknowledges ary also case, the state to the facts of this rule subjected custody to custodial defendant was that interrogation police he him whether was asked when backpack backpack contained and whether of the owner properly marijuana.3 concedes, the trial court Thus, the state responses inter- to that defendant’s excluded from evidence backpack rogation and that it contained he owned —that marijuana. contests, however, the conclusion The state marijuana Appeals and the statements that that the Court of defendant made after police administered respect warnings to the mari- must also be excluded. With although juana, text of that, the state first contends precludes of coerced tes- the admission Article protection uncompelled timony, it does not extend similar Alternatively, physical the state contends that the evidence. requires made without the exclusion of statements rule that the reaches prophylactic is a rule of Miranda benefit requirements beyond itself of the constitution preclude admis- rule should not be extended and that that sion of physical failure,” as the state evidence. The “mere puts not constitute a con- it, does exploitation call for a Hall and therefore stitutional violation analysis. respect post statements, -Miranda to the With acknowledgement, do not consider whether the of the state’s we As a result “interrogation.” questions See asked in this case constituted two (2007) 195, 203, 166 (defining “interrogation” Scott, as “con P3d State likely incriminating reasonably [is] to elicit an should know duct that the opinion, interrogation” elsewhere in this response”). refer to “custodial When we the Scott definition. mean that meets we *8 admissibility state contends that the sole test of their should they voluntarily, be whether were made an issue that the Appeals Court of did not reach. arguments, case,
This as framed the state’s requires that we address the effect of the failure to (1) warnings Miranda in two distinct circumstances: when interrogation giving the required commence custodial without and thereafter obtain incrimi (2) nating physical conducting evidence; when, after an interrogation, police give initial, unwarned custodial required warnings and the defendant makes further incrim inating statements. As to the first circumstance, we hold that when the conduct custodial without obtaining rights, they a I, valid waiver of 12, Article section physical violate I, 12, Article section and the derivative evi suppressed. dence that obtain must be As to the second circumstance, we hold that a trial court must exclude defen post dant’s warned -Miranda statements unless the state considering totality establishes that, of the circum police belatedly stances, when the administer Miranda warnings, they effectively accurately informed the defen rights. dant I, of his or her Article section We affirm the Appeals part, part, decision ofthe Court of in reverse it in proceedings. remand this case to the trial court for further I. INTERROGATION WITHOUT MIRANDA WARNINGS begins argument
The state its about the admissibi- lity physical evidence obtained without the benefit of “[N]o with the text I, ofArticle section 12: * * * person compelled any prosecution shall criminal testify against argues himself.” The state that that text does prohibit physical physi- not the admission evidence, even compelled cal evidence that a is “fruit” of a defendant’s testi- mony; prohibits only compelling person “testify.” it state also contends that the I, text of Article section does prohibit using person’s compelled the state from state- investigate ments to a crime and obtain evidence of the only right crime; it creates a not to have the statements * * * any proceeding.” themselves introduced “in criminal support arguments, of those the state directs us to the com- paratively wording broader of other state constitutions and privilege against discussing self- the common-law cases
to incrimination recognized I, at the time that Article as it was adopted. 12, was the text of Article sec first considered This court history 577, 160 P2d Cram, tion and its State *9 (1945). testimony whether the The issue in that case was 283 sample physician a of the as to the alcohol content of of a him under arrest and in blood, taken from while defendant’s custody, I, under Article sec violated defendant’s excep that, tion 12.4Id. at 578-79. The court noted tions, with two against provisions contain “self- all state constitutions wording provisions of those crimination.” Id. at 579. The “furnishing prohibitions “testifying” from on and evi varies “being that the witness,” dence” to but the court observed important phrasing in difference in had not been considered construing meaning. at The court also noted their Id. 579-80. against privilege self-incrimination that the constitutional generally declaratory held of the common-law had been to be privilege privilege and that that was not limited to testimo prevent compelled pro utterances, nial extended to but (quoting or chattels. Id. at 581-82 duction documents 2263). Wigmore quoted § The court 8 on Evidence also Wigmore proposition physical that, for the when evidence is by compulsion defendant, than it obtained means other long depend is admissible as as admission does not on the being upon “any called to make act or defendant utterance of Finally, applied princi at his own.” Id. ples 582. court those testimony physician to conclude that the ofthe about sample I, blood did not violate the defendant’s Article section rights. compelled 12, Id. at 593. The defendant had not been authenticity, identity, origin blood; to establish the or proved by those facts other were witnesses. Id. App Soriano, 642, 646,
In State v.
68 Or
684 P2d
(1984),
opinion adopted,
392,
1220
298 Or
693 P2d
aff'd
obtaining
The defendant had not
the act of
the blood as an uncon
contested
present that
stitutional search or seizure. This case does not
issue or the issue dis
(1995)
Fish,
48, 64-71,
cussed
(Gillette, J.,
the dissent
in State v.
use statements, the state would protection not afford the witness the same tion confers—the the constitu- right to remain silent. Id. at 662. long interpreted
Thus, this court I, has Article sec- impose compelled 12, tion to no distinction between state- physical ments evidence derived from such statements or compelled evidence to obtain statements of the use between argument reject testimony the state’s trial. We at and as impose reach of on the those limitations should now we alternative the state’s turn to 12. We I, Article section requires that argument 12, I, if Article section that, even compelled statements physical from derived evidence physical evi- is not true evidence, the same from excluded provide Miranda to “mere failure from the dence derived warnings.” argument, understanding state of that an
For
plurality
reasoning
States v.
in United
us to the
directs
(2004).
L Ed 2d 667
2620,
Ct
630,
US
124 S
Patane, 542
acknowledges
Although
defer to
that we need not
the state
interpret
Supreme
Court when we
the United States
right
I,
12, see
in Article
section
found
constitutional
state
independent
(giving
App
reasons for
at 645-46
Soriano, 68 Or
right against
interpretation
incrimination),5
self-
state constitutional
logic
opinion
the lead
finds the
the state
persuasive,
if we did not con-
be remiss
and we would
Patane
Supreme
particularly
it was
That is
so because
sider it.
protections
required,
to effectuate
first
Court
by
to the United States
Fifth Amendment
afforded
required
court later
that this
Constitution, the
by
protections
Article
afforded
effectuate
Supreme
Court’s
the name of
to both courts
known
Ct
Arizona, 384 US
86 S
decision,
(1966).
471
gun
particular
him
in
The defendant told
was
a
bed-
gave
gun.
permission
to retrieve the
room
the detective
government
The
conceded that
the defendant’s
questions
answers to the detective’s
were inadmissible under
argued
complete
Miranda,
that
the failure to
but
warning
suppression
gun
require
Miranda
did not
of the
consisting
plurality,
Thomas,
itself. The
of Justice
Chief
Rehnquist,
position
Scalia,
that,
Justice
and Justice
took the
although
“actually
the admission of
coerced statements” and
physical evidence derived from such statements violates the
give
Amendment, “a
Fifth
mere
to
failure
suspect’s
not,
itself,
does
* *
violate a
constitutional
plurality
*.”6
Thus,
reasoned,
rule to exclude evidence obtained as a result of unwarned statements. Id. at 639-43. Kennedy
Justices and O’Connor concurred in the They large part result. reasoned that Miranda was based compelled anon effort to accommodate concerns about testi- mony objectives justice system. and other of the criminal important probative physical Given value of reliable evi- justify dence, not could exclusion “a based on deterrence 6 plurality acknowledged The Court had held in Dickerson v. United States, 428, 444, (2000), 530 US 120 L S Ct 147 Ed 2d 405 by Congress, Patane, announced constitutional rule that could not altered 542 Martinez, 760, 772-89, atUS but cited Chavez 538 US S Ct (2003) (plurality opinion) proposition L Ed 2d 984 for the that a failure those constitutionally required Patane, does violate not the constitution. problems plurality’s approach atUS 641. One of the with the is that Chavez awas brought plaintiff case under 42 USC section case had 1983. not been and, criminally prosecuted therefore, evidence, derivative, no direct had or ever against However, pick plurality been used not him. we need here: a choose opinion, particularly plurality opinion addressing a federal constitutional issue us, controlling, only that is not before it therefore stands for whatever persuasive power logic carries. its
472 and a enforcement interests to both law
rationale sensitive interrogation.” during in-custody rights at suspect’s Id. an 644-45. interpreting argument that, in
To the state’s address plu- reasoning adopt ofthe I, 12, should Article section we opinion rality Patañe, examine the nature we must warnings requires purpose that court of Miranda this without the benefit that statements made and the reasons warnings are excluded from evidence. those Magee, 261, P2d 250 266, Or 744 State v. 304 (1987), 12, I, this that Article section “furnishes court stated police independent requiring administer an basis” suspects custody. prior are in The who (1986), year, Smith, 681, 301 725 P2d in State v. Or 894 Supreme had for the United States court Court’s Miranda discussed basis decision and similar whether required Oregon awas were Constitution. Smith opinion that resulted in the affirmance ofdefendant’s divided custody that the defendant was not in conviction on the basis the court he made the unwarned statements. When when then decided Magee, reprise arguments that it it did not or its historic had considered in Smith state the rationale for decision. Magee, consistently this court has held that
Since
Oregon
requires suppression of statements
Constitution
e.g.,
warnings. See,
made without the benefit of Miranda
(2006)
643-44,
Or
22
Roble-Baker,
631,
State v.
340
136 P2d
(suppressing
during
made
custodial
unwarned statements
(1990)
interrogation);
1, 7, 791
Smith,
State v.
310 Or
P3d 836
(so stating).
full extent
the court’s
discussion
suspect
that,
rationale for
rule has
state
been to
when
subjected
interrogation, warnings
is
custodial
are neces
“
sary
exists in
‘because of the inherent level of coercion that
”
interrogations.’
Scott,
200, 166
195,
such
State v.
343 Or
(2007) (quoting
Joslin,
373, 380,
332
29
P3d 528
State v.
Or
(2001));
Meade,
also
P3d
see
State v.
327 Or
(1998).
discussing
requirement
P2d 656
Further,
interroga
suspects subjected to
advise
custodial
right
counsel, stated
tion of the
to assistance of
court has
warning
lawyer’s
particular
required
“a
that that
because
presence
way
at a custodial
is one
to ensure the
right
compelled
to be free from
self-incrimination.” Meade,
suspect
327 Or at
A 339.
must be informed if an identified
lawyer
appointed
seeking
has been retained or
and is
to con
suspect.
sult
suspect
with the
Without that information, the
knowingly
right
cannot “be said
to have waived his or her
against compelled self-incrimination
I,
under Article
(citing
Haynes,
Joslin,
12.”
him “without him ofthe fact that court-appointed lawyer he had a lawyer or the fact that the had asked to consult with defendant before further interro- gation place.” took The court then stated that its rationale for suppressing the statements that the defendant had made during interrogation that was “ * * * preserve ‘to rights to the same extent if govern- * * *
ment’s stayed officers had within the law. In the con- text prosecution, of a criminal the focus then protect- is on * * ing the rights individual’s vis-a-vis government *.
“ ‘This focus on protection individual under the exclu- sionary rule, a rule operates that to vindicate a constitu- right courts, tional in the supports the constitutional rule * * *. [T]he constitutionally significant fact is that Oregon government seeks to use the evidence in an Oregon criminal prosecution. true, Where that Oregon is con- ” protections stitutional apply.’ (quoting Id. at 518-19 Davis, State v. 313 Or 246, 253-54, 834 (1992)) (alterations original; P2d 1008 in internal citations omitted). In the Davis case that the court in Simonsen quoted, the court held that evidence obtained in violation of a suspect’s rights to be free of unreasonable search and seizure Oregon under I, Article 9, section of the Constitution must be suppressed, explained that, to effect to constitu rights, government tional cannot “obtain a con criminal through viction the use of evidence obtained in violation of [those rights].” Davis, Or 313 at 253.
474 cases —State v. earlier
Davis
in turn relied on two
Isom,
and State (1983),
306
Davis,
P2d 802
227,
295 Or
(1988).
case, the court
In the former
P2d 524
587,
Or
intended to deter
rule of law is
that, although every
noted
so,
it does
deterrence
and is successful when
conduct
contrary
the exclusion of
basis for
constitute a constitutional
does not
stated,
Davis,
With
a rule that
adopt
per-
that we should
argument
alternative
obtain
police
the admission of
evidence
physical
mits
warnings. making
without the benefit of Miranda
In
that
argument,
that,
the state concedes
if the constitutional vio
lation at issue results
coercion,”
from “actual
then all evi
including physical
dence,
evidence, obtained
aas result ofthe
violation must be excluded from evidence. See Soriano, 68 Or
(“Prohibition
App
illegal
at 662-65
of the use of the fruits of
police activity
necessary
in court is
to vindicate the violated
rights.”);
(acknowledging
Patane,
The contends, state however, that we should reach a different conclusion when the I, violation of Article section provide warnings” 12, is a relying “mere failure to persuasive plurality on the reasons to in Patane: that suspect’s such a failure does not violate a constitutional given important physi that, value of reliable evidence, cal the Miranda rule should not be extended to immediately premise exclude it. It obvious that the of argument Oregon state’s does not hold here. It is the Consti requires Oregon tution that and it is the Constitution that is violated when those are not given. police When the violate Article whether violation consists of “actual coercion” or warnings necessary knowing failure to to a 7 Miller, police physical found evidence when the defendant handed keys so, them the to a hotel room. Before the defendant did he had told the that he lawyer. did not want to talk disregarded to them without a had questioning. statement and continued their It was then that the defendant keys. asserted, handed over the waived, The court found that the defendant had and not right his to counsel under the Fifth Amendment. Id. at 224.
476 using precluded
voluntary
evidence
from
waiver, the state is
It
a criminal conviction.
to obtain
from that violation
derived
ineluctably
police
I,
Article sec
that, when the
violate
follows
warnings,
required
by failing
12,
tion
using physical
precluded
is
evidence
from
state
derived from
defendant.8
prosecute a
violation to
that constitutional
apply
principles that
incumbent on us to
It is now
noted, defen
this case. As
enunciated to the facts of
have
we
patrol
custody,
hand
of a
car and
in the back seat
dant was
interroga
subjected
police
him to custodial
cuffed, when
right
and to advice
to remain silent
Defendant had the
tion.
police
their custodial interro
counsel,
conducted
of
gation
but
rights.
obtaining
ofthose
When
a valid waiver
without
police
12. That con
so,
I,
violated Article
section
did
requires suppression ofboth the answers
violation
stitutional
marijuana
gave
response
to,
and the
that defendant
of, that
and seized as a result
the
interrogation.
identified
response
to the
officer’s first unwarned
backpack belonged
question,
that the
the officer learned
ques-
response
unwarned
defendant. In
to the officer’ssecond
marijuana in
learned that there was
tion, the officer
backpack.
information, the officer then
With that relevant
immediately
backpack
requested consent to search the
argu-
marijuana.
court,
In this
the state makes no
seized
request
ment that the
for consent to search or the seizure
marijuana
from some source other than defen-
derived
questions,
unwarned
nor does the
dant’s answers to those
argue
responses,
that, even
defendant’s
state
without
marijuana.
police inevitably
Thus,
would have obtained the
marijuana
case,
derived from the
in this
we conclude
note that the result we reach is consistent with that of other state courts
We
See, e.g.,
under their state constitutions.
State v.
that have decided the same issue
(2007)
436, 923
Peterson,
(physical evidence obtained in violation of
181 Vt
A2d 585
tree”);
poisonous
Common
must be excluded at trial as “fruit of
(2005)
Martin,
(physical evidence derived
v.
444 Mass
suspect under him arrest and took to the station administered Miranda and, when the suspect rights, interrogated waived his him. The defendant charged burglary sought suppress was post- with and his illegal Miranda statements as the “fruit” of the Miranda violation. rejected argument.
The Court defendant’s It ruled admissibility any “solely such statement turns on knowingly voluntarily whether it is and made.” Id. at In 309. considering post whether the defendant’s -Miranda state- ments standards, met those the Court discounted whatever psychological impact that his unwarned statements could have had on his later waiver of his Fifth Amendment and found the warned statements admissible because the and his admission prior defendant’s between
connection attenu- “speculative was cooperate decision ultimate at 312-14. Id. ated at best.” the issue explored again Court Supreme
In Seibert, 542 US in Missouri of belated (2004). case, the In that 2d 643 2601, 159 L Ed 600, 124 S Ct to withhold decision” made a “conscious had officer in the sta interrogation conducted The officer warnings. exhaus “systematic, was house, and tion skill.” Id. at 616. psychological with tive, managed to the in response statements incriminating made defendant minutes, 15 to 20 only Then, pause after interrogation. recited the Miranda in the same officer, place, the same that her prior the defendant did not advise warnings but the officer referenced fact, could not be used. statements used them to convince earlier statements the defendant’s Justice Souter wrote earlier confesson. her to her repeat that all of the defen and concluded of the court four members not as must suppressed, -Miranda statements dant’s post the state had act, but because unlawful prior the “fruit” of *17 were warnings belated not established at 604 (plurality opinion). “effective.” Id. as follows: reasoning its explained
The plurality
satisfy
required
[is]
‘no talismanic incantation
“Just as
strictures,’
Prysock,
v.
453 US
[Miranda’s]
California
(1981)
curiam), it
(per
L
359[,
696]
S Ct
69 Ed 2d
litany
recitation of the
to think that mere
would be absurd
every conceivable circum
satisfy Miranda in
suffices to
warnings
whether
inquiry
simply
‘The
stance.
rights
required
his
reasonably “conve[y]
suspect]
[a
’
195, 203[,
US
109 S
Eagan,
Miranda.” Duckworth
(1989)
at
(quoting Prysock, supra,
2875, 106
166]
L Ed 2d
Ct
361).
question first
interrogators
when
The threshold issue
it
be reasonable to
later is thus whether would
and warn
warnings could func
find that in these circumstances
warnings
Could the
‘effectively’
requires.
as Miranda
tion
that he had a real choice
effectively
suspect
advise the
juncture?
statement at
giving an admissible
about
stop
choose to
reasonably convey that he could
Could
For unless the warn
if he had talked earlier?
talking even
just
interrogated
suspect
who has
been
ings
place
could
position
prac-
choice,
to make
an
such informed
there is no
justification
accepting
tical
pliance
the formal
as com-
treating
stage
Miranda,
with
or for
the second
of
first,
as distinct fromthe
unwarned and inad-
segment.”
missible
(alterations
omitted).
original;
Id. at 611-12
footnote
plurality
identified,
Seibert
in the contrast
between Elstad and Seibert, a “series of relevant facts that
bear on whether Miranda
delivered midstream
enough
accomplish
object[.]”
could be effective
their
(1)
complete-
Seibert,
Justice concurred in the but his approach Kennedy opined to the issue was different. Justice question-first technique high “creates too a risk that postwarning suspect statements will be obtained when a was deprived knowledge ability essential to his to understand consequences the nature abandoning of his and the (internal quotation them.” Id. at 621 marks and citation omitted). post-warning He concluded statements only technique should be excluded when that is used delib- erately. police purposely engage Id. at 622. When the in a two-step interrogation, Kennedy opined, “postwarn- Justice ing prewarn- statements that are related to the substance of ing specific, statements must be excluded absent curative that curative *18 steps.” Kennedy explained Id. at 621. Justice designed measures “should be to ensure that a reasonable person suspect’s in the situation would understand the import warning and effect ofthe Miranda and ofthe Miranda waiver[ ]” example, include, could a substantial break warning in time and circumstances or an additional likely prior Id. be inadmissible. statements would unwarned at 622. penned Elstad, the O’Connor, the author of
Justice remaining of the court. She the four members dissent for agreed admissibility plurality should the that the test of with Kennedy objective determined, Justice one and not as be an intentionally: police urged, by acted whether experienced exactly interrogation the same suspect “A who Seibert, undivulged, subjec- in the as save for a difference interrogating give officer when he failed to tive intent of experience warnings, Miranda would inadvertent, or any differently. Whether intentional question to the of the police state of mind of the is irrelevant intelligence respondent’s and voluntariness of election to rights.” abandon his (internal quotation marks and brackets
Because we by States, Constitution, not the United we are not bound Nevertheless, in either Court’s decisions Elstad or Seibert. reasoning helpful they find the in those cases we focus, because purpose must, as we on the source and for the Miranda requirement and the exclusion of evidence obtained when given warnings required. are not prior Oregon indicates,
As our discussion require Constitution does not the exclusion of evidence warnings illegal in the absence ofMiranda to deter obtained police Oregon requires conduct. The Constitution to ensure that a conferred waiver knowing voluntary. Article I, as well as When give required warnings, suspect’s the responses fail to questions
to their unwarned must be excluded police then from evidence. When the the correct course and required warnings, inquiry the relevant must whether pur accomplish the belated pose tially are effective and are intended. The fact that the ini for which rights by failing violate a defendant’s constitutional
481 warnings necessary pre the ato valid waiver does not validly waiving rights. clude a defendant from later those If police accurately the state establishes that tively, although belatedly, gave the and effec suspect information
the the necessary right against to a valid waiver of the self-incrimi Oregon suspect’s nation, then, under the Constitution, a sub sequent voluntary arriving statements will be admissible.9 In adopt reasoning analysis conclusion, at that we the and the of plurality the Siebert as our own. police give warnings
When the Miranda at the time they required, are first the constitution does not demand warnings that the state establish that the were effective.The only police state need warnings establish that the recited the completely coherently.10 problem and that Seibert dem police question onstrates, however, is that when the first and later, warn authority their exhibition and exercise of and vio rights may lation of the defendant’s constitutional communi they cate to a defendant, as the Court believed did in that case, that, before the defendant will released, he or she questions must answer the police asked. In circumstance, the only provide not fail to the defendant with the infor necessary mation to a valid waiver—that the defendant has a right to remain attorney silent and to confer with an —the police convey contrary message. also In that situation, warnings, when the not assume later administer Miranda we can warnings
that the mere recitation of Miranda sufficient to serve the intended informative function. being
That said, we note that Seibert is at one end of range present of the factual circumstances that the issue every that we address. Elstad is at the other. Not instance in police question which the first and warn later communicates message. a mixed Whether and to what extent officers 9 always requirement Voluntariness of course is for admission of a defen incriminating dant’s may statements. Even warned statements be inadmissible if voluntary. Montez, are not 564, 572, otherwise See State v. 789 P2d (1990) (assessing warnings voluntariness of statements made after were “equivocal” administered and defendant regarding request made remarks to con attorney). sult with acknowledge, course, We that a defendant is entitled to demonstrate (whether otherwise) testimony defendant’s own or that the defendant’s waiver knowing. So, example, was not may a defendant demonstrate that he or she did warnings cognitive linguistic understand the due to or limitations. beginning before administer
who fail to the informa or contradict interrogation obfuscate custodial intended to that convey are tion officers later correct extent those and what whether must confront that trial courts misinformation are issues all so, courts should consider relevant doing determine. circumstances, plurality facts which including those and detail Seibert pointed —the completeness ques interrogation, round of answers in first tions and given by suspect, content of the statements overlapping second interroga of the first and the setting timing sessions, continuity personnel, degree of police tion *20 the round questions treated second interrogator’s which the first, and the the whether of as continuous with statement could that the earlier unwarned cautioned police any be in subsequent prosecution.11 not used used if not case, Appeals many, In this the Court of tree,” “fruit or all, poisonous “exploi of those facts in its of the tation,” analy difference that court’s analysis. The between in the facts considered but in the stick is sis and our own In our require analysis, which that be measured. by they we warnings objective the the an efficacy test of belated A the to determine one. court considers factual circumstances the the of the information that accuracy effectiveness to a does not use those circumstances convey; court police determine that the effect the attempt psychological partic conduct had on the defendant police ular course of particular the the or whether initial failure to warn caused particular -Miranda statements. post defendant to make the in this for the Although neither case advocates party Justice in Seibert —that the Kennedy view articulated by of that a defendant makes after admissibility statements be belatedly given are should determined in police intentionally two-step whether the a by engaged to state helpful think it interrogation process explicitly —we 11 applying have We note that other state courts their state constitutions also admissibility post-Miranda used multi-factor tests determine the of statements. Paulman, O’Neill, 148, 180-81, (2007); People State A2d v. See 193 NJ 438 130-31, Northern, (2005); 5 NY3d NE2d 239 and State v. 262 SW3d (Tenn 2008). 763-64 reject approach. subjec that we that Our focus is not on the police objective message tive intent of the on the but that the police actually convey techniques they that use and they give. mean, that That does not however, police entirely deliberateness with which the act is Isom, instance, irrelevant. In for the defendant established purposely disregarded request had his counsel, and this court did not hesitate to hold state ments that he made thereafter were obtained violation of police purposely I, 12. at Article section 595. If the legal practical significance obscure the aof belated admonition, Seibert, did in it will not dif objective ficult for a court to determine under the test that we today accurately describe did not and effec tively necessary deliver the information to a valid waiver of rights. Article
Finally, it remains for us to decide whether the trial admitting post- court in this case erred in defendant’s Miranda statements. doTo so we must review the facts in initially more detail than stated. stop
This case arose from a routine a roadside of car investigate possible driving a traffic violation and under passenger influence intoxicants. Defendant was a driving. Stoneberg car, a which friend was Officer made stop; Espelien, shortly officer, second Officer arrived Stoneberg approached afterward. driver’s side the car strong marijuana. did, and, as he smelled odor of fresh *21 Espelien approached passenger’s initially the side and Stoneberg waited near the rear corner of the car while talked Espelien, very strong to the driver. likewise, a smelled odor of marijuana. thought fresh Both officers that the smell was strongest Espelien towards the trunk area of the car. (the approached passenger) defendant to ask him for identi initially fication. Defendant lied he but then about who was gave, Espelien Espelien the correct information. discovered outstanding Stoneberg an warrant for defendant. therefore arrested defendant, him, handcuffed and had him sit in the patrol completed investigation. back of the car while he his Stoneberg did not to defendant at point ordinarily any because he does not conduct kind of person questions
investigation on an out a arrested ask of or standing warrant. investigation
Stoneberg of the driver. his continued weapons any illegal drugs or if there were He asked her Stoneberg for, her and the then asked no. the car. She said gave, car. In the course to search the consent driver point Stoneberg opened the trunk, the car at which search, stronger. only marijuana became even smell of fresh Stoneberg, backpack. According thing in a the trunk was really [him]” backpack and, “is hit was not from the what smell backpack empty. upon lifting it, he could tell that the backpack, weight point, given ofthe the smell and At that quantity Stoneberg of that there was substantial believed backpack Stoneberg marijuana if asked the driver in it. Stoneberg open it, she told if he could and was hers and belong it, her and she to her. He asked who owned it did did not know. said she
Stoneberg patrol to the car with the then walked opened backpack, door, if and asked defendant the back yes. Stoneberg belonged backpack to him. Defendant said marijuana defen- inside, if there was asked defendant Stoneberg yes. asked if he could search the back- dant said Stoneberg Stoneberg pack, he could. then and defendant told backpack standing patrol car, while searched presence, grocery found defendant’s two folded-down bags, marijuana. containing each fresh Stoneberg searching backpack,
After walked Espelien over to and consulted with him. After about five Stoneberg patrol minutes, to the car to ask defen- went back marijuana. questions point, At more about the he dant gave warnings. he defendant Miranda He asked defendant if rights, and defendant said he did. Defendant understood his Stoneberg’s ques- agreed his to answer waived questions Stoneberg asked defendant several about tions. Stoneberg marijuana. particular, where asked defendant got gotten marijuana; explained that he had he defendant Stoneberg day asked much it in Tualatin the before. how bag; marijuana was in each defendant told him that each bag quarter pound marijuana. contained about a Stoneberg marijuana cost; much the defendant asked how *22 paid marijuana. said that he had a total $2,200 of for the Stoneberg asked if defendant he was a middleman. Defen- yes. Eventually, Stoneberg dant answered told defendant that he would like to know more about his middleman role. In response, Stoneberg lawyer. defendant told a that he wanted Stoneberg Espelien any Neither nor asked defendant further questions. post questions place -Miranda took intermit- tently period. over a 15- to 20-minute time
Both officers described their contact defendant with Espelien as in conversational tone. further described defen- gave dant, once defendant his correct identification to Espelien, seeming apologetic and even of ashamed the cir- “very cooperative” cumstances. Defendant remained and willingly questions Stoneberg answered until, when asked middleman, more information about a his role as he right his invoked counsel.
We now consider all those facts to determine warnings, given, accurately whether the Miranda when effectively conveyed necessary knowing the information to a voluntary right against of waiver self-incrimination. We first observe that there was marked difference in the questioning Stoneberg before and after administered the warnings. questions The unwarned were routine in nature and consumed less than a minute of time.12The sec- questions significantly ond warned were more detailed and probing. This was a situation, Seibert, like that in questioning which the conducted extensive and elicited significant interrogation detailed facts in the first session repeated questioning post and then -Miranda. although posed Stoneberg
Second, the second set of questions shortly after set, the first there was a break in the questioning. questions Given that the first set consumed questions, minute, less than a the five-minute break between warning, objective followed the Miranda was an indica- changed governed by tion that the situation had and was new Again, rules. this was not a circumstance, Seibert, like that in interrogation protracted in which both sessions were brevity questions Stoneberg asked, Given the ofthe initial three and the gave reply, one word answers defendant the total amount time involved questions only for all perhaps three would have been a matter of 30 seconds or less. circumstance, In such a station. at the
conducted not be of sessions would between short break import. the same *23 Stoneberg although did not defendant caution
Third, could not be used in earlier unwarned statements that his any proceeding, point subsequent defen- neither did he out to already Seibert, had in that defendant as did the officer dant, provided incriminating all ofthe infor- disclosures that made Stoneberg at least some of fact, And in needed. mation that Stoneberg the back- had obtained —that that the information obviously marijuana pack discernable from contained —was backpack an offi- itself. When odor ofthe another source—the that the unwarned statements a defendant cer does caution may admissible, that caution that the defendant made will) (indeed, finding may in militate often favor warnings effective, a were but such officer’sbelated Miranda necessary is not to that result. caution although under arrest and Fourth, defendant was Stoneberg questioned in when him and was thus handcuffed subjected compelling inherently circumstances, he was not to questioning their The conducted additional coercion. tone and it of short duration. a conversational was outlined lead us to conclude The facts that we have gave Stoneberg Miranda that that belated effectively accurately had, that defendant communicated right forth, from that time to remain silent. We therefore although agree reasons, court, the trial for different with post should been defendant’s -Miranda statements have admitted. Appeals affirmed in
The decision of the Court of is part. judgment part ofthe circuit court is and reversed in to for fur- reversed, and the case is remanded the circuit court proceedings. ther concurring.
LINDER, J., explain my separately reasons for concur- I write ring respect physi- majority decision, with to the in the both defendant, before obtained when cal evidence that warnings, being given ofhis consented to the search backpack respect and with to the statements that defendant being given warnings. made after urging marijuana seized from defen backpack suppressed, dant’s should not be the state has argument seeking per advanced an ambitious se rule that physical subject evidence is under never exclusion Article reasoning protection against I, section self- incrimination is directed to testimonial only. in-court evidence majority’s rejection per
I
concur
of that
se rule. As
it,
this court has described
our state-law based Miranda rule
judicial
guarantee against
“a
is
means” to secure the
com
pelled self-incrimination, one that
this court has devised
appropriate
specify
proce
it
because
for this court “to
guarantee
[Article
against
dure which
section 12’s
com
testimony]
pelled
Mains,
is be effectuated.” State v.
(1983).1
640, 645, 669
Thus,
P2d 1112
the rule is constitution
grounded,
ally
even if Miranda
and waiver ofthem
*24
procedures
are
that the constitution does not itself mandate.
procedural requirements
prop
those
violated,
When
are
we
any
erly
subsequently
phys
ask whether
evidence,
obtained
sufficiently product
ical or testimonial, is
a
ofthat violation to
require suppression along
any
with
statements made in
response
interrogation.
direct
to unwarned custodial
And
judicially
proce
because the Miranda doctrine is a
devised
protection,
adopted
dural
one this court has
as a matter of
law,
state
it falls to this court to determine whether and
accept
adopted
1 I
independent
that this court has
as an
I,
requirement
is,
pedigree
however,
under Article
section 12. The
of that doctrine
attempted
decide, consistently
in
uncertain.
the one case
which
court
to
with
methodology
interpreting original provisions
constitution,
our announced
for
of our
Miranda-type
whether a
rule could be divined from Article
three
court)
(of
no,
members
a six-member
concluded that the answer was
while three
yes,
only
others believed the answer was
but
two believed that
the rule could
anything
custody
Smith,
extend to
other than formal
or arrest. See State v.
301 Or
(1986).
then,
exploring
interpretative
Here, the giving questions without first Miranda warn- total of three ings. backpack. question whether defendant owned The first was through layers continuing trial,
At required appeal, the state has conceded that the officer was a waiver defendant Miranda and obtain asking question. present purposes, I For before will is assume that concession correct.2 however, many noting, potentially It is a close one. In worth issue circumstances, police conducting investigation need to when field ascertain inquiry property property, in order to ask for consent to search that their owner may *25 preceded by warnings. qualify “interrogation” not that be as must Here, backpack the to to ask for consent to officer needed determine who owned the driver, it, backpack belonged among have to the search other reasons. The could belonged though It even she denied that it did. It could have to defendant. could car, belonged parents, the have to the driver’s who owned or to some other also circumstance, identity attempting party. to third In such a determine normally may potentially qualify questioning kind routine atten owner of activities, custody arrest, trigger investigatory that not dant to or even does LaFave, requirement warnings. generally Wayne 2 Criminal ofMiranda See R. 6.7(b) (3d 2007) (general investigatory questions ordinarily con ed §
Procedure cases). case, interrogation; citing representatives appropriate an In sidered may it in this case. merit closer attention than has received issue question
The officer’ssecond
was whether there was
marijuana
backpack.
question
quintessen-
was,
in the
That
tially, interrogation. Any
asking if con-
reasonable officer
marijuana
question
tainer has
in it would
know
incriminating response
inculpatory
could elicit an
an
or
i.e.,—
exculpatory response
prosecution might
an
that the
seek to
lawfully
use at trial.3 To
ask
was under
defendant —who
question,
required
arrest —that
the officer was
to advise
rights.
defendant of his Miranda
The officer did not do so.
question
The officer’sthird
if defendant
asked
would
backpack.
impermis-
to a
consent
search of the
That was not
interrogation. Asking for
sible
consent to search is a mere
request
permission.
gives permission
for
The answer either
response
inculpatory
exculpa-
it
not;
or does
is neither
or
be).
tory (although,
sure,
results of the search can
apparent unanimity,
throughout
country
With
courts
question
asking
that have
considered
have held that
for
meaning
consent to search is not
within the
e.g.,
See,
the Miranda doctrine.
Smith,
U.S. v.
3 F3d
(7th
(1994) (so
1993),
den,
Cir
cert
Thus,
defendant,
at
best
the Miranda violation in
questions,
this case consisted of two short
each of which
no)
(yes
response.
analyzing
called for a one
or
word
physical
pursuant
whether the
evidence seized
to defendant’s
majority
consent was “derived” from that violation, con-
only
cludes—with
brief discussion—that it was. 348 Or at
majority’s
It
475-77.
is unclear what test the
“derived from”
majority
explain
test
turns on
which
The
entails.
does not
whether the test
exploitation,
way
causation,
or
or some other
may
illegality
an
initial
be said to “taint” evidence that
police gather
illegality. Knowing
after that
the nature of the
applies
important.
majority
from” test
“derives
appears
is
fact,
to conclude that
is,
there
a “derived from”
3 “Interrogation,”
express
purposes,
question
both for federal and state law
(other
ing,
part
normally
as well as words or actions on the
than those
custody),
reasonably likely
attendant
arrest and
should know are
produce
incriminating response,
inculpatory
exculpatory.
to
Scott,
an
whether
or
v.
State
(2007)
195, 202,
(adopting
490 illegal questioning and defendant’s the
connection between
places the bur
case,
this
and therefore
to search in
consent
disprove
476-
348 Or at
that connection.
the
to
den on
state
it must
burden,
that
state is to have
least,
the
if the
77. At
disprove.
important,
point,
at some
it
As
know what must
meaningful
litigants
are entitled to
and lower courts
both
Wong
analysis
applies. Compare
guidance
the
that
Sun
toas
L
2d
States,
471, 487-88,
US
83 Ct
9 Ed
v.
371
S
United
(1963) (“but
enough to establish that
441
for” causation not
prior illegality),
product
the
a
with
to search is
of
consent
(defendant
(2005)
Hall,
7, 34-35,
The state’s as I have issues, Instead, of however.4 examines none already those per argues only matter, a that, the as se noted, state subject suppression physical under evidence is never directly immediately and Article no matter how particular case, of a Miranda violation. this derivative given argument, contrary no the fact that the state has made prepared particular that, I am stances of this to conclude under the circum- request part
case, the to search was officer’s impermissible questioning, parcel unwarned at and of place point enough on the state to to the least burden legally factually break that con- circumstances that either or it so, has I But nection. Because the state not done concur. explore, way a do in cases to in that we not remains for future case, after a Miranda violation this when evidence obtained properly can said to “derive from” that violation. respect subsequent, post-
With
to defendant’s
majority essentially
warning statements,
4
argued
probable
The state also has not
on review that
officers had
cause
marijuana,
backpack
solely
to believe that the
contained
based
on the odor of mari
it,
juana coming
it
from and that
could therefore seize and search
under
(2006) (dis
Meharry,
173, 149
exception.
v.
automobile
cussing
See State
P3d 1155
exception
requirement).
prosecution
that
that
to the warrant
relied on
court,
theory
explicit finding
court
an
that
in the trial
and
trial
made
the auto
stop.
may
though
have
mobile was
at the time of the
Even
the trial court
mobile
ground
ruling,
exception
independent
its
alternative
for
relied on
as an
exception
Appeals.
in the
of
did not raise the automobile
Court
The state
state
not)
(and,
noted,
rely
exception
does
on
in this court. See
therefore cannot
(on
(1988)
court,
639, 644,
Cupp,
v.
I
see,
have no
to that
I
test.
lit-
“totality
tle or no difference in the
of the circumstances”
analysis
analyze
totality
used
to
issue and the
of the cir-
long
place
analyze
cumstances
test
has
been in
to
the
following prior illegal
a
voluntariness of confession
conduct
e.g.,
police. See,
v.
Or
Wolfe,
567, 572,
State
295
669 P2d
(1983) (drawing
totality
from
320
of circumstances test in
Illinois,
590, 603-04,
Brown v.
L
US
95 S Ct
45 Ed
(1975)).
2d 416
important
emphasize, however,
What is
to
is the dis-
plurality
tinctive context in which the Seibert
fashioned that
plurality
very
test. The Seibert
identified that context in the
opinion:
first sentence of the
become,
protocol
the case involved what had
“police
increasingly popular
at
at
time,
least
the
an
interrogation
giving
for custodial
that calls
no
warnings
rights
interroga-
to silence and counsel until
produced
warnings
confession,”
tion has
a
after which
are
given
police
“lead[ ]
suspect
then
the
to cover the same
ground
plurality
a second time.”
as punctuate warnings formally simply ation because middle.” Id. at 614. them in the plurality expressly in Seibert also contrasted
The
had
in
it
those that
been involved
circumstances before with
Oregon
L
2d 222
298, 105
S Ct
84 Ed
Elstad,
US
(1985), noting
in
taken care to
the Court
Elstad had
grveMiranda warn
initial failure to
characterize the officer’s
“oversight.”
ings
Seibert,
As other courts have equivalent plurality’s test, ofthe Seibert “effectivewaiver” an totality objec- examination of of the circumstances an person’s permits perception tive of those circumstances no “bright-line O’Neill, rule.” State v. 193 NJ 936 A2d (2007). But the test on circum- because focuses objectively perceived, would be we should stances acknowledge danger rendering warnings of Miranda greatest nullity spec- at the end of the factual Seibert danger its at Likewise, trum. is at lowest ebb the Elstad question-first spectrum, end of the factual where no tech- nique protocol objectively appears work, to have at or been questioning the initial is minimal and the unwarned where later statements are more limited less detailed than given warnings, ones, there where, what went before is some substantial break in the circumstances.5 The facts this case it readily bring which, within the class of cases in the initial Miranda viola- objectively, circumstances tion are not such that they rendered the belated Miranda or defendant’s waiver of his ineffec- tive. reaches majority correct conclusion in that regard. reasons,
For those I respectfully concur. Kistler, JJ., Balmer join in this concurrence. spectrum, case that on falls the Elstad end of the provide themselves will often the needed substantial “break”in the circumstances. *29 spectrum, In a case that may rarely stances, falls on the Seibert end of the alone case, among possible attenuating suffice. In such other circum probably advice that the earlier unwarned statements are not admissible against significant intervening weigh heavily defendant is a factor that will on rendering subsequent the side of warned statements admissible.