State v. Delong ( 2015 )

No. 23 June 18, 2015 365
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
WILLIAM RICK DELONG,
Respondent on Review.
(CC 09CR1050FE; CA A146907; SC S062176)
En Banc
On review from the Court of Appeals.*
Argued and submitted October 8, 2014, at Bend Senior
High School, Bend, Oregon.
Michael A. Casper, Deputy Solicitor General, Salem,
argued the cause and filed the brief for petitioner on review.
With him on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
Daniel C. Bennett, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Shauna M. Curphy, Portland, filed the brief for amici
curiae Oregon Justice Resource Center, Albina Ministerial
Alliance Coalition for Justice and Police Reform, The
Portland Chapter of the National Lawyers Guild, Inc., and
the American Civil Liberties Union Foundation of Oregon,
Inc. With her on the brief were Sara F. Werboff and Jordan
R. Silk.
KISTLER, J.
The decision of the Court of Appeals is reversed, and the
case is remanded to the Court of Appeals for further pro-
ceedings consistent with this decision.
______________
*  Appeal from Douglas County Circuit Court, Joan G. Seitz, Judge. 260 Or
App 718, 320 P3d 653 (2014).
366 State v. Delong
Brewer, J., concurred and filed an opinion.
Walters, J., dissented and filed an opinion in which
Baldwin, J., joined.
Baldwin, J., dissented and filed an opinion in which
Walters, J., joined.
Case Summary: During a traffic stop, a deputy sheriff placed handcuffed
defendant, placed him in a police car, and asked him if “there was anything that
we should be concerned about” in his car without first giving defendant a Miranda
warning. Defendant responded, “ ‘No,’ and that if [the deputies] wanted to search
the vehicle [they] could.” The search resulted in the discovery of methamphet-
amine and drug paraphernalia and, after the deputies read defendant a Miranda
warning, defendant gave incriminating statements. Defendant moved to sup-
press the physical evidence during the search and the statements that he later
made on the ground that that evidence was the product of the earlier Miranda
violation. The trial court denied the motion. The Court of Appeals reversed.
Held: (1) voluntary consent to search can attenuate the taint of failing to give a
Miranda warning in violation of Article I, section 12, of the Oregon Constitution;
(2) in determining whether an invitation to search breaks the causal connection
between a Miranda violation and subsequently obtained physical evidence, the
nature of the illegality, the character of the consent, and the causal relationship
between the two will bear on whether the physical evidence is attenuated from
the violation.
The decision of the Court of Appeals is reversed, and the case is remanded to
the Court of Appeals for further proceedings consistent with this decision.
Cite as 357 Or 365 (2015) 367
KISTLER, J.
During a traffic stop, a deputy sheriff placed defen-
dant in custody and then asked him, without first advis-
ing him of his Miranda rights, “if there was anything we
should be concerned about” in his car. Defendant “told [the
deputy] ‘no,’ and that if we wanted to search the vehicle, we
could.” On appeal, the state conceded that the deputy vio-
lated Article I, section 12, of the Oregon Constitution when
he asked defendant that question without first advising him
of his Miranda rights. The state argued, however, that the
physical evidence that the deputies later found in defendant’s
car did not “derive from” the Miranda violation. The Court
of Appeals disagreed. State v. Delong, 260 Or App 718, 320
P3d 653 (2014). Relying on State v. Vondehn, 348 Or 462,
236 P3d 691 (2010), the Court of Appeals reasoned that both
defendant’s offer and the resulting evidence derived from
the violation. Having allowed the state’s petition for review,
we reverse the Court of Appeals decision and remand this
case to the Court of Appeals.
Sergeant Robeson worked for the Douglas County
Sheriff’s office.1 One evening, while Robeson was on patrol,
defendant’s car pulled out in front of Robeson. Apparently
noticing Robeson’s marked patrol car behind him, defendant
“immediately pulled off” into a store parking lot. Robeson
continued driving, went around the corner, and pulled over
to the side of the road to see if defendant would resume
driving once Robeson passed by. “[A] few seconds later,”
defendant drove past Robeson. In doing so, defendant con-
firmed Robeson’s suspicion that he had been trying to avoid
Robeson, and he also gave Robeson the opportunity to see
that he was not wearing a seat belt.
Robeson stopped defendant for that traffic violation.
See ORS 811.210 (requiring that drivers wear seat belts). He
approached defendant’s car and asked him for his driver’s
license, registration, and proof of insurance. Defendant gave
Robeson his name but could not produce a driver’s license
or other picture identification. Driving without a license
is a traffic offense; however, it is a defense to that charge
1
We take the facts from the hearing on defendant’s suppression motion and
state them consistently with the trial court’s ruling.
368 State v. Delong
that the driver in fact had a valid license. See ORS 807.570.
Robeson sought to determine defendant’s identity so that he
could see if defendant in fact had a valid license. Robeson
also wanted to identify defendant to see if there were a rea-
son why defendant apparently had sought to avoid him; spe-
cifically, Robeson wanted to see if there were an outstanding
warrant for defendant’s arrest.
There was a passenger in defendant’s car, and
Robeson removed defendant from his car, frisked and hand-
cuffed him, and put him in the backseat of the patrol car
before asking him some background questions to verify his
identity.2 At that point, Robeson had not advised defendant
of his Miranda rights. After asking some questions regard-
ing defendant’s identity, Robeson asked defendant “if there
was anything we should be concerned about” in his car.3 In
response to that question, defendant “told [Robeson] ‘no,’ and
that if we wanted to search the vehicle, we could.”4 Robeson
relayed that response to another deputy, who had arrived
at the traffic stop. The second deputy searched defendant’s
car and found what appeared to be marijuana residue in
an ashtray underneath the driver’s seat. He then opened a
canvas fanny pack that was inside the car, where he found
methamphetamine and drug paraphernalia. At that point,
the second deputy advised defendant of his Miranda rights.
Defendant stated that he understood his rights and then
2
Robeson testified at the suppression hearing that he separated defendant
from the passenger so that she could not conform her answers to defendant’s. At
the suppression hearing, defendant did not challenge Robeson’s decision to hand-
cuff him. Perhaps for that reason, neither the state nor defendant asked Robeson
about the circumstances that led him to do so.
3
Justice Baldwin’s dissent states that “Robeson questioned [defendant]
about illegal activity unrelated to the stop without first warning him that he
had a right to remain silent.” 357 Or at 398-99 (Baldwin, J., dissenting). Justice
Walters’ dissent contains a similar statement. To the extent that the dissents
suggest that Robeson asked defendant something other than (1) questions about
defendant’s identity and (2) “if there was anything [the deputies] should be con-
cerned about” in defendant’s car, that suggestion does not appear consistent with
the record.
4
Defendant, for his part, denied that he “volunteer[ed]” that Robeson could
search his car. However, he agreed that he consented to a search of his car.
Defendant testified that Robeson asked him,”[I]f he could search—if I minded if
he searched the vehicle.” Defendant testified that he “told [Robeson] I don’t care
but I got a whole bunch of stuff in the trunk of the car. You know, ‘I’d like you to
put it back when you’re done.’ ”
Cite as 357 Or 365 (2015) 369
acknowledged that the methamphetamine and drug para-
phernalia were his.
Before trial, defendant moved to suppress both the
physical evidence found during the search of his car and the
statements that he made afterwards on the ground that the
deputies had unlawfully extended the stop. At the hearing on
that motion, defendant raised another ground for suppress-
ing that evidence. He argued that, when Robeson asked him
if there were anything he should be concerned about in the
car, Robeson violated his state and federal Miranda rights.5
In the trial court, the state responded that Robeson’s
question did not constitute interrogation. In the state’s view,
that question was no different from the background ques-
tions regarding identity that had preceded it. The trial court
denied defendant’s suppression motion. It ruled that the dep-
uties had not unlawfully extended the stop, and it agreed
with the state that Miranda warnings were not required,
apparently on the ground that Robeson’s question had not
constituted interrogation. The trial court accordingly denied
defendant’s suppression motion and ruled that the physical
evidence found in defendant’s car and the warned state-
ments that he made to the second deputy were admissible
at his trial. Considering that and other evidence, the jury
found defendant guilty of possessing methamphetamine.
On appeal, defendant challenged the trial court’s
ruling on his suppression motion. He argued that, once
Robeson placed him in the back of his patrol car and hand-
cuffed him, Article I, section 12, required Robeson to advise
him of his Miranda rights before asking him whether there
was anything in his car that should concern the deputies.6
The state, in response, conceded that Robeson had violated
5
Defendant did not argue in the trial court that the previous questions that
Robeson asked regarding defendant’s identity constituted interrogation or that,
in asking those questions, Robeson had violated his Miranda rights. Cf. State v.
Cunningham, 179 Or App 498, 501, 40 P3d 535 (2002) (explaining that the federal
definition of interrogation, which this court adopted for the purposes of Article I,
section 12, contains an exception for questions “normally attendant to arrest and
custody”).
6
Defendant also argued that, even if he invited the deputies to search his
car, the scope of his consent did not extend to opening the fanny pack in his car,
where the deputies found methamphetamine and drug paraphernalia. The Court
of Appeals did not reach that issue, and the parties have not briefed it on review.
370 State v. Delong
Article I, section 12, of the Oregon Constitution when he
asked defendant that question without first advising him of
his Miranda rights. The state argued, however, that, because
defendant’s invitation to search his car attenuated the taint
of the Miranda violation, the physical evidence that the depu-
ties discovered in the car was not the product of the violation.
The Court of Appeals held that Article I, section 12,
required Robeson to advise defendant of his Miranda rights
before asking him if there was anything in the car that should
concern the deputies. Delong, 260 Or App at 724. It also held
that the physical evidence the deputies found in defendant’s
car “derived from” that violation under this court’s decision
in Vondehn. Id. at 726-27. The court reasoned that Robeson
“exploited, or took advantage of, the Article I, section 12,
violation to obtain [defendant’s] consent; he offered consent
during a custodial interrogation while denying any wrong-
doing.” Id. at 727. The court accordingly held that the trial
court should have suppressed the physical evidence discov-
ered in defendant’s car and the statements that defendant
made after receiving Miranda warnings.
We allowed the state’s petition for review to consider
whether, under Article I, section 12, the physical evidence
that the deputies discovered in defendant’s car “derived from”
the earlier Miranda violation. See Vondehn, 348 Or at 476(stating that standard). On that issue, defendant argues that,
because his invitation to search his car was the foreseeable
result of the deputy’s unwarned question, the evidence that the
deputies found in his car derived from that Miranda violation
and should be suppressed. The state responds that, because
Miranda is a judge-made rule and not a constitutional right,
we should suppress only the evidence that resulted directly
from the Miranda violation. In the state’s view, we should not
suppress the evidence that resulted directly from a Miranda
violation and the “fruit of the poisonous tree,” as we ordi-
narily do for state constitutional violations.7 Alternatively,
7
The fruit of the poisonous tree has been defined as “challenged evidence
[that] is ‘secondary’ or ‘derivative’ in character,” as when “a confession is obtained
after an illegal arrest, physical evidence is located after an illegally obtained
confession, or an in-court identification is made following an illegally conducted
pretrial identification.” Wayne R. LaFave, Jerold H. Israel, Nancy J. King, Orin
S. Kerr, 3 Criminal Procedure § 9.3(a) (3d ed 2007 and supp 2014).
Cite as 357 Or 365 (2015) 371
the state argues that, even if we suppress both the direct
evidence resulting from the Miranda violation and the “fruit
of the poisonous tree,” our Article I, section 9, cases demon-
strate that the evidence that the deputies found in defendant’s
car was not the fruit of the poisonous tree and thus did not
derive from the Miranda violation.
Our decision in Vondehn provides the starting point
for our analysis. Accordingly, we first describe that decision.
We then explain that the specific holding in Vondehn does not
control the resolution of this case. We also explain that, even
if we apply the remedial standard that we ordinarily apply
to Article I, section 9, violations, defendant’s invitation to
search his car attenuated the taint from the Miranda viola-
tion. Finally, we address defendant’s argument and the dis-
sents’ view that, even if defendant’s invitation to search his
car would be sufficient to attenuate the taint of an Article I,
section 9, violation, his invitation was not sufficient to atten-
uate the taint of an Article I, section 12, violation.
We begin with our decision in Vondehn. In that case,
the officers asked the defendant whether he owned a back-
pack found in a stopped car, whether it contained marijuana,
and whether they could search it. Vondehn, 348 Or at 484.
The defendant answered “yes” to each of those questions. Id.Pursuant to the defendant’s consent, the officers searched
his backpack, found marijuana, advised the defendant of his
Miranda rights, and then asked him additional questions
about the marijuana that they had found. Id. at 484-85. On
review, this court held that, under Article I, section 12, the
officers should have advised the defendant of his Miranda
rights before asking him whether he owned the backpack.
Id. at 476. It held that the answers that the defendant gave
before being advised of his Miranda rights and the mari-
juana that the officers found in his backpack should have
been suppressed. Id. at 476-77. It also held, however, that
the answers that the defendant gave after being advised of
his Miranda rights should not be suppressed. Id. at 486.
Much of this court’s opinion in Vondehn focused on
the state’s argument that we should interpret Article I, sec-
tion 12, the same way that the plurality in United States
v. Patane, 542 US 630, 124 S Ct 2620, 159 L Ed 2d 667372 State v. Delong
(2004), would have interpreted the Fifth Amendment. See
Vondehn, 348 Or at 470 (noting the state’s reliance on the
plurality opinion in Patane).8 This court did not accept that
argument. Relying on our cases interpreting Article I, sec-
tion 12, the court explained that “the Oregon Constitution
requires Miranda warnings” and, as a result, the failure to
give those warnings, when required, is itself a constitutional
violation that requires a remedy. Id. at 475-76. The court
also rejected the state’s argument that vindicating a defen-
dant’s Article I, section 12, Miranda rights requires only
that his or her unwarned statements be suppressed. Id. It
held that Article I, section 12, also precludes the state from
using “physical evidence that is derived from [a Miranda]
violation to prosecute a defendant.” Id.Having reached that conclusion, the court turned
to the question whether the marijuana that the officers
had found in the defendant’s backpack “derived from” the
Miranda violation in that case. On that question, the court
reasoned:
“In this court, the state makes no argument that the
request for consent to search or the seizure of the mari-
juana derived from some source other than defendant’s
answers to those unwarned questions, nor does the state
argue that, even without defendant’s responses, the police
inevitably would have obtained the marijuana. Thus, in
this case, we conclude that the marijuana derived from the
violation of defendant’s Article I, section 12, rights, and the
trial court erred in failing to exclude it from evidence.”
Id. at 476-77. The court’s conclusion that the marijuana
derived from the Miranda violation in Vondehn thus appears
to have turned primarily on the absence of any argument to
8
The plurality opinion in Patane would have held that, under the Fifth
Amendment, the “mere failure to give Miranda warnings does not, by itself, vio-
late a suspect’s constitutional rights or even the Miranda rule.” 542 US at 641(opinion of Thomas, J.). In the plurality’s view, “[p]otential violations occur, if at
all, only upon the admission of unwarned statements into evidence at trial.” Id.The plurality reasoned that, because the mere failure to advise a suspect of his or
her Miranda rights does not violate either the Fifth Amendment or the Miranda
rule, there is no reason to apply the “fruit of the poisonous tree” doctrine to that
failure. Id. at 643-44. It followed, the plurality reasoned, that excluding state-
ments obtained in violation of Miranda from a defendant’s criminal trial is the
only remedy that the Fifth Amendment requires. Id. at 644.
Cite as 357 Or 365 (2015) 373
the contrary. See id.; see also id. at 490 (Linder, J., concur-
ring) (reaching a similar conclusion).
The court then turned to the question whether
the statements that the defendant made after receiving
Miranda warnings should be suppressed. In analyzing that
state constitutional issue, the court employed a multifactor
test that it drew from Missouri v. Seibert, 542 US 600, 124 S
Ct 2601, 159 L Ed 2d 643 (2004), and Oregon v. Elstad, 470
US 298, 105 S Ct 1285, 84 L Ed 2d 222 (1985). Vondehn, 348
Or at 480-81. The court explained that, in considering those
factors, it was not seeking to determine whether the defen-
dant’s warned statements were the fruit of the poisonous
tree. Id. at 482.9 Rather, it was seeking to determine whether
the belated Miranda warnings were effective in ensuring
that the defendant’s decision to waive his right against self-
incrimination was knowing and voluntary. Id. Considering
those factors, the court concluded that the belated Miranda
warnings in that case had been effective. Id. at 486.
The statements that the court held admissible
in Vondehn followed belated Miranda warnings, and the
test that the court articulated (whether the belated warn-
ings were effective) applies in that circumstance. When no
belated Miranda warnings have been given, the question
whether the taint flowing from a Miranda violation has been
attenuated will vary depending on the totality of the cir-
cumstances. See State v. Jarnagin, 351 Or 703, 716, 277 P3d
535 (2012). In deciding whether the taint has been attenu-
ated, the court has considered, among other things:
“the nature of the violation, the amount of time between
the violation and any later statements, whether the suspect
remained in custody before making any later statements,
subsequent events that may have dissipated the taint of the
earlier violation, and the use that the state has made of the
unwarned statements.”
Id.9
The court explained that
“a court does not use those circumstances to attempt to determine the psy-
chological effect that the particular police course of conduct had on the par-
ticular defendant or whether the initial failure to warn caused the particular
defendant to make the post-Miranda statements.”
Vondehn, 348 Or at 482. Rather, the test was an objective one. Id.374 State v. Delong
With that background in mind, we turn to this case.
At first blush, the holding in Vondehn regarding the search
of the defendant’s backpack in that case would seem to con-
trol the resolution of this case. As in Vondehn, the deputies
in this case did not advise defendant of his Miranda rights
before obtaining his consent to search his car. This case dif-
fers from Vondehn, however, in at least two respects. As dis-
cussed above, this court did not have occasion in Vondehn
to explore, at any length, whether the marijuana found in
the defendant’s backpack in that case derived from the pre-
ceding Miranda violation, in large part because the state
had not argued that it did not. Here, the state has argued
that the physical evidence that the deputies found did not
derive from the Miranda violation. Moreover, as is often
true in cases such as this, the issue in this case arises in
a different factual posture from the issue in Vondehn. As
discussed below, Robeson’s unwarned question in this case
was open-ended; defendant’s direct response to the question
was exculpatory; and he invited the deputies to search his
car without an express request for consent.
We accordingly cannot say that the specific holding
in Vondehn controls our resolution of this case, and we look
instead to the factors identified in Jarnagin to determine
whether the physical evidence that the deputies found in
defendant’s car was the product of the preceding Miranda
violation. On that issue, we note that the amount of time
that passed between the Miranda violation and the discov-
ery of the physical evidence was brief. Additionally, defen-
dant remained in custody during the encounter. In those
respects, this case is similar to Vondehn. As noted above,
however, this case differs from Vondehn in other respects,
and we focus initially on the primary factual difference,
defendant’s invitation to search his car. See Jarnagin, 351
Or at 716 (explaining that, in deciding attenuation, we con-
sider, among other things, “subsequent events that may
have dissipated the taint of the earlier violation”).
When Sergeant Robeson asked defendant “if there
was anything we should be concerned about” in his car,
defendant “told [him] ‘no,’ and that if [the officers] wanted
to search the vehicle [they] could.” Defendant’s answer
Cite as 357 Or 365 (2015) 375
divides into two parts: (1) a statement that nothing in his
car should concern the officers and (2) an invitation to the
officers to search his car if they wanted to do so. The sec-
ond part of defendant’s answer can be viewed in one of two
ways: either as a volunteered response that was admissible
in defendant’s criminal trial or, even if defendant’s response
were not admissible in his criminal trial, as evidence of
attenuation that was relevant to his motion to suppress and
admissible in the hearing on that motion. Cf. State v. Wright,
315 Or 124, 131, 843 P2d 436 (1992) (explaining that the
fact that evidence is inadmissible under the evidence code
at trial does not mean that it is inadmissible in deciding a
motion to suppress).
We begin with the first way of looking at defen-
dant’s response. The trial court found that defendant had
“volunteered” the invitation to search. The concept of a vol-
unteered statement has a unique place in Miranda jurispru-
dence. In announcing the requirement that officers advise
custodial suspects of their rights before questioning them,
the United States Supreme Court was careful to recognize
that that requirement does not preclude the admission of a
defendant’s volunteered statements in his or her criminal
trial. Miranda v. Arizona, 384 US 436, 478, 86 S Ct 1602,
16 L Ed 2d 694 (1966) (“Volunteered statements of any kind
are not barred by the Fifth Amendment and their admissi-
bility is not affected by our holding today.”).
The volunteered statements that the Court dis-
cussed in Miranda were statements that a suspect made
in custody without any questioning by the police. See id.;
Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Oris
S. Kerr, 2 Criminal Procedure § 6.7(d) (3d ed 2007 and 2014
supp) (discussing volunteered statements). Other courts
have recognized that the concept also applies to nonrespon-
sive statements that a suspect makes during custodial ques-
tioning. See LaFave et al, 2 Criminal Procedure § 6.7(d) (dis-
cussing cases). Specifically, those courts have held that, to
the extent that a defendant’s answer is not responsive to the
officer’s question, then the answer is a volunteered state-
ment, as the Court used that term in Miranda, and admis-
sible in the defendant’s criminal trial. See id.
376 State v. Delong
In this case, defendant’s invitation to search his
car was nonresponsive in one sense. Robeson did not ask
if he could search defendant’s car. He asked if there were
anything in the car that he should be concerned about.
Defendant’s answer went beyond what Robeson had asked
and included an offer for the officers to search his car “if
[they] wanted to.” As defendant argues, however, Robeson’s
question can be viewed as prompting the second part of
defendant’s answer. See State v. Unger, 356 Or 59, 79,
333 P3d 1009 (2014) (explaining that asking a defendant
whether he had any drugs or guns in his apartment could be
viewed as prompting the defendant’s invitation to “go ahead
and look”). Viewed in that manner, the second part of defen-
dant’s answer may not be sufficiently nonresponsive to come
within the concept of a “volunteered” statement that the
Court identified in Miranda and thus may not be admissible
as evidence in defendant’s criminal trial.10
Even if we assume that defendant’s response to
Robeson’s question was not “volunteered,” as the Court used
that term in Miranda, defendant’s response still reflects a
volitional act on his part and, as such, implicates another
strand of our case law. In considering a related issue, this
court has held that similar offers are sufficient to atten-
uate the taint of an Article I, section 9, violation. State v.
Rodriguez, 317 Or 27, 854 P2d 399 (1993); State v. Kennedy,
290 Or 493, 624 P2d 99 (1981).11 The point of those cases
is not that the statement itself (the defendant’s offer) was
10
Justice Baldwin’s dissent devotes some time to explaining that defendant’s
invitation to search his car was not volunteered. We note that Robeson testified
that defendant’s invitation was “volunteered,” and the trial court expressly cred-
ited Robeson’s testimony on that point. As a factual matter, describing defen-
dant’s invitation as “volunteered” seems accurate. Of course, the legal effect of
that invitation is a separate question. And, as we explain above, we assume that
defendant’s invitation was not “volunteered” in the sense that the Court used
that term in Miranda. It follows, we think, that our difference with the dissent on
this point is not substantial.
11
The issue in those Article I, section 9, cases was whether a defendant’s
invitation to search his or her effects attenuated the taint of an unlawful seizure.
The issue in this Article I, section 12, case is whether defendant’s invitation to
search attenuated the effects of an unwarned question that followed a lawful cus-
todial seizure. Both types of cases involve situations that can influence a defen-
dant’s ability to make an independent decision. And, as the concurrence explains,
the factors that we have considered in deciding attenuation in both situations are
virtually the same.
Cite as 357 Or 365 (2015) 377
admissible in the defendant’s criminal trial. Rather, the
point is that the offer was sufficient to attenuate the taint of
the preceding constitutional violation, making subsequently
discovered evidence admissible.
This court’s decision in Kennedy illustrates that
line of cases. In Kennedy, the police approached the defen-
dant as he was leaving the Portland airport. 290 Or at 495.
Acting on information that the defendant fit a “drug smug-
gler’s profile,” the officers asked to talk to him. Id. When the
defendant asked one of the officers why they wanted to talk,
the officer explained that he “had information that led [him]
to believe that [defendant] may be carrying narcotics on his
person or in his luggage.” Id. at 496 (brackets in original).
“Defendant denied that he was carrying narcotics and said,
‘Would you like to search my luggage?’ ” Id. The court noted
that, when the defendant made that offer, the officer “had
not made any request for consent to search [the] defendant
or his luggage.” Id. During the ensuing search, the officers
found and seized a vial with cocaine residue on it. Id.In deciding whether that evidence was the product
of an unlawful stop, this court assumed that the officers had
stopped the defendant and that they lacked reasonable sus-
picion to do so. Id. at 499. The court also recognized that the
stop was the “but for” cause of the officers’ discovery of the
evidence. Id. at 500-01. However, relying on, among other
things, the “defendant’s offer to let [the officer] search his
luggage without a prior request for consent,” the court con-
cluded that the discovery of the evidence was sufficiently
attenuated from any illegality to say that it did not derive
from it. Id. at 504-06 (explaining that the defendant’s unso-
licited offer to search was the “[m]ost importan[t]” consider-
ation in reaching its conclusion). The decision in Rodriguez
is to the same effect.12 See also State v. Crandall, 340 Or
12In Rodriguez, state and federal officers arrested the defendant at his home.
317 Or at 29. The officers advised the defendant of his Miranda rights. Id. at 30.
In response to the question, “Do you have any drugs or guns in the house,” the
defendant replied, “No, go ahead and look.” Id. The officers did so and found a
gun, which the defendant later sought to suppress as the product of an unlawful
arrest. Similarly to Kennedy, the court accepted the state’s concession that the
arrest violated Article I, section 9. Id. at 37. The court also recognized that the
arrest was the “but for” cause of defendant’s statement, “Go ahead and look.”
Id. at 39-40. The court concluded, however, that defendant’s unsolicited offer
378 State v. Delong
645, 136 P3d 30 (2006) (defendant’s unilateral act in hid-
ing drugs under a parked car after officers unlawfully had
stopped and directed him to come over and talk to them
attenuated the taint of the unlawful stop).
In Unger, this court explained that Kennedy and
Rodriguez stand for the proposition that, “in some situations,
a defendant’s voluntary consent itself may be sufficient to
demonstrate that the unlawful conduct did not affect or had
only a tenuous connection to the evidence produced.” 356 Or
at 77-78. Unger thus reaffirmed that, when a defendant’s
consent to a search either was not affected by or was only
tenuously connected to a prior illegality, the defendant’s vol-
untary consent can be sufficient to break the causal chain.
The court identified three factors that bear on when volun-
tary consent will attenuate a prior illegality:
“That legal determination—whether, in the circumstances
of a particular case, consent has so attenuated the con-
nection between the prior illegal conduct and the evidence
obtained in the consent search—requires a court to con-
sider the illegal conduct that comprised the stop or search,
the character of the consent, and the causal relationship
between the two.”
Id. at 78.13
Regarding the first factor (the nature of the ille-
gal conduct), the state has conceded that Robeson violated
defendant’s Article I, section 12, rights when he asked him
if there were anything in his car that should concern the
deputies. That violation can hardly be characterized as
egregious, however. This was not the sort of prolonged sta-
tionhouse questioning that concerned the United States
Supreme Court in Miranda. See 384 US at 448-55 (describ-
ing interrogation techniques designed to break down a sus-
pect’s will). Robeson did not engage “in repeated efforts to
wear down [defendant’s] resistance.” See State v. Foster, 288
Or 649, 655-56, 607 P2d 173 (1980) (considering that situa-
tion) (internal quotation marks omitted); State v. Mendacino,
to search his house sufficiently attenuated the taint of the unlawful arrest and
upheld the admission of the evidence found in the ensuing search. Id. at 41-42.
13
The factors that the court identified in Unger are a subset of the factors
that the court identified in Vondehn and Jarnagin.
Cite as 357 Or 365 (2015) 379
288 Or 231, 238, 603 P2d 1376 (1980) (same). The trial court
found that only two to three minutes elapsed between the
time that Robeson stopped defendant and defendant’s invita-
tion to search his car. And other than the initial background
questions he asked, Robeson asked defendant only one ques-
tion: “[I]f there was anything we should be concerned about”
in defendant’s car.
Defendant has not argued that his response to
that question was “actually coerced” within the meaning of
Article I, section 12, nor could he reasonably do so. Similarly,
he has not argued that Robeson deliberately sought to violate
his state constitutional rights. Although Robeson’s question
went too far, his question was not dissimilar from a question
that the Court of Appeals had held falls within an exception
to the state constitutional Miranda requirement. See State
v. Cunningham, 179 Or App 498, 504, 40 P3d 535 (2002)
(asking defendant “whether he had anything that was sharp
or would hurt him” before the officer performed a lawful pat-
down search did not constitute “interrogation” as defined
by the United States Supreme Court and adopted by the
Oregon Supreme Court).14 The violation was not egregious.
The second factor we consider is the character of
defendant’s consent. As noted, defendant invited the depu-
ties to search his car if they wanted to do so. Defendant’s
invitation to search his car in this case is virtually identi-
cal to the invitations in Kennedy and Rodriquez, which this
court held attenuated the taint of the unlawful seizures in
those cases. It may be that Robeson’s question in this case
prompted defendant’s invitation to search his car, as defen-
dant argues, but the question that Robeson posed was more
open-ended and thus more benign than the officers’ state-
ments in Kennedy and Rodriguez. In Kennedy, the officer
told the defendant that they had reason to believe that he
14
We express no opinion on whether the Court of Appeals was correct in
Cunningham in applying that exception to the definition of “interrogation.”
We note the Court of Appeals decision only to observe that Robeson’s question
was similar to one that the Court of Appeals had approved. Robeson’s question
differed in two respects, however. Unlike the question in Cunningham, which
focused on harm to the officer as he carried out procedures designed to effectuate
a lawful seizure, Robeson’s question was not limited to officer safety, and it asked
about items in the car even though defendant was handcuffed and seated in the
deputy’s patrol car.
380 State v. Delong
had drugs on his person or in his luggage. 290 Or at 496. In
Rodriguez, the officer asked if the defendant had any drugs
or guns in his apartment. Rodriguez, 317 Or at 30. In this
case, Robeson asked only whether there was anything that
the deputies should be concerned about in defendant’s car.
Finally, we consider the causal connection between
the violation and defendant’s invitation. This is not a case in
which Robeson’s unwarned questioning left “ ‘little, if any-
thing, of incriminating potential * * * unsaid.’ ” See Jarnagin,
351 Or at 722 (quoting Seibert, 542 US at 616-17 (plurality
opinion)). Rather, defendant told the deputies that he did
not have anything of concern in his car before extending an
invitation to them to search his car if they wanted to. Not
only did the deputies not trade on the first part of defen-
dant’s response, but there was nothing on which to trade.
Nothing that defendant said in the first part of his response
to Robeson’s unwarned question impaired defendant’s abil-
ity to make an independent decision to invite the deputies to
search his car if they wanted to do so. In that respect, this
case is no different from Kennedy and Rodriguez. Under the
analysis in Kennedy and Rodriguez, defendant’s invitation to
search his car attenuated the taint flowing from Robeson’s
unwarned question. The evidence that the deputy found in
defendant’s car did not derive from the preceding Miranda
violation.15
Defendant and the two dissenting opinions take a
different position. They reason that, even if the invitations
to search in Kennedy and Rodriguez were sufficient to atten-
uate the taint of the Article I, section 9, violations in those
cases, defendant’s invitation in this case is not sufficient to
15
Justice Walters’ dissent compares this case to Jarnagin, where the offi-
cers obtained from defendant, during multiple extended interviews in violation of
Miranda, an explanation as to how his daughter had been injured and an agree-
ment to reenact that explanation the next morning while the officers videotaped
him. 351 Or at 718. Our holding that the resulting videotape was the product
of the earlier violations turned in large part on the fact that the defendant’s
unwarned statements formed the script that he acted out the next morning while
being videotaped. Id. We do not view the specific circumstances that we consid-
ered in Jarnagin, as the dissent appears to do, as exhausting the totality of the
circumstances that can bear on whether subsequently discovered evidence is the
product of an earlier Miranda violation. Nor do we view Jarnagin as standing for
the proposition that a defendant’s voluntary invitation to search can never atten-
uate the taint of a Miranda violation.
Cite as 357 Or 365 (2015) 381
remedy the taint of a Miranda violation. We begin with an
argument that defendant alone advances.
Defendant argues that Kennedy and Rodriguez are
inapposite because, under Article I, section 12, his invita-
tion to search his car will attenuate the taint of the Miranda
violation only if the invitation was extended with knowl-
edge of his right against self incrimination. As defendant
notes, this court stated in Vondehn that Article I, section 12,
requires Miranda warnings “to ensure that a person’s
waiver [of his or her Article I, section 12, rights] is knowing
as well as voluntary.” See Vondehn, 348 Or at 474. It follows
from that proposition, defendant contends, that, because his
invitation to search his car was made without knowledge of
his Miranda rights, that invitation should have little or no
weight in the attenuation analysis.
One difficulty with that argument is that it fails to
distinguish two separate issues. The issue in this case is
not whether defendant’s response to Robeson’s question was
knowing and thus admissible in his criminal trial. It may
not have been.16 Rather, the issue in this case is whether
defendant’s response was admissible in the hearing on his
suppression motion to determine whether the physical evi-
dence discovered in his car derived from the Miranda vio-
lation. On the latter question, defendant offers no basis for
saying that his invitation to search cannot be considered at
a suppression hearing as evidence of attenuation. Cf. Wright,
315 Or at 131 (explaining that the fact that evidence is inad-
missible under the evidence code at trial does not mean it is
inadmissible in determining a motion to suppress).
We customarily have considered a suspect’s
responses to unwarned questioning in determining whether
subsequently discovered evidence derived from or was a
product of an earlier Miranda violation. See Jarnagin, 351
Or at 722-23 (considering the defendant’s responses to
unwarned questioning in deciding attenuation); Vondehn,
16
In the trial court, defendant did not move to suppress his response to
Robeson’s question. He moved to suppress the physical evidence found in his
car and the warned statements that he later made. In any event, even if defen-
dant had moved to suppress his response to Robeson’s question and even if that
response should not have been admitted in his criminal trial, any error in admit-
ting the response was harmless.
382 State v. Delong
348 Or at 485-86 (same). For example, among the factors
that we considered in deciding attenuation in Jarnagin were
“the use that the state has made of the unwarned state-
ments” and whether “the unwarned interrogation left ‘little,
if anything, of incriminating potential * * * unsaid.’ ” See 351
Or at 716, 722 (quoting Seibert, 542 US at 616-17 (plural-
ity opinion)). Those factors necessarily entail considering a
defendant’s responses to unwarned questioning in deciding
whether subsequently discovered evidence was the product
of an earlier Miranda violation.17
Defendant advances a second argument, which both
dissents also raise. They reason that, even if defendant’s
invitation would have been sufficient to attenuate the taint
of an unconstitutional seizure, as this court held in Kennedy
and Rodriguez, something more is required to attenuate the
taint of a Miranda violation. They conclude that, because
Miranda requires warnings following an arrest and because
an arrest entails a greater level of restraint than a stop,
an event that will be sufficient to attenuate the taint of an
unlawful stop will be insufficient to attenuate the taint of
a Miranda violation. Neither defendant nor the dissenting
opinions, however, cite any case that stands for that cate-
gorical proposition. If anything, the cases that address the
issue have held that less is required to attenuate a Miranda
violation than is required to attenuate an unconstitutional
seizure. See Dickerson v. United States, 530 US 428, 440-41,
120 S Ct 2326, 147 L Ed 2d 405 (2000); Elstad, 470 US at
306; Patane, 542 US at 644-45 (Kennedy, J., concurring in
the judgment).
The United States Supreme Court explained in
Elstad that “a procedural Miranda violation differs in sig-
nificant respects from violations of the Fourth Amendment,
which have traditionally mandated a broad application of
the ‘fruits’ doctrine.” 470 US at 306. The Court accordingly
held in Elstad that the defendant’s subsequent warned state-
ments were admissible against him in his criminal trial
17
There is a suggestion in Justice Walters’ dissent that, because defendant
did not know that he had a right to remain silent, his invitation to search his car
cannot be considered in deciding attenuation. That reasoning proves too much. If
that were correct, no invitation to search following a Miranda violation could be
considered without belated Miranda warnings.
Cite as 357 Or 365 (2015) 383
without regard to whether those statements were the fruit
of his earlier admissions obtained in violation of Miranda.
See id. at 316-17; see also Seibert, 542 US at 612 n 4 (plural-
ity opinion) (same). And the Court rejected an argument in
Elstad that the degree of attenuation required to purge the
taint of coerced or compelled statements applies equally to
statements obtained as a result of a “technica[l]” Miranda
violation. 470 US at 318.
To be sure, in Elstad, the Court justified a more lim-
ited remedy for Miranda violations than Fourth Amendment
violations on the ground that Miranda was a judge-made
rule, not a constitutional right. See id. at 305-06. Since then,
however, the Court has recognized that Miranda warnings
are “constitutionally based,” but it has adhered to its con-
clusion in Elstad that Miranda violations do not require
as extensive a remedy as a Fourth Amendment violation
and that the same degree of attenuation is not required.
Dickerson, 530 US at 440-41; accord Seibert, 542 US at 612
n 4 (plurality opinion).
As we read those decisions, they adhered to the
conclusion in Elstad because of the prophylactic nature of
the Miranda right. The purpose of Miranda warnings is
“[t]o protect a person’s right against compelled testimony.”
Jarnagin, 351 Or at 713. To ensure that that right is pro-
tected, the United States and Oregon constitutions require
officers to advise suspects who are in custody or comparable
circumstances of their Miranda rights. However, this court
has never equated the point at which the Miranda right
attaches with the point at which a person’s statements are
either actually compelled or coerced. See id. at 724 (distin-
guishing statements obtained in violation of a defendant’s
Article I, section 12, right to Miranda warnings from state-
ments obtained in violation of Article I, section 12, as a result
of actual coercion). Between those two points lies a range
of circumstances that can affect whether subsequently dis-
covered evidence derives from the failure to give required
Miranda warnings.
In this case, defendant was in custody or compara-
ble circumstances, and his Miranda rights attached at that
point. The dissents would give talismanic significance to
384 State v. Delong
that fact and hold that, as a result, defendant was disabled
from inviting the officers to search his car. As we explained
in Jarnagin, however, the question whether the circum-
stances are sufficient to attenuate the taint of an officer’s
failure to give Miranda warnings will turn on the facts of
each case. 351 Or at 716. That entails a consideration of the
extent to which the nature and extent of the custodial ques-
tioning affected a suspect’s decision to invite the search.
In this case, we are hard pressed to say that the
failure to give required Miranda warnings disabled defen-
dant from making an independent decision. It is true that
defendant was in custody or comparable circumstances.
However, that is true in every case in which an officer fails
to give required Miranda warnings. Defendant was not
detained in the stationhouse for an extended period of time,
nor was he subjected to the sort of extended questioning that
caused the Court to require Miranda warnings in the first
instance. Rather, the detention was brief, only two to three
minutes the trial court found. Robeson asked only one ques-
tion that went beyond determining defendant’s identity, and
defendant’s response to that question was not inculpatory.18
Given those circumstances, we conclude that our holdings
in Kennedy and Rodriguez provide persuasive guidance for
deciding this case.
One other consideration cuts against the conclusion
that defendant urges and that the dissents would reach.
Defendant concedes in his brief on the merits that an officer
lawfully may ask a suspect who is in custody or compelling
circumstances for consent to search without first advising
the suspect of his or her Miranda rights. It follows that, if
the suspect consents and the officer finds incriminating evi-
dence in the ensuing search, that evidence will be admissi-
ble in the suspect’s criminal trial, even though the suspect
18
Justice Walters’ dissenting opinion states that the deputies “went on a fish-
ing expedition—deliberately interrogating defendant and seeking incriminating
evidence without first warning defendant of his right to remain silent and con-
sult a lawyer.” 357 Or at 397 (Walters, J., dissenting). The trial court did not
find, however, that the deputies “deliberately interrogat[ed]” defendant, nor did it
find that they were on a “fishing expedition” or “seeking incriminating informa-
tion.” What Robeson actually said to defendant (even the words that defendant
recounted) seems far milder than might appear from the dissent’s description of
the events.
Cite as 357 Or 365 (2015) 385
was in custody or compelling circumstances when he or she
consented.
If, as defendant concedes, an officer need not advise
a suspect in custody of his or her Miranda rights before ask-
ing for consent to search, it is difficult to see why a suspect
who is in custody cannot invite an officer to search. It may
be, as defendant argues, that Robeson’s question prompted
defendant’s invitation in this case. But, even if that is true,
then Robeson’s question functioned implicitly the same way
that an explicit request for consent would have, and defen-
dant points to nothing in the first part of his answer to
Robeson’s question (that there was nothing in his car of con-
cern to the deputies) that would have affected or somehow
tainted his decision to invite the deputies to search his car.
Given Kennedy, Rodriguez, and defendant’s concession, we
are not persuaded that we should automatically give less
effect to invitations to search that follow a Miranda viola-
tion than we give invitations to search that follow an unlaw-
ful seizure.
One final matter requires discussion. At trial and
on appeal, defendant argued that the deputies exceeded the
scope of his invitation when they opened a fanny pack they
found in his car, which contained methamphetamine and
drug paraphernalia. The Court of Appeals did not reach
that issue because it held that defendant’s invitation to
search his car and the resulting search were the fruit of
the Miranda violation. Because we reach a different conclu-
sion, it is necessary to resolve defendant’s argument that the
officer’s search exceeded the scope of defendant’s invitation.
The parties have not briefed that issue on review, and we
conclude that the case should be remanded to the Court of
Appeals so that it can decide that issue in the first instance.
If the Court of Appeals finds that the deputy’s search
did not exceed the scope of defendant’s invitation, then the
remaining question is whether the statements that defen-
dant made to the deputy after receiving belated Miranda
warnings were admissible. As we understand defendant’s
argument on that issue, it rests on the proposition that the
deputies unlawfully discovered the physical evidence in his
car and that, as a result, the belated Miranda warnings
386 State v. Delong
he received were not effective to render his statements
voluntary. If the deputies lawfully discovered the physical
evidence in defendant’s pack, then the physical evidence
and defendant’s warned statements presumably would be
admissible. Conversely, if the deputy’s search exceeded the
scope of defendant’s consent, then the question will be, as
it was in Vondehn, whether the belated Miranda warnings
were effective. See Vondehn, 348 Or at 485-86 (holding that
belated Miranda warnings were effective even though offi-
cers unlawfully had discovered marijuana in the defendant’s
backpack).
The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Appeals for further
proceedings consistent with this decision.
BREWER, J., concurring.
I agree with the majority’s conclusion that the phys-
ical fruits of the invited search in this case are not suppress-
ible as a result of the admitted violation of defendant’s rights
under Article I, section 12, of the Oregon Constitution.
However, I distance myself from two aspects of the majori-
ty’s discussion of the principles governing the suppression of
evidence for violations of Article I, section 12.
First, I agree with the majority that there is no per-
suasive support for the proposition that something more is
required to attenuate the taint of a Miranda violation than
a violation of Article I, section 9. 357 Or at 382. However, I
do not believe that less is required to attenuate a Miranda
violation than is required to attenuate an unconstitutional
search or seizure. Although this court has held that the two
attenuation analyses are not identical, they are animated
by similar concerns, and, in my view, the attenuation frame-
works for violations of rights under Article I, section 12,
and Article I, section 9, are structured—and ought to be
applied—in comparable terms.
To protect a person’s right against compelled self-
incrimination under Article I, section 12, this court has
held that, before questioning, law enforcement must give
Miranda warnings to a person who is in “full custody” or
Cite as 357 Or 365 (2015) 387
in circumstances that “create a setting which judges would
and officers should recognize to be ‘compelling.’ ” State v.
Jarnagin, 351 Or 703, 713, 277 P3d 535 (2012) (quoting
State v. Smith, 310 Or 1, 7, 791 P2d 836 (1990)). When an
officer fails to give the requisite warnings, a court must sup-
press not only the statements that a suspect makes in direct
response to unwarned questioning but also evidence that
derives from that constitutional violation. State v. Vondehn,
348 Or 462, 476, 236 P3d 691 (2010).1
In Jarnagin, this court applied a totality of the cir-
cumstances test in determining whether physical or testi-
monial evidence derived from an earlier Miranda violation
must be suppressed. Jarnagin, 351 Or at 716. In doing that,
the court relied on Vondehn, 348 Or at 482, where it had
directed courts to consider “all relevant circumstances” in
deciding whether belated Miranda warnings were effec-
tive in ensuring a knowing and voluntary waiver of rights.
Among other factors, this court in Jarnagin stated that “the
nature of the violation, the amount of time between the vio-
lation and any subsequent statements, whether the suspect
remained in custody before making any later statements,
subsequent events that may have dissipated the taint of
the earlier violation, and the use that the state has made of
the unwarned statements” were proper considerations in a
“fact-intensive” inquiry. Jarnagin, 351 Or at 716-17.
The court in Jarnagin distinguished the attenua-
tion inquiry under Article I, section 12, from the attenuation
analysis under Article I, section 9:
1
In Vondehn, this court examined the basis for the requirement that law
enforcement inform people in custody of their right against self-incrimination
under Article I, section 12. The court explained that,
“[b]ecause a custodial interrogation is inherently compelling, and to ensure
the validity of a waiver of the right against self-incrimination, Article I,
section 12, requires that the police inform a person subjected to custodial
interrogation that he or she has a right to remain silent and to consult with
counsel and that any statements that the person makes may be used against
the person in a criminal prosecution. Article I, section 12, requires those
Miranda warnings to ensure that a person’s waiver is knowing as well as vol-
untary. If the police conduct a custodial interrogation without first obtaining
a knowing and voluntary waiver of the suspect’s rights, then they violate the
suspect’s Article I, section 12, rights.”
348 Or at 474.
388 State v. Delong
“Defendant argues that we should apply the particular
methodology set out in State v. Hall, 339 Or 7, 24-25, 115
P3d 908 (2005), to determine whether evidence is the prod-
uct of a Miranda violation. The Hall methodology applies to
violations of Article I, section 9. It does not apply to viola-
tions of Article I, section 12. Cf. Brown v. Illinois, 422 US
590, 602-03, 95 S Ct 2254, 45 L Ed 2d 416 (1975) (explain-
ing that the question whether a statement is the product
of a Fifth Amendment violation differs from the question
whether it is a product of a Fourth Amendment violation).
In Vondehn, we cited Hall once in describing the Court of
Appeals’ reasoning, see 348 Or at 465, but we did not cite
Hall afterwards or apply its methodology in determining
whether the physical evidence in that case derived from the
Miranda violation, see id. at 476. Similarly, we do not apply
Hall’s methodology here.”
Jarnagin, 351 Or at 717 n 9.
Despite what the court said in Jarnagin, in reaching
its decision in this case, the majority has borrowed liberally
from the attenuation analyses of consent search cases under
Article I, section 9. That, I submit, is because the analy-
ses for both types of constitutional violations are aimed at
similar concerns. Whenever the state has obtained evidence
following the violation of a defendant’s Article I, section 9,
rights, it is presumed that the evidence was tainted by the
violation and must be suppressed. State v. Unger, 356 Or
59, 84, 333 P3d 1009 (2014). The state may rebut that pre-
sumption by establishing that the disputed evidence “did
not derive from the preceding illegality.” Hall, 339 Or at 25.
When determining whether a defendant’s consent to search
derived from police misconduct, courts are to consider the
totality of the circumstances, including the temporal prox-
imity between the misconduct and the consent; the existence
of any intervening or mitigating circumstances; the nature
of the misconduct, including its purpose and flagrancy and
whether the police took advantage of it; and the volun-
tariness of the consent. Unger, 356 Or at 89-93. Although
expressed in different words, those factors closely track the
factors that the court in Jarnagin indicated are pertinent in
an Article I, section 12, attenuation analysis. In short, I do
not perceive that the bar is set higher or lower for a violation
of either provision.
Cite as 357 Or 365 (2015) 389
Second, I agree with the majority that a knowing
waiver of Miranda rights is not required for a court to con-
clude that an ensuing consent or invitation to search is enti-
tled to weight in the attenuation analysis. 357 Or at 381-
82. However, I would place more explicit emphasis on the
absence of a knowing waiver as an aspect of the totality
of circumstances. The reason is simple: a person’s lack of
knowledge that he or she has a right not to self-incriminate
should raise the same rebuttable presumption that evidence
obtained in a consent search was tainted by the preceding
illegality that arises in an Article I, section 9, attenuation
analysis. In other words, a causal connection between a
Miranda violation and the discovery of challenged evidence
requires the state to establish the existence of circum-
stances that either legally or factually break that connec-
tion. See Vondehn, 348 Or at 476; see also id. at 490 (Linder,
J., concurring). To be sure, the violation casts a meaningful
shadow in the attenuation analysis even though it is not, by
itself, dispositive.
Despite my differences with the majority’s analy-
sis, I agree with the outcome that it reaches. This is a close
case. Weighing in favor of suppression are the presumption
of taint arising from the absence of warnings, the close tem-
poral proximity between the violation and the invitation to
search, the fact that defendant was handcuffed and in cus-
tody when he invited the deputy to search, and the absence
of any indication that the violation was inadvertent. For
various reasons, people in custody sometimes invite law
enforcement officers to search their persons or belongings,
even when they know that contraband is likely to be found.
We would be naive to assume that experienced law enforce-
ment officers do not understand that.
However, Article I, section 12, does not set an insur-
mountable bar to a custodial invitation to search, even when
the invitation would not have been made in the absence of
a constitutional violation. I agree with the majority that the
physical fruits of the search in this case did not derive from
the Miranda violation. The detention here was brief; only
one impermissible question was asked; that question was not
asked coercively; and, in asking the impermissible question,
390 State v. Delong
the deputy did not seek consent to search. Although there
is no evidence that defendant knew that he had the right
to remain silent, nothing prevented him—apart from his
self-accountable volition—from simply answering the depu-
ty’s question and leaving it at that. He did not need to invite
the deputy to search his vehicle. In the end, that factor tips
the scales for me.
For the foregoing reasons, I concur.
WALTERS, J., dissenting.
This case begins with a conceded violation of the
Oregon Constitution and once again, ends without legal
consequence. See State v. Unger, 356 Or 59, 103, 333 P3d
1009 (2014) (Walters, J., dissenting). In this case, a deputy
stopped defendant for not wearing his seat belt, handcuffed
him, searched him, and placed him in the backseat of a
patrol car. The deputy then committed a blatant and con-
ceded constitutional violation when he interrogated defen-
dant about illegal activity without informing defendant that
he had a constitutional right to remain silent. Although the
government is precluded from obtaining “a criminal con-
viction through the use of evidence obtained in violation of
[constitutional] rights,” State v. Davis, 313 Or 246, 253, 834
P2d 1008 (1992) (citing State v. Davis, 295 Or 227, 666 P2d
802 (1983)), and an individual has a right to suppression
of illegally obtained evidence to preserve the individual’s
rights “to the same extent as if the government’s officers had
stayed within the law,” id., the majority holds otherwise. I
respectfully dissent.
In Unger, this court considered the appropriate
consequences when officers violate the constitution. The
defendant in that case was in his own home, not in com-
pelling circumstances or subject to interrogation, when he
consented to search. The court held that the evidence that
officers obtained as a result need not be suppressed. The
court reasoned that the fact that the officers had violated
Article I, section 9, by entering the defendant’s backyard
did not affect the defendant’s decision to consent to search.
Unger, 356 Or at 92.
Cite as 357 Or 365 (2015) 391
Unlike Article I, section 9, of the Oregon Constitution,
Article I, section 12, does not prohibit an officer from enter-
ing private property without a warrant. Rather, it applies
when an officer holds an individual in compelling circum-
stances and prohibits the officer from conducting a criminal
interrogation without first warning the detained individual
that he or she has the right to remain silent and to consult
a lawyer. Despite those differences, the question that is pre-
sented when an officer violates Article I, section 12, is the
same as the question that is presented when an officer vio-
lates Article I, section 9: Did the evidence “derive from” the
constitutional violation? See Unger, 356 Or at 80 (“[O]ur task
is to determine whether police ‘exploited’ or ‘took advantage
of’ or ‘traded on’ their unlawful conduct to obtain consent,
or—examined from the perspective of the consent—whether
the consent was ‘tainted’ because it was ‘derived from’ or
was a ‘product of’ the unlawful conduct.”); State v. Vondehn,
348 Or 462, 475-76, 236 P3d 691 (2010) (court’s task is to
determine whether evidence “derived from” an Article I, sec-
tion 12, violation).
I understand and agree with the majority and con-
currence that the principles that underlie the exclusionary
rule and its attenuation exceptions apply equally to viola-
tions of both Article I, section 9, and Article I, section 12,
and that the same factors may be relevant in deciding
whether evidence that officers obtain can be used to convict
a defendant. Delong, 357 Or at 378; id. at 386 (Brewer, J.,
concurring). However, one of those factors is the nature of
the police misconduct. Unger, 356 Or at 81. It seems to me
that an officer’s unlawful entry onto an individual’s prop-
erty when the individual is not in compelling circumstances
may have a different effect on the individual’s consent to
search than does an officer’s failure to advise an individual
held in compelling circumstances that the individual has a
right to remain silent.
In this case, for example, the deputy’s violation
of Article I, section 12, had a more direct causative effect
on defendant’s consent to search than did the violation of
Article I, section 9, that the court considered in Unger. Here,
the deputy had handcuffed defendant and placed him in a
392 State v. Delong
patrol car, when, without telling defendant that he had the
right to remain silent and to consult a lawyer, the deputy
asked him for incriminating evidence. Thus, in this case,
unlike in Unger, defendant was held in compelling circum-
stances and was entitled to information that the defendant
in Unger was not entitled to receive. And, unlike in Unger,
the majority concludes that defendant’s consent to search
derived from the deputy’s constitutional violation. As the
majority acknowledges, it was the deputy’s question and con-
stitutional violation that prompted defendant’s unknowing
response—the consent to search—and that response must
be suppressed. Delong, 357 Or at 376. Thus, although the
principles underlying the exclusionary rule are the same,
its application in this case is different from its application in
Unger and compels a different result.
Had the majority adhered to the “totality of the cir-
cumstances” analysis that it has used in past Article I, sec-
tion 12, cases and to its reasoning in Unger, it would have
suppressed not only defendant’s response to the deputy’s
question, but also the physical evidence that the deputies
obtained as a consequence of that response. Just five years
ago, this court discussed the basis for suppression of evi-
dence obtained in violation of Article I, section 12, and flatly
rejected the state’s argument that the “mere failure to pro-
vide Miranda warnings” requires only suppression of state-
ments made in response to the unwarned questions and
not suppression of the physical evidence obtained. Vondehn,
348 Or at 475-76. In Vondehn, the officer asked the defen-
dant three unwarned questions: (1) Is this your backpack?
(2) Does it contain marijuana? (3) Can I search it? The defen-
dant answered the first two questions affirmatively and, in
response to the third, voluntarily consented to the search
of his backpack. Nevertheless, the court concluded that the
trial court had been required to suppress the defendant’s
answers to all three questions and the marijuana that the
officer had obtained as a result of the defendant’s consent.
Id. at 476-77. The court held that, “[w]hen the police vio-
late Article I, section 12, whether that violation consists of
‘actual coercion’ or the failure to give the warnings necessary
to a knowing and voluntary waiver, the state is precluded
from using evidence derived from that violation to obtain a
Cite as 357 Or 365 (2015) 393
criminal conviction,” including the “physical evidence that
is derived from that constitutional violation.” Id. at 475-76.
The majority does not overrule Vondehn, but distin-
guishes it on its facts, as does the concurrence. The majority
points out that “Robeson’s unwarned question in this case
was open-ended; defendant’s direct response to the question
was exculpatory; and he invited the deputies to search his
car without an express request for consent.” Delong, 357 Or
at 374. The concurrence says that, in this case, the detention
was brief, only one question was asked and not coercively,
and the deputy did not seek consent to search. Id. at 389-90
(Brewer, J., concurring).
Those factual differences exist, but they are not of
consequence. An unwarned question is an unwarned ques-
tion, no matter how open ended. Defendant’s response to
the deputy’s unwarned question was of a piece, and it was
inculpatory. And defendant’s “invitation to search” was not
any less prompted by the deputy’s question than it would
have been if the deputy had asked defendant for consent. In
Unger, the court took pains to explain that there is little to
distinguish “unprompted or volunteered consent,” like that
in State v. Kennedy, 290 Or 493, 624 P2d 99 (1981), and State
v. Rodriguez, 317 Or 27, 854 P2d 399 (1993), from consent
that is given in response to a request for consent. Both types
of consents, the court reasoned in Unger, are “prompted by
the officer’s question about drugs and guns.” Unger, 356 Or
at 79. The more salient inquiry, the court held in Unger, is
not whether the officer sought consent, but “whether the
consent was ‘tainted’ because it was ‘derived from’ or was a
‘product of’ the unlawful conduct.” Id. at 80-81.
I agree. The question at hand is: Did defendant’s
response, which included a consent to search, derive from
the constitutional violation? “Yes,” the majority says, “it did.”
Delong, 357 Or at 376. The majority is correct. A response
to an unwarned question that is prompted by, and results
from, the question is a direct link in the causal chain, not
independent of it. Suppression of the response—the consent
to search—should also result in suppression of the evidence
that is a product of that response.
394 State v. Delong
That does not mean that Article I, section 12, sets,
as the concurrence would have it, “an insurmountable bar”
to the admission of evidence obtained pursuant to a custo-
dial consent to search. Id. at 389 (Brewer, J., concurring).
In State v. Jarnagin, 351 Or 703, 713, 277 P3d 535 (2012),
the court considered the kinds of facts that can attenuate
a Miranda violation, and I do not oppose consideration of a
response to unwarned questions as one factor in the alterna-
tive analysis. But I do think it important to look at how we
have applied the “totality of the circumstances” test in the
past.
In Jarnagin, officers questioned the defendant
about injuries to an eight-month-old victim at the police
station and later at the hospital where the victim had been
taken. The officers did not give the defendant the required
Miranda warnings, and the defendant described his role
in the victim’s injuries. The defendant also told the offi-
cers that he would reenact those events. The next day, the
defendant participated in a video reenactment at his home.
The circumstances were not compelling—the officers did
not challenge or confront the defendant during the reenact-
ment—and the officers again did not administer Miranda
warnings. At trial, the court granted the defendant’s motion
to suppress not only the defendant’s statements at the sta-
tion and the hospital, but also the videotape.
On review in this court, the state argued that the
officers’ Miranda violations at the station and the hospital
did not require suppression of the videotape. The court dis-
agreed. The court acknowledged that a change in time and
circumstances can be sufficient to dissipate the effects of
an earlier Miranda violation and that the Miranda viola-
tions at the station and the hospital “were not flagrant.” Id.
at 717. The officers had not physically restrained the defen-
dant and had advised him that he was not under arrest. Id.“[A]ccording to the trial court’s unchallenged ruling,” the
court explained, “the officers [had] failed to recognize that the
circumstances had become sufficiently compelling to require
Miranda warnings.” Id. Nevertheless, the court required
suppression of the videotape, reasoning that the defendant
had reenacted the same events that he had described earlier
Cite as 357 Or 365 (2015) 395
and “[n]o advice of Miranda rights had intervened to break
the causal chain.” Id. at 718. Significantly, the court did not
view the defendant’s voluntary agreement or his voluntary
participation in the reenactment as breaking the causal
chain. See id. at 719.
Neither the majority nor the concurrence rest their
conclusions on the types of facts recognized in Jarnagin as
attenuating the taint of a Miranda violation—a change in
time or circumstances, a lifting of restraints, an officer’s
failure to recognize that the circumstances were so compel-
ling that Miranda warnings were required, or the fact that
belated Miranda warnings were given. Instead, the primary
fact that the majority and concurrence deem essential is a
fact that was of no consequence in Vondehn or Jarnagin
and that pertains in virtually every instance in which a
defendant seeks to exclude evidence obtained as a result
of a “mere” Miranda violation—the fact that defendant’s
response was volitional and the deputy did not coerce defen-
dant’s response.
An officer’s coercion can, of course, make a defen-
dant’s response involuntary. See State v. Foster, 288 Or
649, 656, 607 P2d 173 (1980) (defendant’s waiver of right
to counsel not voluntary where police persisted in repeated
efforts to persuade defendant to waive right); see also State
v. Mendacino, 288 Or 231, 238, 603 P2d 1376 (1979) (later
confession inadmissible where “coercive conditions which
resulted in * * * [earlier] confessions were not effectively
removed”). But, as the court made clear in Unger, volun-
tariness alone does not necessarily make evidence obtained
in violation of the constitution admissible. 356 Or at 79.
Miranda warnings are required in circumstances that are
compelling but not coercive to ensure that a defendant speaks
not out of compulsion but as a result of a knowing, deliberate
choice. The purpose of Miranda warnings is to ensure that a
defendant knows that he or she has a right to remain silent
and to consult a lawyer. Without that information, a waiver
of rights, even a voluntary waiver, is invalid. Jarnagin, 351
Or at 716; Vondehn, 348 Or at 476; see State v. Joslin, 332
Or 373, 386, 29 P3d 1112 (2001) (holding that defendant’s
waiver of Article I, section 12, rights, “although voluntary,
396 State v. Delong
was not knowingly made and, therefore, was invalid”). Thus,
as the majority acknowledges, the failure to give Miranda
warnings demands suppression of derivative evidence even
when the consent to search is voluntary. Vondehn, 348 Or at
476-77.
In this case, even if defendant’s response to the
deputy’s unwarned interrogation, including his consent
to search, can be described as volitional, it must be sup-
pressed because, considering the totality of the circum-
stances, it was the product of the deputy’s constitutional
violation. That conclusion also compels the conclusion that
the resulting physical evidence must be suppressed. Both
the consent and the physical evidence are the products of
the same constitutional violation and, on these facts, defen-
dant’s consent to search cannot serve to attenuate the taint
of the Miranda violation and permit the admission of the
physical evidence any more than did the voluntary, but
unknowing, consents of the defendants in Vondehn and
Jarnagin.
The only additional peg on which the majority
hangs its hat is its characterization of the Miranda viola-
tion in this case as “not egregious.” Delong, 357 Or at 379.
But why? This is not a case in which the trial court could
make an unchallenged ruling—as did the trial court in
Jarnagin—that the deputy failed to recognize that defen-
dant was in compelling circumstances. Here, defendant
was handcuffed when the interrogation began, and the
deputy had to know that Miranda warnings were required.
The majority does not contend otherwise, but neverthe-
less terms the deputy’s Miranda violation “not egregious,”
implying that there may be different degrees of Miranda
violations. Although there may be degrees of coercion, once
coercion reaches the level at which Miranda warnings are
required, an officer must provide the information that
the constitution requires. When Miranda warnings are
required, no adjectival description can render an officer’s
constitutional violation meaningless.
Finally, returning to Unger, it is important to note
that, in that case, the court cautioned that “consent that fol-
lows a random stop or seizure that lacks probable cause or
Cite as 357 Or 365 (2015) 397
reasonable suspicion that a crime has been committed and
that is nothing more than a fishing expedition for incrimi-
nating evidence” may be consent that is voluntary but never-
theless so tainted that suppression is required. 356 Or at
91. Here, although the deputy had probable cause to believe
that defendant had been driving without a seatbelt, he did
not have probable cause to believe that he was in possession
of drugs. Nevertheless, the deputy handcuffed defendant
and placed him in the back seat of the police car and went on
a fishing expedition—deliberately interrogating defendant
and seeking incriminating evidence without first warning
defendant of his right to remain silent and to consult a law-
yer. In Unger terms, defendant’s invitation to search may
have been voluntary, but it was nevertheless so tainted that
suppression is required.
I fear that the majority advances such police prac-
tices when it refuses to impose consequences for a depu-
ty’s constitutional violation. And, on the other side of the
coin, holding law enforcement officers accountable will
not result in the long-term loss of evidence. If the majority
is correct that, in circumstances like those in this case,
detained individuals give consent to search not because
they lack an understanding of their rights, but because
they make a deliberate decision to waive those rights, then
such individuals will give consent to search even if we
require law enforcement officers to adhere to constitutional
requirements.
In Unger, the court declined to impose a judicial con-
sequence for the officers’ constitutional violation, expressing
its expectations that officers will act within constitutional
limitations. Id. at 94. Most law enforcement officers do act
within constitutional limits and they do so most of the time.
But when they do not, it benefits neither the officers nor our
system of justice to excuse their violations by saying that
they were “not egregious.” Our system of justice depends on
the public’s respect for law enforcement. When officers do
not obey the law, the public loses respect for law enforcement
and the law—posing a danger to both. When we counsel, but
do not demand, the best from law enforcement, we imperil
both law enforcement and our system of justice.
398 State v. Delong
Judicially expressed expectations are not enough to
secure liberty. “Liberty comes not from officials by grace but
from the Constitution by right.” Maryland v. Wilson, 519 US
408, 424, 117 S Ct 882, 137 L Ed 2d 41 (1997) (Kennedy, J.,
dissenting). Because the majority retreats from principles
necessary to give effect to those rights and to protect our
system of laws and those who enforce them, I respectfully
dissent.
Baldwin, J., joins in this dissenting opinion.
BALDWIN, J., dissenting.
I respectfully disagree with the majority’s conclu-
sion that defendant’s consent to the search of his vehicle
attenuated the taint of the Miranda violation by the depu-
ties in this case. In particular, I disagree with the majori-
ty’s conclusion that defendant’s consent—given in response
to police questioning while he was in custody and in hand-
cuffs—was volunteered. I disagree with the reasoning that
the majority has used to reach its conclusion, and I am con-
cerned about how that reasoning may affect other cases in
which citizens are interrogated by law enforcement officers
under compelling circumstances in violation of their right
to remain silent under Article I, section 12, of the Oregon
Constitution.1
I.
I begin with a brief additional background. Sergeant
Robeson stopped defendant because defendant was not
wearing his seat belt while operating his automobile. After
Robeson activated his overhead lights and pulled defendant
over, defendant identified himself by name and date of birth
but did not provide Robeson with a driver’s license. Robeson
handcuffed defendant, searched him, and placed him in
the backseat of his patrol car. Robeson testified that his
purpose in taking defendant into custody was to establish
defendant’s identity. While defendant was handcuffed in
Robeson’s patrol car, Robeson questioned him about illegal
activity unrelated to the stop without first warning him that
1
Article I, section 12, of the Oregon Constitution provides, in part:
“No person shall * * * be compelled in any criminal prosecution to testify
against himself.”
Cite as 357 Or 365 (2015) 399
he had a right to remain silent. Robeson asked defendant
if there was anything in defendant’s car that the deputies
should be concerned about. According to Robeson, defendant
“told me ‘no,’ and that if we wanted to search the vehicle,
we could.” Robeson testified that the above encounter lasted
“maybe two or three minutes.” Deputy Poe searched defen-
dant’s vehicle immediately after Robeson’s conversation
with defendant and found a fanny pack that contained drug
paraphernalia and drug residue. Poe did not give defendant
Miranda warnings until after his search had disclosed the
physical evidence of drugs.
At the suppression hearing, defendant agreed that
he had told Robeson that Robeson would not find anything
in his car, but he denied that he had consented to the search
of his car. The trial court found that
“during this period of time * * * is when Sergeant Robeson
initiated the conversation with the defendant about does he
have anything of concern in his vehicle, and the defendant
responded no, and then ultimately gave consent to search.
Deputy Robeson said he did not ask for consent. That it was
volunteered in a way by the defendant and the Court finds
that appears to be credible.
“* * * * *
“[I]t was after the search when Deputy Poe approached the
defendant, he gave him his Miranda rights and after giv-
ing those Miranda rights did ask extensive questions about
what he found in the car and statements—incriminating
statements were made by the defendant. The Court is find-
ing that the prior conversation about identification while
he was detained to pursue that investigation, that at that
point Miranda wasn’t needed.”
On appeal, the state conceded that the trial court
had erred and that Miranda warnings were required before
Robeson could question defendant because defendant had
been in custody and under compelling circumstances at
the time. The state nevertheless argued that suppression
of the physical evidence was not required, because, in its
view, defendant had made a spontaneous offer of consent to
search his car. Defendant argued that State v. Vondehn, 348
400 State v. Delong
Or 462, 475-76, 236 P3d 691 (2010), supported his contention
that his consent (as found by the trial court), other state-
ments he had made, and the physical evidence all derived
from the Article I, section 12, violation and should have been
suppressed.
The Court of Appeals concluded that this case “is
largely governed by the principles and reasoning that the
Supreme Court set forth in Vondehn” and reversed the
trial court’s denial of defendant’s motion to suppress. State
v. Delong, 260 Or App 718, 722-23, 320 P3d 653 (2014). In
Vondehn, the defendant was likewise handcuffed, placed in
a patrol car, and briefly interrogated without the benefit of
Miranda warnings, in violation of his rights under Article I,
section 12. In response to a deputy’s question, the defendant
admitted that he owned the backpack in the car and that it
contained marijuana. The defendant consented to a search
of the backpack, marijuana was found, and the officers
then gave the defendant his Miranda warnings. This court
observed that it had long held “that the Oregon Constitution
requires suppression of statements made without the benefit
of Miranda warnings.” Vondehn, 348 Or at 472. The court
held that “the state is precluded from using evidence derived
from the violation to obtain a criminal conviction,” including
“physical evidence that is derived from that constitutional
violation.” Id. at 475-76.
This court also explained in Vondehn that the ratio-
nale for the constitutional requirement that police warn cit-
izens of their right against self-incrimination is the level of
coercion inherent in custodial interrogations. Article I, sec-
tion 12, protects citizens against the use of compelled state-
ments, because such statements do not provide an acceptable
basis for proving guilt of a crime in a civilized society. See
State v. Mendacino, 288 Or 231, 236, 603 P2d 1376 (1979)
(so stating). To give effect to that constitutional right, this
court has prohibited the state from using physical evidence
derived from an Article I, section 12, violation to prosecute
a suspect. The principles of law that this court applied in
Vondehn are highly pertinent to this case:
“Since Magee, this court consistently has held that the
Oregon Constitution requires suppression of statements
Cite as 357 Or 365 (2015) 401
made without the benefit of Miranda warnings. See, e.g.,
State v. Roble-Baker, 340 Or 631, 643-44, 136 P3d 22 (2006)
(suppressing unwarned statements made during custodial
interrogation); State v. Smith, 310 Or 1, 7, 791 P2d 836
(1990) (so stating). The full extent of the court’s discussion
of the rationale for that rule has been to state that, when
a suspect is subjected to custodial interrogation, warnings
are necessary ‘ “because of the inherent level of coercion
that exists in such interrogations.” ’ State v. Scott, 343 Or
195, 200, 166 P3d 528 (2007) (quoting State v. Joslin, 332
Or 373, 386, 29 P3d 1112 (2001)); see also State v. Meade,
327 Or 335, 339, 963 P2d 656 (1998). * * *
“* * * * *
“Article I, section 12, affords a constitutional right to
remain silent. That right is, however, subject to waiver.
Because a custodial interrogation is inherently compelling,
and to ensure the validity of a waiver of the right against
self-incrimination, Article I, section 12, requires that the
police inform a person subjected to custodial interroga-
tion that he or she has a right to remain silent and to con-
sult with counsel and that any statements that the per-
son makes may be used against the person in a criminal
prosecution. Article I, section 12, requires those Miranda
warnings to ensure that a person’s waiver is knowing as
well as voluntary. If the police conduct a custodial inter-
rogation without first obtaining a knowing and voluntary
waiver of the suspect’s rights, then they violate the sus-
pect’s Article I, section 12, rights. To give effect to those
constitutional rights, the state is precluded from using, in
a criminal prosecution, statements made in response to the
interrogation.”
348 Or at 472-74.
In applying those principles to the facts in Vondehn,
this court concluded:
“As noted, defendant was in custody, in the back seat of
a patrol car and handcuffed, when the police subjected
him to custodial interrogation. Defendant had the right to
remain silent and to advice of counsel, but the police con-
ducted their custodial interrogation without obtaining a
valid waiver of those rights. When they did so, the police
violated Article I, section 12. That constitutional violation
402 State v. Delong
requires suppression of both the answers that defendant
gave in response to, and the marijuana that the police iden-
tified and seized as a result of, that interrogation.”
Id. at 476.
II.
With that background in mind, I now explain my
disagreement with the majority’s conclusion that defen-
dant’s consent to the search of his vehicle attenuated the
taint of Robeson’s illegal questioning. The majority begins
its attenuation analysis by “not[ing] that the amount of time
that passed between the Miranda violation and the discov-
ery of the physical evidence was brief. Additionally, defen-
dant remained in custody during the encounter. In those
respects, this case is similar to Vondehn.” 357 Or at 374. The
majority does not, however, discuss the compelling nature of
the circumstances confronting defendant or give those cir-
cumstances any weight in its attenuation analysis. Not only
did defendant “remain in custody” after he was stopped for
a seat belt violation, he was searched, handcuffed, placed in
the back of a patrol car, and then basically asked by Robeson
if he had engaged in any illegal activity.2 The majority does
not consider the effect of those circumstances on defen-
dant at the time that he responded to Robeson’s unwarned
question.
The majority instead focuses on what it sees as
“the primary factual difference” between Vondehn and this
case—“defendant’s invitation to search his car.” 357 Or at
374. “When Sergeant Robeson asked defendant ‘if there was
anything we should be concerned about’ in his car, defendant
‘told [him] “no,” and that if [the deputies] wanted to search
2
The majority acknowledges that Robeson’s question “went too far” and
states that his question “was not limited to officer safety.” 357 Or at 379, 379
n 14. Because defendant had already been searched and handcuffed at the time
that Robeson questioned him, however, officer safety would not appear to be an
issue at all. Rather, based on the circumstances and the substance of Robeson’s
question, it appears that Robeson’s sole purpose in asking the question was to
elicit incriminating information from defendant. See Rhode Island v. Innis, 446
US 291, 300-01, 100 S Ct 1682, 64 L Ed 2d 297 (1980) (holding that “the Miranda
safeguards come into play whenever a person in custody is subjected to * * * any
words or actions on the part of the police * * * that the police should know are
reasonably likely to elicit an incriminating response from the suspect”).
Cite as 357 Or 365 (2015) 403
the vehicle [they] could.’ ” Id. Although defendant’s response
to the unwarned question was immediate and directly per-
tained to the deputy’s question, the majority sharply breaks
the response into two parts, giving great weight to what it
characterizes as defendant’s “invitation” to search his car.
Notwithstanding the compelling circumstances confronting
defendant, the majority views the “invitation” to search as
spontaneous and in no way causally related to those circum-
stances or to the deputy’s illegal conduct. The majority con-
cludes that defendant’s consent was “volunteered.” 357 Or at
375.3 Thus, the majority ultimately views defendant’s con-
sent as representing a complete break in the causal chain
between the taint of the Miranda violation and the physical
evidence obtained from the consent search.
In my view, the majority’s conclusion that defen-
dant’s consent to search was volunteered is inconsistent
with the weight of pertinent case law. As the majority notes,
Professor LaFave identifies two types of statements that
properly may be considered “volunteered” in the Miranda
context: (1) statements that are not prompted by police ques-
tioning, and (2) statements that are nonresponsive to a police
officer’s question. 357 Or at 375 (citing Wayne R. LaFave
et al, 2 Criminal Procedure § 6.7(d) (3d ed 2007 and 2014
supp) (discussing volunteered statements)). The majority
appears to implicitly concede that defendant’s statements did
not fall into the category of unprompted statements. Rather,
the majority posits that defendant’s statement that the dep-
uties could search his car was nonresponsive because his
answer to Robeson’s question “went beyond what Robeson
had asked and included an offer for the officers to search his
car.” 357 Or at 376.
The cases that Professor LaFave cites for the prop-
osition that a nonresponsive statement may be considered
volunteered, however, do not support the majority’s position.
3
I have great difficulty viewing a consent to search given by a suspect in
custody, in handcuffs, and in response to police questioning as a “volunteered”
act. A “volunteer” is a “voluntary actor or agent in a transaction; * * * [s]omeone
who gratuitously and freely confers a benefit on another.” Black’s Law Dictionary
1807 (10th ed 2014). For me, to characterize defendant’s consent, if we are to call
it that, as “volunteered” under the compelling circumstances confronting defen-
dant strains the meaning of that word to a breaking point.
404 State v. Delong
Those cases primarily involved suspects who had made
incriminating statements that were wholly unrelated to the
questions asked by the police or that were not a product of
unwarned interrogation. See, e.g., United States v. Crisolis-
Gonzalez, 742 F3d 830, 836-37 (8th Cir 2014) (the defen-
dant’s statement that he had a gun under his mattress was
volunteered, because that statement was “wholly unrelated”
to law enforcement agent’s inquiry into his immigration sta-
tus); United States v. Woods, 711 F3d 737, 741 (6th Cir 2013)
(the defendant volunteered the “unexpected and unrespon-
sive reply” that he had a weapon in his car when asked by
officer what object was in his pocket); United States v. Fleck,
413 F3d 883, 893 (8th Cir 2005) (when the officer asked the
defendants “how they liked the food” in the county jail, the
officer’s question was not “calculated to elicit an incrim-
inating response” from the defendants); United States v.
Castro, 723 F2d 1527, 1530-31 (11th Cir 1984) (when law
enforcement agent asked the defendant, “What in the world
is going on here?”, the defendant’s subsequent offer to bribe
the agent was a “spontaneously volunteered” statement that
was “totally unresponsive” to the agent’s question).
In contrast to the above cases, the state has con-
ceded that Robeson’s question whether “there was anything
[the deputies] should be concerned about” in defendant’s
car constituted a Miranda violation. Moreover, defendant’s
statements that nothing in his car should concern the depu-
ties and that they could search his car were made in direct
response to that unwarned question. Accordingly, because
defendant’s statements were both prompted by and made in
response to Robeson’s question, I would conclude that defen-
dant’s consent to search in this case may not properly be
considered “volunteered.”
In determining that defendant’s consent attenuated
the taint of the Miranda violation, the majority relies on State
v. Unger, 356 Or 59, 333 P3d 1009 (2014), a case recently
decided by this court in which police officers trespassed into
the defendant’s backyard in violation of his privacy rights
protected by Article I, section 9, of the Oregon Constitution.
In that case, the officers knocked on the back door of the
defendant’s residence, and the defendant consented to the
entry into and the search of his residence. The defendant
Cite as 357 Or 365 (2015) 405
was not physically restrained by handcuffs or otherwise
subjected to compelling circumstances. Thus, no Miranda
warnings were required or at issue in Unger. The majority
cites Unger as “reaffirm[ing] that, when a defendant’s con-
sent to a search either was not affected or was only tenuously
connected to a prior illegality, the defendant’s voluntary con-
sent can be sufficient to break the causal chain [between the
illegality and the evidence obtained in the consent search].”
357 Or at 378. The majority does not explain, however, why
the attenuation analysis in Unger—an Article I, section 9,
case—should apply in an Article I, section 12, case in which
a suspect was not given his Miranda warnings before he
consented to a search under compelling circumstances.
Moreover, in applying Unger, the majority again disregards
the effect of the compelling circumstances confronting defen-
dant as a causal factor in producing defendant’s consent and
the physical evidence obtained in the consent search. In my
view, Unger does not provide a readymade answer to how
this court should conduct an attenuation analysis under the
circumstances of this case.
In relying on Unger, the majority applies three fac-
tors identified in that case that it thinks bear on when a
consent to search will attenuate the illegality of a Miranda
violation:
“That legal determination—whether, in the circumstances
of a particular case, consent has so attenuated the con-
nection between the prior illegal conduct and the evidence
obtained in the consent search—requires a court to con-
sider the illegal conduct that comprised the stop or search,
the character of the consent, and the causal relationship
between the two.”
Unger, 356 Or at 78. First, the majority considers the illegal
conduct of law enforcement. Again, no consideration is given
to the compelling circumstances confronting defendant when
he consented to the search. Instead, the majority observes
that the violation of defendant’s Miranda rights “can hardly
be characterized as egregious * * *. Robeson did not engage
in repeated efforts to wear down [defendant’s] resistance.
*
* * [O]ther than the initial background questions he
asked, Robeson asked defendant only one question[.]” 357
Or at 378-79 (internal quotation marks omitted). Of course,
406 State v. Delong
there was no reason for Robeson to ask defendant repeated
or additional questions. Under compelling circumstances,
defendant provided incriminating information to the dep-
uties based on a single question. From Robeson’s question
and the circumstances, it is apparent that the purpose of
the question was to elicit potentially incriminating infor-
mation from defendant. Here, that purpose was achieved by
Robeson asking a single question.
Second, the majority considers “the character of
defendant’s consent.” 357 Or at 379. Again, without any refer-
ence to the compelling circumstances confronting defendant,
the majority concludes that, in response to an accusation by
a sheriff’s deputy who had searched and handcuffed him,
defendant simply “invited the deputies to search his car if
they wanted to do so. Defendant’s invitation to search his car
in this case is virtually identical to the invitations in Kennedy
and Rodriguez, which this court held attenuated the taint of
the unlawful seizures in those cases.” 357 Or at 379 (citing
State v. Kennedy, 290 Or 493, 624 P2d 99 (1981), and State v.
Rodriguez, 317 Or 27, 854 P2d 399 (1993)). However, as with
its reliance on Unger, the majority fails to recognize critical
differences between Kennedy and Rodriguez and this case.
In Kennedy, the defendant was not confronting compelling
circumstances when he consented to a search of his luggage
after police officers had stopped him at an airport without
reasonable suspicion. The defendant was not in custody or
improperly questioned as part of any Miranda violation. In
Rodriguez, the defendant consented to a search of his apart-
ment after he “had been read his Miranda rights and stated
that he understood them. He was under no compulsion to
answer the agent’s question.” 317 Or at 41 n 15. Both cases
involved alleged violations of the defendants’ privacy rights
under Article I, section 9—not a defendant’s right to remain
silent protected by Article I, section 12.
Finally, the majority purports to consider “the
causal connection between the violation and defendant’s
invitation.” 357 Or at 380. As previously noted, defendant’s
response to Robeson’s question immediately followed that
question. The conversation was brief, with no intervening
circumstances occurring between the question and the
response. Notwithstanding the direct and obvious causal
Cite as 357 Or 365 (2015) 407
connection between the question and the consent, the major-
ity observes that “[t]his is not a case in which Robeson’s
unwarned questioning left ‘little, if anything, of incrimi-
nating potential * * * unsaid.’ ” 357 Or at 380 (quoting State
v. Jarnagin, 351 Or 703, 722, 277 P3d 535 (2012) (internal
quotation marks omitted)). However, the quoted portion of
Jarnagin pertains to the efficacy of belated Miranda warn-
ings. The quoted discussion from Jarnagin appears to have
little bearing on the causal connection between the Miranda
violation and defendant’s consent to search in this case.4
In short, I do not find the majority’s attenuation
analysis in this case persuasive. As noted, pertinent case
law does not support the majority’s conclusion that defen-
dant’s consent was volunteered. Moreover, the majority does
not recognize that the compelling circumstances to which
defendant was subjected bears on whether defendant’s con-
sent attenuates the police illegality in this case. Although
the majority purports to consider the causal connection
between the illegality and defendant’s consent, it declines to
actually look at those compelling circumstances as a causal
factor. In my view, that oversight represents a major flaw in
the majority’s attenuation analysis. The majority then com-
pounds that error by giving inordinate weight to defendant’s
consent as a factor that—by itself, and in a highly fictional-
ized manner5 —attenuates the taint of the police illegality.
4
The complete quote in Jarnagin is as follows:
“With that background in mind, we turn to the facts of this case. We note,
as an initial matter, that this is not a case, as in [Missouri v. Seibert, 542 US
600, 124 S Ct 2601, 159 L Ed 2d 643 (2004)], where the unwarned interroga-
tion left ‘little, if anything, of incriminating potential * * * unsaid,’ making it
‘unnatural’ not to ‘repeat at the second stage [of the interrogation] what had
been said before.’ See Seibert, 542 US at 616-17 (plurality opinion).”
351 Or at 722.
5
I understand that legal fictions are commonly used in the analysis of legal
principles and in their application to particular facts. See Louise Harmon, Falling
Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment, 100 Yale
LJ 1, 2-16 (1990) (discussing historical debate on use of legal fictions). Professor
Lon Fuller defined a legal fiction as “either (1) a statement propounded with a
complete or partial consciousness of its falsity, or (2) a false statement recognized
as having utility.” Lon L. Fuller, Legal Fictions 9 (1967). Fuller distinguished a
fiction from a lie “by the fact that it is not intended to deceive.” Id. at 6. He distin-
guished a fiction from an erroneous conclusion “by the fact that it is adopted by its
author with knowledge of its falsity.” Id. at 7. Thus, for Fuller, a legal fiction was
problematic only if it was used without recognition of its falsity: “In practice, it is
precisely those false statements that are realized as being false that have utility.
408 State v. Delong
III.
As noted in Vondehn, 348 Or at 476 n 8, other state
courts have decided under their state constitutions that
physical evidence obtained in violation of Miranda rights
must be excluded at trial as “fruit of the poisonous tree.”
See, e.g., State v. Peterson, 181 Vt 436, 446-47, 923 A2d 585
(2007) (holding, under Vermont Constitution, that “[p]hysi-
cal evidence gained from statements obtained under circum-
stances that violate Miranda is inadmissible in criminal
proceedings as fruit of the poisonous tree”); Commonwealth
v. Martin, 444 Mass 213, 215, 827 NE2d 198 (2005) (adopt-
ing common-law rule under Massachusetts Constitution
that physical evidence, “if derived from unwarned state-
ments where Miranda warnings would have been required
by Federal law in order for them to be admissible, is pre-
sumptively excludable from evidence at trial as ‘fruit’ of the
improper failure to provide such warnings”); State v. Knapp,
285 Wis 2d 86, 123, 700 NW2d 899 (2005) (noting that “the
goals of the exclusionary rule and fruit of the poisonous
tree doctrines are to curb ‘illegal governmental activity,’ ”
and concluding that “it is appropriate that the exclusion-
ary rule bars physical fruits obtained from a deliberate
Miranda violation under Article I, Section 8” of Wisconsin
Constitution); but see State v. Sole, 185 Vt 504, 514, 974 A2d
587 (2009) (holding that physical evidence not tainted by
prior Miranda violation where the defendant consented to
search in response to officer’s request because “a consent
request is not designed to elicit an incriminating response”
(internal quotation marks omitted)).
The physical evidence that defendant has challenged
in this case is derivative in nature, because it was obtained
A fiction taken seriously, e.g., ‘believed,’ becomes dangerous and loses its utility.
It ceases to be a fiction under either alternative of the definition given above.” Id.
at 9-10. Other commentators have agreed with Fuller that the dangerousness
of a fiction derives from the failure to acknowledge its falsity and have some-
times criticized the fiction of “consent” in criminal procedure on that basis. See,
e.g., David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the
Fourth Amendment, 1997 Sup Ct Rev 271, 322 (1997) (“Unfortunately, the fiction
of consent in criminal procedure is used by the Supreme Court with something
far short of ‘a complete consciousness of its falsity.’ ”) (Quoting Fuller.). In my
view, using a legal fiction without recognizing its falsity is particularly danger-
ous when the scope of protection afforded a constitutional right is determined
based on the use of that fiction.
Cite as 357 Or 365 (2015) 409
as the result of an unwarned question directed by Robeson
to defendant when defendant was in custody. Defendant
is therefore entitled to a determination as to whether that
derivative evidence is “tainted” by the constitutional viola-
tion or, as famously stated by Justice Frankfurter, whether
the evidence is the “fruit of the poisonous tree.” Nardone
v. United States, 308 US 338, 341, 60 S Ct 266, 84 L Ed
307 (1939). As pointed out by Professor LaFave, Nardone
“established the doctrine of ‘attenuation’ by authoritatively
recognizing that the challenged evidence might sometimes
be admissible even if it did not have an ‘independent source’
because the ‘causal connection * * * may have become so
attenuated as to dissipate the taint.” LaFave, 3 Criminal
Procedure § 9.3(a) at 419-20; see also Wong Sun v. United
States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963) (sus-
pect’s confession to crime untainted by his illegal arrest the
day before, because it was given after his release and his
voluntary return to police station).
In this case, there was an immediate, direct causal
relationship between the compelling circumstances con-
fronting defendant and the consent to search that defen-
dant gave in response to Robeson’s unwarned question.
As observed in Vondehn, this court has long recognized
the inherent level of coercion that exists when suspects in
custody are questioned by police officers. Vondehn, 348 Or
at 472; see Joslin, 332 Or at 380 (noting that protection
against compelled self-incrimination under Article I, sec-
tion 12, “extends to custodial interrogations, because of
the inherent level of coercion that exists in such interroga-
tions”); Meade, 327 Or at 339 (court “has recognized that a
level of coercion is inherent in any custodial setting”); State
v. Brewton, 247 Or 241, 244, 422 P2d 581, cert den, 387
US 943 (1967) (recognizing “the inherently coercive char-
acter of police interrogation of a suspect in custody who
has not been advised of his rights”). Indeed, the United
States Supreme Court identified the compulsion inher-
ent in custodial interrogations as the primary reason for
requiring police officers to warn suspects of their rights.
See Miranda v. Arizona, 384 US 436, 467, 86 S Ct 1602,
16 L Ed 2d 694 (1966) (concluding that, without providing
such warnings, “the process of in-custody interrogation of
410 State v. Delong
persons suspected or accused of crime contains inherently
compelling pressures which work to undermine the indi-
vidual’s will to resist and to compel him to speak where he
would not otherwise do so freely”).
In recent years, several courts have recognized the
compelling effect of a police officer’s presence on an indi-
vidual’s consent and have considered empirical studies in
fashioning appropriate tests for determining the validity of
consent searches. For example, the Supreme Court of New
Jersey cited various psychological studies regarding the
compulsion inherent in police-citizen encounters in State v.
Carty, 170 NJ 632, 790 A2d 903 (2002). The court noted, “In
the context of motor vehicle stops, where the individual is
at the side of the road and confronted by a uniformed officer
seeking to search his or her vehicle, it is not a stretch of the
imagination to assume that the individual feels compelled
to consent.” Id. at 644 (citing psychological studies that have
shown that “there is an almost reflexive impulse to obey an
authority figure”). The court also cited data from the New
Jersey State Police Independent Monitors’ reports that indi-
cated that nearly 95 percent of detained motorists granted
a law enforcement officer’s request for consent to search. Id.
at 644-45. Based in part on that social science, the court
altered its test for determining the validity of a motorist’s
consent to search, holding that law enforcement personnel
must have a reasonable and articulable suspicion of crimi-
nal wrongdoing, beyond the initial valid motor vehicle stop,
before seeking consent to search. Id. at 647.
Similarly, in Brown v. State, 182 P3d 624 (Alaska
Ct App 2008), the Court of Appeals of Alaska relied on var-
ious studies on the inherently compelling nature of police-
citizen interactions to conclude that federal law does not
adequately protect motorists. The court noted that consent
searches are nearly always held to be valid under the Fourth
Amendment: “The federal law in this area is premised on
the assumption that, all things being equal, a motorist who
does not wish to be subjected to a search will refuse consent
when the officer seeks permission to conduct a search. But
experience has shown that this assumption is wrong.” Id.
at 630. After citing various studies that have undercut the
Cite as 357 Or 365 (2015) 411
notion that a person truly consents to be searched, the court
concluded:
“Whatever the exact reasons for motorists’ willingness
to accede to the requests of law enforcement officers, it is
clear that large numbers of motorists are consenting to be
searched each year—indeed, each month, and each week.
Motorists are giving consent in such large numbers that
it is no longer reasonable to believe that they are making
the kind of independent decision that lawyers and judges
typically have in mind when they use the phrase ‘consent
search.’ ”
Id. at 630-31. Ultimately, the court held, under the search-
and-seizure provision of the Alaska Constitution, that an offi-
cer who had stopped the defendant for a vehicle-equipment
violation was prohibited from requesting the defendant’s
consent to search her person and vehicle for drugs. Id. at
634.
Several other courts have acknowledged the wide-
spread academic criticism of case law pertaining to con-
sent searches. The Supreme Court of Kansas, for example,
observed, “Commentators, in addition to noting the difficulty
in applying the case law relating to consensual searches
to specific fact situations, argue that the [United States
Supreme] Court’s analysis utilizes an ill-crafted paradigm
[for interpreting and applying the Fourth Amendment].”
State v. Thompson, 284 Kan 763, 777-79, 166 P3d 1015 (2007),
as modified (Oct 17, 2007) (noting numerous scholars’ cri-
tiques that consent searches after routine traffic stops are
inherently coercive). Similarly, the Supreme Court of Iowa
described the abundant academic commentary on consent
searches pursuant to traffic stops and acknowledged that
a common criticism with the consensual search doctrine is
that “a traffic stop gives rise to an element of compulsion.”
State v. Pals, 805 NW2d 767, 780-82 (Iowa 2011).
In particular, scholars have criticized the wide gap
between the fiction that ordinary citizens consent to a police
officer’s requests and the reality that police-citizen encoun-
ters involve such inherently compelling circumstances as to
vitiate any true choice on the part of the citizen. According to
a study performed in Maryland and Ohio, which examined
412 State v. Delong
motorists’ compliance with police requests for consent
to search their vehicles, approximately 90 percent of the
motorists studied consented to have their vehicles searched.
Daniel J. Steinbock, The Wrong Line Between Freedom
and Restraint: The Unreality, Obscurity, and Incivility of
the Fourth Amendment Consensual Encounter Doctrine, 38
San Diego L Rev 507, 534-35 (2001). Similar studies on
police-citizen encounters have shown that “people tend
to underestimate the strength of situational constraints
and overestimate the voluntariness of others[’] actions.”
Josephine Ross, Can Social Science Defeat a Legal Fiction?
Challenging Unlawful Stops Under the Fourth Amendment,
18 Wash & Lee J Civil Rts & Soc Just 315, 332 (2012)
(advocating for defeat of legal fiction of consensual nature
of police-citizen encounters through use of social science).
Indeed, one commentator has concluded, “The truth is that
people consent so often that it undermines both the mean-
ingfulness of the consent and the believability that the
police are really respecting the doctrine.” Oren Bar-Gill &
Barry Friedman, Taking Warrants Seriously, 106 Nw U L
Rev 1609, 1662 (2012).
In State v. Jenkins, 298 Conn 209, 3 A3d 806 (2010)
(Palmer, J., dissenting), Justice Palmer recently surveyed
much of the academic commentary and social science regard-
ing the coercive effect that an officer’s request for consent is
likely to have on a motorist who has been detained in con-
nection with a traffic stop. Id. at 325-34. He summarized
that literature as follows:
“[E]mpirical studies over the last several decades on the
social psychology of compliance, conformity, social influ-
ence, and politeness have all converged on a single conclu-
sion: the extent to which people feel free to refuse to comply
is extremely limited under situationally induced pressures.
* * * It therefore has been argued that the United States
Supreme Court should incorporate the empirical find-
ings on compliance and social influence into * * * consent
[search] jurisprudence * * * to dispel the air of unreality
that characterizes the current doctrine.”
Id. at 326 (internal quotation marks omitted).
Cite as 357 Or 365 (2015) 413
The foregoing authorities have all recognized that
compulsion is an inherent feature of a police encounter when
a motorist is detained in connection with a routine traffic
stop. In this case, we have the additional circumstances that
defendant was personally searched, handcuffed, and placed
in the back of a patrol car; that strong show of authority
subjected defendant to more compulsion than is ordinarily
inherent in a routine traffic stop. Based on its prior prece-
dents, this court should give those compelling circumstances
appropriate weight in considering the causal connection
between Robeson’s Miranda violation and defendant’s con-
sent to the search of his car. Vondehn, 348 Or at 472; Joslin,
332 Or at 380; Meade, 327 Or at 339; Brewton, 247 Or at 244.
This court has generally looked to the totality of the
circumstances and applied a fact-intensive inquiry to deter-
mine whether physical or testimonial evidence derives from
or is a product of a Miranda violation. Jarnagin, 351 Or at
716-17; see Vondehn, 348 Or at 482 (considering “all relevant
circumstances” in deciding whether belated Miranda warn-
ings were effective in ensuring valid waiver of rights). Here,
Robeson illegally asked defendant an unwarned question in
violation of Article I, section 12, for the purpose of elicit-
ing incriminating information from defendant. Defendant’s
direct and immediate response to that question, given under
compelling circumstances, included defendant’s consent
to search his car. Those circumstances involved a strong
show of police authority, including personally searching
defendant, handcuffing him, and placing him in the back
of Robeson’s patrol car. There were no intervening events
between Robeson’s unwarned question and defendant’s con-
sent. Robeson exploited that unwarned question to obtain
incriminating information from defendant. And that infor-
mation, in turn, was offered by the state to convict defen-
dant of possession of a controlled substance. Under those
circumstances, defendant’s consent cannot properly be
viewed as a complete break in the causal chain between the
Miranda violation and the physical evidence obtained by the
police. Put differently, defendant’s consent was more than
tenuously related to the Miranda violation. Jarnagin, 351
Or at 716-17; see also State v. Ayles, 348 Or 622, 636-39,
414 State v. Delong
237 P3d 805 (2010) (Miranda warnings alone not sufficient
to “ensure that the unlawful police conduct did not affect,
or had only a tenuous connection to, [the] defendant’s
responses”); LaFave, 3 Criminal Procedure § 9.3(c) at 423-24
(discussing relevant criteria for determining “when there is
only an ‘attenuated connection’ between a violation and cer-
tain derivative evidence”); Comment, Fruit of the Poisonous
Tree—A Plea for Relevant Criteria, 115 U Pa L Rev 1136,
1148-49 (1967) (source of “relevant criteria” relied upon by
Professor LaFave).
For the foregoing reasons, I would hold that defen-
dant’s consent to the search of his car did not attenuate the
taint of the Miranda violation by Robeson. Where, as here,
a suspect consents to the search of his car under compel-
ling circumstances and in direct response to an unwarned
question by a law enforcement officer seeking to elicit
incriminating information from that suspect, the physical
evidence obtained from that search must be excluded as
the “fruit of the poisonous tree” to give effect to the consti-
tutional protection against self-incrimination provided for
by Article I, section 12, of the Oregon Constitution. In my
view, the majority’s contrary conclusion unduly diminishes
the vital constitutional protection against self-incrimination
provided for by Article I, section 12. I therefore respectfully
dissent.
Walters, J., joins this dissenting opinion.