State v. Beeson ( 2020 )


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  •                                        808
    Argued and submitted October 15, 2019, affirmed December 9, on appellant’s
    petition for reconsideration filed December 23, 2020, reconsideration allowed by
    opinion March 10, 2021
    See 
    309 Or App 787
    , 482 P3d 821 (2021)
    STATE OF OREGON,
    Plaintiff-Respondent,
    v.
    HARRY CREIGHTON BEESON,
    Defendant-Appellant.
    Curry County Circuit Court
    17CR12539; A166382
    479 P3d 576
    Defendant appeals a judgment of conviction for driving under the influence
    of intoxicants, ORS 813.010, and recklessly endangering another person, ORS
    163.195. He assigns error to the trial court’s denial of his motion to suppress evi-
    dence of his blood alcohol content (BAC), which an officer obtained after defendant
    submitted to a breath test. On appeal, defendant argues that admitting the BAC
    results violated his Article I, section 12, rights under the Oregon Constitution.
    In particular, he argues that his consent to the breath test was the product of an
    earlier Miranda violation. The state concedes the earlier violation but counters
    that it did not taint defendant’s later decision to take the breath test. Held: The
    trial court did not err by denying defendant’s motion to suppress. Given the total-
    ity of the circumstances, the Miranda violation did not taint defendant’s decision
    to submit to the breath test. The admission of the BAC evidence therefore did not
    violate defendant’s Article I, section 12, rights.
    Affirmed.
    Cynthia Lynnae Beaman, Judge.
    Mark Kimbrell, Deputy Public Defender, argued the
    cause for appellant. Also on the brief was Ernest G. Lannet,
    Chief Defender, Criminal Appellate Section, Office of Public
    Defense Services.
    Joanna L. Jenkins, Assistant Attorney General, argued
    the cause for respondent. Also on the brief were Ellen F.
    Rosenblum, Attorney General, and Benjamin Gutman,
    Solicitor General.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge,
    and Mooney, Judge.*
    ______________
    * Egan, C. J., vice Hadlock, J. pro tempore.
    Cite as 
    307 Or App 808
     (2020)   809
    MOONEY, J.
    Affirmed.
    810                                           State v. Beeson
    MOONEY, J.
    Police officers stopped defendant after it was
    reported that he had hit someone with his truck and that
    he was intoxicated. The state concedes that the officers vio-
    lated defendant’s state constitutional rights when, after the
    circumstances became compelling, they administered field
    sobriety tests (FSTs) to him and continued to ask him ques-
    tions without advising him of his Miranda rights. The trial
    court suppressed the statements and FSTs but received into
    evidence the results of the blood-alcohol (BAC) test to which
    defendant consented after the violation. Defendant was con-
    victed of driving under the influence of intoxicants, ORS
    813.010, and recklessly endangering another person, ORS
    163.195, after a bench trial. He assigns error to the trial
    court’s denial of his motion to suppress the results of his
    breath test. Defendant argues that the Miranda violation
    tainted his consent to the breath alcohol test and that the
    results should, therefore, be suppressed. For the reasons we
    explain below, we conclude that the breath test was not the
    product of the Miranda violation and that the trial court did
    not err in denying the motion to suppress the test results.
    We affirm the judgment.
    I. STANDARD OF REVIEW
    We review the denial of defendant’s motion to sup-
    press for legal error. State v. Heise-Fay, 
    274 Or App 196
    ,
    201, 360 P3d 615 (2015). We are bound by the trial court’s
    express and implicit factual findings, so long as evidence in
    the record supports them. State v. Ehly, 
    317 Or 66
    , 75, 
    854 P2d 421
     (1993). “If findings of historical fact are not made on
    all pertinent issues and there is evidence from which such
    facts could be decided more than one way, we will presume
    that the facts were decided in a manner consistent with the
    court’s ultimate conclusion.” 
    Id.
     We state the facts consis-
    tently with our standard of review.
    II. FACTUAL BACKGROUND
    Defendant and T (the victim in this case) were
    familiar with each other on the day in question because they
    shared a remote family connection and because defendant’s
    former girlfriend lived in a room in T’s mother’s home. While
    Cite as 
    307 Or App 808
     (2020)                                  811
    T’s mother was giving T a ride across town, T noticed defen-
    dant following them. They stopped and there was a brief
    exchange during which T told defendant to “please turn
    around. Please go home.” When defendant did not respond,
    T said that he was going to call 9-1-1, which he immedi-
    ately did. T walked back to his mother’s car and, while he
    was providing 9-1-1 with a description of the vehicles, defen-
    dant “lunged his truck forward” striking T. T told the 9-1-1
    operator that defendant “just hit me, he just hit me.” After
    hitting T, defendant backed up, turned around, and drove
    away.
    At approximately 5:00 p.m., Oregon State Police
    Trooper Katter heard the county dispatcher announce that
    there had just been a hit-and-run involving a potentially
    impaired driver. Katter began to search for the vehicle and,
    when she located it, activated her overhead lights and fol-
    lowed it. Defendant drove away from Katter, jumping the
    curb with his right rear tire as he turned onto Highway 101.
    He pulled into a nearby grocery store parking lot but did
    not immediately stop his vehicle. Katter then activated her
    siren, and defendant stopped circling and parked in front of
    the grocery store.
    Defendant opened the door to his truck as Katter
    approached it. She smelled a “strong[ ] odor” of an alcoholic
    beverage emanating from defendant that remained strong
    throughout the contact. Katter noticed that defendant
    was “completely covered in mud” on his left side—from his
    “elbow down to his feet.” His movements and speech were
    “sluggish,” and his eyes were “glassy and bloodshot.” When
    she asked to see his driver’s license, defendant struggled for
    “about two and a half minutes to get it * * * out of his pants
    and hand it to” her. During this period of time, defendant
    and Katter had the following exchange:
    “[KATTER]: Well, sir, I can smell that you’ve been
    drinking. You’re telling me that you haven’t, but I can smell
    it. So how much have you had to drink today?
    “[DEFENDANT]: I don’t drink.
    “[KATTER]: So are you on any medication?
    “[DEFENDANT]: Yes, ma’am. A lot of them.
    812                                              State v. Beeson
    “[KATTER]: Okay. What—what kind of medication
    are you taking?
    “[DEFENDANT]: They’re for my heart.
    “[KATTER]: Is it Atenolol?
    “[DEFENDANT]: There’s a lot of medication.”
    At that point, defendant produced his driver’s
    license and Katter asked him for insurance and registra-
    tion. Their discussion continued:
    “[KATTER]: So if—so if you haven’t had anything to
    drink but you’re taking medications, what kind of medica-
    tions are you on?
    “[DEFENDANT]: It’s for my heart.
    “[KATTER]: Are you taking any pain medication?
    “[DEFENDANT]:       No?
    “[KATTER]: No. Okay. All right. Well, just give me a
    few minutes. Sir, would you be willing to consent to some
    field sobriety tests?
    “[DEFENDANT]: Why?
    “[KATTER]: Why? Because I believe that you’re
    impaired right now and shouldn’t be driving, so I’d like—
    I’d like for you to be able to prove to me that you are indeed
    able to drive, so that’s why I’m asking if you want to con-
    sent to field sobriety tests.
    “[DEFENDANT]: Well, I’d be more than happy to, but
    you’ve got to know I can’t even put my underpants on in the
    morning, underpants.
    “[KATTER]: Well, then do you think you should be
    driving if you can’t even put your underpants on? Can you
    be operating a motor vehicle on the highway? It’s a reason-
    able question.
    “[DEFENDANT]: It probably is, yeah.
    “[KATTER]: So you’d be willing to consent to the tests?
    It’s a simple yes or no.
    “[DEFENDANT]: Yes or no. I’d be more than happy to
    take your test.
    Cite as 
    307 Or App 808
     (2020)                                 813
    “[KATTER]: Okay. Then just give me a few minutes,
    sir. I’m going to run this, and I’ll be right back with you,
    and then we’ll do those tests, okay? [Deputy Hanson is]
    going to hang out with you.”
    Deputy Hanson arrived while defendant was work-
    ing to retrieve his driver’s license. Hanson opened the
    passenger-side door of the truck and asked, “How are you?,”
    to which defendant responded, “Good. How are you?” Katter
    continued with defendant:
    “[KATTER]: Did you fall down in the mud? It looks
    like you—
    “[DEFENDANT]: No. I was picking flowers for my
    girlfriend.
    “[KATTER]: You were picking flowers?
    “[DEFENDANT]:       Yeah.
    “[KATTER]: That’s—it looks like muddy work.
    “[DEFENDANT]: No, I did, too. I can take you back to
    show them to you.”
    Katter then asked defendant for his car keys, and, when
    defendant asked why, Katter told him, “[b]ecause you’re not
    going anywhere.”
    T arrived on the scene shortly thereafter, and defen-
    dant exited his truck in an effort to confront him. A third
    officer, Hodencamp, also arrived on the scene at that time.
    Hanson told defendant to return to his truck, but, when
    defendant did not comply, Hanson physically restrained
    defendant and instructed him to place his arms behind his
    back until he could calm back down. Katter told defendant to
    “relax,” and defendant returned to his truck without further
    restraints. She asked him whether he was ready to take field
    sobriety tests (FSTs), and he responded that he was—after
    first denying that he had consumed alcohol and telling her
    again that he was taking medication. Defendant performed
    the requested FSTs, after which Katter told Hodencamp
    that she was going to arrest defendant for driving under the
    influence of intoxicants (DUII).
    814                                             State v. Beeson
    Hodencamp then began asking defendant questions
    related to the hit-and-run without providing defendant with
    Miranda warnings. After several minutes of questioning,
    Hodencamp and defendant had the following exchange:
    “[HODENCAMP]: Alright. Is there anything else
    that you want to tell me right now that you can think of?
    Anything that would make it easier for you? Help you out?
    “[DEFENDANT]: I got nothing else to say.
    “[HODENCAMP]:      OK. We’re all done.”
    [Defendant starts to say something]
    “[HODENCAMP]: OK. I’m going to stop you right
    there. I’m going to read you your rights, OK.
    “[HODENCAMP, speaking to Katter]:          Have you read
    him his rights yet?
    “[KATTER]: Not yet.
    “[HODENCAMP]:       I’m going to read you your rights
    real quick, OK?
    “[DEFENDANT]: I’m getting arrested for this drug
    addict, mother fucker—
    “[HODENCAMP]: OK, listen up now. You told me that
    you don’t want to say nothing else, so I’m going to stop you
    there, and I’m going to read you your rights, OK.”
    Hodencamp then read defendant the Miranda warnings,
    after which the exchange continued:
    “[HODENCAMP]:      Do you understand those rights?
    “[DEFENDANT]: Yes sir.
    “[HODENCAMP]: Alright. You are under arrest for
    DUII, and there might be additional charges.”
    Hodencamp arrested defendant at 5:25 p.m.,
    approximately 30 minutes after Katter initially responded
    to the report from dispatch. Hodencamp drove defendant to
    the police station, where Katter resumed her DUII investi-
    gation. Katter read defendant his rights related to implied
    consent, after which defendant signed the implied consent
    Cite as 
    307 Or App 808
     (2020)                             815
    form. Katter observed defendant for the required 15 min-
    utes, at which point she administered the breath test, which
    yielded a blood-alcohol content (BAC) of .21 percent.
    III.   PROCEDURAL HISTORY
    Defendant filed a pretrial motion to suppress, seek-
    ing to exclude evidence of statements he had made to the
    police, police observations of defendant, physical evidence,
    breath test results, and “all evidence, the source of which,
    comes from any contact with [defendant] either at the vehi-
    cle or thereafter by any police officer * * * or [I]ntoxilyzer
    testing.” Defendant argued that his rights under the Fifth
    Amendment of the United States Constitution and Article I,
    section 12, of the Oregon Constitution had been violated
    because he was questioned without first being advised of
    his Miranda rights at a time when he was in “construc-
    tive custody.” Constructive custody, he argued, arose at the
    point when “all three officers were directing him what to
    do and where to go and prevented him from moving freely.”
    Defendant further argued that, although Hodencamp
    advised him of his Miranda rights at the time of his for-
    mal arrest, and before his submission to the breath test, his
    consent to take the breath test was tainted by the earlier
    Miranda violation. Thus, defendant argued that the breath
    test evidence should be suppressed as well.
    The state conceded that there were compelling cir-
    cumstances requiring Miranda warnings once Katter and
    Hanson went “hands-on” with defendant in order to stop
    him from confronting the victim of the hit and run. The
    state therefore agreed that defendant’s statements after
    that point and the results of the FSTs should be suppressed,
    but it opposed the suppression of the breath test evidence,
    arguing that, under State v. Chambers, 
    147 Or App 626
    , 
    938 P2d 793
     (1997), rev den, 
    327 Or 82
     (1998), the Miranda vio-
    lation did not taint defendant’s subsequent consent to the
    breath test. It specifically argued that defendant’s consent
    was not causally related to the Miranda violation because
    (1) the officers could have arrested defendant for DUII with-
    out first conducting FSTs (i.e., they had probable cause for
    DUII without the FSTs and without defendant’s unwarned
    816                                                         State v. Beeson
    statements), (2) he was advised of his rights when he was
    arrested, and (3) his subsequent consent to the breath test
    was voluntary under ORS 813.100.1
    Alternatively, the state argued that intervening
    events dissipated the taint of the Miranda violation, ren-
    dering the consent voluntary and the resulting test results
    admissible. Defendant responded that, because the Miranda
    violation was so close in time to the breath test, the test
    result should be excluded as a product of the Miranda viola-
    tion, along with his statements and his performance on the
    FSTs. And, again, the state agreed that the FST evidence
    and pre-Miranda statements were not admissible.
    The trial court accepted the state’s concession and,
    accordingly, granted the motion to suppress defendant’s
    post-violation statements and the FST results, but it denied
    defendant’s motion to the extent it sought to suppress the
    breath test results. The court found, among other things,
    that Katter had probable cause to arrest defendant for DUII
    upon her initial contact with him in the parking lot, that
    defendant provided consent to take FSTs “prior to any com-
    pelling circumstances,” that defendant himself created the
    “compelling circumstances” by exiting his vehicle to con-
    front the victim, and that the officers’ reaction to defendant’s
    “attempt to confront the victim in an aggressive manner”
    was “reasonable.” It agreed with each of the state’s alter-
    native grounds for admitting the breath test results—the
    “independent source doctrine”2 and the “attenuation doc-
    trine”3 —finding that
    1
    ORS 813.100 provides that “[a]ny person who operates a motor vehicle upon
    premises open to the public or the highways of this state shall be deemed to
    have given consent, subject to the implied consent law, to a chemical test of the
    person’s breath,” and that the consequences of refusing to do so includes the sus-
    pension of driving privileges.
    2
    “The independent source doctrine permits the introduction of evidence ini-
    tially discovered during, or as a consequence of,” unlawful state activity, “but
    later obtained independently from activities untainted by the initial illegality.”
    State v. Johnson, 
    335 Or 511
    , 519, 73 P3d 282 (2003) (internal quotation marks
    and citations omitted).
    3
    The attenuation doctrine permits the introduction of evidence obtained
    after illegal state activity, so long as the state can prove that it obtained the
    evidence after the taint of the illegality had dissipated, demonstrating that the
    evidence was not derived from the illegality. State v. Delong, 
    357 Or 365
    , 380-81,
    350 P3d 433 (2015).
    Cite as 
    307 Or App 808
     (2020)                                   817
    “[i]t was a relatively short period of time between
    [Katter’s] encounter with the defendant in the * * * parking
    lot * * * and at the jail. However, there were some things
    that occurred prior to the breath test and in between the
    compelling circumstances and the lack of Miranda warn-
    ings and the time the breath test was provided, those
    things including the defendant being taken to another loca-
    tion, so it was not the same location. It included that his
    Miranda warnings—or the Miranda warnings were pro-
    vided to him, and it included reading the Implied Consent
    Form [pursuant to ORS 813.100].
    “The court will find that if the defendant had not agreed
    to take the field sobriety tests, the trooper would have
    taken—would have arrested him and taken him to the jail
    to go through the Implied Consent Form and to request
    that he take a breath test. The court will conclude that
    the test—the State would have requested the breath test
    regardless of the Miranda violation.
    “Furthermore, the court will find that under the totality
    of the circumstances the State did not exploit any unlaw-
    ful interrogation or violation of Miranda warning rights
    in order to obtain the breath test, so the defense’s position
    fails on both the but for tests and then under totality of the
    circumstances and with a view towards the nature of the
    causal connection between the violation of rights and the
    later obtained breath test.
    “* * * * *
    “The breath test evidence doesn’t derive from any
    unlawful activity from the State.”
    Defendant waived his right to a trial by jury. During
    his bench trial, among other things, the state introduced
    evidence of defendant’s BAC. The court found defendant
    guilty on two counts—DUII, ORS 813.010, and recklessly
    endangering another person—ORS 163.195, but acquitted
    him of reckless driving, ORS 811.140, and entered a judg-
    ment accordingly. Defendant now appeals that judgment,
    assigning error to the trial court’s denial of his motion to
    suppress.
    IV. ANALYSIS
    On appeal, defendant limits his argument to the
    court’s refusal to suppress the evidence of the results of
    818                                          State v. Beeson
    his breath test under Article I, section 12. He argues that
    there are two related reasons why the breath test results
    should have been suppressed. First, he argues that he was
    in “constructive custody” earlier in the encounter than
    the point at which the state conceded that a Miranda vio-
    lation occurred (i.e., the point at which the officers went
    “hands on” with defendant). Because the police did not sup-
    ply Miranda warnings at that earlier point, he argues, the
    “police-dominated” atmosphere, combined with the lack of
    Miranda warnings, rendered his consent to the breath test
    involuntary. Second, and relatedly, he argues that, although
    the officers provided belated Miranda warnings, the state
    failed to demonstrate that those warnings dissipated the
    taint of the earlier Miranda violation, also rendering his
    consent to take the breath test an involuntary product of the
    violation.
    Before turning directly to the question presented,
    we must address a preliminary issue. The state argues that
    defendant invited error with regard to his first argument—
    that the police-dominated atmosphere required the pro-
    vision of Miranda warnings earlier in the encounter than
    the state concedes. See State v. Kammeyer, 
    226 Or App 210
    ,
    214, 203 P3d 274, rev den, 
    346 Or 590
     (2009) (“Under the
    invited error doctrine, a party who ‘was actively instrumen-
    tal in bringing about’ an alleged error ‘cannot be heard to
    complain, and the case ought not to be reversed because of
    it.’ ” (Quoting Anderson v. Oregon Railroad Co., 
    45 Or 211
    ,
    216-17, 
    77 P 119
     (1904).)).
    As the state observes, defendant did not argue
    before the trial court that he was in constructive custody
    any earlier than the time at which the state conceded that
    a Miranda violation occurred. Rather, in his motion to sup-
    press, he argued that circumstances became “compelling”
    when “all three officers were directing him what to do and
    where to go and prevented him from moving freely in any
    manner including taking steps to physically touch the
    Defendant and direct him to places they wanted him to go.”
    Defendant argued that “[t]he violation then is during the
    field sobriety test, which is just before the arrest[.]” Thus,
    whether or not defendant invited any error regarding the
    Cite as 
    307 Or App 808
     (2020)                                  819
    timing of the Miranda violation, he certainly did not preserve
    an argument that he was in constructive custody before the
    encounter became “hands on.” Accordingly, we will not con-
    sider that argument on appeal. See ORAP 5.45(1); State v.
    Wyatt, 
    331 Or 335
    , 343, 15 P3d 22 (2000) (“[A] party must
    provide the trial court with an explanation of his or her
    objection that is specific enough to ensure that the court can
    identify its alleged error with enough clarity to permit it
    to consider and correct the error immediately, if correction
    is warranted.”). Therefore, for our purposes, defendant was
    in custody when the state concedes that he was—when the
    officers went “hands on” with him. Miranda warnings were
    required at that point.
    We turn now to the question presented: whether
    defendant’s consent to submit to the breath test was the prod-
    uct of that Miranda violation. We must determine whether
    the consent to the breath test “derived from [the officers’]
    violation of defendant’s Article I, section 12, rights.” State v.
    Taylor, 
    296 Or App 278
    , 285, 438 P3d 419 (2019) (emphasis
    added). That determination “cannot be reduced to a mechan-
    ical formula.” State v. Swan, 
    363 Or 121
    , 131, 420 P3d 9 (2018).
    It instead requires a totality-of-the-circumstances analysis,
    and the state bears the burden to prove that defendant’s
    consent “broke the causal chain between the prior Article I,
    section 12, violation and his breath test results.” 
    Id.
     Among
    other things, the fact-specific analysis may include consider-
    ation of
    “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.”
    State v. Jarnagin, 
    351 Or 703
    , 716, 277 P3d 535 (2012).
    In Jarnagin, officers began investigating the defen-
    dant after his child was admitted to the hospital with inju-
    ries consistent with possible abuse. During the course of the
    investigation, officers spoke with the defendant at the hos-
    pital and at the police station, where he provided an expla-
    nation for how his child was injured. 
    Id. at 706-08
    . The next
    820                                                          State v. Beeson
    day, the police went to the defendant’s home, where he reen-
    acted for them the same version of events that he had recited
    at the police station the day before. 
    Id. at 710
    . After that, he
    agreed to accompany them to another police station to take a
    polygraph examination. He went to the station two to three
    hours later, where he was advised of his Miranda rights for
    the first time. He then submitted to the polygraph examina-
    tion, during which he changed his explanation of how his
    child was injured. 
    Id. at 711-13
    . The defendant was charged
    with a number of crimes, including murder by abuse. He
    moved to suppress the statements he made over the course
    of the two-day investigation, arguing that, because he had
    not been given Miranda warnings until the time of the poly-
    graph examination, all of his statements—made before and
    after he was Mirandized—were inadmissible. 
    Id. at 713
    . The
    trial court granted the defendant’s motion to suppress as to
    all but a few statements made just prior to administration
    of the polygraph examination. 
    Id.
    On review, the Supreme Court first concluded that,
    because circumstances were “compelling” both at the hos-
    pital and at the police station, Miranda warnings were
    required before the officers spoke with the defendant at
    those locations. 
    Id. at 719
    . And, because “the video reenact-
    ment was a product of the Miranda violation the day before,”
    the court also concluded that the defendant’s statements at
    his home were properly suppressed. 
    Id.
     The court concluded,
    however, that the officers’ post-violation Miranda warnings
    effectively dissipated the taint of the earlier violations and
    allowed for the admission into evidence of statements made
    during the polygraph examination. 
    Id. at 722
    .
    Comparing Missouri v. Seibert, 
    542 US 600
    , 
    124 S Ct 2601
    , 
    159 L Ed 2d 643
     (2004), to Oregon v. Elstad, 
    470 US 298
    , 
    105 S Ct 1285
    , 
    84 L Ed 2d 222
     (1985),4 the Jarnagin
    4
    In Elstad, the officers arrested the defendant in his house, but, before pro-
    viding him with Miranda warnings, asked whether he was involved in a burglary.
    
    470 US at 300-01
    . The defendant admitted to being present at the burglary, after
    which the officers took him to the police station and Mirandized him. After that,
    he agreed to speak with the officers and provided a full statement admitting that
    he was involved in the burglary. 
    Id. at 301
    . The Supreme Court held that the
    late Miranda warnings were sufficient to ensure that the defendant adequately
    waived his Fifth Amendment rights because the officers’ lack of “coercion” indi-
    cated that the defendant’s waiver was voluntary. 
    Id. at 313-15
    .
    Cite as 
    307 Or App 808
     (2020)                                   821
    court reiterated its adoption of the Seibert plurality opinion
    in an earlier case:
    “ ‘The problem that Seibert demonstrates * * * is that
    when the police question first and warn later, their exhi-
    bition and exercise of authority and violation of the defen-
    dant’s constitutional rights may communicate to a defen-
    dant, as the Court believed they did in that case, that, before
    the defendant will be released, he or she must answer the
    questions asked. In that circumstance, the police not only
    fail to provide the defendant with the information neces-
    sary to a valid waiver—that the defendant has a right to
    remain silent and to confer with an attorney—the police
    also convey a contrary message. In that situation, when
    the police later administer Miranda warnings, we cannot
    assume that the mere recitation of Miranda warnings is
    sufficient to serve the intended informative function.
    “ ‘That being said, we note that Seibert is at one end of
    the range of the factual circumstances that present the
    issue that we address. [Elstad] is at the other. Not every
    instance in which the police question first and warn later
    communicates a mixed message.’ ”
    Jarnagin, 
    351 Or at 720
     (quoting State v. Vondehn, 
    348 Or 462
    , 481, 236 P3d 691 (2010) (alteration added)). The court
    distinguished the case before it from Seibert and concluded
    that “[t]he polygraph examination that occasioned defen-
    dant’s waiver of his Miranda rights presented ‘a markedly
    different experience’ from the officers’ questioning the day
    before and the video reenactment earlier that day.” 
    Id.
     at
    723 (citing Seibert, 
    542 US at 615
    ). The court held that the
    post-violation Miranda warnings were effective at dissi-
    pating the taint of the earlier, nonflagrant violation with
    respect to the defendant’s consent to take the polygraph
    examination. 
    Id.
    The court reached a different conclusion in Swan.
    There, the defendant performed poorly on FSTs, was arrested
    for DUII, and was taken to the police station. 
    363 Or at 126
    . After being advised of his Miranda rights, the defen-
    dant asked to speak with his lawyer, with whom he then
    spoke at length from a jail cell. After that, the officer asked
    the defendant nearly 30 questions from an implied consent
    form, read him his rights concerning implied consent, and
    822                                          State v. Beeson
    requested a breath test. The defendant initially declined to
    consent to the breath test, again invoking his right to coun-
    sel, but later acquiesced to the breath test, which returned a
    .18 percent BAC. 
    Id.
     The defendant moved unsuccessfully to
    suppress the answers to the questions as well as the breath
    test results, and he was convicted of DUII. 
    Id. at 127
    . The
    state conceded that the answers to the interview questions
    should have been suppressed but argued that the breath
    test results did not derive from the impermissible questions
    and were, therefore, properly admitted into evidence. 
    Id.
    The Supreme Court ultimately concluded that the defen-
    dant’s consent to the breath test was the product of “flagrant
    and repeated” Miranda violations. The defendant’s “decision
    to take the breath test was the product of the immediately
    preceding Miranda violation” because “no time elapsed
    between the questions that [the officer] asked in violation
    of defendant’s right to counsel and his question whether
    defendant would take a breath test,” and because the “defen-
    dant remained in custody throughout that time.” 
    Id. at 131-32
    .
    Whether the violation of defendant’s Article I, sec-
    tion 12, rights in this case tainted his consent to the breath
    test is a close call. On the one hand, defendant remained
    in custody from the time of the violation through the time
    of the breath test over a time period lasting less than an
    hour, tending to favor suppression. On the other hand, the
    violation and breath tests occurred in different locations,
    defendant was advised of his rights before he consented to
    the breath test, and the violation itself was not flagrant,
    tending to disfavor suppression. As we explain below, the
    record supports the trial court’s determination that defen-
    dant’s consent to the breath alcohol test was not tainted by
    the Miranda violation and, therefore, we conclude that the
    court did not err in denying defendant’s motion to suppress
    the results of that test.
    A.    Whether Defendant Remained in Custody Before Making
    Any Later Statements
    Defendant was placed in custody shortly after the cir-
    cumstances became compelling, and he remained in custody
    Cite as 
    307 Or App 808
     (2020)                            823
    until he submitted to the breath test. Because there was
    no break in custody between the officer’s Miranda viola-
    tion and defendant’s consent to take the breath test, this
    weighs in favor of suppression. See id. at 132 (“[T]here was
    no break in * * * custody between the officer’s repeated
    Article I, section 12, violation and defendant’s decision to
    take the breath test that might have attenuated the effect
    of the violation.”); State v. Koch, 
    267 Or App 322
    , 333, 341
    P3d 112 (2014) (concluding that “the circumstances * * * mil-
    itate * * * in favor of suppression” because the “defendant
    was under compelling circumstances within 15 minutes of
    the initial encounter and was under arrest when he gave
    the urine sample”); Taylor, 
    296 Or App at 292
     (“Because
    defendant was under compelling circumstances within
    20 minutes of the initial encounter when she was placed
    under arrest, and there was no break in custody before
    [the officer] asked defendant to take a breath test, the third
    Jarnagin factor also militates in favor of suppression.”).
    B. Amount of Time Between the Violation and the Breath
    Test
    Approximately 35 to 40 minutes elapsed between
    the Miranda violation and defendant’s consent to take the
    breath test. The short time frame, involving no real break,
    also weighs in favor of suppression. See Swan, 
    363 Or at 132
     (concluding that “the prior illegality and the defendant’s
    decision to take the breath test blended into a continuum”
    because “there was no break in time, place, or custody
    between the officer’s repeated Article I, section 12, viola-
    tion and defendant’s decision to take the breath test that
    might have attenuated the effect of the violation” (internal
    quotation marks and citation omitted)); State v. McAnulty,
    
    356 Or 432
    , 458, 338 P3d 653 (2014) (suppressing state-
    ments obtained “immediately after” a Miranda violation);
    Taylor, 296 Or at 291 (concluding that a breath test taken
    15 minutes after a Miranda violation suggested that the
    defendant’s decision to submit to the test was tainted by the
    Miranda violation). But see State v. Ward, 
    367 Or 188
    , 205,
    475 P3d 420 (2020) (“[A] short delay and change of location,
    alone, will generally not preclude the state from proving a
    valid waiver.”).
    824                                           State v. Beeson
    C. Nature of the Violation
    The conceded Miranda violation in the case before
    us, unlike the violation in Swan, was not egregious or fla-
    grant. Here, the officers did not disregard defendant’s invo-
    cation of his constitutional rights. They did not ask him mul-
    tiple questions in the face of repeated requests for counsel.
    See Koch, 
    267 Or App at 332
     (concluding that the violation
    was “flagrant” where the officer subjected the defendant
    to custodial interrogation by “repeatedly” questioning him
    after he had invoked his right to counsel). The violation here
    occurred when the officers administered FSTs to defendant
    for about 15 minutes and asked him questions related to
    the hit-and-run without first advising him of his Miranda
    rights. The context immediately preceding the violation was
    at least confusing, if not momentarily chaotic, given that the
    victim had arrived on the scene, apparently triggering defen-
    dant’s unexpected jump from his truck and his attempt to
    confront the victim. The officers reacted quickly to restrain
    defendant, but handcuffs were not used, and the officers
    and defendant remained fairly relaxed. As the state con-
    cedes, the circumstances became compelling at that point
    and the officers should have advised defendant of his rights
    before proceeding. This was not, however, an intentional or
    flagrant violation. Instead, it appears that the officers did
    not immediately recognize that the encounter had reached
    a constitutionally significant point.
    We are mindful that the Supreme Court recently
    cautioned us to limit our conclusion that a Miranda viola-
    tion is “not especially flagrant,” suggesting such a finding
    “should be limited to violations that consist of ‘the officers
    fail[ing] to recognize that the circumstances had become
    sufficiently compelling to require Miranda warnings.’ ”
    Ward, 367 Or at 201 n 9 (quoting Swan, 
    363 Or at 133
     (alter-
    ations in Ward)). The court’s conclusion in Ward reinforces
    the trial court’s finding, here, that the violation was neither
    flagrant nor egregious because the officers simply failed to
    recognize that the situation had become compelling. They
    did not deliberately violate defendant’s rights. The nature
    of the violation here was not egregious, weighing against
    suppression.
    Cite as 
    307 Or App 808
     (2020)                             825
    D. Subsequent Events that May Have Dissipated the Taint
    of the Earlier Violation
    Three significant events occurred between the
    Miranda violation and the consent for breath test that
    weigh against suppression: (1) Hodencamp read defendant
    his Miranda rights and, while doing so, prevented defendant
    from interrupting so that he could finish the Miranda warn-
    ings and obtain defendant’s acknowledgment that he under-
    stood the warnings; (2) the officers transported defendant
    to another location, the police station; and (3) Katter read
    defendant the implied consent form, which includes rights
    and consequences, before he consented to the breath alcohol
    test. Katter testified that she read the form to defendant
    and followed all of the procedures required, and she did so
    after contacting Hodencamp to confirm that he had advised
    defendant of his Miranda rights.
    That Hodencamp read defendant his Miranda
    rights is important in our analysis. The court in Jarnagin
    found that an officer’s belated Miranda warnings were
    “effective to purge the taint of the prior violation and ensure
    a knowing and voluntary waiver of defendant’s right[s].”
    Jarnagin, 
    351 Or at 724
    . Thus, belated Miranda warnings,
    in certain contexts, can effectively cure an earlier violation.
    Such later warnings are generally not sufficient to dissipate
    the taint of the earlier violation when “the unwarned inter-
    rogation left ‘little, if anything, of incriminating potential
    * * * unsaid,’ making it ‘unnatural’ not to ‘repeat at the sec-
    ond stage [of the interrogation] what had been said before.’ ”
    
    Id. at 722
     (quoting Seibert, 
    542 US at 616-17
     (alterations in
    original)). In other words, late Miranda warnings do not
    effectively dissipate the taint of an earlier violation when
    officers “communicate[ ] a mixed message” to the defendant
    by “question[ing] first and warn[ing] later.” Vondehn, 
    348 Or at 481
    . That is because the defendant would feel pressured
    to repeat what he or she had said during the unwarned
    interrogation. Seibert, 
    542 US at 617
    .
    Here, the post-violation events illustrate an even
    cleaner break in the investigation than occurred in Jarnagin.
    Unlike the defendant in Jarnagin, who was taken to the
    police station for a long polygraph examination after two
    826                                          State v. Beeson
    days of off-and-on questioning, the defendant here was
    taken to the police station and subjected to a single breath
    test. As the court stated in Jarnagin, this is “not a case,
    as in Seibert, where the unwarned interrogation left ‘little,
    if anything, of incriminating potential * * * unsaid,’ mak-
    ing it ‘unnatural’ not to ‘repeat at the second stage [of the
    interrogation] what had been said before.’ ” 
    351 Or at 722
    (quoting Seibert, 
    542 US at 616-17
     (alterations in original)).
    And “unlike in Seibert, there is no concern here that police
    gave [defendant] Miranda warnings and then led him to
    repeat an earlier * * * confession, because there was no ear-
    lier confession to repeat.” Bobby v. Dixon, 
    565 US 23
    , 31, 
    132 S Ct 26
    , 
    181 L Ed 2d 328
     (2011) (emphasis added). Instead,
    Hodencamp’s pre-Miranda questions about the hit-and-run
    were limited to the facts of the hit-and-run. And, defendant
    consistently denied alcohol consumption throughout the
    investigation, including after the FSTs. He maintained that
    his behavior was due to a medical condition and his related
    medications—not alcohol consumption.
    Defendant argues that the belated Miranda warn-
    ings did not dissipate the taint of the violation because “the
    officers’ behavior immediately leading to their administra-
    tion of Miranda warnings communicated to defendant that,
    despite the contents of the warnings * * * the police could
    question him at will and seek his consent to perform tests
    that illuminated his intoxication, as they had already done.”
    We disagree for two reasons. First, because defendant con-
    sented to the FSTs before the Miranda violation occurred,
    that consent was not connected to the subsequent violation.
    Moreover, defendant continued to deny that he had been
    drinking. That tends to detract from the argument that he
    later consented to the breath test because he perceived that,
    given the violation and subsequent conduct of the officers,
    withholding consent would be futile.
    Second, Hodencamp did not permit defendant to
    interrupt or make any statements while he read him his
    Miranda rights. The officers did not “question first and
    warn later,” and they did not communicate that, “before the
    defendant will be released, he * * * must answer the ques-
    tions asked.” Vondehn, 
    348 Or at 481
    . The police already
    Cite as 
    307 Or App 808
     (2020)                             827
    had probable cause to arrest defendant for DUII before
    the Miranda violation. They learned almost no new infor-
    mation between the time of the violation and the giving of
    the Miranda warnings, and Hodencamp clearly communi-
    cated to defendant that he had the right to remain silent
    and that he should, in fact, exercise it. The officers’ conduct
    did not diminish the importance of the Miranda warnings.
    The manner in which defendant was advised of his rights
    highlighted the importance of those rights. See Jarnagin,
    
    351 Or at 723-25
     (highlighting the importance of an officer’s
    explanation of Miranda warnings in the totality of the cir-
    cumstances analysis).
    Defendant also argues that the Miranda warn-
    ings were ineffective because the pre-Miranda FSTs and
    inquiry, together with defendant’s post-Miranda consent to
    a breath test, created “a continuous and fluid police opera-
    tion.” Heise-Fay, 
    274 Or App at 212
    . It is true that merely
    providing Miranda warnings is not sufficient alone to cure
    a Miranda violation. Post-violation warnings are generally
    ineffective when they are a mere formality that blends two
    phases of questioning into a “continuum.” See 
    id.
     (conclud-
    ing that questioning blended into a “continuum,” render-
    ing the post-Miranda statements inadmissible, when one
    officer asked the defendant “detailed and probing ques-
    tions” over a relatively short period of time before finally
    providing Miranda warnings). Here, however, the officers’
    pre- and post-Miranda conduct did not blend into one “con-
    tinuum.” Again, the officers did not ask defendant a series
    of detailed questions before or after the Miranda warnings.
    And the context in which defendant consented to the breath
    test was a “markedly different experience” from the one in
    which he performed FSTs in the parking lot and responded
    to questions limited to the hit and run. See Elstad, 
    470 US at 315
    . Despite the short period of time in which the entire
    interaction occurred, there was a clear change of circum-
    stances that provided a break in the investigation sufficient
    to remove the taint of the violation that occurred in the field
    from the consent to breath test that occurred later at the sta-
    tion. See Swan, 
    363 Or at 132
     (highlighting the importance
    of a “break in time, place, [and] custody” in the Jarnagin
    analysis (emphasis added)).
    828                                                          State v. Beeson
    E. The State’s Use of the Unwarned Statements
    Finally, the record indicates that the state did not
    use defendant’s post-violation statements to induce him to
    submit to the breath test. That also weighs against sup-
    pression. Unlike in State v. Mast, 
    301 Or App 809
    , 823, 459
    P3d 938 (2020), where the defendant’s admissions “left little
    of incriminating potential unsaid” beyond the defendant’s
    BAC, defendant here made no post-violation statements
    that would render it futile to refuse to consent to the breath
    test. Rather, he maintained that he was impaired because
    of his medical conditions and medications and he believed
    that he was being arrested because the victim accused him
    of a crime. He never admitted to drinking. Moreover, the
    record demonstrates that his statements after the Miranda
    violation were largely duplicative of the statements he made
    before the violation. Defendant did not make admissions
    which “ ‘were inextricably intertwined with [Katter’s] seek-
    ing, and obtaining,’ the breath test results.”5 Taylor, 
    296 Or App at 295-96
     (quoting Koch, 
    267 Or App at 334
    ).
    The totality of the circumstances reflected in the
    record demonstrates that defendant’s decision to consent to
    the breath alcohol test was not a product of the Miranda
    violation. The trial court did not err in denying defendant’s
    motion to suppress the breath alcohol test results.
    Affirmed.
    5
    Defendant also argues that, notwithstanding his lack of an admission, the
    state “failed to make a sufficient record” of Hodencamp’s conversation with defen-
    dant just prior to his reading of the Miranda warnings. Although a small portion
    of the audio of his conversation with Hodencamp is absent from the record, the
    audible portions strongly suggest that Hodencamp restricted his investigation to
    the hit-and-run and that he did not participate in the DUII investigation. And,
    again, defendant believed that he was being arrested because the victim accused
    him of striking him with his car. Those facts create a plausible inference that the
    state did not make use of any of the information Hodencamp learned to pressure
    him into taking a breath test. See Ehly, 
    317 Or at 75
     (we presume that a trial
    court made findings consistent with its decision, so long as evidence in the record
    would support those findings).
    

Document Info

Docket Number: A166382

Judges: Mooney

Filed Date: 12/9/2020

Precedential Status: Precedential

Modified Date: 10/10/2024