State v. Tate ( 2021 )

751
Argued and submitted May 29, 2019, affirmed November 24, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
TIMOTHY ALLEN TATE,
Defendant-Appellant.
Linn County Circuit Court
16CR41297; A164912
501 P3d 1064
Defendant appeals from a judgment of conviction, entered following a bench
trial, for delivery of marijuana to a minor, first-degree sexual abuse, first-
degree rape, and first-degree sodomy. On appeal, defendant challenges the trial
court’s denial of his motion to suppress DNA evidence obtained from a buccal
swab. Defendant argues that his consent to the swab was not voluntary, because
a Department of Human Services (DHS) caseworker’s statements made after
defendant consented to the swab, but before the swab was taken, rendered his
consent involuntary. In the alternative, defendant asserts that his consent was
derived from the violation of his rights under Article I, section 12, of the Oregon
Constitution. Held: The trial court did not err in denying the motion to suppress
with respect to the DNA evidence, because defendant voluntarily consented to
the search and that consent was not derived from a violation of defendant’s con-
stitutional rights.
Affirmed.
Carol R. Bispham, Judge.
Kali Montague, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Sercombe, Senior Judge.
ORTEGA, P. J.
Affirmed.
752 State v. Tate
ORTEGA, P. J.
Defendant appeals from a judgment of conviction,
entered following a bench trial, for delivery of marijuana to
a minor (Count 1); first-degree sexual abuse (Count 2); first-
degree rape (Count 3); and first-degree sodomy (Count 4).
On appeal, defendant challenges the trial court’s denial of
his motion to suppress DNA evidence obtained from a buccal
swab. Defendant argues that his consent to the swab was not
voluntary, because a Department of Human Services (DHS)
caseworker’s statements made after defendant consented to
the swab, but before the swab was taken, rendered his con-
sent involuntary. In the alternative, defendant asserts that
his consent was derived from the violation of his rights under
Article I, section 12, of the Oregon Constitution. We conclude
that the trial court did not err in denying the motion to sup-
press with respect to the DNA evidence, because defendant
voluntarily consented to the search and that consent was
not derived from a violation of defendant’s constitutional
rights. Accordingly, we affirm.
“In reviewing a denial of a motion to suppress, we
are bound by the trial court’s findings of historical facts as
long as there is constitutionally sufficient evidence in the
record to support those findings.” State v. Ry/Guinto, 211
Or App 298, 300, 154 P3d 724, rev den, 343 Or 224 (2007).
We summarize the facts consistently with that standard of
review.
Defendant was accused of giving marijuana to M
and sexually assaulting her in his bedroom, using force. M,
who was 17 at the time, went to a hospital where she was
examined for sexual assault. She reported that defendant,
who is her cousin’s boyfriend, had given her marijuana and
raped her. The hospital collected semen and sperm from two
stains on M’s clothing. DNA later collected from defendant
matched DNA found in those stains.
Before trial, defendant moved to suppress state-
ments he made to the police, and the DNA collected from
him, on the ground that the statements and his agreement
to the DNA swab were not voluntary. At the suppression
hearing, the parties presented the following evidence.
Cite as 315 Or App 751 (2021) 753
Detective Rossiter was assigned M’s case. He was
having difficulty locating defendant, who was likely living
out of his car at the time. Six months later, after defendant’s
girlfriend had given birth to their shared child, a DHS case-
worker, Fitzgerald, arranged a meeting with defendant at
her office. Fitzgerald notified Rossiter about the meeting as
she was aware that the police were trying to locate defen-
dant. Rossiter and another police detective, Detective Miller,
went to the DHS meeting so that they could talk with defen-
dant. Fitzgerald met defendant at the front door of the office
and escorted him to a meeting room where they met the two
detectives.
Rossiter introduced himself and asked defendant
if he would talk with the detectives. Defendant agreed to
speak with Rossiter and indicated that he had an idea what
it was about. Rossiter asked about defendant’s relationship
with M, and defendant made several statements. Rossiter
then stopped defendant and obtained his permission to set
up a recording of the interview. Rossiter, Miller, Fitzgerald,
and defendant sat down around a conference table, and
Rossiter began the recording at 9:04 a.m.
Rossiter began the interview by reciting Miranda
warnings, which defendant said he understood and did not
have any questions. Rossiter then asked defendant to repeat
what he had said before the recording, which included that
he did not have a relationship with M, that he had “cheated
just that one time,” that it was “for three to five minutes”
until he said “Hey, I can’t do this,” that he had been smoking
marijuana, but M had not, and that he thought that M was
18 years old.
Rossiter then elicited more information from defen-
dant about the events. Defendant said that they went to his
uncle’s house, defendant smoked marijuana outside, they
talked about his relationship with his girlfriend, then they
went inside to defendant’s bedroom, where “things started
happening,” but he told her he could not do it. Defendant
also denied having intercourse with M and said that M was
upset, “pretty irate,” when he stopped her. Defendant also
stated that a friend of M messaged him and said that M told
his girlfriend that defendant had raped M, but that M never
went to the hospital.
754 State v. Tate
Rossiter informed defendant that M did go to the
hospital, that she reported defendant had forced himself on
her and ejaculated inside of her. Rossiter then asked defen-
dant if there was any chance that defendant’s DNA would
be in or on M, to which defendant responded, “Not from
what I know of.” Rossiter asked if defendant would “submit
a DNA sample for comparison” and defendant responded
“sure.” Rossiter then told defendant that he was going to
go to his car to get the swabs and explained that he would
rub them on the inside of defendant’s cheek to collect the
DNA. Rossiter offered to leave the recording on, but Miller
told him to turn it off, because “we won’t talk without you
in here.” Rossiter told defendant that the DHS caseworker,
Fitzgerald, would have things to talk about with him,
because he had a child at home and “[t]here is some concern.”
Rossiter also said that he had a report from another per-
son, K, that defendant “forced [her] to do some things after
smoking marijuana with you.” Rossiter stopped the record-
ing at 9:13 a.m. and left the room, closing the door behind
him.
While the recording remained off, Fitzgerald
explained her role and the possibility of creating a safety
plan with regard to defendant’s infant son. Defendant
asked what would happen to his son, and she told him that
there’s “different avenues” to take. She explained in-home
safety plans, psychosexual analyses, and that, even if he
committed a crime, it did not mean defendant would never
be able to parent. She also explained that adult protective
services would be involved, because defendant had talked
about living with his mother, who runs an adult foster care
home from her house, and they needed to evaluate if it was
safe for defendant to be there. Defendant was upset, teary-
eyed, looking at the ground, and his voice was shaking. He
said that he did not want to lose his son, that he was not
a bad dad, and that he still wanted to parent. Fitzgerald
responded that parenting was a possibility, but he had to
be truthful so that she could make an appropriate safety
plan. The exchange lasted less than 10 minutes, during
which defendant remained seated. At one point, defendant
had also turned to Miller and stated, “She was eighteen. It
was after her birthday.” Miller started to respond “[w]ell the
Cite as 315 Or App 751 (2021) 755
medical records,” but then stopped and told defendant that
he had to talk to Rossiter.
Rossiter returned to the room and immediately
noticed that defendant’s demeanor and appearance had
changed:
“When I left [defendant]—he was calm, he seemed to
have normal color to his pallor. When I showed back up, he
was a little bit more red-faced and looked like he may have
either started to cry or had been crying just before I walked
in.”
He commented, “Okay, something’s changed. What’s up?”,
and he was told that they had talked while Rossiter was out.
At that point, Rossiter restarted the video recording. While
recording, Rossiter said:
“I read you Miranda and all those things apply. It’s 9:22
in the morning.
“And before I left, you told me that you would give me
consent to, you know, collect a sample of your DNA.
“And while I was gone some things were presented to
you that this report actually comes from prior to her 18th
birthday. Are we talking about the same incident?”
Defendant said it was and that he had “hung out” twice with M;
that the first time was before her eighteenth birthday and
the second time was after her eighteenth birthday and the
second time was “when things happened.” Rossiter asked if
there would be any reason for his DNA to be on M after their
first contact, and defendant said no. Detective Miller asked
again in more detail, and defendant said he and M kissed,
but his tongue did not go in her mouth. Rossiter then said,
“Okay. Say ‘ah’ please.” Defendant complied and Rossiter
swabbed the insides of defendant’s cheeks. After obtaining
the swab, Rossiter asked if, during the time the recorder
was off, he made any threats or promises or used any force
to get defendant’s DNA sample. Defendant said no.
Rossiter then began questioning defendant again,
specifically about whether he had planned to give M mari-
juana. Miller added, “So don’t lie to us now because your
baby is on the line, right?,” and defendant responded, “Yeah”
756 State v. Tate
and admitted that he had planned to smoke marijuana with
M. Rossiter then switched the conversation to discuss K.
After denying remembering anything about her several
times, Fitzgerald commented, “Dude we’re going to start
over. Tell the truth, because I’m getting a little irritated,
because I have to safety plan for your kid. So get it together.”
After that comment, defendant began answering questions
about K, but he denied sexual contact with her. Rossiter
then began asking questions about M again. During that
questioning, defendant stated that he was trying to be hon-
est, because “my son’s on the line.” The questioning ended at
9:55 a.m.
Rossiter placed defendant under arrest and escorted
him to the parking lot, where defendant spoke to his mother.
After doing so, defendant started crying and told Rossiter
there was more he had not told Rossiter and that he wanted
to talk without being recorded. Rossiter responded that it
had to be recorded. Defendant agreed, but only if Fitzgerald
was not in the room. Rossiter and defendant then sat down
alone for a second recorded interview.
At the start of the second interview, Rossiter pro-
vided defendant with new Miranda warnings, which defen-
dant said he understood. In that interview, defendant said
that M “came onto me. She wanted to do things, so we did
it. And then the first time we kissed and stuff, made out.
And then the second time is when those things happened.”
Defendant denied that he forced M to have sex and denied
having sex with her before her eighteenth birthday. At the
end of the interview, Rossiter and defendant also had the
following exchange:
“[Rossiter]: I understand. You know, [Fitzgerald] said
something in there, which I didn’t appreciate, which is she
works with the absolute scum of the earth.
“[Defendant]: And then she tells me that she’s—(crying)
“* * * * *
“[Defendant]: —(inaudible) from me and I don’t think
that’s respectful.
“[Rossiter]: I never look at the people I deal with like
they’re the scum of the earth, okay? They’re people that
Cite as 315 Or App 751 (2021) 757
messed up, people that can redeem themselves in some
way, shape, or form in the future. But that all becomes—
that all begins with honesty, okay?
“[Defendant]: I just didn’t like how she said she was
going to rip my fatherhood away from me.”
Defendant also testified at the suppression hearing.
He stated that Fitzgerald told him that, “if I didn’t cooperate
or answer questions that she would personally make sure
that I would have no rights to my son and that I would never
see him again.” He testified that it affected him “mentally
and emotionally” and made him “very, very distraught.” He
further testified that he felt like he had to talk to the detec-
tives and that, but for the threats, he would not have.
In arguments to the court, the state conceded that
the motion to suppress should be granted at the point that
defendant voiced the pressure he was feeling from Fitzgerald
at the end of the second interview, but asserted that the
prior statements and the DNA evidence should be admitted
at trial.
The trial court issued a letter opinion. The court
concluded that defendant’s statements up until Rossiter
started to leave the room to get the DNA swabs were vol-
untary and admissible. The court flagged the statement by
Rossiter mentioning defendant’s infant son as the moment
the issues with the interview began. After outlining the
testimony about Fitzgerald’s threats, the court found that
“[d]efendant was not credible when he said he would not
have talked if DHS had not threatened him. However, it
was clear that he was upset by what Ms. Fitzgerald said
to him.” The court also found that defendant “was credible
about being concerned, frightened about losing his son after
his conversation with Ms. Fitzgerald.” Finally, the court
also found that, after Rossiter returned to the room and
reminded defendant about his Miranda rights and that he
had agreed to the DNA collection that “[d]efendant allowed
Detective Rossiter to take the DNA sample exactly as he
had agreed prior to the conversation with the DHS worker.”
Based on ORS 136.425(1), the court suppressed all
of the statements that defendant made after Rossiter left the
758 State v. Tate
room to obtain the DNA swabs. However, the court allowed
“the information about the consent to the DNA swabs and
the taking of the samples * * * and what occurred prior to
Ms. Fitzgerald explaining things to him in the interview
room.”
On appeal, defendant assigns error to the trial court
denying his motion to suppress with respect to the DNA evi-
dence. Defendant argues that the trial court should have sup-
pressed the DNA evidence, because defendant’s consent to
the search was not voluntary, under both Article I, section 9,
of the Oregon Constitution and the Fourth Amendment to
the United States Constitution. In the alternative, defen-
dant argues that the DNA evidence should be suppressed
because it derived from the violation of defendant’s rights
under Article I, section 12, of the Oregon Constitution and
the Fifth and Fourteenth Amendments to the United States
Constitution. We review the trial court’s denial of defen-
dant’s motion to suppress for legal error. State v. Parnell,
278 Or App 260, 261, 373 P3d 1252 (2016).
We begin by addressing defendant’s state constitu-
tional argument on the voluntariness of his consent to the
buccal swab. Article I, section 9, provides that “[n]o law shall
violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or
seizure.” Taking a buccal swab from a person to collect their
DNA is a search under that provision. State v. H. K. D. S.,
305 Or App 86, 91, 469 P3d 770 (2020). Warrantless searches
are per se unreasonable under Article I, section 9, but one
exception to the warrant requirement is when a person vol-
untarily consents to the search. State v. Bonilla, 358 Or 475,
480, 366 P3d 331 (2015).
Consent is an exception to the warrant requirement
under Article I, section 9, “because consent relinquishes a
person’s privacy interest in [their person or] property so that
there is no unlawful intrusion under Article I, section 9.”
Id. “When the state relies on consent, it must prove by a
preponderance of the evidence that ‘someone having the
authority to do so’ voluntarily gave the police consent to
search the defendant’s [person or] property and that any
limitations on the scope of the consent were complied with.”
Cite as 315 Or App 751 (2021) 759
Id. at 481 (quoting State v. Weaver, 319 Or 212, 219, 874 P2d
1322 (1994)). “The proper test for voluntariness of consent
‘is to examine the totality of the facts and circumstances to
see whether the consent was given by defendant’s free will
or was the result of coercion, express or implied.’ ” State v.
Unger, 356 Or 59, 72, 333 P3d 1009 (2014) (quoting State
v. Kennedy, 290 Or 493, 502, 624 P2d 99 (1981)). The total-
ity of the circumstances includes “facts that may not have
been available to the police when the decision to search was
made.” Bonilla, 358 Or at 492. “Absent an express revocation
of initial consent, the permitted inference is that the initial
consent continues.” State v. Zamora, 237 Or App 514, 519,
240 P3d 91 (2010), rev den, 350 Or 297 (2011) (citing State v.
Ford, 220 Or App 247, 251, 185 P3d 550 (2008)).
Defendant argues that, although his consent was
voluntary at the time Rossiter asked him for a swab and
left the room, the circumstances changed to coercion based
on Fitzgerald’s conduct, such that his consent was no longer
voluntary, which requires suppression of the obtained DNA
evidence. In making that argument, defendant emphasizes
that totality of the circumstances evaluation and asserts
that we must evaluate the voluntariness of his consent at
the moment the search was executed. Defendant asserts
that we should not apply the permissible inference that his
initial voluntary consent continued, because it ignores the
intervening coercive conduct of Fitzgerald, which is part of
the totality of the circumstances.
We reject defendant’s framing of the analysis
because it has no basis in established law or the facts of this
case as found by the trial court. Defendant concedes that he
voluntarily consented to the buccal swab, and the trial court
found that defendant submitted to the swab that he had con-
sented to. See State v. Blair, 361 Or 527, 537, 396 P3d 908
(2017) (“In determining whether a particular search falls
within the scope of a defendant’s consent, the trial court will
determine, based on the totality of circumstances, what the
defendant actually intended. That determination is a fac-
tual one.”). Defendant provides us with no legal basis to con-
clude that his voluntary consent to that swab ceased to exist
once Fitzgerald pressured him to be “honest,” such that new
760 State v. Tate
consent was needed. Defendant’s consent to the buccal swab,
conversation with Fitzgerald, and Rossiter’s return with the
swab was part of a continuous transaction with respect to
the buccal swab search—Rossiter was gone for less than 10
minutes, he only stepped away for the express purpose of
obtaining the buccal swab kit, and defendant made no indi-
cation verbally or by conduct that his voluntary consent did
not continue once Rossiter returned. See State v. Luther, 63
Or App 86, 89, 663 P2d 1261, aff’d on other grounds, 296 Or 1,
672 P2d 691 (1983), overruled on other grounds by State v.
Affeld, 307 Or 125, 764 P2d 220 (1988) (“The question here
is limited to the effect of the few minutes’ delay between the
initial search and the seizure, during which defendant closed
the door to his room. There is no question but that the police
officers could properly have seized the gun during the initial
search while they were present with defendant’s consent and
in response to the emergency call. Absent express revocation
of an initial consent, i.e., absent objection to a subsequent,
closely related entry and search after the initial consen-
sual entry and search, the permitted inference is that the
initial consent continued.”); State v. Evans, 10 Or App 602,
606, 500 P2d 470, rev den (1973) (“Whether or not the defen-
dant’s mother affirmatively consented to Officer Rissman’s
re-entry of the house is immaterial. The record contains no
evidence whatever that she attempted to revoke the permis-
sion she had previously given the police to enter and arrest
defendant. In the absence of any express revocation of the
consent which the mother had previously given, that consent
continued through the seizure of evidence incident to defen-
dant’s arrest, when, as here, that seizure was a part of the
continuous sequence of the arresting process.”). Here, the
circumstances support applying the permissive inference
that defendant’s voluntary consent continued. Under our
established case law, defendant voluntarily consented to the
swab.
Additionally, even if relevant to the voluntariness
of defendant’s consent in this case, there is no evidence that
Fitzgerald’s pressure on defendant was in any way related
to his consent to the buccal swab or had any effect on defen-
dant’s decision to submit to the buccal swab that he had
already voluntarily consented to. Indeed, the trial court
Cite as 315 Or App 751 (2021) 761
discredited defendant’s testimony that Fitzgerald’s pressure
affected his decision to keep talking with the detectives, a
matter that Fitzgerald’s pressure was directly related to.
As a result, we conclude that, under the totality of the cir-
cumstances, defendant’s consent to the buccal swab was
voluntary.1
We reach the same conclusion under the Fourth
Amendment. Under the Fourth Amendment, voluntary con-
sent is an exception to the warrant requirement for a
search. Schneckloth v. Bustamonte, 412 US 218, 219, 93 S Ct
2041, 36 L Ed 2d 854 (1973). Both parties agree that the
correct standard for voluntary consent is the one articu-
lated in Schneckloth, and they further agree that we use the
same test for voluntariness under the Fourth Amendment
as we do under Article I, section 9. Ry/Guinto, 211 Or App
at 309 (explaining that, under the Fourth Amendment, vol-
untariness is a question of fact and the test described in
Schneckloth “is essentially the same as the test under the
Oregon Constitution, and requires the state to prove that
‘the consent was in fact voluntarily given, and not the
result of duress or coercion, express or implied’ ” (quoting
Schneckloth, 412 US at 248-49)); see also U.S. v. Russell, 664
F3d 1279, 1282 (9th Cir 2012) (concluding pat-down search
that included groin area was voluntary where the defen-
dant “did nothing to manifest any change of heart about his
consent to search”); U.S. v. Sanders, 424 F3d 768, 774 (8th
Cir 2005) (“If equivocal, a defendant’s attempt to withdraw
consent is ineffective and police may reasonably continue
their search pursuant to the initial grant of authority.”). As
a result, for the same reasons we have already articulated
above, we conclude that, under the Fourth Amendment,
defendant’s consent to the buccal swab was voluntary.
Defendant also argues that the trial court should
have suppressed the DNA evidence, even if his consent was
1
We do not foreclose entirely that a voluntary consent given just prior to an
inducement could be affected by that inducement. We leave open the argument
that suppression could be required in the right case where the alleged unlaw-
ful coercion occurs after obtaining consent but before completion of the search,
because, conceivably, such unlawful conduct could be used to prevent a defendant
from revoking or limiting a previously obtained voluntary consent. However, that
is not the argument that defendant asserts.
762 State v. Tate
voluntary, because that consent was derived from a viola-
tion of his rights under Article I, section 12, of the Oregon
Constitution, and the Fifth and Fourteenth Amendments
to the United States Constitution. Defendant argues that,
although the trial court suppressed his statements under
ORS 136.425(1),2 the argument applies because the consti-
tutional analyses and the statutory analysis are the same.
Defendant argues that, under the standard articulated in
State v. Jarnagin, 351 Or 703, 277 P3d 535 (2012), the officers
used his involuntary statements to induce him to provide
the DNA sample and, thus, the sample must be suppressed.
We agree with defendant that we have recognized
that ORS 136.425(1) and Article I, section 12, “contain
coextensive voluntariness requirements” and we have not
employed separate analyses with respect to those author-
ities. State v. Benson, 313 Or App 748, 756-57, 495 P3d
717 (2021) (defendant’s arguments in the trial court under
Article I, section 12, and the Fifth Amendment preserved
for appeal his arguments under ORS 136.425(1)). In addi-
tion, the state does not argue on appeal that defendant’s
statements following Fitzgerald’s conduct were voluntary
under Article I, section 12. Thus, we proceed to address
defendant’s argument that his consent to the buccal swab
was derived from that constitutional violation.
The remedy for an Article I, section 12, violation
extends not only to a defendant’s statements made in response
to the violation “but also to the physical and testimonial evi-
dence that is a product of that violation.” Jarnagin, 351 Or
at 716. Under Jarnagin, we look to the totality of the circum-
stances to determine whether physical evidence is derived
from or a product of an earlier violation. Id. In making that
inquiry, we consider, among other things, the nature of the
violation, the amount of time between the violation and the
consent to search, whether the suspect remained in custody
during that time, subsequent events that may have dissi-
pated the taint of the earlier violation, and the use that the
state has made of the statements obtained in violation of
2
ORS 136.425(1) provides, “A confession or admission of a defendant, whether
in the course of judicial proceedings or otherwise, cannot be given in evidence
against the defendant when it was made under the influence of fear produced by
threats.”
Cite as 315 Or App 751 (2021) 763
Article I, section 12. Id. at 716. The inquiry is fact inten-
sive and requires us to determine whether, considering all
the circumstances, defendant’s decision to consent to and
submit to the buccal swab is sufficiently a product of the
Article I, section 12, violation that suppression is necessary
to vindicate his Article I, section 12, rights. Id.
Here, we conclude that defendant’s consent and
submission to the buccal swab was not derived from or the
product of the violation of his Article I, section 12, rights.
The nature of the violation was not flagrant. Fitzgerald did
put coercive pressure on defendant to be “honest” in rela-
tion to her being able to develop a safety plan so defendant
could continue to parent. However, although we have stated
such statements can be an inducement requiring suppres-
sion under ORS 136.425(1), State v. Hogeland, 285 Or App
108, 119-20, 395 P3d 960 (2017), Fitzgerald’s conduct was
not flagrant, as the Supreme Court has explained that term
with respect the derivation analysis under Jarnagin. See
Jarnagin, 351 Or at 717 (a violation was not flagrant where
officers failed to recognize that the circumstances were com-
pelling and required Miranda warnings, as compared to a
flagrant violation where “officers advised defendant of his
Miranda rights and then proceeded to question him despite
his repeated requests for counsel”). At the time of the viola-
tion, defendant had already received proper Miranda warn-
ings, had voluntarily waived those rights and made several
voluntary statements, including that he had no reason to
believe his DNA would be found on M, and had voluntarily
consented to the buccal swab. At no point did defendant seek
to assert a right to counsel or to remain silent. In that light,
the nature of the violation in relation to defendant’s submis-
sion to the swab is tempered, particularly as Fitzgerald’s
conduct was focused on defendant making honest state-
ments and not on overriding any assertion of his rights.
Although the violation and defendant’s subsequent
submission to the buccal swab was close in time, any taint
from the violation is significantly dissipated by defendant’s
prior voluntary consent to the swab and his failure to man-
ifest at any time any change of heart about giving that
consent. See Parnell, 278 Or App at 268-69 (holding that,
where the defendant’s consent to police to enter his home
764 State v. Tate
preceded the unlawful police trespass, defendant’s argu-
ment that his consent was tainted by police illegality failed).
In addition, upon Rossiter’s return, he reminded defendant
of his Miranda rights and that he had consented to the swab
before he left. Rossiter found out that Miller had told defen-
dant that the medical report was taken when M was 17, and
discussed that with defendant, who continued to adamantly
maintain that he had no reason to believe that his DNA
would have been found on M. Defendant then complied with
opening his mouth and having both of his cheeks swabbed
by Rossiter. The trial court found that defendant submitted
to the search to which he had already consented, and the
evidence supports that finding. Given the sequence of events
presented here, and considering all of the circumstances, we
conclude that defendant’s consent to the buccal swab was
not sufficiently derived from or a product of any Article I,
section 12, violation such as to necessitate suppression of
that evidence.3
Affirmed.
3
Defendant does not separately develop any arguments under federal law
to support his contention that the DNA evidence must be suppressed under the
Fifth and Fourteenth Amendments. Accordingly, we reject that contention. See,
e.g., State v. McNeely, 330 Or 457, 468, 8 P3d 212, cert den, 531 US 1055 (2000)
(declining to address undeveloped argument under the federal constitution).