State v. D. S. ( 2023 )

96 November 8, 2023 No. 584
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of D. S.,
a Youth.
STATE OF OREGON,
Respondent,
v.
D. S.,
Appellant.
Multnomah County Circuit Court
21JU01376
Petition Number 210317048
A177097
Francis G. Troy II, Judge.
Argued and submitted October 10, 2023.
Erica Hayne Friedman argued the cause for appellant.
Also on the brief was Youth, Rights & Justice.
Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and David B. Thompson, Assistant
Attorney General.
Before Egan, Presiding Judge, and Kamins, Judge, and
DeVore, Senior Judge.
KAMINS, J.
Affirmed.
Nonprecedential Memo Op: 329 Or App 96 (2023) 97
KAMINS, J.
Youth entered a conditional admission to one count
of what, if committed by an adult, would constitute the mis-
demeanor crime of unlawful possession of a firearm, ORS
166.250. On appeal, youth assigns error to the juvenile
court’s denial of his motion to suppress evidence obtained as
a result of police questioning and a search of his vehicle. We
affirm.
Youth attended a house party during which gun-
shots were fired, prompting a visit from law enforcement.
While investigating that incident, officers questioned the
partygoers, including youth, and obtained consent to search
youth’s vehicle. The search of youth’s car revealed a handgun.
On appeal, youth first argues that the juvenile court
erred in denying his motion to suppress because he was in
compelling circumstances but was not provided Miranda
warnings before police questioned him. See State v. Roble-
Baker, 340 Or 631, 638, 136 P3d 22 (2006) (before question-
ing a suspect, police must provide Miranda warnings if that
person is either in “full custody or in circumstances that cre-
ate a setting which judges would and officers should recog-
nize to be compelling” (internal quotation marks omitted)).
To determine whether circumstances are “com-
pelling, “ Oregon courts rely on a number of nonexclusive
factors, including: “(1) the location of the encounter * * *;
(2) the length of the encounter, * * *; (3) the amount of
pressure exerted on the defendant * * *; and (4) the defen-
dant’s ability to terminate the encounter[.]” Id. at 640-41.
In deciding whether a defendant was in compelling circum-
stances, we “will consider all the circumstances, and [our]
overarching inquiry is whether the officers created the sort
of police-dominated atmosphere that Miranda warnings
were intended to counteract.” Id. at 641. We review the trial
court’s decision for legal error. State v. Ehly, 317 Or 66, 75,
854 P2d 421 (1993).
We conclude that the fourth factor favors youth
because of his young age and high level of intoxication and
because he was not free to terminate the encounter, and
the second factor, considering the length of the encounter,
98 State v. D. S.
is neutral. The overall detention period lasted for at least
an hour, but the individual interaction periods between the
officers and youth appear to have been brief.
However, the first and third factors—location of
the encounter and amount of pressure exerted on the defen-
dant—favor the state’s position. The location of the encoun-
ter—inside a house youth was visiting—appears to have
been comfortable, youth was not arrested or handcuffed, the
officers’ questions were not aggressive, coercive, or repetitive,
and youth was held at the scene along with all other party-
goers so that officers could investigate a crime unrelated to
him and ensure the guests’ ongoing safety. Viewing the cir-
cumstances in their totality, we conclude that youth was not
in compelling circumstances such that Miranda warnings
were necessary prior to the police questioning. See State v.
N. J. D. A., 322 Or App 26, 32-36, 519 P3d 125 (2022) (hold-
ing that a 14-year-old youth was not in compelling circum-
stances where he was not alone with the officer, the location
was comfortable, he was not treated as a suspect, the officer’s
questions were not repetitive, escalating, or aggressive, and
the length of the encounter between youth and the officer
was less than 10 minutes); State v. Phillips, 302 Or App 618,
632, 459 P3d 909, rev den, 366 Or 552 (2020) (holding that
a “low-key” police encounter that involved multiple officers,
“did not last overly long,” “did not include threats, promises
of leniency, or accusations that defendant was lying,” and
involved a “few straightforward questions of defendant” did
not amount to compelling circumstances).
And for the same reasons that these circumstances
are not compelling for purposes of Article I, section 12, we
conclude that they also do not amount to a formal arrest
for purposes of the Fifth Amendment. See State v. Dunlap,
215 Or App 46, 58, 168 P3d 295 (2007) (determining that
where compelling circumstances were not present, the cir-
cumstances were also not comparable to those associated
with formal arrest). The juvenile court correctly refused to
suppress youth’s statements to the police as well as the evi-
dence that was discovered as a result of those statements.
Second, youth argues that his agreement to allow
the police to search his vehicle did not constitute voluntary
Nonprecedential Memo Op: 329 Or App 96 (2023) 99
consent, so the evidence obtained as a result of the search
must be suppressed. To establish that consent is voluntarily
obtained under both the Oregon and federal constitutions,
the state must establish that, “under the totality of the cir-
cumstances, the consent was given by an act of a defendant’s
free will as opposed to resulting from express or implied
coercion.” State v. Jordan, 308 Or App 547, 552, 481 P3d
1017 (2021); State v. Tate, 315 Or App 751, 761, 501 P3d 1064
(2021), rev den, 369 Or 733 (2022).
Youth and the state disagree regarding whether
facts in the record, viewed in their totality, indicate that the
atmosphere surrounding the consent was coercive or threat-
ening. Again reviewing for legal error, State v. Venturi, 166
Or App 46, 50, 998 P2d 748 (2000), we conclude that the dep-
uty obtained valid consent from youth before searching his
vehicle. Despite the circumstance of youth’s age weighing
against consent being voluntary, State v. Scott, 82 Or App
645, 649, 729 P2d 585 (1986) (“age is * * * one factor to be
considered in determining * * * whether the minor’s consent
was knowing and voluntary”), the other circumstances indi-
cate that the consent was voluntary. The language and tone
of the deputy’s request were not coercive, and it cannot be
said that his words “left defendant with the impression that
a search was inevitable.” Jordan, 308 Or App at 553. Nor was
youth individually targeted or isolated during the search
request—the deputy asked youth and another individual
(neither of whom were suspects) whether he could search
their vehicles to secure the scene. See State v. Magana, 265
Or App 416, 422, 335 P3d 318 (2014) (noting a factor rel-
evant to voluntariness includes “whether the person who
gives consent is the subject of an investigation” (internal
quotation marks omitted)). Further, there is no evidence
that “physical force was used or threatened,” that “weap-
ons were displayed,” or that the “atmosphere surrounding
the consent [was] antagonistic or oppressive.” Jordan, 308
Or App at 553-54 (holding that defendant’s consent was
not voluntary where the officer made the request to search
multiple times, placed his hands on defendant’s outerwear
during the request, accused defendant of committing crimes
prior to the request, had already taken substantial steps to
100 State v. D. S.
begin the search, and defendant and the officer were stand-
ing alone in an isolated location).
All in all, under the totality of the circumstances,
we conclude that the state carried its burden of establish-
ing that youth’s consent to the search was voluntary. We
reach the same conclusion under the Fourth Amendment, as
the voluntariness test under federal law “is essentially the
same as the test under the Oregon Constitution[.]” Tate, 315
Or App at 761. The juvenile court therefore properly denied
suppression of the evidence discovered in the vehicle.
Affirmed.