State v. Mast ( 2020 )

809
Argued and submitted November 6, 2019, reversed and remanded
January 23, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
HENRY LLOYD MAST,
aka Henry L. Mast,
Defendant-Appellant.
Douglas County Circuit Court
18CR03904; A168339
459 P3d 938
Defendant appeals from a judgment of conviction for driving under the influ-
ence of intoxicants and failure to perform the duties of a driver that was entered
following defendant’s conditional guilty plea to those crimes. Defendant assigns
error to the trial court’s partial denial of his motion to suppress statements that
defendant made in response to interrogation by the police, as well as the results
of field sobriety tests and a breath test, arguing that that evidence was obtained
in violation of defendant’s rights within Article I, section 12, of the Oregon
Constitution. Held: The trial court erred when it failed to suppress (1) all of the
unwarned statements made by defendant, because the trial court determined
that defendant was interrogated in compelling circumstances; (2) defendant’s
post-Miranda statements, because the belatedly administered Miranda warn-
ings were ineffective to ensure a knowing and voluntary waiver of defendant’s
Article I, section 12, rights; and (3) the results of the field sobriety tests and the
breath test, because those results derived from the earlier Miranda violations.
Reversed and remanded.
William A. Marshall, Judge.
Jesse Wm. Barton argued the cause and filed the brief
for appellant.
Philip Thoennes, 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 Shorr, Judge, and
James, Judge.
SHORR, J.
Reversed and remanded.
810 State v. Mast
SHORR, J.
Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants, ORS 813.010,
and failure to perform the duties of a driver, ORS 811.700,
entered following defendant’s conditional guilty plea to those
crimes. Defendant assigns error to the trial court’s partial
denial of his motion to suppress statements that he made in
response to interrogation by the police, as well as the results
of field sobriety tests and a breath test, arguing that that
evidence was obtained in violation of defendant’s Miranda
rights. Because defendant was interrogated in compelling
circumstances without the benefit of Miranda warnings, the
trial court erred when it failed to suppress all of defendant’s
unwarned statements made in response to that interroga-
tion. Additionally, we conclude that, because the belatedly
administered Miranda warnings were ineffective to ensure
a knowing and voluntary waiver of defendant’s rights within
Article I, section 12, of the Oregon Constitution, and the field
sobriety tests and breath test results derived from the ear-
lier Miranda violation, the trial court erred when it failed
to suppress defendant’s post-Miranda statements and the
results of those tests. Accordingly, we reverse and remand.
We review the denial of a defendant’s motion to sup-
press for legal error and are bound by the trial court’s express
factual findings if evidence in the record supports them.
State v. Taylor, 296 Or App 278, 279, 438 P3d 419 (2019). We
state the facts consistently with that standard. At around
1:40 a.m., on December 23, 2017, Deputy VanDrimmelen of
the Douglas County Sheriff’s Office was notified that the
Oregon State Police had discovered a pickup truck that was
crashed and abandoned on the side of a road. VanDrimmelen
located the truck in a ditch. It was locked with the win-
dows up. VanDrimmelen noticed that there were valuable
items inside the truck, no keys were visible, and there was
no damage to the ignition. From a license plate search,
VanDrimmelen determined that defendant was the regis-
tered owner of the truck. VanDrimmelen attempted to talk
to defendant at his home, but no one answered the door.
After VanDrimmelen left defendant’s house, the
sheriff’s dispatcher informed VanDrimmelen that defendant
Cite as 301 Or App 809 (2020) 811
had reported his vehicle stolen. VanDrimmelen spoke with
defendant on the phone, and defendant agreed to meet
VanDrimmelen at the crash site. A friend of defendant’s
drove him to the site, which was in a rural location with no
streetlights. VanDrimmelen arrived at the crash site after
defendant along with two other deputies, Schreiber and
Ruble. All three were in uniform and had firearms in plain
view. Each deputy arrived in a separate police vehicle, all
of which were parked at the scene. At least one of the police
vehicles’ overhead lights was activated.
After the deputies arrived, VanDrimmelen spoke
with defendant, who appeared intoxicated and smelled
of alcohol. While VanDrimmelen spoke with defendant,
Schreiber and Ruble stood behind defendant to his left and
right. VanDrimmelen and Schreiber recorded the conversa-
tion on their body cameras. VanDrimmelen inquired about
the reported theft, but defendant had difficulty recalling
when the truck was stolen. The two continued to engage
in casual conversation, and defendant told VanDrimmelen
that he had been drinking at an office Christmas party
that evening. VanDrimmelen continued to question defen-
dant about the reported theft and asked defendant why he
waited several hours to report his truck stolen. Defendant
responded that he did not report the theft until he arrived
home and his wife questioned him about the missing vehi-
cle. Shortly after that exchange, defendant volunteered that
he had been drinking since 5:00 p.m. that evening. None of
defendant’s statements offered before this point were chal-
lenged either at trial or on appeal.
VanDrimmelen and defendant continued to speak
about the truck and defendant’s evening, until VanDrimmelen
stepped away briefly. When he returned, VanDrimmelen
told defendant that it was “only fair to be * * * honest,” and
that he would “lay some stuff out for [defendant].” At that
point, VanDrimmelen began to confront defendant with his
belief that defendant had lied about the theft of his truck:
“I’m gonna advise you of something. Okay. If I catch you
in a lie, there’s all sorts of, there’s all sorts of other things
that come, that go with that, a bunch of criminal charges
and you don’t want that. Okay. I’m gonna tell you right now
812 State v. Mast
I’ve been doing this job a long time. He’s been doing this job
a long time. And that guy over there has been doing this
job a really long time. So your truck, the, the reason I’ll
just tell you right now that I don’t think it was stolen is it’s
locked. It’s locked and there was no keys in it. So I, we’ve
been down this road a bunch of times. Don’t even talk. I’m
gonna, I’m gonna lay some stuff out for you.
“* * * * *
“And I’m gonna give you one chance to be honest about
everything and then, otherwise it’s gonna turn into a whole
different mess. Okay.
“* * * * *
“This neighbor over here actually witnessed a lot of
things and so one of the things that I will do is I will walk
over there. And so if we don’t clean up this mess prior to me
walking over there and he points you out as * * * the guy
that left, because he’s the guy that’s also reported it, then
we’re gonna have a lot of problems.
“* * * * *
“So why don’t you tell me how it really got crashed. I, it
was not stolen. I, I can tell you right now it’s not. I, I have
been doing this job a long time.
“* * * * *
“So * * * let’s clean up the mess and not do the misuse of
911 and the false report and all of that other stuff. What
happened?”
At the conclusion of VanDrimmelen’s statement,
defendant admitted to driving. VanDrimmelen asked defen-
dant to tell him what happened, which led to the following
exchanges:
“[VanDrimmelen]: You’ve been drinking and driving.
And that’s fair and I mean we’ll just call it as it is, right?
“[Defendant]: Yeah.
“* * * * *
“[VanDrimmelen]: So * * * tell me about the crash. You
were just driving too fast or you’re just—
“[Defendant]: I just fucked up.
Cite as 301 Or App 809 (2020) 813
“[VanDrimmelen]: Okay. Fair enough.
“[Defendant]: So.
“[VanDrimmelen]: So [Deputy Schreiber] here has a
few questions and he wants you to go through and he wants
the same thing as honest, honest, honest.”
Schreiber assumed control of the investigation from
that point on, and his interactions with defendant were
recorded on Schreiber’s body camera. Before questioning
defendant further, Schreiber read defendant his Miranda
rights, and defendant indicated that he understood.
After asking a series of medical questions, Schreiber
told defendant “I know you just told [VanDrimmelen] but,
but I just want to make sure. You were at the Christmas
party and having a couple of drinks. Okay. What time did
you have your last drink?” Schreiber asked a series of ques-
tions about that night to determine how long defendant had
been drinking and the type and quantity of alcohol he con-
sumed, which prompted defendant to again admit that he
had been drinking. Next, Schreiber asked defendant about
the crash, and defendant explained that he was not paying
attention to the road. Schreiber again referred to defendant’s
conversation with VanDrimmelen before asking defendant
to perform field sobriety tests:
“And [a friend] took [you] home and then you decided to
make a report and all of that stuff? And * * * because you
came clean we’re gonna probably forget all of that stuff.
You know what I mean?
“* * * * *
“But, but we have the whole drinking and driving that
we’ve got to deal with. So do you want to [do] a couple of
field sobriety tests for me?
“* * * * *
“Okay. It’s up to you. I have to give you the option. If you
don’t want to do them, then I read you a card. I say that you
refuse them and we kind of go on from there.”
Defendant responded by agreeing to take the test,
first asking if it would “make any difference” for the depu-
ties. Schreiber answered, telling defendant that he believed
814 State v. Mast
defendant was drunk and that the field sobriety tests were
“kind of [his] opportunity to make [Schreiber] believe that
[he was] not drunk.” Schreiber administered the field sobri-
ety tests, during which defendant exhibited signs of impair-
ment. Defendant was arrested, detained in handcuffs, and
transported to jail.
At the jail, Schreiber asked defendant a series of
procedural booking questions before asking defendant to
consent to a breath test. As part of that process, Schreiber
read defendant the DMV implied consent form, which
explains the penalties associated with refusing or failing a
breath test in Oregon. Defendant consented to the breath
test. The test, which was administered just before 4:00 a.m.,
indicated that defendant’s blood alcohol content was above
the legal limit.
Defendant was charged with driving under the
influence of intoxicants and failure to perform the duties
of a driver. Defendant filed a motion to suppress “all state-
ments attributed to the defendant after [VanDrimmmelen]
told [defendant], ‘Let me just kind of lay some stuff out for
you, okay?’ ” as well as “any and all derivative evidence,”
arguing that the circumstances became compelling after
that statement, and thus required Miranda warnings in
accordance with Article I, section 12. Defendant also chal-
lenged the adequacy of the belatedly administered Miranda
warnings.
In response, the state argued that the circumstances
were not compelling and, if the circumstances were com-
pelling, that only the pre-Miranda statements should be
suppressed. The state also argued that the results of defen-
dant’s field sobriety tests and breath test were not derived
from the earlier Miranda violation.
The trial court concluded that defendant was in
compelling circumstances during his conversation with
VanDrimmelen “because of the implicit threats of prosecution
for the false report and misuse of 911, and [VanDrimmelen]
declaring that he knew that the vehicle was not stolen, with
enumerated reasons.” Accordingly, the court suppressed
defendant’s statement that he was driving. But the court did
Cite as 301 Or App 809 (2020) 815
not suppress any of defendant’s other pre- or post-Miranda
statements, the results of the field sobriety tests, or the
results of the breath test. The court explained that defen-
dant’s decision to consent to the tests was not the product
of the earlier Miranda violation, due to the “change of inves-
tigating officer and the change of the nature of question-
ing, plus the intervening Miranda warning[s].” Following
the court’s partial denial of his motion to suppress, defen-
dant entered a conditional guilty plea, reserving the right
to appeal the trial court’s denial of his motion to suppress in
accordance with ORS 135.335(3).
On appeal, defendant contends that, because
VanDrimmelen failed to give Miranda warnings before he
interrogated defendant under compelling circumstances, as
required by Article I, section 12,1 the court’s failure to sup-
press all of defendant’s unwarned statements during that
conversation was error. Additionally, defendant argues that
the court erred by failing to suppress evidence derived from
the earlier Miranda violation, specifically, all statements
that defendant made after the belated Miranda warnings
administered by Schreiber, as well as the results of the field
sobriety tests and the breath test.
The state concedes that the trial court erred when
it failed to suppress all of defendant’s unwarned statements
made after the circumstances became compelling. But, the
state asserts that the trial court correctly denied defen-
dant’s motion with respect to defendant’s statements to
Schreiber after he was given Miranda warnings, because
those warnings, although belated, were sufficient to ensure
that defendant’s waiver of his Miranda rights was knowing
and voluntary. The state also argues that the court’s refusal
to suppress the results of the field sobriety tests and the
breath test was not error because defendant voluntarily con-
sented to those tests. Because the resolution of each issue
will affect defendant’s decision on remand whether to with-
draw his conditional guilty plea, both parties request that
1
Defendant also argues that the Fifth Amendment to the United States
Constitution requires suppression of defendant’s unwarned statements. Because
we address defendant’s state constitutional argument first, and reverse on that
basis, we do not reach defendant’s federal constitutional argument. See Sterling
v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981).
816 State v. Mast
we address the admissibility of all the challenged evidence
in this case. We do so below.
Article I, section 12, provides that “[n]o person shall
be * * * compelled in any criminal prosecution to testify
against himself.” To protect a person’s right against com-
pelled self-incrimination under that section, police must
give Miranda warnings before interrogating a suspect who
is in custody or compelling circumstances. State v. Nichols,
361 Or 101, 107, 390 P3d 1001 (2017). Miranda warnings
are required “to ensure that a waiver of the rights conferred
by Article I, section 12, is knowing as well as voluntary.”
State v. Vondehn, 348 Or 462, 480, 236 P3d 691 (2010). If
the police fail to give Miranda warnings to a suspect in
custody or compelling circumstances, all statements made
in response to unwarned questioning must be suppressed.
State v. Grimm, 290 Or App 173, 178, 414 P3d 435, rev den,
363 Or 283 (2018).
As noted, the trial court concluded that defendant
was in compelling circumstances, specifically pointing to
VanDrimmelen’s insistence that the vehicle was not stolen
and the “implicit threats of prosecution for the false report
and misuse of 911.” The state does not challenge the court’s
conclusion that defendant was in compelling circumstances.
Accordingly, the state concedes that the court erred when it
failed to suppress all of defendant’s unwarned statements.
We agree and accept the state’s concession.
We turn to the remaining evidence defendant seeks
to suppress, beginning with the statements that defendant
made after Schreiber belatedly administered Miranda
warnings. Whether post-Miranda statements must be sup-
pressed when the Miranda warnings are belatedly given
turns on whether the state has established that the warn-
ings were “effective.” Vondehn, 348 Or at 480. The Supreme
Court has explained that, to determine whether belatedly
administered Miranda warnings are effective, we consider
“all relevant circumstances,” including
“the completeness and detail of the questions and answers
in the first round of interrogation, the overlapping con-
tent of the statements given by the suspect, the timing
and setting of the first and second interrogation sessions,
Cite as 301 Or App 809 (2020) 817
the continuity of police personnel, the degree to which the
interrogator’s questions treated the second round of inter-
rogation as continuous with the first, and whether the
police cautioned that the earlier unwarned statement could
not be used in any subsequent prosecution.”
Id. at 482. The focus of that inquiry is “not on the subjective
intent of the police but on the objective message that the
police actually convey by the techniques that they use and
the warnings that they give.” Id. at 483.
Applying that holding in Vondehn, the court deter-
mined that the state had established that the belated
Miranda warnings were effective. Id. at 486. There, the
police arrested the defendant and placed him in the back
seat of a patrol car. The officer then asked the defendant
whether he owned a backpack found in the car in which
defendant had been riding and whether it contained mari-
juana. The defendant answered yes to both those questions.
At the officer’s request, the defendant also consented to a
search of the backpack, which yielded incriminating evi-
dence. After consulting with another officer for five minutes,
the officer gave the defendant Miranda warnings and con-
tinued to question him. Id. at 483-85.
In determining that the Miranda warnings were
effective to ensure that the defendant made a knowing and
voluntary waiver of his Article I, section 12, rights, the court
observed that the unwarned questioning lasted less than a
minute and was “routine in nature,” whereas the warned
questioning was “significantly more detailed and probing.”
Id. at 485. Further, there was a break between the rounds
of questioning that was sufficient to indicate that “the situ-
ation had changed,” given the brevity of the first set of ques-
tions. Id. The court also noted that, although the officer did
not caution the defendant that his unwarned statements
could not be used against him, he did not indicate to the
defendant that he had all the incriminating information
necessary for a prosecution. Id. at 486.
In contrast to the circumstances in Vondehn, in
State v. Edgar, 297 Or App 193, 205, 441 P3d 234 (2019),
we determined that belated Miranda warnings were inef-
fective to obtain a waiver from the defendant of his Article I,
818 State v. Mast
section 12, rights. In that case, two deputies pulled the
defendant over for a traffic violation. During that stop, the
deputies saw a plastic bag that appeared to contain a drug-
like substance. When the defendant declined to acknowl-
edge the existence of the bag, the deputies forced the defen-
dant to exit his vehicle at taser point. The deputies asked
the defendant what was in the bag, and the defendant gave
an incriminating response. At that point, the deputies gave
Miranda warnings to the defendant, and repeated that same
question, followed by several more, to which the defendant
responded. Id. at 196-97.
We concluded that the deputies did not “present
defendant with an opportunity to make a genuine and
informed choice of whether to subsequently waive his
Article I, section 12, rights.” Id. at 205. In so concluding, we
observed that the effectiveness of belated Miranda warn-
ings exists on a spectrum: “[O]n the one end, the unwarned
and warned interrogations blend into one continuum, and
at the other, they present markedly different experiences.”
Id. at 200 (internal quotation marks and brackets omitted).
Although the first unwarned interrogation was “very short”
and the second warned interrogation was “significantly
broader and lasted much longer,” the other relevant factors
and circumstances weighed against finding that the warn-
ings were effective. Id. at 203. In particular, we noted that
“there was no break in time” between the unwarned and
warned interrogations, the defendant “remained in the coer-
cive circumstance of being ordered out of his vehicle at taser
point,” and “the same deputies continued to ask defendant
questions along the same line of their unwarned inquiry.”
Id. at 205.
Returning to defendant’s post-Miranda statements
here, the state contends that the Vondehn factors weigh
against suppression, highlighting the difference in com-
pleteness and detail of the questions and answers between
the first and second rounds of interrogation and the change
of police personnel. We acknowledge that the questions
posed by VanDrimmelen were fewer and less detailed than
those posed by Schreiber. But, unlike the questioning in
Vondehn, VanDrimmelen’s questioning was not “routine
Cite as 301 Or App 809 (2020) 819
in nature.” Rather, it consisted of a lengthy explanation of
VanDrimmelen’s belief that defendant had lied and made a
false police report about a stolen car, was likely guilty of driv-
ing while intoxicated, and was subject to additional criminal
penalties unless he confessed. In addition, defendant’s incul-
patory statements to each officer were the same in substance.
Although Schreiber’s questioning revealed more about the
type and quantity of alcohol that defendant had consumed,
defendant’s most important admissions—that he was drink-
ing at a Christmas party, attempted to drive home, and ulti-
mately crashed his truck—were the same.
The state is correct that, with respect to the ques-
tioning, there was a change in the police personnel. But
that change was significantly undercut by the fact that
Schreiber was present for defendant’s entire conversation
with VanDrimmelen, and Schreiber referred back to that
conversation more than once while he questioned defendant.
By referencing the previous round of questioning, Schreiber
communicated to defendant that he was present and had
heard the admissions that defendant made moments earlier.
And, Schreiber’s comment that defendant would likely not be
subject to criminal penalties for his false report because he
“came clean” was directly related to VanDrimmelen’s prior
implicit threats of prosecution to obtain defendant’s confes-
sion. Those references served to create a continuous line of
questioning, erasing any “break” between the unwarned and
warned questioning that the change in personnel might
otherwise have provided.
Further, the first and second rounds of interro-
gation occurred at the same place and with no break in
time. Immediately after defendant admitted to drinking
and driving, and told VanDrimmelen that he “fucked up,”
VanDrimmelen introduced Schreiber into the conversation.
And, considering VanDrimmelen’s insistence that Schreiber
wanted “the same thing as honest, honest, honest” at that
moment of transition, the two rounds of questioning were
not “markedly different experiences” but “blend[ed] into one
continuum.” Edgar, 297 Or App at 200.
Finally, neither VanDrimmelen nor Schreiber cau-
tioned defendant that his earlier unwarned statements could
820 State v. Mast
not be used in any subsequent prosecution. Although not
required, such a caution might have created a more mean-
ingful opportunity for defendant to “make a genuine and
informed choice” of whether to waive his Article I, sec-
tion 12, rights. Id. at 205. Therefore, we conclude that the
belatedly administered Miranda warnings were not effec-
tive to ensure a knowing and voluntary waiver of defendant’s
Article I, section 12, rights. Thus, the trial court erred when
it declined to suppress defendant’s post-Miranda statements
that he made to Schreiber.
The final issue is whether the trial court erred in
failing to suppress the results of the field sobriety tests and
the breath test. Defendant contends that the results of those
tests derived from the preceding Miranda violation, because
his decision to perform each test was “causally connected
to the officers’ illegality.” Conversely, the state argues that
defendant’s consent to perform the field sobriety tests and
the breath test was voluntary and thus sufficient to attenu-
ate the taint of the preceding Miranda violation.
When an officer violates a defendant’s Miranda
rights, we suppress not only statements made directly in
response to the unwarned questioning, but also “evidence
that derives from or is a product of that constitutional viola-
tion.” State v. Jarnagin, 351 Or 703, 713, 277 P3d 535 (2012).
To determine whether evidence derives from an earlier
Miranda violation, we examine the totality of the circum-
stances, including
“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. at 716.2 Because defendant consented to perform the field
sobriety tests and the breath test, we look to the Jarnagin
2
Although applying some similar factors, the analysis set forth in Jarnagin
differs from the analysis in Vondehn to determine the effectiveness of belated
Miranda warnings to remedy an earlier Miranda violation. See Jarnagin, 351
Or at 716 n 8 (noting that the analysis for determining whether evidence derives
from an earlier Miranda violation “does not apply to statements made in direct
response to questions posed in violation of Miranda” and that “a different calculus
Cite as 301 Or App 809 (2020) 821
factors to determine whether defendant’s decision to per-
form those tests “broke the causal chain between the prior
Article I, section 12, violation” and the test results. State v.
Swan, 363 Or 121, 131, 420 P3d 9 (2018). The state bears
the burden of production and persuasion to show that defen-
dant’s decision to consent was not the product of the earlier
violation of defendant’s Article I, section 12, rights. Id. at
133. The following case illustrates that analysis.
In Taylor, we concluded that the state failed to
prove that the defendant’s decision to take a breath test
did not derive from the earlier violation of that defendant’s
Article I, section 12, rights. 296 Or App at 296. There, the
officer arrested the defendant for driving under the influ-
ence of intoxicants and administered Miranda warnings.
Id. at 281. The defendant told the officer that she did not
understand the warnings. At that point, the officer con-
ducted a standardized alcohol influence interview and read
the implied consent form to the defendant. Ultimately, the
defendant consented to a breath test. Id. at 281-82. First,
we explained that, because the defendant did not under-
stand the Miranda warnings, she could not validly waive
her rights, and, therefore, the statements that she made
were presumptively involuntary. Id. at 285-86. Next, we
looked to the Jarnagin factors to determine whether the
defendant’s consent to the breath test was derived from
that Miranda violation. Although we did not consider the
nature of the violation particularly flagrant, the amount of
time between the interview and the breath test, and the
fact that the defendant remained in custody weighed in
favor of suppression. Id. at 288-92. And notably, we were not
persuaded that the implied consent form for the breath test
dissipated the taint of the violation. Id. at 294. Ultimately,
we concluded that the interview and the breath test were
“part and parcel of the same DUII protocol; both were
administered in the same custodial setting, by the same
officer, and were designed to gather evidence of defendant’s
impaired driving, as admitted in defendant’s unlawfully
applies when a defendant remains in custody and officers seek to remedy an ear-
lier Miranda violation”). The parties do not dispute that the Jarnagin test applies
to whether the trial court should have suppressed the results of the field sobriety
and breath tests.
822 State v. Mast
elicited inculpatory statements.” Id. at 295. Thus, the defen-
dant’s “admissions that she had been drinking and should
not have been driving left little of incriminating potential
unsaid, other than her precise BAC and were inextricably
intertwined with [the officer] seeking, and obtaining, the
breath test results.” Id. at 295-96 (internal quotation marks
omitted).
Applying the Jarnagin factors in this case, we
conclude that both the field sobriety tests and breath test
results derived from the earlier Miranda violation. Although
the field sobriety tests and breath test were administered at
different times and locations, those differences do not sig-
nificantly affect our analysis given the continuous nature of
the encounter. Therefore, we analyze both the field sobriety
tests and breath test together.
Beginning with the nature of the violation in this
case, it is significant that VanDrimmelen obtained defen-
dant’s cooperation by impliedly threatening to arrest defen-
dant for additional crimes. Although Schreiber later told
defendant that they would not pursue additional charges
because defendant had “come clean,” defendant’s “coming
clean” was the confession that the officers obtained in vio-
lation of his Article I, section 12, rights. As a result, defen-
dant’s decision to consent to each test was likely tainted by
the “specter of arrest” for other charges used to gain his
cooperation during the initial investigation. State v. Heise-
Fay, 274 Or App 196, 209-10, 360 P3d 615 (2015) (holding
that consent to search was not voluntary where it was the
product of ongoing Miranda violations that included a threat
to arrest the defendant unless she cooperated).
With regard to the other Jarnagin factors, the state
concedes that the temporal and custodial factors weigh in
defendant’s favor. As in Taylor, there was no meaningful
change in time or circumstance between the Miranda vio-
lation and defendant’s performance of each test. The entire
encounter lasted less than two hours, from the time defen-
dant arrived at the scene through defendant’s participation
in the field sobriety tests and to the administration of the
breath test at the jail. Defendant remained in compelling
circumstances throughout the encounter.
Cite as 301 Or App 809 (2020) 823
The state argues, however, that the Miranda warn-
ings, as well as Schreiber’s explanations to defendant that
his decision to perform each of the tests was voluntary, dis-
sipated the taint of the earlier violation. Given, as we dis-
cussed above, that the recitation of Miranda rights here did
not sufficiently inform defendant of those rights, we are not
persuaded that they attenuated the taint of the violation with
respect to the field sobriety and breath tests. And, before the
breath test, Schreiber’s request for consent was simultane-
ous with his reading of the implied consent form, which we
considered insufficient to attenuate the taint of the violation
in Taylor. See also Swan, 363 Or at 135-36 (observing that,
although “advising a DUII suspect of the consequences of
refusing to take a breath test [does] not render the suspect’s
decision to take the breath test involuntary,” doing so “is
intended to weight the suspect’s decision towards taking the
test”).
Lastly, we look to the state’s use of the unwarned
statements to “consider what use the police made of the
suppressed statements in obtaining the [field sobriety and]
breath test results.” Taylor, 296 Or App at 295 (internal
quotation marks omitted). Here, defendant admitted that he
had been drinking and driving prior to his crash and that
he “fucked up.” Those admissions “left little of incriminat-
ing potential unsaid” beyond the quantity of alcohol defen-
dant consumed and the duration of that consumption. Id.As in Taylor, both the field sobriety and breath tests were
“designed to gather evidence of defendant’s impaired driv-
ing, as admitted in defendant’s unlawfully elicited incul-
patory statements.” Id. That is, the tests were designed to
obtain additional evidence to confirm what defendant had
already admitted.
Further, as we explained above, Schreiber was pres-
ent for and heard the entire conversation between defendant
and VanDrimmelen. Schreiber referenced defendant’s con-
versation with VanDrimmelen more than once before ask-
ing defendant to perform the field sobriety tests. In doing so,
Schreiber informed defendant that Schreiber was aware of
defendant’s prior inculpatory admissions to VanDrimmelen
and believed defendant was intoxicated. As a result,
824 State v. Mast
defendant’s decisions to consent to the field sobriety tests
and the breath test were potentially affected by both the
inculpatory nature of defendant’s unwarned statements and
defendant’s awareness that Schreiber had heard them. See
Swan, 363 Or at 132 (explaining that a defendant’s inculpa-
tory answers to unwarned interrogation are more likely to
affect a defendant’s decision to take a breath test, whereas
a defendant’s exculpatory answers to unwarned interroga-
tion are less likely to affect a defendant’s decision to take a
breath test). Thus, defendant’s admissions that he had been
drinking and driving prior to his crash “were inextricably
intertwined with [Schreiber] seeking, and obtaining” both
the field sobriety and breath test results. Taylor, 296 Or App
at 295-96.
In sum, we conclude that (1) the trial court erred
when it failed to suppress all of the unwarned statements
defendant made to VanDrimmelen, because the trial
court determined that defendant was interrogated by
VanDrimmelen in compelling circumstances; (2) the trial
court erred when it failed to suppress defendant’s post-
Miranda statements, because the belatedly administered
Miranda warnings were ineffective to ensure a knowing
and voluntary waiver of defendant’s Article I, section 12,
rights; and (3) the trial court erred when it failed to sup-
press the results of the field sobriety tests and the breath
test, because those results derived from the earlier Miranda
violations.3
Reversed and remanded.
3
Because defendant entered a conditional guilty plea, we do not engage in a
harmless error analysis. Taylor, 296 Or App at 297.